TABLE OF CONTENTS

TABLE OF CONTENTS .

. .

. .

. .

. . . i

TABLE OF AUTHORITIES .

. . ii

PRELIMINARY STATEMENT.

. .iii

QUESTION PRESENTED . .

.vii

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . viii

PROCEDURAL HISTORY . . . . . . . . . . . . . . . . . . . ix
ARGUMENT
POINT I
STATHIS HAS FAILED TO SATISFY
THE ELEMENTS NECESSARY TO
SHOW THAT IT OWNS THE LAND
BENEATH THE ONE STORY BUILDING
BY ADVERSE POSSESSION

.1

POINT II
SIMILAR TO THE LAND BELOW IT,
STATHIS DOES NOT OWN THE AIR
RIGHTS ABOVE THE ONE STORY
. . . . . . . . . . . . 5
BUILDING
POINT III
THE LOWER COURT CORRECTLY
FOUND THAT AIR RIGHTS CANNOT
BE ACQUIRED THROUGH ADVERSE
POSSESSION . . . . . . . . . . . . . . . . . . . . . 7
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . 9

TABLE OF AUTHORITIES
CASES

PAGE

Almeida v. Wells
74 A.D.3d 1256, 904 N.Y.S.2d 736 (2d Dep't 2010) . . . . . 1
Chatsworth Realty 344 LLC v.
Hudson Waterfront Co. A, LLC
2003 WL 1085888 (Sup. Ct. N. Y. Co. 2003) . . . . . . . . . 8
Landgray Assocs. v.
450 Lexington Venture, L.P.
788 F. Supp. 776 (S.D.N.Y. 1992)

Macmillian, Inc. v. CF Lex Associates

56 N.Y.2d 386, 452 N.Y.S.2d 377 (1982) . . . . . . . . . 6,7
Robbins v. Schiff
106 A.D.3d 1215, 964 N.Y.S.2d 749 (3d Dep't 2013) . . . . . 4
Simpson v. Kao
2 2 2 A. D. 2d 6 6 6, 63 6 N. Y. S . 2 d 7 0 ( 2 d Dep ' t 19 95) . . . . . . 4
Stone Realty LLC v. Soho 54, LLC
2008 Slip Opinion 332539 (Sup. Co. N. Y. Co.) . . . . . . . 7
Winchell v. Middleton
226 A.D.2d 1009, 641 N.Y.S.2d 298 (3d Dep't 1996) . . . . . 4
1380 Madison Avenue, L.L.C. v.
17 East Owners Corp. (Sup. Ct. N.Y. Co. 2003) . . . . 7,8,9

ii

PRELIMINARY STATEMENT
Plaintiff-respondent
("Respondent")

Hudson

respectfully

opposition of the

instant

Square

submits

appeal

Hotel

this

seeking

LLC
in

brief

reversal

of the

Decision and Order issued by Supreme Court, New York County

(Madden,

J.)

dated March 10,

2015 and entered by the New

York County Clerk on March 23,

the

Court

granted

2015

Respondent's

(the "Order")

motion

to

the

in which
extent

of

granting summary judgment on its first and second causes of

action

and

Enterprises

dismissing
LLC

defendant-appellant

("Stathis")

("Celebrity") (sometimes

and

Celebrity

On

or

Corporation
New

York,

about
("Canal

New

York

August

10,

Realty")

198 9'

purchased

( "48 9 Canal") .

(R.

Vision

LLC

"Appellants")

collectively

affirmative defenses and counterclaims.

Stathis

(R. 6-14).
489

Canal

Realty

48 9

Canal

Street,

33-35) .

4 8 9 Canal

Street is an irregular shaped lot located on Canal Street

between Watts Street and Renwick Street. From the inception
of Canal Realty's purchase of it, 489 Canal Street was used
as an outdoor parking lot.

On or about October 19,

2004,

Canal Realty transferred 489 Canal Street to 489 Southwest

Canal St. Inc.

("Southwest")

(R.37-45). On or about October

9, 2013, Southwest transferred 489 Canal to Respondent.

29-31).

iii

(R.

North

of

and next

door

to

4 8 9 Canal

Street

buildings known as and located 495 Canal Street,

New York
York

("495 Canal")

("497 Canal").

are

the

New York,

and 497 Canal Street, New York,

New

Stathis is the owner of both 495 Canal

and 497 Canal Street.

This

case centers

upon

the

land beneath a

one

story

building located on the rear of 489 Canal. Stathis, in June

2006,

began constructing a

story

building.

immediately
Buildings
the

In

response,

called

( "DOB")

issuance

second story on top of the one

the

New

Respondent's
York

which issued a

of

stop

City

predecessor

Department

stop work order.

work

order,

the

of

Despite

second

floor

extension was erected and remains to date.

Respondent
second
trespass

floor
and

contends
on

the

that

one

encroachment

Stathis's

story
upon

construction of

building
a

portion

constitutes
of

489

a
a

Canal.

While it concedes the encroachment, Stathis alleges that it

owns the land beneath the one story building on 489 Canal
through adverse possession and,

as a

result,

Stathis also

owns the air rights above it.

As
elements
beneath

discussed herein,
necessary
the

one

to

Stathis

establish

has
that

failed
it

story building by adverse

more fully set forth herein,

to meet

owns

the

the
land

possession.

As

a party asserting a claim of

iv

adverse

possession

instrument

must

which

show

is

that

not
it

founded

on

cultivated,

to

meet

this

requirement.

In

written

improved

substantially enclosed the property at issue.

failed

or

Stathis has

addition

to

its

testimony in which Stathis's principal admitted that he did

not

cultivate

building or

or

the

improve

the

building

land beneath

itself,

Appellants

the

one

story

concede

that

they did not erect the one story building or substantially

enclose the land beneath it in anyway.
one

story building

was

there

does

The fact that the

not

satisfy

Stathis's

obligation of substantial enclosure. Based upon its failure

to meet this requirement,
owns

the

land beneath

Stathis cannot establish that it

the

one

story building by adverse

possession.
Even

if

it

could demonstrate

that

it

owns

the

land

beneath the one story building through adverse possession,

the

lower Court correctly found

that

Stathis cannot meet

the statutory time period required to show ownership of the

second story by adverse possession and that Stathis cannot
acquire the air rights over the one story building through
adverse

possession.

Absent

from Appellants'

brief

is

any

authority whatsoever to establish that an adverse possessor

acquires

air

rights

above

the

through adverse possession.

property

it

claims

to

own

Based upon the foregoing and for the reasons discussed

herein, the Order should be affirmed in its entirety.

vi

QUESTION PRESENTED
Whether

the

lower

court

erred

in

finding

that

the

construction of the second story on the one story building

in 2006, when this action was commenced in 2008,

failed to

satisfy the ten year statutory period required for adverse

possession?
This question should be answered in the negative.
Whether the lower court erred in finding that a party
does
above

not
a

automatically
parcel

of

acquire

property

ownership

that

it

of

claims

air
it

rights
owns

adverse possession?
This question should be answered in the negative.

vii

by

STATEMENT OF FACTS
On or about June 18, 2006, Stathis, without requesting
permission

from

Respondent's

predeces$or

filing any plans or obtaining permits,

or

otherwise

began constructing

an second story on a one story building located at the rear

of

489

Canal

Street.

(R.21).

As

result,

predecessor called DOB which issued a

June 26,
was

2006.

issued,

(R.21,
a

46-48)

second

Respondent's

stop work order on

Even though a stop work order

floor

extension

was

nevertheless

erected on the one story building located at the rear of

489 Canal Street which remains there to date.
Prior

to

this

incident,

Stathis

(R. 22).

entered

into

an

agreement with Celebrity pursuant to which an illuminated

sign used for advertisement was erected on the side of 495
Canal Street.

(R. 22) . The illuminated sign encroaches upon

the air rights of 489 Canal Street.

While it still hangs on the wall of 495 Canal Street,
the

sign is no longer illuminated or otherwise used.

22) .

viii

(R.

PROCEDURAL HISTORY
On or about April
commenced

this

Complaint

(the

Respondent's

2 5,

action

by

2 008,
filing

"Complaint")

predecessor

(i)

encroachment;

to

remove

(ii)

the

Respondent's predecessor

(R.

Summons

4 9-58) .

asserted

five

(iii)

trespass; and (vi) private nuisance.

interposed

On or about April

filed.

New

York

motion

8,

discovery

2009

action:

2009,

( i v)

negligence;

with

Answer

(the "Answer").

(R.

59-

Respondent's predecessor
(the "Reply")

ensured and the

By Order dated March 30,

(Madden,

to

of

on or about

(R. 74-79.)

Thereafter,
was

causes

Amended

served a Reply to Counterclaims

April 8, 2009.

In the Complaint,

(R. 49-58).

an

Counterclaims on February 5,
73.)

Verified

an injunction, to compel Appellants

encroachments;

Appellants

and

granted

J.)

substitute

2014,

Note

as

upon an assignment of the claim, and

the

Issue

Supreme Court,

Respondent's

Respondent

of

predecessor's

plaintiff,

based

extended the parties'

time to move for summary judgment through May 30,

2014. (R.

29-31).
On
Order:

or
(i)

about

May

2014,

pursuant to CPLR 3212,

judgment on its first,

(ii)

30,

pursuant

to

Respondent

moved

for

an

granting partial summary

second and fourth causes of action;

CPLR

3211(b),

ix

dismissing

the

first,

second, third, fourth and fifth affirmative defenses in the

Answer;

and

dismissing
Answer.

(iii)
the

(R.

pursuant to CPLR 3211 (a) (1)

first

and

15-169).

second

Appellants

counterclaims

cross-moved

summary judgment on or about June 25,2014

response,
and

in

Respondents
Reply

on

14,

2015.

(7),

in

for

the

partial

(R. 170-205).

served an Affirmation

August

and/or

(R.

In

in Opposition
206-215)

and

Appellants served a Reply Affirmation in Further Support of

Cross-Motion on or about September 11, 2014.
By Decision and Order dated

March 12,

(R. 216-218).
2015,

Supreme

Court, New York (Madden, J.) granted Respondent's motion to

the extent of granting summary judgment on the

first

and

second causes of action and dismissing Appellants' defenses

and

counterclaims

and

denied

appeal ensued.

Appellants'

motion.

This

ARGUMENT
POINT I
STATHIS HAS FAILED TO SATISFY THE
ELEMENTS NECESSARY TO SHOW THAT IT OWNS
THE LAND BENEATH THE ONE STORY
BUILDING BY ADVERSE POSSESSION
As the cornerstone of its brief, Stathis contends that
it

owns

Canal

the

land beneath

the

one

through adverse possession.

story building
This

contention

on

489

remains

unsubstantiated.
In Almeida v. Wells,
(2d

Dep't

2010),

the

74 A.D.3d 1256,

Court,

in

finding

904 N.Y.S.2d 736

that

plaintiff

failed to acquire ownership of the subject property through

adverse possession, reasoned that:
'To claim title to real property by
adverse possession, in accordance with
the law in effect at the time this
action was commenced
[],
the party
seeking title must demonstrate that he
or she usually cultivated, improved or
substantially enclosed the land.
In
addition, the party claiming title must
demonstrate, by clear and convincing
evidence, satisfaction of the following
five common law elements of the claim
over the
course
of
the
applicable
statutory period:
( 1) the possession
must be hostile and under a claim of
right; (2) it must be actual; (3) it
must be open and notorious; ( 4) it must
be
exclusive;
and
(5)
it must be
continuous.'
[Emphasis
added
and
internal citations omitted].
74 A.D.3d 1258.

Without presenting any argument,

passing

that

Stathis

adverse

possession.

satisfies

the

Conspicuously

Appellants

claim in

necessary elements

absent

of

from Appellants'

brief is any explanation of how Stathis has satisfied each

of

the

necessary elements

presenting
Stathis

any

has

argument,

satisfied the

of

adverse

Appellants
requisite

possession.
baldly

Without

claim

elements.

that

Based upon

its failure to prove that it has met each element by clear

and

convincing evidence,

Stathis

has

failed

to

establish

that it owns the land beneath the one story building on 489
Canal.
In the brief,
that

he/ she

party

Appellants

claiming

cultivated,

acknowledge

adverse

the

requirement

possession must

show

that

improved or substantially enclosed the

land. However, Stathis has failed to meet this requirement.

At

his

documentary

deposition,
evidence

neither cultivated nor

as

Sam

Stathis,

support,

improved the

conceded

without
that

Q.

I'm looking at the second sentence

of
28
[of
the
Answer]
'that
Stathis, and Stathis's predecessor
in
interest
have
had
adverse
possession
of
the
land,
cultivating, using and enjoying it
for more than ten years, during
which
time
the
land has
been

Stathis

land beneath the

story building:

any

one

continuously
and
substantially
enclosed,' do you see that?
A.

Uh-huh.

Q.

What did you

land?

A.

Paint
it,
carpet,
concrete,
electric, the improvements.

Q.

When did you do all that?

A.

From -- I'm sure we put carpet in

the day we moved in, or the weeks
before getting
leading up to
the move in, and big work was in
the first 90's project.

Q.

But it says that you cultivated

the land, so I'm wondering what
that means specifically?

A.

I just told you what it means.

Q.

Painting, electricity?

A.

Improvements.

Q.

Do you have any

A.

We're not - we're not- we weren't

growing things. It wasn't used for
agricultural purposes.

Q.

I'm just looking at words here, I

didn't write
them,
just asking
what it is?

A.

I
believe
it's
a
synonym
for
improvements,
cultivating
it
in
today' s ..

Q.

Do you have any invoices, canceled

checks and proof of payment for
the improvements that you made?

do

to

cultivate

the

A.

I don't ...

R. 174-176.
In Simpson v. Kao, 222 A.D.2d 666, 636 N.Y.S.2d 70
Dep't 1995), the Court

fou~d

(2d

that defendants failed to show

that they cultivated or improved the land in dispute and,

as

result,

also,
(3d

could not establish adverse possession.

Robbins v. Schiff,
Dep't

106 A.D.3d 1215,

2013) (plaintiff

could

not

964 N.Y.S.2d 749

establish

cultivated or improved the subject property);

Middleton,

226

A.D.2d

1009,

See

that

it

Winchell v.

641

N.Y.S.2d

298

story

building

stands

(3d

Dep't

1996).
The

fact

that

one

on

the

portion of 489 Canal that Stathis claims it owns creates a

practical

difficulty

that

is

insurmountable

for

Stathis

because Stathis cannot show that it cultivated or improved

the land itself.

Similarly,

by his own testimony,

Stathis

lacks any evidence that it cultivated or improved the one

story
from

building.
the

payment

As

record
relating

Mr.

are
to

Stathis

any

himself

invoices,

any

concedes,

checks

improvements

purportedly made to the one story building.

or

absent

proof

of

that

Stathis

Thus,

Stathis

fails to prove that it cultivated or improved the one story

building or the land beneath it.

In

addition

improvement,

to

its

failure

Stathis

to

prove

cultivation

establish

cannot

or

substantial

enclosure. While it claims that it owns the land under the

one story building,
177)

Stathis admits on both the record

and in its brief that it:

story building; and (ii)

(i)

(R.

did not erect the one

does not know who erected it. The

fact that the one story building was already there does not
satisfy

Stathis's

result,

Stathis cannot show that it substantially enclosed

burden

of

substantial

enclosure.

As

the property beneath the one story building.

Because
improved

Stathis

or

cannot

substantially

show

enclosed

that

it

that

portion

cultivated,
of

the

property beneath the one story building which it claims it

owns,

Stathis

fails

to

satisfy the

elements

necessary to

establish that it owns the property beneath the one story

building by adverse possession.

POINT I I
SIMILAR TO THE LAND BELOW IT,
STATHIS DOES NOT OWN THE AIR RIGHTS
ABOVE THE ONE STORY BUILDING
Stathis alleges that it owns the air rights above the
one story building by virtue of its claim of ownership of
the land beneath it through adverse possession.
As

discussed

satisfy the

hereinabove,

elements

necessary to

Stathis

has

failed

establish that

to

it owns

the

land beneath

possession.

On

the

one

this

story building

basis

alone,

through

Stathis'

adverse

argument

is

erroneous.
Similar to the
Stathis

has

failed

land beneath the one

to

meet

the

story building,

necessary

elements

to

establish that it acquired ownership of the air space above

the

one

story

discussed

building

hereinabove,

through

Stathis

adverse

began

to

possession.
erect

As

second

floor on the one story building in 2006 and this action was
commenced in 2008. As the lower court correctly determined,
Stathis cannot meet the requisite ten year period necessary
for adverse possession.
It

is

undisputed

that

Respondent's

predecessors

and

now Respondent has and continues to pay the real property

taxes

for

489 Canal Street,

including the land under the

one story building.

In Macmillian,
386,

Inc.

452 N.Y.S.2d 377

v.

CF Lex Associates,

(1982),

the Court of Appeals noted

that:
... air rights
have historically
been conceived as one of the bundle of
rights associated with ownership of the
land rather than the ownership of the
structures erected on the land. Air
rights are incident to the ownership of
surface property
the right of one
who owns land to utilize the space
above
it.
This
right
has
been

56 N.Y.2d

recognized as an inherent attribute of

the
ownership
of
land
since
the
earliest times as reflected in the
maxim '[cujus est solum, ejus est usque
ad
coelum
et
ad
inferos'] ['to
whomsoever the soil belongs, he owns
also to the sky and to the depths"].
56 N.Y.2d at 392 and 393; see,

1380 Madison Avenue,

v. 17 East Owners Corp.,

(Sup. Ct. N. Y. Co. 2003)

that

property

an

owner

of

real

utilize all of its air space);

v.

Soho 54,

LLC,

possesses

see also,

the

L.L.C.
(finding

right

to

Stone Realty LLC

2008 Slip Opinion 332539

(Sup.

Co. N.

Y.

air

above

is

Co.)
While
derivative
owns

the

the

right

from

the

land

under

to

title
the

build
to
one

upon

land,
story

the

it

is

Respondent who

building

and,

as

result, it is Respondent who owns the air rights above it.

POINT III
THE LOWER COURT CORRECTLY FOUND THAT
AIR RIGHTS CANNOT BE ACQUIRED
THROUGH ADVERSE POSSESSION
Absent

from

Appellants'

brief

is

any

authority

for

Stathis's proposition that it acquired the air rights above

the one story building by virtue of its claim of ownership
of the land beneath it through adverse possession. In fact,
the case law which does exist disfavors a party acquiring
ownership of light and air through adverse possession.

In

1380 Madison Avenue

LLC v.

17 East Owners Corp.,

(Sup. Ct. N. Y. Co.), the Court found that

2003 WL 22383092

defendant failed to establish a claim to air space through

adverse possession reasoning that:
Moreover,

as

observed

Assocs.

450

Lexington

v.

in
Landgray
Venture, L.P.

(788 F. Supp. 776 [S.D.N.Y. 1992]),

one can never adversely use the light
and air from an adjacent property'
because access to the surrounding air
and
light
does
not
diminish
those
benefits to adjacent property owner or
notify it of any claim antagonistic of
the burdened property as compared to a
right
or
way
through
an
adjacent
property, which 'gives notice of the
user's claim, and injuries the owner by
making the owner's
interest in the
property less valuable'
Id.

at

3;

see

also,

Waterfront Co. A,
2003)

Chatsworth Realty

LLC,

(finding that

2003 WL 1085888

adverse

possession

344

LLC v.

Hudson

(Sup. Ct. N. Y. Co.

cannot

serve

as

basis to claim an easement to air and light) .

Similarly,

Respondent never knew or could have known,

prior to June 2006,

that Stathis was asserting any adverse

claim as against the air over the one story building. Until
June 2006,

Stathis never undertook any action with respect

to the air above the one story building.

"To constitute a proper basis for adverse possession,
the user must be inconsistent with the rights of the record

owner,

and must call for outright objection." 1380 Madison

Avenue LLC, supra.

Based

upon

it

failure

to

do

so,

Stathis

has

not

established a claim of adverse possession of the air space

over the one story building.

On this additional basis,

the

Order should be affirmed.

CONCLUSION
Based upon the foregoing,

it is respectfully requested

that this Court issue an Order:

2015

(i)

affirming the March 10,

Decision and Order issued by Supreme Court,

County

(Madden,

J.);

other and further

and

(ii)

relief as

New York

granting to Respondent
this

such

Court may deem just and

proper.
Dated:

New York, New York

March 23, 2016
LAW OFFICE OF ALLISON M. FURMAN, P.C.
Attorneys for Respondent
260 Madison Avenue, 15th floor
New York, New York 10016
(212)

By:

684~

{ij/(A
ALLISON M. FURMAN