Opinion
06-29-2017
Robert McCONNELL, et al., Respondents, v. Sidney A. WRIGHT, et al., Appellants.
Teresa C. Mulliken, Harpersfield, for appellants. James M. Hartmann, Delhi, for respondents.
Teresa C. Mulliken, Harpersfield, for appellants.
James M. Hartmann, Delhi, for respondents.
Before: McCARTHY, J.P., EGAN JR., ROSE, DEVINE and MULVEY, JJ.
DEVINE, J.
Appeal from an order of the County Court of Delaware County (Lambert, J.), entered September 16, 2016, which granted plaintiffs' motion for summary judgment.
Plaintiffs and defendants own adjoining properties in the Town of Kortright, Delaware County. In 2015, plaintiffs commenced this RPAPL article 15 action seeking a determination that they are the owners of a disputed .42–acre piece of land. Plaintiffs moved for summary judgment following joinder of issue and discovery. County Court granted the motion, and this appeal by defendants ensued.
We affirm. As is relevant here, defendants contended that they were deeded the .42–acre parcel when they acquired the rest of their property from Louis Della Rocca in 1998. Plaintiffs contested that assertion by producing the 1998 deed itself, which conveys to defendants lots 3, 4 and 5, "containing a total of 27 acres, more or less, [as specified in a] ‘Subdivision Map of Lands of Louis M. Della Rocca’ [identified] as Map No. 4870" and filed in 1989 with the Delaware County Clerk. The surveyor who prepared map No. 4870—as well as a survey map filed in 1990 and relied upon by defendants—submitted an affidavit on plaintiffs' behalf in which he opined that the 1998 deed used property descriptions contained in map No. 4870 that did "not include the 0.42 acre parcel." Plaintiffs accordingly asserted that Della Rocca remained the owner of the .42–acre parcel, and produced a 2015 quitclaim deed in which Della Rocca conveyed that parcel to them. In view of this proof, plaintiffs met their initial burden of demonstrating entitlement to summary judgment and shifted the burden to defendants to raise a question of fact (see Dewey v. Gardner, 248 A.D.2d 876, 877–878, 669 N.Y.S.2d 766 [1998] ).
Defendants attempted to do so by suggesting that the 1998 deed mistakenly referred to map No. 4870 rather than the 1990 map, a mistake of relevance because the 1990 map included the .42–acre parcel within lot 4. " Real Property Law § 240(3) declares that every instrument creating or transferring an estate in real property must be construed in accordance with the parties' intent, which is to be gathered from the instrument as a whole and must be consistent with the rules of law" ( Andersen v. Mazza, 258 A.D.2d 726, 727, 684 N.Y.S.2d 687 [1999] [citation omitted]; see 328 Owners Corp. v. 330 W. 86 Oaks Corp., 8 N.Y.3d 372, 381, 834 N.Y.S.2d 62, 865 N.E.2d 1228 [2007] ). The 1998 deed expressly describes the property conveyed as three lots "more particularly described" in map No. 4870. Defendants have never sought to reform the deed description upon the ground of mistake and, as a result, its explicit reference to map No. 4870 ends with the map being "taken as part of the deed" and its calls treated as the deed's boundary description ( Town of Brookhaven v. Dinos, 76 A.D.2d 555, 562, 431 N.Y.S.2d 567 [1980], affd. 54 N.Y.2d 911, 445 N.Y.S.2d 151, 429 N.E.2d 830 [1981] ; see Brainin v. New York, New Haven & Hartford R.R. Co., 136 App.Div. 393, 395, 120 N.Y.S. 1093 [1910] ). Inasmuch as "extrinsic evidence ‘may not be used to vary a boundary description or call set forth in a deed’ where, as here, the description is unambiguous," defendants' reference to such proof cannot be countenanced ( Matter of Save the Pine Bush v. Town Bd. of Town of Guilderland, 272 A.D.2d 689, 693, 707 N.Y.S.2d 698 [2000], quoting Schweitzer v. Heppner, 212 A.D.2d 835, 838, 622 N.Y.S.2d 142 [1995] ; see Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 859, 597 N.Y.S.2d 507 [1993], lv. denied 82 N.Y.2d 656, 602 N.Y.S.2d 805, 622 N.E.2d 306 [1993] ; Gross v. Cizauskas, 53 A.D.2d 969, 970, 385 N.Y.S.2d 832 [1976] ). Thus, as defendants have failed to raise a material question of fact, County Court properly granted summary judgment to plaintiffs.
Defendants argued before County Court that, if they were not deeded the .42 acres in 1998, they obtained ownership of it by adverse possession. They did not advance that claim in their appellate brief and have therefore abandoned it (see
ORDERED that the order is affirmed, with costs.
McCARTHY, J.P., EGAN JR., ROSE and MULVEY, JJ., concur.
Miller v. Genoa AG Ctr., Inc., 124 A.D.3d 1113, 1114 n., 2 N.Y.S.3d 650 [2015] ).