Calendar Date: May 30, 2017
Schneider & Palcsik, Plattsburgh (Mark Schneider of
counsel), for appellant.
Fischer, Bessette, Muldowney & McArdle, LLP, Malone
(Matthew H. McArdle of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Ellis, J.), entered April
2, 2016 in Clinton County, which, among other things, denied
plaintiff's motion for partial summary judgment.
property dispute in this case involves conflicting claims
between two neighboring property owners to title of an
approximately 20-acre parcel of unimproved land (hereinafter
the disputed parcel) located in the Town of Saranac, Clinton
County. Pursuant to RPAPL 861, plaintiff commenced the
instant action alleging that defendant unlawfully cut down
approximately 200 trees on his property. In January 2015,
Supreme Court granted plaintiff leave to serve and file an
amended complaint. In his amended complaint, plaintiff added
causes of action to quiet title, for ejectment and for
intentional trespass and increased the number of trees
alleged to have been unlawfully cut to 700. Thereafter,
plaintiff moved for partial summary judgment on his causes of
action to quiet title, ejectment and trespass - limited to
the issue of liability - and defendant cross-moved for
summary judgment dismissing plaintiff's cause of action
to quiet title. Finding material issues of fact, Supreme
Court denied both parties' motions for summary judgment.
Plaintiff now appeals, and we affirm.
an action to determine title pursuant to RPAPL article 15,
the plaintiff has an affirmative duty to show that title lies
in [him or her], which is not satisfied merely by pointing to
weaknesses in [a] defendant['s] title" (Town of
Fowler v Parow, 144 A.D.3d 1444, 1446  [internal
quotation marks and citations omitted]). Legal title can be
established despite the failure to record a deed, but title
by lost deed requires clear and certain evidence (see
id. at 1446; O'Brien v Town of Huntington,
66 A.D.3d 160, 166 , lv dismissed 14 N.Y.3d
935 , lv denied 21 N.Y.3d 860');">21 N.Y.3d 860 ).
proof on his motion addressed his own alleged chain of title
in comparison to defendant's purported chain of title.
More specifically, plaintiff offered an affidavit from Stacey
Allot, a licensed land surveyor, who addressed
defendant's contention that the disputed parcel was
contained in a chain of title leading back to a recorded deed
transferring property from Louisa Terrier to Nora St. Louis
in 1905. Allot explained that there is no record of a deed to
Terrier for the 20-acre parcel that she thereafter deeded to
St. Louis, and, in any event, defendant's contention as
to the location of the 20-acre parcel described in the deed
to St. Louis as being at the disputed parcel does not conform
with the bounds described in that deed. Moreover, Allot
described her findings that "[t]he lands in the west one
half of Great Lot 17" - where the disputed parcel is
located - "were conveyed to Chateaugay Ore & Iron
Co[mpany]... in 1881, ... held by [it] until 1943, and that
title subsequently passe[d] on to [plaintiff]."
Accordingly, plaintiff met his prima facie burden of
establishing his title to the disputed parcel.
submissions raised material issues of fact. Those submissions
included the affidavit of John E. McIntosh Jr., a licensed
land surveyor, who had created the 2009 survey that indicated
that the disputed parcel was owned by defendant. McIntosh
opined that, in 1902 and by an unrecorded and lost deed,
Terrier came into possession of the disputed parcel by virtue
of a transfer from the Chateauguay Railroad Company in
exchange for a.9-acre parcel that Terrier transferred to it
and that it needed to access other property that it owned.
McIntosh supported this conclusion with references to, among
other things, two historical maps, one created no later than
1912 and one filed in 1944, that described the Chateauguay
Railroad Company as transferring 20 acres to Terrier.
McIntosh explained that the adjoiner and bounds described in
the 1905 deed transferred from Terrier to St. Louis placed
the 20-acre parcel at the location of the disputed parcel.
McIntosh further described an unbroken chain of title to the
disputed parcel from Terrier to defendant.
the foregoing and the remaining evidence submitted on the
motions, material issues of fact rendered summary judgment
improper for either party. Viewed in the light most favorable
to defendant, his submissions raised material issues of fact
as to whether he could establish chain of title by lost deed,
and therefore plaintiff's motion was properly denied. To
the extent that defendant asks us to search the record and
grant him summary judgment (see CPLR 3212 [b];
Peter Scalamandre & Sons, Inc. v State of New
York, 65 A.D.3d 774, 777 ), defendant's
reliance on historical maps was not sufficient to establish,
as matter of law, chain of title dependent on a lost deed.
Even if this were not the case, the parties submitted
competing expert opinions as to ambiguous deed descriptions
and ultimately disagreed as to whether the 20-acre parcel
described in the 1905 deed was located at the disputed
parcel. Accordingly, Supreme Court properly denied the
parties' motions (see Town of Fowler v Parow,
144 A.D.3d at 1447; Welch v Prevost Landowners, 202
A.D.2d 803, 804 ). The parties' remaining
contentions have been considered and are found to be without
Jr., Lynch, Rose and ...