| Green Harbour Homeowners' Assn., Inc. v Ermiger |
| 2008 NY Slip Op 02924 [50 AD3d 1199] |
| April 3, 2008 |
| Appellate Division, Third Department |
| Green Harbour Homeowners' Association, Inc., Appellant, vKenneth Ermiger, Defendant and Third-Party Plaintiff-Respondent. Gene Black et al.,Third-Party Defendants-Respondents. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Karla Williams Buettner of counsel),for defendant and third-party plaintiff-respondent. Tabner, Ryan & Keniry, L.L.P., Albany (John W. Tabner of counsel), for third-partydefendants-respondents.
Kane, J. Appeals from two orders of the Supreme Court (Krogmann, J.), entered January 12,2007 and March 6, 2007 in Warren County, which, among other things, granted defendant's crossmotion for partial summary judgment as to the deed reformation counterclaim.[*2]
On October 4, 1994, third-party defendants, Gene Blackand Green Harbour-Cooper Point Acres (hereinafter collectively referred to as Black), thesponsors of the Green Harbour subdivision, executed a deed transferring to plaintiff severalparcels of real property described as phase three of the subdivision, but excepting and reservingspecific lots and townhouse properties to Black. Black later sold 33 of the reserved properties.Although plaintiff offered to purchase the remaining lots, Black executed a deed in July 2002conveying to defendant "all remaining areas reserved for construction of Townhouse Buildingson Ridgeview Lan[e] and Lookout Mountain Drive, Green Harbour Subdivision, as referencedand specifically reserved by [Black] by deed dated October 4, 1994," then specifically listingseven lots. At issue on this appeal are two lots on Ridgeview Lane which were not reserved toBlack by the 1994 deed but are specifically listed in the 2002 deed as previously reserved andbeing transferred to defendant.[FN1]
In 2006, plaintiff commenced this action seeking, among other things, to quiet title to certainlots. Defendant and Black asserted counterclaims against plaintiff seeking to reform the 1994deed to reserve and except the two Ridgeview Lane lots, citing a mutual mistake or scrivener'serror. Plaintiff moved to dismiss Black's and defendant's counterclaims for deed reformation asbarred by the statute of limitations. Defendant cross-moved for partial summary judgmentgranting his reformation counterclaim. Supreme Court denied plaintiff's motion, granted thecross motion and issued an order reforming the 1994 deed to reserve the two lots to Black.Plaintiff appeals.
The statute of limitations bars defendant's and Black's counterclaims for reformation of the1994 deed.[FN2] An action to reform a deed based upon a mistake must generally be commenced within six yearsafter the mistake is committed (see CPLR 213 [6]). For deed reformation based uponmistake or fraud, however, an exception to the time limitation provides that "as to one who is inpossession of real property under an instrument of title, the statute never begins to run against hisright to reform that instrument until he has notice of a claim adverse to his under the instrument,or until his possession is otherwise disturbed" (Hart v Blabey, 287 NY 257,262-263[*3][1942]; see Ford v Clendenin, 215 NY 10,16-17 [1915]; Wilshire Credit Corp. v Ghostlaw, 300 AD2d 971, 973 [2002]; Tursi vSt. Joseph's Sanatorium, 133 AD2d 910, 911-912 [1987]).
That exception does not apply here. Importantly, neither Black nor defendant was in physicalpossession of these vacant building lots nor is there proof that they posted, fenced, maintained orimproved the lots in any way. The only indicia of possession on the part of Black or defendantwas the payment of taxes and procurement of building permits. The record does not contain anyproof that plaintiff was aware of the building permits. Under these circumstances, the evidence ofpossession is insufficient to invoke the exception so as to toll the statute of limitations (but cf.Shawangunk Conservancy v Fink, 261 AD2d 692, 692 [1999] [noting payment of taxes ondisputed parcels for approximately 40 years, then reforming deeds in chain of title, whereoriginal deed contained error on its face]). Thus, as neither Black nor defendant was inpossession of the lots under an instrument of title prior to the time the statute of limitationsexpired, the exception does not apply and the reformation counterclaims are barred by thesix-year statute of limitations.
Mercure, J.P., Peters and Spain, JJ., concur.
Carpinello, J. (dissenting). I would affirm, albeit on a different ground than that articulatedby Supreme Court. On his cross motion for partial summary judgment, defendant established thatplaintiff, in the course of prior litigation between them in 2002, affirmatively and repeatedlyrepresented to Supreme Court that defendant owned seven undeveloped lots in the subjectsubdivision. Plaintiff's contrary position in this action, namely, that two of these seven lots wereomitted from a 1994 deed, violates the doctrine of judicial estoppel, or estoppel againstinconsistent positions, which precludes a party from taking a particular position in oneproceeding and a contrary or inconsistent position in another proceeding (see e.g. EvergreenBank v Dashnaw, 262 AD2d 737, 739 n [1999]; Clifton Country Rd. Assoc. vVinciguerra, 252 AD2d 792, 793 [1998]; Cafferty v Thompson, 223 AD2d 99, 102[1996], lv denied 88 NY2d 815 [1996]; Moore v County of Clinton, 219 AD2d131, 134-135 [1996], lv denied 89 NY2d 851 [1996]; Environmental Concern vLarchwood Constr. Corp., 101 AD2d 591, 594 [1984]). Indeed, "[t]he doctrine rests upon theprinciple that a litigant should not be permitted . . . to lead a court to find a fact oneway and then contend in another judicial proceeding that the same fact should be foundotherwise" (Environmental Concern v Larchwood Constr. Corp., 101 AD2d at 593[internal quotation marks and citation omitted]). This is precisely what plaintiff has done hereand this Court should not countenance it.
Ordered that the orders are reversed, on the law, with costs, defendant's cross motion forpartial summary judgment denied, plaintiff's motion to dismiss granted and deed reformationcounterclaims dismissed.
Footnote 1: Since 2002, the parties haveexperienced a litigious relationship concerning this subdivision (see generally Black v Green HarbourHomeowners' Assn., Inc., 37 AD3d 1013 [2007]; Black v Green Harbour Homeowners' Assn., Inc., 19 AD3d 962[2005]; Green Harbour Homeowners'Assn., Inc. v G.H. Dev. & Constr., Inc., 14 AD3d 963 [2005]; Matter of Green Harbour Homeowners'Assn. v Town of Lake George Planning Bd., 1 AD3d 744 [2003]; Green HarbourHomeowners' Assn. v G.H. Dev. & Constr., 307 AD2d 465 [2003], lv dismissed 100NY2d 640 [2003]).
Footnote 2: While the doctrine of judicialestoppel would potentially preclude plaintiff from prevailing on the merits, the record does notcontain proof of any position taken by plaintiff within the statute of limitations which wouldaffect our determination based on the statute of limitations defense.