Comment 05 - Adverse Possession of State Land

Comment 05


Adverse Possession of State Land

Kings Park Yacht Club, Inc., v State of New York, No. 027216/1996 (Supreme Court, Suffolk County, July 21, 2004).[i]

By deed in 1895, the Supervisor of Kings County conveyed to the State of New York title to more than 155 acres of land on the Nissequogue River at Kings Point New York for the operation of a psychiatric hospital. Until closed in 1997, the state operated the Kings Park Psychiatric Hospital at the site. Subsequently, portions of the land, including those upon which plaintiff Kings Park Yacht Club operates a yacht club, were transferred to various state agencies pursuant to the Public Lands Law. The land occupied by the plaintiffs is now under the jurisdiction of the Office of Parks, Recreation and Historic Preservation, and known as the Nissequogue State Park.

Plaintiffs brought a declaratory judgment action claiming fee title to or easement over the land it occupies based upon a claim of adverse possession. The court found that under § 522 of the Real Property Actions and Proceedings Law that the property must have been subject to either cultivation and improvement or protection by a substantial enclosure. In addition, the plaintiff must establish, under the common law of adverse possession, occupation of the land which was hostile, under claim of right, open and notorious, exclusive and continuous for the statutory period (citations omitted). The court then engaged in an analysis of the proof introduced by the parties relevant to statutory and common law adverse possession.

The court determined that the plaintiff’s evidence demonstrated the Yacht Club had moved to its present location on state property in 1962, when state hospital officials granted plaintiffs permission to move a float there. Then, in 1971 plaintiff sought and was granted permission by the same officials to permanently secure a barge with chains and backfill to the shore, and to improve it with electricity and toilet facilities for use by Club members. In 1985, the Yacht Club requested and was granted permission to erect a gate across the road leading to the property the Club occupied. The land is also improved by a building housing a generator, and is bulkheaded, with numerous docks and moorings for use by the Club’s members.

On the other hand, the defendant State produced written evidence that in several instances the Yacht Club openly acknowledged that the state owned the land plaintiff’s occupied. Several certificates of insurance between May of 1986 and May of 1993 for general liability insurance coverage issued on applications submitted by the plaintiff’s officers, list the certificate holder as Kings Park Psychiatric Center. In addition, a 1991 application for the renewal of the Yacht Club’s liquor license, the plaintiff listed the State of New York as the owner of the premises on which the license was issued.

Following these findings, the court engaged in a lengthy and detailed discussion of the law of adverse possession.

This case is both interesting and curious because of the analysis engaged in by the court in its written decision, and the ultimate result. Once the court determined that the State owned the land, it held that, as a matter of law, plaintiff’s claim of adverse possession was without merit under the rule that land held in a public or governmental capacity may not be lost by adverse possession (City of New York v. Sarnelli Bros., Inc., 280 A.D.2d 513, 720 N.Y.S.2d 555; Starner Tree Service Company, Inc. V City of New Rochelle, 271 A.D.2d 681, 707 N.Y.S.2d 867). The court held "[t]he proof adduced by the defendant State clearly established that the disputed acreage was held by the defendant in its public or governmental capacity." (West Center Congregational Church v. Efstathiou, 215 A.D.2d 753, 627 N.Y.S.2d 727; Litwin v. Huntington, 208 A.D.2d 905, 617 N.Y.S.2d 888, cf.; Walsh’s Inc. County of Oswego, 9 A.D.2d 118, 449 N.Y.S.2d 116). With this ruling, the court effectively rendered its discussion of statutory and common law adverse possession unnecessary.

The case does, however, represent a strong vindication of public rights, as the plaintiff Yacht Club was found to have established no interest of any kind in the land, and has been ordered to vacate the state property by September 30, 2004.




[i] Kings Park Yacht Club, Inc. v. State, 26 A.D.3d 357, 809 N.Y.S.2d 551 (2006).



The Secretary of State is authorized to provide assistance to local governments and general information to the public pursuant to New York State Executive Law, Article 6-B.  The information in this Memorandum is provided pursuant to that authorization, but is informal only and should not be construed as providing legal advice. Local governments and other persons or entities should consult with their own legal counsel for legal advice.