Calendar Date: April 26, 2017
C. Mulliken, Harpersfield, for appellants.
M. Hartmann, Delhi, for respondents.
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Mulvey,
MEMORANDUM AND ORDER
from an order of the County Court of Delaware County
(Lambert, J.), entered September 16, 2016, which granted
plaintiffs' motion for summary judgment.
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.
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 ).
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  [citation omitted];
see 328 Owners Corp. v 330 W. 86 Oaks Corp., 8
N.Y.3d 372, 381 ). 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
, affd 54 N.Y.2d 911');">54 N.Y.2d 911 ; see
Brainin v New York, New Haven & Hartford R.R. Co., 136
A.D. 393, 395 ). 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
, quoting Schweitzer v Heppner, 212 A.D.2d
835, 838 ; see Wechsler v New York State Dept. of
Envtl. Conservation, 193 A.D.2d 856, 859 , lv
denied 82 N.Y.2d 656');">82 N.Y.2d 656 ; Gross v Cizauskas,
53 A.D.2d 969, 970 ). Thus, as defendants have failed
to raise a material question of fact, County Court properly
granted summary judgment to plaintiffs.
McCarthy, J.P., Egan Jr., Rose and Mulvey, JJ., concur.
that the order is affirmed, with costs.
 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 Miller v ...