The opinion of the court was delivered by: Seibel, J.
MEMORANDUM DECISION AND ORDER
On November 25, 2008, Magistrate Judge Lisa Margaret Smith issued a Report and Recommendation ("Report") recommending that the Court deny Defendants Sam and Diane DeLuca's motion for summary judgment and Daubert motions, and grant in part Defendants Village of Pelham Manor and John Pierpont's ("Pelham Defendants") (collectively with the DeLucas, "Defendants") motion for summary judgment. (Doc. 132.) The DeLucas and the Pelham Defendants filed objections to the Report, (Docs. 136 and 137, respectively), and ask the Court to grant summary judgment on all Defendants' claims. Pursuant to 28 U.S.C. § 636 and Rule 72 of the Federal Rules of Civil Procedure, this Court has conducted a review of the Report and Defendants' objections, and has concluded as follows:
(1) the DeLucas' motion for summary judgment is GRANTED as to
(a) Plaintiffs' adverse possession claims,
(b) Plaintiffs' trespass claims, and
(c) the DeLucas' first, second, and third counterclaims (hereinafter, the "boundary counterclaims");
(2) the Pelham Defendants' motion for summary judgment is DENIED in part and GRANTED in part, as set forth below;
(3) the Plaintiffs' motion for summary judgment and Daubert motions are DENIED; and
(4) the DeLucas' Daubert motions are DENIED.
Familiarity with the history of this case is presumed. The relevant facts, briefly stated, are as follows. Plaintiffs Maria and William Cullen ("the Cullens") reside at 50 Shore Road in Pelham Manor, New York, and filed this suit on March 28, 2003, over a property dispute with their neighbors, the DeLucas, who reside to the south at 42 Shore Road. The Cullens allege that they have a rightful claim to a wedge-shaped portion of land (the "disputed property" or "disputed parcel") on the north side of a stone wall that physically separates the Cullens' and DeLucas' properties. The DeLucas claim record title to the wedge-shaped piece of land, while the Cullens assert that the stone wall marks the boundary between the two properties, making the disputed property theirs. The Cullens' claims against the Pelham Defendants arise from several allegedly unlawful entries into the Cullen home and property by John Pierpont, the Pelham Village Manager, in 2001, and damage allegedly arising from water runoff coming from a park near the Cullen home.
The Cullens assert an assortment of state and federal claims, including adverse possession, against the DeLucas, and substantive claims under 42 U.S.C. § 1983 against the Pelham Defendants. Each party moved for summary judgment on their respective claims and counterclaims, and the DeLucas and Cullens also brought Daubert motions seeking to disqualify each other's experts. (See Docs. 98-101, 117, 119.) Magistrate Judge Smith recommended in her Report that the Court deny the Cullens' and DeLucas' motions for summary judgment and Daubert motions in their entirety, but grant in part the Pelham Defendants' motion for summary judgment. Only the DeLucas and the Pelham Defendants have filed objections to the Report. No response to the objections was filed.
A. Standard for Reviewing a Magistrate Judge's Report and Recommendation
In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C § 636(b)(1)(C). If no timely objection is made, a Report and Recommendation may be modified or set aside by the district court only when it is "clearly erroneous or contrary to law."
28 U.S.C. § 636(b)(1)(A). Under Rule 72(b) of the Federal Rules of Civil Procedure, a party may file "specific written objections" to a Magistrate Judge's proposed findings and recommendations, in which case the district court has an obligation to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. 28 U.S.C. § 636(b)(1)(C); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). Accordingly, the Court reviews Defendants' objections to the Report's recommendations on summary judgment under a de novo standard.
The Report's conclusions on the Parties' Daubert motions, however, are subject to the standard of review set forth in Rule 72(a) of the Federal Rules of Civil Procedure, which provides that a magistrate judge's finding as to a non-dispositive, pretrial matter may be modified or set aside by the district court only when it is "clearly erroneous or contrary to law." Fed. R. Civ. P. 72(a) 28 U.S.C. § 636(b)(1)(A). A finding is "clearly erroneous" only "when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." See Garcia v. Teitler, 443 F.3d 202, 211 (2d Cir. 2006) (citing United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
B. Summary Judgment Standard
Summary judgment is warranted when the moving party shows that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c). "A dispute about a genuine issue exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (internal quotation marks omitted). The trial court therefore "resolve[s] all ambiguities, and credit[s] all factual inferences that could rationally be drawn, in favor of the party opposing summary judgment." Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). "In moving for summary judgment against a party who will bear the ultimate burden of proof at trial," as Defendants have, "the movant may satisfy this burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). Then the onus shifts to the party resisting summary judgment to present evidence sufficient to satisfy every element of the claim. The non-moving party is required to "go beyond the pleadings" and "designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324 (internal quotation marks omitted); see Holcomb v. Iona College, 521 F.3d 130, 137 (2d Cir. 2008). The Court presumes familiarity with the Report and addresses each of Defendants' Objections in turn.
C. The DeLucas' Motion for Summary Judgment
The DeLucas object to the Report's recommendation that this Court deny summary judgment on (1) Plaintiffs' adverse possession claim, (2) Plaintiffs' trespass claim, and (3) the DeLucas' boundary counterclaims.
The Cullens claim title by adverse possession to property that, according to several land surveys, lies on the DeLucas' side of the boundary line. Under New York law, "in order to acquire title to real property by adverse possession, the possessor must establish by clear and convincing evidence that the character of the possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous . . . for the statutory period of 10 years." Corigliano v. Sunick, 867 N.Y.S.2d 588, 589 (App. Div. 2008) (internal quotation marks omitted). It is undisputed that Plaintiffs first occupied 50 Shore Road in 2001, and their lawsuit laying claim to the disputed parcel by adverse possession commenced less than two years later. Plaintiffs can therefore only establish a claim of adverse possession by "tacking on" their period of possession to that of their predecessors in title, Warren and Bradley Flynn ("the Flynns").
(Report at 9 (citing Brand v. Prince, 35 N.Y.2d 634, 637 (N.Y. 1974).) Moreover, when a claim of adverse possession is not based upon a written instrument, as is the case here, the possessor is required to show that the parcel was either "usually cultivated or improved" or "protected by a substantial enclosure." Corigliano, 867 N.Y.S. 2dat 589 (quoting N.Y. Real Property Actions and Proceedings Law ("RPAPL") § 522).
The DeLucas assert that the Report "failed to perform a core duty of decision-making . . . where the substantive law imposes a heightened clear and convincing burden of proof on plaintiffs." (DeLuca Defendants' Objections to Magistrate Judge's November 28, 2008 Report and Recommendation ("DeLuca Defs. Objs.") 2.) Seizing on the Report's finding that the record was "unclear" and "conflicting," the DeLucas argue that Magistrate Judge Smith "could not properly have found that plaintiffs' proof was clear and convincing," (DeLuca Defs. Objs. 4), and specifically attack the Report's findings that the record was "unclear" with respect to whether the Flynns, Plaintiffs' predecessors in title, adversely possessed the disputed property and/or actually turned over possession of the disputed property with the rest of the property to the Cullens.*fn1 (Report at 11-13.) The DeLucas contend that uncertainty in the record is fatal to Plaintiffs' adverse possession claims, which must be proven by clear and convincing evidence.
The argument that "an unclear record mean[s] that plaintiffs failed to prove adverse possession by clear and convincing evidence," (DeLuca Defs. Objs. 5), is inapt at this stage. A party asserting adverse possession need not prove its case by clear and convincing evidence to survive summary judgment, as it would have to do at trial. Indeed, at the summary judgment stage, an "unclear" record containing "conflicting" evidence militates against awarding summary judgment to either party. See Piasecki v. Stauble, 557 N.Y.S.2d 546, 547 (App. Div. 1990) ("Summary judgment is an improper remedy in an adverse possession action where material issues of fact remain."). Summary judgment is appropriate, however, if no issues of material fact exist.
While I do not adopt the DeLucas' view that an unclear factual record requires summary judgment in their favor, I respectfully disagree with Judge Smith's conclusion that the factual record is unclear here. As to the substantive issues arising from the adverse possession claim -- whether the Flynns intended to and actually turned over possession of the disputed property to the Cullens, and whether the Flynns cultivated or improved the property as required by N.Y. RPAPL § 522 -- there are no factual disputes that prevent the granting of summary judgment.
a. Actual Conveyance of Disputed Property
Generally, "successive adverse possessions of property . . . may be tacked if it appears that the adverse possessor intended to and actually turned over possession of the undescribed part with the portion of the land included in the deed." Eddyville Corp. v. Relyea, 827 N.Y.S.2d 315, 318 (App. Div. 2006) (emphasis added). The omission of the disputed parcel from a deed of transfer can, however, weaken or undermine altogether an argument that the original adverse possessor "intended to and actually turned over possession" of the disputed parcel. Brand, 35 N.Y. 2d at 637; see Congregation Yetev Lev D'Satmar, Inc. v. County of Sullivan, 59 N.Y.2d 418, 425 n.2 (1983) (intent of predecessor in title unclear where predecessor exercised unrestricted use of land but deed "acknowledged exclusion of the [disputed] parcel from the interests conveyed."); Staples v. Schnackenberg, 148 A.D. 161, 162-63 (1911) (where deed description put border of parcel at border of disputed lot, deed "expressly excluded the [disputed parcel], there was no privity of contract between [grantee] and his grantor with respect to it, and [grantee's] possession cannot be tacked onto [grantor's] to make up the necessary [period for] . . . adverse possession."); Comrie, Inc. v. Holmes, 836 N.Y.S.2d 377, 379 (App. Div. 2007) ("[W]arranty deed by which plaintiff received title to its property . . . expressly excluded the disputed parcel from its legal description thus providing an additional basis upon which to dismiss plaintiff's adverse possession claim."). The Cullens and DeLucas agree that the disputed parcel was not included in the Cullens' deed or in the contract of sale between the Flynns and the Cullens. Nor was it included in the land survey conducted by Richard J. Domato in 2000 at the Flynns' request. (Domato Decl. [Doc. # 114] Ex. A ("Domato Survey"); see Pls. Opp'n Mem. 12.) Plaintiffs have identified no other express or implied agreement to suggest that the Flynns intended to, or even contemplated, conveying the disputed property. Indeed, the Flynn-Cullen deed expressly describes the boundary separating the Cullen and DeLuca properties as running "along the [DeLucas' property line] . . . South 50 Degrees East 191.70 feet to the present high water line of Long Island Sound/Pelham Bay" -- coordinates which place the disputed parcel on the DeLucas property. (Defs.' Mem. Ex. 26.) Similarly, the 2000 Domato Survey, which Plaintiffs concede the "deed and contract of sale were [ ] subject to" (Pls.' Opp'n Mem. 10), clearly shows the disputed wedge-shaped parcel lying on the DeLucas' side of the property line (see Domato Survey). From these documents alone, it is clear that regardless of what the Flynns may have intended or assumed they were conveying to the Cullens, they "actually" conveyed a parcel of land that did not include the disputed property.
This conclusion is supported by the chain of title leading up to the Flynn-Cullen sale, including the survey taken by the Flynns' predecessors in interest, the Kingsleys (the Flynns' grandparents). As Magistrate Judge Smith noted:
The survey done in 1950 for John and Helen Kingsley ["the Dearing Survey"] . . . shows the boundary line in the same location as the later survey done for the Flynns in 2000. (Report at 12.) Both the Dearing Survey and the Domato Survey show a North-South boundary line that extends 191.70 feet from Shore Road to the Long Island Sound, and both place the disputed parcel on what is now the DeLucas' property. Moreover, "the Kingsleys' 1950 deed excludes the encroachment of the house onto the property belonging to 42 Shore Road [the DeLucas' property], but grants [ ] a quitclaim regarding the encroachment, subject to any claim of the owners of 42 Shore Road." (Id.; see Defs.' Mem. Ex. 22.) Thus, the Cullens' chain of title clearly excludes the disputed property. See Dittmer v. Jacwin Farms Inc., 637 N.Y.S. 2d 785, 786 (App. Div. 1996) (contrasting mere silence with specific exclusion).
Thus, there is nothing in the record to suggest that when the Flynns sold to the Cullens, the Flynns actually turned over the disputed land. While the Flynns plainly actually turned over the portion of the house that encroaches on the disputed land, the DeLucas do not dispute the claim of adverse possession as to the encroaching portion of the house. As to the remainder of the wedge of land, however, the record is at best silent. Indeed, if anything, the record suggests that the Cullens knew that the Flynns were not conveying the disputed land, because the Cullens were aware that the border of the parcel ran not along the stone wall, but rather adjacent to, and in part under, the house. The real estate attorney who represented the Cullens in the purchase of 50 Shore Road took notes of his meeting with the Cullens on December 7, 2000, and those notes show that he reviewed the Domato Survey with the Cullens; discussed the fact that it showed the property line to be such that a portion of the house encroached on the neighboring land; discussed possible adverse possession; and arranged for Maria Cullen to check the town file and get him the Dearing Survey. (Deposition of Frank Veith 29:13-24, Ex. 2.) The attorney also testified that he discussed with his clients the fact that the Domato Survey showed that the home they intended to purchase ran over the property line and encroached on the neighboring property. (Id. 36:10-37:3; see id. 44:3-17.)
Although a question of fact may exist as to whether the Flynns intended to convey the disputed property, as Magistrate Judge Smith found, the DeLucas are correct that "[i]ntent alone is insufficient for tacking, because . . . actual transfer is also required." (DeLuca Defs. Objs. 6.) The deeds, contract of sale, land surveys and surrounding circumstances uniformly show that the disputed parcel of land was never actually conveyed to the Cullens. Indeed, with the exception of a single document which controls the conveyance of underwater, not inland, property (discussed further below), all documents and surveys associated with the sale of 50 Shore Road place the disputed parcel on the DeLucas' property. Accordingly, summary judgment in favor ...