Adam Leitman Bailey, P.C.’s client is a commercial developer with numerous holdings throughout the City, including many former commercial properties that it has repurposed. In this case, our client purchased two adjacent buildings in Manhattan with the intent to combine them into a new property. One of the buildings was immediately leased back to its former owner – a commercial enterprise with numerous locations – that continued to use the ground floor of the building as a branch of its business for many years. The former owner only used the ground floor of the building and had no access to, nor any knowledge of, a usable second floor. Unbeknownst to our client, the building of on the other side of the subject property had a dedicated stairwell that led from its own building to a second floor that spanned both their, and our client’s building; and the owners of that adjacent building had been subletting the entire space to retail businesses for many years.

When the leaseback to the former owner finally ended and our client took possession of the building, it began extensive renovations, during which it discovered both the existence of the second floor space and the neighbor’s tenants using it for their retail businesses. Adam Leitman Bailey, P.C. commenced summary holdover proceedings in civil court against the next door building’s owners and their tenants, both to evict the neighbor’s tenants and for use and occupancy. The Respondents both answered with a defense claiming ownership of the disputed second floor through adverse possession and then moved for summary judgment on the same bases grounds. Adam Leitman Bailey, P.C.’s client was left with two options: address the summary judgment motion in the civil court action, or move in Supreme Court to quiet title. After reviewing the relative weakness of the Respondent’s proofs – which consisted almost entirely of self-serving statements by its principal and attorney – and in light of the very limited discovery permitted in Civil Court summary proceedings, ALBPC determined that the most efficient and effective course of action would be to proceed under the summary proceeding, confident that the Civil Court was in the best position to see through Respondent’s frivolous assertion and give the client faster and less expensive relief.

Adam Leitman Bailey, P.C. mounted a vigorous defense, both attacking Respondents’ vague and unclear evidence, and noting the multitude of disputed alleged facts raised by Respondents. Moreover, harnessing our extensive experience with adverse possession law in New York, ALBPC presented numerous facts clearly proving adverse possession could never lie – including the fact that Respondent’s purported adverse possession of a second floor space that our clients did not know existed, to which it had no access, and that was only reachable by a hidden staircase within the

Respondent’s own building was the exact opposite of the “open and notorious” possession legally required for and assertion of adverse possession; Adam Leitman Bailey, P.C. also strategically cross-moved to dismiss Respondent’s affirmative defenses and for the right to take limited discovery so that, among other things, it would have the opportunity for a final reply, in case Respondent’s tried to present any new arguments or evidence in their own reply.

This strategy proved to be prescient and wildly successful. As predicted, on reply, Respondents attempted to correct the numerous deficiencies in its original motion papers by submitting even more self-serving affidavits, submitted entirely new documents, and making brand new arguments that did not merely refute Adam Leitman Bailey, P.C.’s opposition papers. Adam Leitman Bailey, P.C. was then able to use its reply to successfully convince the court that all of these new arguments and evidence – which, even if admitted, would still fail to meet even the barest adverse possession claim – must be rejected that that, as lacking a basis in fact and law for their adverse possession, and that the summary judgment motion must be defeated.

In a one page decision and order received barely one month after the motion was fully submitted, the Civil Court denied Respondents’ summary judgment motion in full, based on their original filings – and so tacitly rejecting arguments and evidence improperly raised on reply; and, in an extraordinarily rare instance for summary holdover proceedings, granted Adam Leitman Bailey, P.C. its complete request for both written discovery and depositions of Respondents to explore their claims.

As planned, this strategy proved to be both timely and cost effective, quickly narrowing the issues and putting Respondents on notice both that the Court would not easily accept their tenuous adverse possession claim and that it would cost them real money to continue litigating.

Adam Leitman Bailey, P.C. Partners Eric S. Askanase, Dov Treiman, and John Desiderio secured the victory for and continue to represent the building owner in this matter.