City defeats adverse possession claim

Filomio Truck Sales. Image Credit: Google Maps.

Trucking company fenced in and used City land that had been mapped as a City street. On July 27, 1967, the City condemned a parcel of land owned by the Filomio family and located at 3870 Boston Road in the Bronx. The City condemned the parcel, referred to as Damage Parcel 43, in order to complete a road expansion project. The family did not object to the taking and was compensated by the City. The Filomio family continued using the remaining property not condemned until February 1968, when the family transferred ownership of the property to the family business, Filomio Truck Sales.

The City never built the road but kept the property as a mapped street. At some point, Filomio Truck Sales began using Damage Parcel 43.

In 2019, Filomio Truck Sales sued the City of New York, claiming Filomio Truck Sales gained ownership of Damage Parcel 43 through adverse possession by occupying the Parcel and maintaining a fence around the Parcel beginning on March 19, 1980. The City responded by bringing a trespass action against Filomio Truck Sales.

Supreme Court Justice Mitchell J. Danziger rejected Filomio’s argument and agreed with the City that Damage Parcel 43 was government land since it was located on a mapped street. It did not matter that the construction of the street was not completed. Judge Danziger also agreed with the City that Filomio Truck Sales was a trespasser. It had no interest in Damage Parcel 43 because at the time that the Parcel was condemned, the Filomio family owned the parcel, not Filomio Truck Sales.

The Appellate Division, First Department, affirmed, ruling that the property, a mapped street, was held by the City in its governmental capacity and was therefore immune from adverse possession. Mapped streets are inalienable and can only be acquired from the City by a statutory conveyance procedure set out in the City’s Administrative Code.

Filomio Truck Sales v. City of NY, 138 N.Y.S.3d 339 (1st Dep’t 2021).

Editor’s Note: Filomio’s subsequent motion to leave for appeal was later denied by the Court of Appeals. (Filomio Truck Sales v. City of NY, 37 N.Y.S.3d 915 (N.Y. 2021)).

By: Victoria Agosta (Victoria is a former CityLaw intern and a New York Law School graduate, Class of 2022.)


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