SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS Appellate Term, Second Department
February 9, 2012
JOSEPH MALECKI AND LORRAINE MALECKI,
Appeal from a judgment of the District Court of Suffolk County, Sixth District (Stephen L. Ukeiley, J.), entered October 1, 2010.
Malecki v McGuire
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on February 9, 2012
PRESENT: MOLIA, J.P., NICOLAI and IANNACCI, JJ
The judgment, after a non-jury trial, dismissed the action.
ORDERED that the judgment is affirmed, without costs.
Plaintiffs brought this small claims action to recover for damages they had allegedly sustained when, in 2010, defendant had removed a portion of a fence plaintiffs had installed in 1979. Although plaintiffs did not hold a deed to the property upon which the fence had stood, at trial they claimed ownership pursuant to the doctrine of adverse possession. Defendant testified that, in 2001, he had acquired a deed to the contested property by purchase from the former title holder. Defendant further asserted that, on several occasions, he had informed plaintiffs that the fence was on his property and had to be moved or removed. The District Court, in dismissing the action, based its determination on plaintiffs' failure to prove any economic loss from the removal of the fence, without determining the ownership of the land.
The District Court properly concluded that it lacked jurisdiction to determine so much of plaintiffs' affirmative claim as was undergirded by a claim of title, by adverse possession, to the land on which the fence stood, as such relief may only be obtained in a proper forum (see Nissequogue Boat Club v State of New York, 14 AD3d 542 ; see also City of New York v Akbar's Self Help, Inc., 25 Misc 3d 129[A], 2009 NY Slip Op 52112[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiffs failed to establish damages by reason of defendant's actions, we find that the judgment dismissing the action rendered substantial justice in accordance with the rules and principles of substantive law (see UDCA 1807).
Accordingly, the judgment is affirmed.
Molia, J.P., Nicolai and Iannacci, JJ., concur.
Decision Date: February 09, 2012
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