Sasscer v. Vesey

211 A.D.3d 1400

181 N.Y.S.3d 703

Maureen SASSCER, Appellant,

v.Jonathan Marshall VESEY et al., Respondents.

534545

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: November 16, 2022

Decided and Entered: December 22, 2022

Adams Leclair LLP, Rochester (Robert P. Yawman of counsel), for appellant.

Miller, Mannix, Schachner & Hafner, LLC, Glens Falls (Brian Reichenbach of counsel), for respondents.

Before: Egan Jr., J.P., Lynch, Aarons, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

McShan, J. Appeal from an order of the Supreme Court (Rebecca A. Slezak, J.), entered November 12, 2021 in Fulton County, which partially granted defendants' motion for, among other things, summary judgment dismissing the complaint.

This action concerns a land dispute in a subdivision on Canada Lake in the Town of Caroga, Fulton County. The parcels at issue trace back to the early 1900s, when Andrew Peck acquired land known as lots 23, 24 and 25 within the subdivision. The lots run parallel to each other and are divided by a road, now known as Kasson Drive, and the southern portion of each of the lots abuts the shore of the lake. Upon Andrew Peck's death in 1918, title of the lots passed to his wife, Henrietta Peck. Three years later, in June 1921, Henrietta Peck conveyed two parcels of land to George W. Juno and Alice Robson Juno (hereinafter the Junos) that encompassed parts of lots 24 and 25. Parcel No. 1 is described in the deed as an area located south of the public highway, beginning at the shore of the lake. Parcel No. 2, which is the subject of the dispute in this proceeding, is located on the north side of Kasson Drive and, in pertinent part, identifies one of its boundary lines "6 inches westerly from [a] westerly wall" of a garage located on Lot No. 24.

The two parcels were conveyed by the Junos to Ellen Smith in 1944, and Smith's heirs eventually conveyed the property to defendants in 2000.¹ Meanwhile, in 1923, Henrietta Peck conveyed the remainder of lot 25 to Jesse M.W. Scott and Lila Mapes Scott (hereinafter the Scotts), specifically excepting the land previously deeded to the Junos. The Scotts later conveyed their property to Clarence De Sales Sasscer and Madeline Rogers Sasscer, and in 2014, the property was ultimately conveyed to plaintiff. In 1938, the Junos granted the Scotts an easement that allowed the Scotts to "pass on foot or by vehicle over and along and through and across" parcel No. 2. In exchange, the Junos were permitted to use the well on the Scotts' property. This easement was to have a duration of 25 years, ending in 1963. While this easement was not renewed, defendants and their predecessors had apparently permitted plaintiff and her predecessors to continue to use parcel No. 2 to access their property.

While the parties' predecessors appear to have accommodated each other with respect to the use and enjoyment of parcel No. 2, the relationship between plaintiff and defendants grew increasingly acrimonious stemming from competing assertions of ownership over the parcel. In 2018, defendants attempted to install a septic tank on parcel No. 2. While the installation was in progress, it was discovered that plaintiff's septic tank and leach field encroached upon parcel No. 2. A stop work order was issued by the Town of Caroga, enjoining defendants from continuing their installation.² The related proceeding generated more strife between the parties, which later led to defendants erecting a fence on parcel No. 2 in order to prevent plaintiff from using the driveway.

In January 2020, plaintiff commenced this action against defendants seeking to quiet title to parcel No. 2 under three theories: title by deed, title by adverse possession and title by prescriptive easement. Additionally, plaintiff asserted a declaratory judgment cause of action, as well as causes of action for trespass, wrongful interference with quiet enjoyment, intentional interference with quiet enjoyment and private nuisance. Defendants answered and asserted counterclaims, including a counterclaim for reformation of the deed due to a scrivener's error. Defendants then moved for summary judgment dismissing plaintiff's complaint, summary judgment on their counterclaims and an injunction preventing plaintiff from entering the disputed land. Following oral argument, Supreme Court partially granted defendants' motion, determining, in relevant part, that defendants owned parcel No. 2, and plaintiff's septic tank and leach field constituted a trespass on defendants' property. Further, the court granted defendants' request for injunctive relief and ordered plaintiff to remove said septic tank and leach field from parcel No. 2. Plaintiff appeals.

"It is well settled that a deed must be construed according to the intent of the parties and, further, that a court is to give effect and meaning, to the degree possible, to each and every phrase or part of the deed" ( Torpy's Pond & Outdoor Club, Inc. v. DuSell, 198 A.D.3d 1218, 1219, 157 N.Y.S.3d 157 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Real Property Law § 240[3] ; Cannon v. Hampton, 198 A.D.3d 1230, 1231, 157 N.Y.S.3d 162 [3d Dept. 2021] ). However, "where a deed is ambiguous with respect to the description of the property, a party is entitled to demonstrate the grantors' true intent through extrinsic proof" ( Eliopoulous v. Lake George Land Conservancy, Inc., 50 A.D.3d 1231, 1232, 854 N.Y.S.2d 601 [3d Dept. 2008] [internal quotation marks, brackets and citation omitted]). "The construction of a deed is generally a question of law for the courts to decide" ( Mentiply v. Foster, 201 A.D.3d 1051, 1055, 160 N.Y.S.3d 454 [3d Dept. 2022] ).

At the outset, our review of the 1921 deed reveals an ambiguity in the description of parcel No. 2, which, as written, conveys nothing more than a single line. However, contrary to plaintiff's contention, that fact in and of itself does not render the deed defective, as "[t]he question is not whether there are errors in the description, but whether the land can be identified with reasonable certainty notwithstanding the errors" ( Town of Brookhaven v. Dinos, 76 A.D.2d 555, 561, 431 N.Y.S.2d 567 [2d Dept. 1980], affd 54 N.Y.2d 911, 445 N.Y.S.2d 151, 429 N.E.2d 830 [1981] ). In this respect, "[t]he fact that the exact boundaries are not described in a deed does not make an instrument of conveyance from which the property can be identified void for uncertainty if it is possible by any rule of construction to ascertain what property is being conveyed," and the parties may resort to extrinsic evidence "to identify the property intended and its exact boundaries" ( id. at 562, 431 N.Y.S.2d 567 ; see Champlain Gas & Oil, LLC v. People of the State of New York, 185 A.D.3d 1192, 1195, 128 N.Y.S.3d 69 [3d Dept. 2020] ).

On their motion, defendants submitted substantial extrinsic evidence placing parcel No. 2 in the disputed location. Specifically, defendants offered the 1921 deed alongside a survey that was performed days prior to the execution of the deed and subsequently filed with the County Clerk in 1937. The survey reflects that parcel No. 2 was directly across from parcel No. 1, bordering the western wall of a garage that was situated at the western edge of lot 24. Defendants further submitted a 1934 survey prepared by S.J. Costello that locates the parcel consistent with the 1921 survey. Further, defendants submit the 1938 easement from the Junos to the Scotts, which, among other things, granted plaintiff's predecessors egress over the Junos' land as identified in the 1921 deed. Defendants also pointed to an October 2004 correspondence from the Fulton County Real Property Tax Service Agency acknowledging a letter from plaintiff's predecessor indicating that the tax maps had misidentified the location of the property. The letter was accompanied by the 1934 Costello survey and the tax maps on file, with notations indicating that the measurements on the tax maps should be redrawn to reflect the survey. Finally, defendants offered a survey from June 2008 by Ferguson & Foss, professional land surveyors, that defendants commissioned in 2008 and that located the property in the disputed location, referencing several of the landmarks identified in the deed. We note that the aforementioned surveys were on file with the Fulton County Clerk for more than 10 years and carry an inference of their accuracy (see CPLR 4522 ; Elm Lansing Realty Corp. v. Knapp, 192 A.D.3d 1348, 1351, 145 N.Y.S.3d 160 [3d Dept. 2021] ; Gholizadeh v. Keifer, 66 A.D.3d 1209, 1211, 887 N.Y.S.2d 313 [3d Dept. 2009] ; Town of Skaneateles v. Lang, 179 A.D.2d 1032, 1032, 579 N.Y.S.2d 516 [4th Dept. 1992] ; compare McFarland v. Michel, 2 A.D.3d 1297, 1299, 770 N.Y.S.2d 544 [4th Dept. 2003] ; Greenberg v. Manlon Realty, Inc., 43 A.D.2d 968, 969, 352 N.Y.S.2d 494 [2d Dept. 1974] ). Accordingly, we find that the foregoing was sufficient to "establish[ ] defendant[s'] prima facie entitlement to quiet title to the disputed area" and the burden then "shifted to plaintiff to produce competent evidence in admissible form establishing the existence of material issues of fact" ( Torpy's Pond & Outdoor Club, Inc. v. DuSell, 198 A.D.3d at 1220–1221, 157 N.Y.S.3d 157 [internal quotation marks, brackets and citation omitted]; see Lavine v. Town of Lake Luzerne, 296 A.D.2d 793, 794, 745 N.Y.S.2d 345 [3d Dept. 2002], lv denied 99 N.Y.2d 501, 752 N.Y.S.2d 588, 782 N.E.2d 566 [2002] ).

Plaintiff's opposition to defendants' motion is largely predicated on her contention that parcel No. 2 is actually located on lot 24 in between an icehouse and a garage that spans across both lots 23 and 24. However, our review of plaintiff's submissions reveals that her assertion is unsupported. Plaintiff largely relies on affidavits from family members generally recounting that they were told by other family members over the course of time that the driveway was owned by plaintiff's...