| Gholizadeh v Keifer |
| 2009 NY Slip Op 07558 [66 AD3d 1209] |
| October 22, 2009 |
| Appellate Division, Third Department |
| Hassan Gholizadeh et al., Respondents, v Charles Keifer et al.,Appellants. |
—[*1] Hilscher & Hilscher, Catskill (J. Theodore Hilscher of counsel), for respondents.
McCarthy, J. Appeal from a judgment of the Supreme Court (Lalor, J.), entered June 13,2008 in Greene County, which granted plaintiffs' motion for summary judgment.
Plaintiffs claim title to property along the west bank of the Catskill Creek north of the LeedsBridge in the Town of Catskill, Greene County, under a deed dated May 2, 2006 from WilliamL. Van Vechten (hereinafter Van Vechten) and Linda J. Van Vechten. Defendants claim title to aportion of the same property under an executor's deed dated May 30, 1980 in the estate ofMargaret Keifer and deny plaintiffs' claim of title. Plaintiffs commenced this action pursuant toRPAPL article 15 to compel a determination of claims to real property. Supreme Court grantedplaintiffs' motion for summary judgment, prompting defendants' appeal. We reverse.
According to plaintiffs, the property in question, referred to as the "island parcel," was anisland in the Catskill Creek when deeded to Van Vechten's parents in 1934, and subsequently, asa result of flood control measures undertaken in the 1950s, became part of the west bank of the creek.
The 1934 deed places the island in Catskill Creek "just north of the Stone Bridge at Leeds,"gives a size description of "about three acres more or less" and defines its boundaries by CatskillCreek to the east and surrounding properties to the north, south and west. Supreme Court reliedon this deed, holding that "[i]t sufficiently describes the subject parcel to form a [*2]basis for judgment in favor of plaintiffs."
The record also contains evidence that a portion of the island parcel was sold to a utilitycompany in 1970 and Van Vechten, plaintiffs' grantor, testified at his examination before trialthat he has posted "no trespassing" signs on the property for approximately 30 years.Accordingly, plaintiffs established prima facie entitlement to summary judgment, shifting theburden to defendants to submit competent evidence in admissible form demonstrating theexistence of triable issues of fact (see CPLR 3212 [b]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Quinn v Depew, 63 AD3d 1425, 1428-1429 [2009]).[FN*]
Defendants' interpretation of the boundary lines in the executor's deed under which theyclaim title contradicts plaintiffs' interpretation of the boundary lines in the deeds relied upon byplaintiffs. Defendant Charles Keifer submitted an affidavit stating that the property defendantsclaim has been in defendants' family since 1925 and that they have paid taxes on the propertysince that time. Defendants also submitted an affidavit from a licensed professional landsurveyor, who, based on his field observations and review of Greene County property and taxrecords, as well as Department of Transportation (hereinafter DOT) records, concluded thatdefendants are the owners of the southerly portion of the disputed property and that the northernportion is owned by S. Berzal Company, Inc., not plaintiffs.
Defendants' surveyor also noted that state survey documents contradict plaintiffs'interpretation of the property lines. Supreme Court refused to consider these survey documentswithout proof that they were based on deed descriptions. However, these documents wereprepared for and filed with the former Department of Public Works (now DOT) to support theappropriation of easements along the Catskill Creek as part of a flood control project pursuant toHighway Law § 30. The documents are signed and dated by the district engineer andaddressed to the claimed predecessors in interest of both plaintiffs and defendants. Defendantsalso submitted an affidavit from a former DOT right-of-way agent who explained that the surveymaps would be based on actual field surveys. Finally, there is some evidence that thesedocuments also may have been filed with the Greene County Clerk's office, in which case theywould constitute prima facie evidence of their contents pursuant to CPLR 4522. Accordingly, thecourt should have considered these documents (see Patterson v Palmieri, 284 AD2d 852,853 [2001]; Sloninski v Weston, 232 AD2d 913, 914 [1996], lv denied 89 NY2d809 [1997]). The evidence submitted by defendants, therefore, raises material issues of fact to beresolved at trial and summary judgment was not appropriate.
Cardona, P.J., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment isreversed, on the law, with costs, and motion denied.
Footnote *: Plaintiffs also submitted arecent survey map of the island parcel; however, that survey is based on hearsay in the form ofVan Vechten's self-serving description of the boundary lines given to surveyors within a monthprior to selling the property to plaintiffs. Accordingly, that survey map, and the boundarydescription in plaintiffs' 2006 deed based on the same information, " 'lack[ ] any indicia ofreliability as admissible documentary evidence' " (Miller v Powers, 53 AD3d 1125, 1128 [2008], quoting Deweyv Gardner, 248 AD2d 876, 878 [1998]).