APPEAL by the plaintiffs, in an action pursuant to RPAPL article 15 to establish title to real property by adverse possession, as limited by their brief, from so much of a judgment of the Supreme Court (W. Denis Donovan, J.), dated April 17, 2007, and entered in Westchester County, as, after a non-jury trial, is in favor of the defendant Town of Bedford and against them with respect to a portion of the disputed property.
The opinion of the court was delivered by: Spolzino, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., ROBERT A. SPOLZINO, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.
This appeal presents the unusual situation in which a municipality is required to defend against an adverse possession claim. The critical issue, however, is whether several aerial photographs of the subject property were properly admitted into evidence. We conclude that one set of such photographs was properly admitted and that those photographs were sufficient to support the Supreme Court's determination, at the conclusion of this non-jury trial, that the plaintiffs had failed to establish their adverse possession of a portion of the property. We, therefore, affirm the judgment insofar as appealed from.
The plaintiffs purchased a residence on Dwight Lane in the Town of Bedford in 1993. In the furtherance of its open space preservation program, the Town purchased a much larger parcel, adjoining the plaintiffs' residence, on December 10, 2004. The plaintiffs commenced this action in June 2005, alleging that they had adversely possessed a small piece of the larger parcel since 1994. Thus, although an adverse possession claim will not normally lie against property held by a governmental entity in its governmental capacity (see Gallo v City of New York, 51 AD3d 630; Kings Park Yacht Club, Inc. v State of New York, 26 AD3d 357), the plaintiffs could prevail by demonstrating that their claim had ripened into title prior to December 10, 2004.
Since the plaintiffs' claim was not based upon a written instrument, they were required to demonstrate that the subject property was either "usually cultivated or improved" or "protected by a substantial enclosure" (RPAPL 522, ) for the 10-year statutory period (see Gore v Cambareri, 14 AD3d 650; Casini v Sea Gate Assn., 262 AD2d 593, 594). The plaintiffs undertook to satisfy this burden by testifying that they had improved the subject property by cutting trees, leveling the area, erecting a retaining wall, and installing an irrigation system. Their testimony was supported by the testimony of several neighbors as to their recollections of the status of the plaintiffs' property in 1994 and several photographs showing work being done on the property. Although the photographs were undated, the plaintiffs asserted that they could be placed within the relevant time frame by reference to the ages of the plaintiffs' children as shown in the photographs.
The Town's defense centered upon aerial photographs of the property, purportedly taken in 1995 and 1996, together with the testimony of an expert in analyzing aerial photographs that enlargements of those photographs showed none of the improvements alleged by the plaintiffs to have been made by that time. The Supreme Court found the aerial photographs to be convincing and, on that basis, dismissed the bulk of the plaintiffs' claim, awarding judgment in their favor only with respect to a very small portion of the property that they had claimed.
The standard by which we consider an appeal from a judgment entered upon a decision after a non-jury trial is well established. "As this case was tried without a jury, this Court's authority is as broad as that of the trial court, and this Court may render a judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499)" State Farm Mut. Auto Ins. Co. v Stack,AD3d, 2008 NY Slip Op 07651 [2d Dept 2008]; see Chambers v McIntyre, 5 AD3d 344, 344 [citations omitted]; Warm v State of New York, 308 AD2d 534, 535-536). Since the 1995 aerial photographs, together with the expert's testimony as to what the photographs demonstrated, provided a sufficient basis for the Supreme Court's determination, the judgment must be affirmed insofar as appealed from if, contrary to the plaintiffs' argument, the 1995 photographs were properly admitted into evidence. We conclude that the 1995 aerial photograph and enlargements were properly admitted, but that the 1996 aerial photograph and enlargements were not.
Initially, the Town argues that the plaintiffs did not timely object to the introduction of the 1995 aerial photograph into evidence, so as to preserve for appellate review the argument that they make here. While it is true that the plaintiffs' counsel declined to object when that photograph was first offered, he did argue, in the colloquy that followed, that the photograph did not constitute a business record. It cannot be said, therefore, that the plaintiffs failed to alert the Supreme Court to their concerns with respect to the admissibility of the 1995 photograph and its enlargements, as it must before their argument will be considered to be unpreserved (see CPLR 4017; Gallegos v Elite Model Mgt. Corp., 28 AD3d 50, 59).
A photograph is generally admissible as a depiction of a fact in issue upon proof of its accuracy by the photographer or upon testimony of one with personal knowledge that the photograph accurately represents that which it purports to depict (see People v Patterson, 93 NY2d 80, 84; People v Byrnes, 33 NY2d 343, 347). Aerial photographs are admissible on the same basis (see Jarvis v Long Is. R.R. Co., 50 Misc 2d 769, 774, affd 25 AD2d 617). Here, however, the Town apparently was unable to present a witness who had the requisite knowledge of the property in 1995 or 1996. As a result, the Town offered the aerial photographs as hearsay statements admissible under the business records exception to the rule against hearsay. It is on this basis that we consider their admissibility.
The business records exception to the hearsay rule, as codified in New York, provides that "[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518 [a]). To these statutory requirements, the case law has added that "not only must the entrant be under a business ...