State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 518926 

________________________________

LOUIS LINDINE,

Plaintiff,

and

MARTHA LINDINE,

Appellant, MEMORANDUM AND ORDER

v

SUZANNE IASENZA,

Respondent.

________________________________

Calendar Date: June 4, 2015

Before: Garry, J.P., Rose, Devine and Clark, JJ.

__________

Lawler Mahon & Rooney, LLP, New York City (Christopher S.

Rooney of counsel), for appellant.

David E. Woodin, LLC, Catskill (David E. Woodin of

counsel), for respondent.

__________

Devine, J.

Appeals (1) from an order of the Supreme Court (Elliott

III, J.), entered September 26, 2013 in Greene County, which

granted defendant's motion to dismiss the complaint, and (2) from

an order of said court, entered March 7, 2014 in Greene County,

which denied a motion by plaintiff Martha Lindine for, among

other things, leave to amend the complaint.

This action involves a dispute amongst family members over

real property located in the Town of Windham, Greene County. 

Plaintiff Louis Lindine (hereinafter Lindine) was a first cousin
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of defendant. In 1968, Lindine's parents and defendant's parents

purchased the property in question as tenants in common. Lindine

and his wife, plaintiff Martha Lindine (hereinafter plaintiff),

began residing at the property in 1984. Following the death of

Lindine's father in December 1991, Lindine's mother deeded her

interest in the property to Lindine and plaintiff. Several years

later, defendant's parents deeded to her their interest in the

property. Lindine and plaintiff commenced this action in early

2012, seeking a judgment declaring them to be the exclusive

owners of the property. Supreme Court granted defendant's motion

to dismiss the complaint for failure to state a cause of action,

and thereafter denied plaintiff's motion seeking leaves to

reargue and to amend the complaint. Plaintiff appeals from both

orders.1

Plaintiff first argues that, because the complaint, when

read in conjunction with the submissions offered in opposition to

defendant's motion to dismiss, set forth a viable cause of

action, Supreme Court erred in ordering dismissal pursuant to

CPLR 3211 (a) (7). We disagree. A motion to dismiss for failure

to state a cause of action may be granted if "the facts alleged

do not 'fit within any cognizable legal theory'" (Hyman v

Burgess, 125 AD3d 1213, 1214 [2015], quoting Leon v Martinez, 84

NY2d 83, 87-88 [1994]). The law that would have provided Lindine

and plaintiff a valid legal claim with regard to the underlying

property dispute is RPAPL 541, which provides that, "[w]here the

relation of tenants in common has existed, the occupancy of one

tenant . . . is deemed to have been the possession of the other,

notwithstanding that the tenant so occupying the premises . . .

has claimed to hold adversely to the other. But this presumption

1 Lindine died in June 2013, while the motion to dismiss

was pending. While "it is [ordinarily] true that when a

plaintiff dies all proceedings as a matter of law are stayed

until an order of substitution is made" (Bova v Vinciguerra, 139

AD2d 797, 799 [1988]; see CPLR 1015, 1021), such was not required

here because plaintiff, already a party in this action, acquired

Lindine's interests in the property upon his death (see Thibodeau

v Martin, 119 AD3d 1015, 1015 n 1 [2014]; Bova v Vinciguerra, 139

AD2d at 799).
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shall cease after the expiration of ten years of continuous

exclusive occupancy by such tenant, . . . or immediately upon an

ouster by one tenant of the other and such occupying tenant may

then commence to hold adversely to his [or her] cotenant." It is

well settled that, "absent ouster, the period required by RPAPL

541 is 20 years of continuous exclusive possession before a

cotenant may be said to acquire full title by adverse possession"

(Myers v Bartholomew, 91 NY2d 630, 638 [1998]).

We reject plaintiff's contention that she and Lindine ever

ousted defendant or defendant's parents from the property. An

ouster will not be deemed to have occurred unless the possessory

cotenant, either through words or actions, unequivocally

expresses to the nonpossessory cotenant that the property is

being adversely possessed (see id. at 633; Bank of Am., N.A. v

414 Midland Ave. Assoc., LLC, 78 AD3d 746, 749 [2010]; Guardino v

Colangelo, 262 AD2d 777, 779 [1999]). Lindine stated under oath

that he was present for a late 1991 conversation during which

defendant's mother agreed to transfer her interest in the

property to plaintiff and Lindine. When Lindine broached this

topic with defendant's mother several weeks later, however, she

purportedly stated that he would "never have enough money to buy

[her] out" and that she would refuse to pay any future carrying

costs on the property in light of plaintiff and Lindine's

permanent occupancy of it. According to Lindine, he responded by

stressing to defendant's mother that he and plaintiff regarded

the property as their home and that they would remain there

indefinitely. Even accepting as true all of these averments, and

according plaintiff every favorable inference that might be drawn

therefrom (see e.g. Bank of Am., N.A. v 414 Midland Ave. Assoc.,

LLC, 78 AD3d at 748), they prove little more than exclusive use

of the property by Lindine and plaintiff that did not rise to the

level of an ouster (see Russo Realty Corp. v Orlando, 30 AD3d

499, 500-501 [2006]; Perez v Perez, 228 AD2d 161, 162-163 [1996],

lv dismissed 89 NY2d 917 [1996]). 

Plaintiff alternatively contends that, even if no ouster

has been established, she and Lindine adversely possessed the

property, given their exclusive use of it for more than two

decades (see RPAPL 541). In support of this argument, plaintiff

emphasizes that she and Lindine paid all taxes and expenses for
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the property, and made all necessary repairs to its structural

improvements. Defendant never visited the property during the

years that plaintiff and Lindine lived there permanently and

defendant's parents, it is claimed, only did so twice. Even

accepting these allegations as true, "exclusive possession and

the payment of maintenance expenses by a [possessory] cotenant

are[, standing alone,] insufficient to establish a claim of right

for purposes of adverse possession as against a cotenant"

(Loveless Family Trust v Koenig, 77 AD3d 1447, 1449 [2010]; see

Russo Realty Corp. v Orlando, 30 AD3d at 500-501). Moreover, to

the extent that plaintiff and Lindine can be said to have

exercised a 20-year-long level of financial protection of the

property such as might reinforce a claim of adverse possession,

Lindine's inclusion of defendant's name on a homeowner's

insurance policy when, within several years of this action's

commencement, he renewed that coverage, amounted to an implicit

recognition of defendant's continued interest in the property

(compare Galli v Galli, 117 AD3d 679, 680-681 [2014]). Because

neither the complaint nor the submissions of Lindine and

plaintiff in opposition to defendant's motion to dismiss could

permit a finding of adverse possession, Supreme Court properly

concluded that the complaint failed to state a cause of action

and dismissed it.

Turning to the motion for leave to reargue and for leave to

amend the complaint, the denial of the former relief was not

appealable (see Schillaci v Sarris, 122 AD3d 1085, 1087 [2014]). 

As for that part of Supreme Court's order denying leave to amend

the complaint, we reject defendant's contention that it is not

appealable. Nevertheless, "[i]t is proper to deny . . . leave to

amend the complaint to re-assert a cause of action that was

previously dismissed" (Dialcom, LLC v AT & T Corp., 50 AD3d 727,

728 [2008]). To the extent that the proposed amended complaint

can be viewed as asserting any claim that is meaningfully

distinct from that in the original complaint, Supreme Court

properly exercised its discretion in finding the motion to be

untimely and prejudicial to defendant (see Pagan v Quinn, 51 AD3d

1299, 1300-1301 [2008]).

Garry, J.P., Rose and Clark, JJ., concur.
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ORDERED that the orders are affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court