Chatsworth Realty 344 LLC v. Hudson Waterfront Company A, LLC , 765 N.Y.S.2d 39 ( 2003 )

—Order, Supreme Court, New York County (Diane Lebedeff, J.), entered March 10, 2003, which granted defendants’ motion to dismiss the amended complaint and denied plaintiff’s cross motion for leave to serve a second amended complaint, unanimously affirmed, with costs.

Documentary evidence in the record demonstrates conclusively that neither plaintiff nor its predecessors ever acquired the disputed property — a three-foot-wide strip running north and south along the property line between West 71st and West 72nd Streets — by transfer of title. Nor has plaintiff pleaded the necessary elements to demonstrate acquisition by adverse possession, most notably, a hostile holding under a claim of right. Plaintiffs permissive use of the property, albeit for many years, negates the element of hostility necessary to establish a claim of adverse possession (Guariglia v Blima Homes, 89 NY2d 851 [1996]).

Plaintiff is unable to demonstrate, under the doctrine of practical location, that the parties have mutually agreed upon a new location of a previously disputed property demarcation line, or that plaintiff adversely possesses a portion of defendants’ property in defiance of defendants’ understanding of the boundary (see Lewis v Berleue, 48 AD2d 716 [1975]; Adams v Warner, 209 App Div 394, 397-399 [1924]). Further amended pleading is thus unwarranted.

Fundamentally at issue in this case is defendants’ interference with the unobstructed river view that plaintiff has enjoyed for the better part of a century. New York does not recognize an easement for light and air, except where created by express agreement (see Lafayette Auvergne Corp. v 10243 Mgt. Corp., 35 NY2d 834, 836 [1974]). Concur — Saxe, J.P., Rosenberger, Williams, Marlow and Gonzalez, JJ.