| Bergstrom v McChesney |
| 2012 NY Slip Op 01173 [92 AD3d 1125] |
| February 16, 2012 |
| Appellate Division, Third Department |
| Charlotte Bergstrom, Appellant, v Rose McChesney et al.,Respondents. |
—[*1] Konstanty Law Office, Oneonta (James E. Konstanty of counsel), for respondents.
Garry, J. Appeal from an order of the Supreme Court (Lambert, J.), entered May 26, 2011 inDelaware County, which denied plaintiff's motion for summary judgment.
Plaintiff is the owner of certain real property in the Town of Colchester, Delaware County,located near a parcel of real property previously owned by defendant Rose McChesney. In 2007,McChesney obtained a building permit to erect a structure on a portion of her property(hereinafter the disputed parcel). Plaintiff objected, claiming that she owned the disputed parcel,and the Town of Colchester Code Enforcement Officer issued two stop work orders toMcChesney. In 2008, McChesney conveyed her property rights in two separate transactions todefendant Pamela Hubbard and defendant Duane Gibson. Plaintiff thereafter commenced thisaction seeking, among other things, to quiet title to the disputed parcel pursuant to RPAPL article15. Plaintiff moved for summary judgment, and Supreme Court denied the motion. Plaintiffappeals.
In support of her motion for summary judgment, plaintiff submitted the deed by which sheacquired title to her property in September 1975,[FN1] a 2006 survey of the property, and the affidavit of the surveyor who conducted it. Plaintiff's deedwas filed with the Delaware County [*2]Clerk's office well over10 years ago and is therefore "prima facie evidence of [its] contents" (CPLR 4522). The surveyorstated in his affidavit that he prepared his survey based on the property description contained inplaintiff's deed as well as those of her predecessors in interest, certain highway appropriation,county acquisition and tax maps, and other relevant agreements and documents. He detailed themeans by which he located certain markers, monuments and lines referenced in the propertydescription, and opined that plaintiff's property clearly includes the disputed parcel and plaintiffis the owner of that parcel. Finally, he stated that he had reviewed the deed by which McChesneyacquired title to her real property, and opined "with certainty" that the disputed parcel was notincluded in the property description contained in McChesney's deed. We agree with SupremeCourt that these submissions were sufficient to meet plaintiff's burden to demonstrate a primafacie case of entitlement to judgment as a matter of law (see CPLR 3212 [b]; Klotz v Warick, 53 AD3d 976,978 [2008], lv denied 11 NY3d 712 [2008]; Patterson v Palmieri, 307 AD2d 668,668-669 [2003], lv dismissed 1 NY3d 546 [2003]).
The burden thus shifted to defendants to produce competent evidence in admissible formestablishing the existence of material issues of fact requiring a trial (see Quinn v Depew, 63 AD3d1425, 1428-1429 [2009]; Klotz v Warick, 53 AD3d at 978; Patterson vPalmieri, 307 AD2d at 669; Lavine v Town of Lake Luzerne, 296 AD2d 793, 794[2002], lv denied 99 NY2d 501 [2002]). Defendants submitted a 2004 survey mappurporting to show that McChesney's property includes the disputed parcel, but they provided noaffidavit from the surveyor, nor any other "proof in admissible form which would provide thenecessary foundation for [the] survey so that it could be properly considered" (Patterson vPalmieri, 284 AD2d 852, 853 [2001]; see Seaman v Three Vil. Garden Club, Inc., 67 AD3d 889, 890[2009]; Sloninski v Weston, 232 AD2d 913, 914 [1996], lv denied 89 NY2d 809[1997]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [1974]). Defendants alsosubmitted a copy of the Hardenburgh Patent Map, which is referenced in the property descriptionin plaintiff's deed, and which they assert conflicts with plaintiff's survey. However, they providedno surveyor's affidavit or other "professional interpretation" of the claimed conflicts(Patterson v Palmieri, 284 AD2d at 853 [internal quotation marks and citation omitted];see Sloninski v Weston, 232 AD2d at 914). These deficiencies were not cured by theaffidavit of defendants' counsel, who does not claim to possess either an expertise in landsurveying or relevant personal knowledge (see Lavine v Town of Lake Luzerne, 296AD2d at 794; Greenberg v Manlon Realty, 43 AD2d at 969).
Defendants also provided an affidavit from a surveyor purporting to critique the methodologyof plaintiff's surveyor. However, defendants' expert did not actually review any of the underlyingsurveys or deeds, and offered no opinion as to ownership of the disputed parcel. Instead, hisaffidavit consisted solely of a response to a hypothetical question posed by defendants' counsel.Based upon assumed facts, defendants' expert opined that "a survey prepared without reference tothe surveyor's resource of a Hardenburg [sic] Patent Map stated in the very deed beingsurveyed, and when all other reference points of the deed such as trees, etc [sic] are goneafter 110 years,[FN2] is a survey prepared with a substantial deviation from acceptable surveying practice forDelaware County." The record does not support the underlying assumptions. First, not all of thereference points in plaintiff's deed were gone at the time of the survey; on the contrary, plaintiff'ssurveyor found some of them and indicated their locations on the survey map. Further, plaintiff'ssurveyor did not fail to refer to the Hardenburgh Patent Map; [*3]instead, he found and used certain stone piles in his survey, withspecific relevance and reference to that map's divisions.[FN3] As the hypothetical facts upon which defendants' expert based his conclusions are unsupportedby the record evidence, his opinion is entirely speculative and insufficient to raise issues of fact(see Gray v South Colonie Cent. SchoolDist., 64 AD3d 1125, 1127-1128 [2009]; compare Shipman v Mount SinaiHosp., 290 AD2d 294, 294-295 [2002]; Kelly v St. Peter's Hospice, 160 AD2d 1123,1124-1125 [1990]). Thus, defendants failed to meet their burden to produce admissible evidencedemonstrating the existence of triable issues of fact or provide an acceptable excuse for failing todo so (see Quinn v Depew, 63 AD3d at 1428-1429). Plaintiff's showing that she owns thedisputed parcel stands unrefuted, and her motion for summary judgment should have beengranted (see Patterson v Palmieri, 307 AD2d at 669; Lavine v Town of LakeLuzerne, 296 AD2d at 794).
Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is reversed, onthe law, with costs, motion granted, and it is declared that plaintiff is the owner of the subjectproperty.
Footnote 1: Plaintiff's property has allegedlybeen owned by members of her family since at least 1913.
Footnote 2: The property description inplaintiff's deed was originally drafted in 1894.
Footnote 3: These references include a stonepile described in the deed as located in one of the Hardenburgh Patent Map's divisions, a secondstone pile described as located on the middle line of another division, and a boundary line thatfollows the referenced middle line from the second stone pile to a riverbank.