Merget v. Westbury Properties, LLC

Fisher, J,

dissents, and votes to affirm the judgment appealed

from, with the following memorandum: I respectfully dissent. An essential element of adverse possession is possession under a claim of right (see Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154, 159 [1996]). In Walling v Przybylo (7 NY3d 228 [2006]), the Court of Appeals held, in effect, that even a claim of right made in bad faith is sufficient for purposes of adverse possession provided that, during the statutory period, the possessors do

*1106not betray their bad faith by acknowledging what they know to be the true ownership of the…