Opinion
2012-06-14
TOWN OF LAKE GEORGE, Respondent, v. Francis W. LANDRY, Appellant, et al., Defendants.
Mancini & Hayko, P.C., Guilderland (John F. Hayko of counsel), for appellant. Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Leah Everhart of counsel), for respondent.
Mancini & Hayko, P.C., Guilderland (John F. Hayko of counsel), for appellant. Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Leah Everhart of counsel), for respondent.
Before: PETERS, P.J., MERCURE, ROSE, LAHTINEN and EGAN JR., JJ.
EGAN JR., J.
Appeal from a judgment of the Supreme Court (Aulisi, J.), entered March 24, 2011 in Warren County, which, in an action and action pursuant to RPAPL article 15, among other things, declared plaintiff to be the owner in fee simple absolute of certain real property.
Defendant Francis W. Landry (hereinafter defendant) is the surviving owner of four adjacent parcels of land in what is known as the Melview Heights subdivision in the Town of Lake George, Warren County. Lot Nos. 31, 32 and 33—as depicted on the relevant subdivision maps—were acquired by defendant and his spouse in 1964, and lot No. 34 was acquired by defendant in 1972. All of these lots abut and are located at the southern terminus of Beatty Road, a dead-end road that lies generally east of the subject parcels. Beatty Road was dedicated to plaintiff by the estate of Frederic Meldola in 1973, and plaintiff adopted a resolution formally accepting Beatty Road as a town road in 2009.
Meldola was one of the original grantors/developers of the subdivision.
In the interim, during the winter of 2005, plaintiff learned that defendant was storing a boat at the end of Beatty Road, which—according to plaintiff's highway superintendent—impeded snow removal operations. Defendant refused to remove the boat, claiming that his property extended to the center line of Beatty Road. Plaintiff thereafter commenced this action pursuant to RPAPL article 15 seeking a declaration that it is the fee owner of Beatty Road or, alternatively, that Beatty Road became a town road by use ( seeHighway Law § 189). Following joinder of issue, plaintiff moved for summary judgment and defendant cross-moved for similar relief. Supreme Court denied these motions—without prejudice to renew—upon procedural grounds and directed that all remaining property owners along Beatty Road be joined as necessary parties. Following service of amended pleadings, plaintiff again moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Supreme Court denied the parties' respective motions as to plaintiff's Highway Law § 189 claim, finding questions of fact as to plaintiff's use and maintenance of Beatty Road during the relevant time period. Supreme Court nonetheless granted plaintiff's motion for summary judgment and declared that it was the fee owner of Beatty Road, finding that Beatty Road was a town road by dedication. Defendant now appeals.
None of the remaining defendants have appeared in this action.
We affirm. “A highway or street located within the geographical limits of a town may become a town highway or street either by dedication or use” (Matter of Hillelson v. Grover, 105 A.D.2d 484, 485, 480 N.Y.S.2d 779 [1984] ). Dedication, which “is essentially of the nature of a gift by a private owner to the public” ( Romanoff v. Village of Scarsdale, 50 A.D.3d 763, 764, 856 N.Y.S.2d 168 [2008] [internal quotation marks and citations omitted] ), requires “a complete surrender to public use of the land by the owners, acceptance by the town, and some formal act on the part of the relevant public authorities adopting the highway, or use by the public coupled with a showing that the road was kept in repair or taken in charge by public authorities” ( Perlmutter v. Four Star Dev. Assoc., 38 A.D.3d 1139, 1140, 833 N.Y.S.2d 679 [2007] [internal quotation marks and citations omitted]; see Romanoff v. Village of Scarsdale, 50 A.D.3d at 764, 856 N.Y.S.2d 168;Matter of Desotelle v. Town Bd. of Town of Schuyler Falls, 301 A.D.2d 1003, 1003–1004, 754 N.Y.S.2d 457 [2003] ).
Here, in support of its motion for summary judgment, plaintiff tendered the 1973 deed from Meldola's estate conveying, among other things, such land “known and designated” on the 1949 subdivision map drawn by Meldola as Beatty Road for “street purposes.” Plaintiff's Town Board adopted a resolution formally accepting Beatty Road as a public highway in August 2009, and even defendant acknowledges that plaintiff began plowing Beatty Road in January 2005 and graded a portion thereof later that year. Such proof, in our view, is more than sufficient to establish that plaintiff acquired title to Beatty Road by dedication ( see Romanoff v. Village of Scarsdale, 50 A.D.3d at 764–765, 856 N.Y.S.2d 168;Perlmutter v. Four Star Dev. Assoc., 38 A.D.3d at 1140–1141, 833 N.Y.S.2d 679;compare Matter of Desotelle v. Town Bd. of Town of Schuyler Falls, 301 A.D.2d at 1004, 754 N.Y.S.2d 457), thereby shifting the burden to defendant to raise a question of fact in this regard.
Plaintiff's delay in accepting the dedication—although admittedly significant—is not fatal, as the mere “lapse of time does not extinguish an offer of dedication, which may be accepted at any time prior to a valid revocation by all interested parties” ( Underhill Ave. Corp. v. Village of Croton–on–Hudson, 82 A.D.3d 963, 965, 919 N.Y.S.2d 67 [2011];see Romanoff v. Village of Scarsdale, 50 A.D.3d at 764, 856 N.Y.S.2d 168;Landon v. City of Binghamton, 79 A.D.2d 810, 811, 435 N.Y.S.2d 91 [1980] ). As there is no indication that any such revocation occurred here, plaintiff's acceptance was entirely valid.
To be sure, the record contains conflicting proof as to plaintiff's maintenance of the road during the 10–year period that would be required to obtain title by use under Highway Law § 189. However, as noted previously, defendant concedes that plaintiff “commenced plowing the road” in January 2005—an acknowledgment echoed by other landowners in the subdivision who submitted affidavits on defendant's behalf.
Although conceding that his interest in lot Nos. 32, 33 and 34 ceases at the westerly edge of Beatty Road (as per the express terms of the relevant deeds), defendant nonetheless contends that his interest in lot No. 31, which is “bounded on the east by Beatty Road,” extends to the center line thereof. According to defendant, this latter conveyance demonstrates that Meldola did not retain rights to the road bed itself and, therefore, could not validly dedicate Beatty Road to plaintiff. Defendant's argument on this point, however, is belied by a complete reading of the 1964 deed conveying lot Nos. 31, 32 and 33 to him.
Although defendant makes much of the fact that the record does not contain complete chains of title for either the parcels in question or the remaining subdivision lots, we do not deem any omission in this regard to be fatal to plaintiff's motion.
Generally speaking, “when lands described in a conveyance are bounded by a street, highway or road, the conveyance is deemed to pass title to the center of the abutting roadway unless the conveyance reflects an intent of the grantor to limit the grant to the edge of the road” ( Bashaw v. Clark, 267 A.D.2d 681, 685, 699 N.Y.S.2d 533 [1999];accord. Margolin v. Gatto, 70 A.D.3d 1014, 1015, 895 N.Y.S.2d 501 [2010];see City of Albany v. State of New York, 28 N.Y.2d 352, 356, 321 N.Y.S.2d 877, 270 N.E.2d 705 [1971] ). This presumption, however, is not inflexible and “must yield to language which shows an intent on the part of the grantor to exclude from his [or her] conveyance title to the bed of an abutting street, and to limit such title to the exterior lines thereof” (Matter of City of New York, 209 N.Y. 344, 347, 103 N.E. 508 [1913];see City of Albany v. State of New York, 28 N.Y.2d at 356, 321 N.Y.S.2d 877, 270 N.E.2d 705;Environmental Props., Inc. v. SPT Tech, Inc., 48 A.D.3d 408, 409, 851 N.Y.S.2d 276 [2008];Lehrman v. Lake Katonah Club, Inc., 18 A.D.3d 514, 794 N.Y.S.2d 670 [2005],lv. denied6 N.Y.3d 706, 812 N.Y.S.2d 35, 845 N.E.2d 467 [2006] ).
Here, lot No. 31 indeed is described as being “bounded on the east by Beatty Road” and, standing alone, such description arguably would bring the conveyance thereof within the purview of the foregoing presumption. Lot No. 31, however, was not conveyed in isolation; rather, lot Nos. 31, 32 and 33 were conveyed in a single deed—one that expressly limited two of the three conveyances contained therein to “the westerly bounds of a right of way” (lot No. 32) or “the westerly bounds of Beatty Road” (lot No. 33) and, further, granted defendant a “right of ingress and egress over and along a right of way 50 feet wide ... called the Beatty Road” ( compare Margolin v. Gatto, 70 A.D.3d at 1016, 895 N.Y.S.2d 501;Bashaw v. Clark, 267 A.D.2d at 683, 699 N.Y.S.2d 533). Additionally, all three parcels—each described as a rectangular lot measuring 50 feet by 100 feet—are identified by subdivision lot numbers, and the description for lot No. 31 makes express reference to the 1927 subdivision map drawn by Meldola ( see Environmental Props., Inc. v. SPT Tech, Inc., 48 A.D.3d at 409–410, 851 N.Y.S.2d 276). Under these circumstances, it would defy both well-established principles of deed construction ( see generally Mott v. Mott, 68 N.Y. 246, 253 [1877];Andersen v. Mazza, 258 A.D.2d 726, 727, 684 N.Y.S.2d 687 [1999] ) and logic to interpret defendant's deed as fixing the eastern boundaries of these three adjacent parcels in the inconsistent fashion he now urges—namely, placing the eastern boundary of lot Nos. 32 and 33 at the western edge of Beatty Road while placing the eastern boundary of lot No. 31 in the middle of Beatty Road. Accordingly, we conclude that defendant failed to raise a question of fact sufficient to defeat plaintiff's motion for summary judgment.
As we are satisfied that defendant's deed—on its face—evidences an intent to limit the underlying conveyances to the western edge of Beatty Road, resort to the extrinsic evidence contained in the record is both unnecessary and inappropriate. We note in passing, however, that were we to deem the deed to be ambiguous and, therefore, consider such documents ( see Eliopoulous v. Lake George Land Conservancy, Inc., 50 A.D.3d 1231, 1232, 854 N.Y.S.2d 601 [2008] ), our conclusion as to plaintiff's entitlement to summary judgment would not be altered thereby.
ORDERED that the judgment is affirmed, without costs.