| Adamec v Mueller |
| 2012 NY Slip Op 02553 [94 AD3d 1212] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Anthony J. Adamec et al., Appellants, v Josef C. MuellerIII et al., Respondents. |
—[*1] Miller, Mannix, Schachner & Hafner, L.L.C., Glens Falls (Leah Everhart of counsel), forrespondents.
Kavanagh, J. Appeal from an order of the Supreme Court (Nolan Jr., J.), entered March 18,2011 in Saratoga County, which, in an action pursuant to RPAPL article 15, among other things,granted defendants' motion for summary judgment dismissing the complaint.
In March 2007, defendants received a quit claim deed from their parents and in-laws,Priscilla Mueller and Josef Mueller Jr., naming them owners of a parcel of property located in theTown of Stillwater, Saratoga County. The Muellers had purchased the property (hereinafter thecanal property) in December 1989 from the County at a tax sale. The County, in turn, hadobtained title to the property from James Dickson in a tax foreclosure proceeding. Dicksonacquired the property from Hudson River Estates, Inc., which purchased it in 1924 from the Stateof New York, through the Canal Corporation.
Plaintiffs, in 1974, purchased property in the area from Minnie Ives. In July 2008, theycommenced this RPAPL article 15 proceeding seeking to quiet title on the canal propertyalleging that it was included in the property they had purchased from Ives. Alternatively, [*2]plaintiffs claim that they obtained ownership of the canal propertyby adverse possession.[FN1]After Supreme Court granted defendants' motion for summary judgment, plaintiffs filed thisappeal.[FN2]
In support of their contention that they were owners of this property and entitled to summaryjudgment, defendants submitted recorded deeds as well as a survey, all of which established thatthey were in the chain of title for the canal property dating back to 1924 when it was owned bythe Canal Corporation (see Quinn vDepew, 63 AD3d 1425, 1428 [2009]). In opposition, plaintiffs submitted, among otherthings, the deed they received from Ives when she conveyed property to them in 1974. However,this deed does not describe in detail the property being conveyed, and specifically does notidentify the canal property as part of the property that plaintiffs received from Ives. The simplereference in the Ives deed to a utility easement that runs across the canal property does notestablish that Ives owned the canal property or had the right to convey it to plaintiffs. Also,plaintiffs' claim that they paid taxes on this property after receiving their deed from Ives is notsupported by the record. In short, plaintiffs' submissions in opposition to defendants' motion forsummary judgment have not served to create a question of fact as to defendants' claim ofownership, and Supreme Court's order granting defendants' motion for summary judgment mustbe affirmed (see Minotti v Larkin, 9AD3d 699, 700 [2004]; State of New York v Moore, 298 AD2d 814, 815 [2002]).
Peters, J.P., Rose, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1: Plaintiffs have abandoned anyclaim that they acquired title to this property by adverse possession since they have failed toadvance such a position in the briefs submitted in connection with this appeal (see Waldron v New York Cent. Mut. FireIns. Co., 88 AD3d 1053, 1054 n [2011]).
Footnote 2: Plaintiff Florine Adamec diedafter this action was commenced. Her death was referenced in plaintiff Anthony J. Adamec'sopposition to the motion for summary judgment and in Supreme Court's order. As a general rule,the death of a party automatically stays litigation until a personal representative has beensubstituted (see CPLR 1015 [a]; 1021), and any interim order issued in the absence ofsuch a substitution is generally considered invalid (see Thomas v Benedictine Hosp., 8 AD3d 781, 782 [2004]).However, since this action survives as to the coplaintiff, it "can proceed without a substitutionwith the death simply being noted on the record" (Bova v Vinciguerra, 139 AD2d 797,799 [1988]; see CPLR 1015 [b]). Further, we have held that where a party's death doesnot impact any of the issues raised on appeal, it is not necessary to strictly adhere to therequirement that proceedings be stayed (see Matter of Giaquinto v Commissioner of the N.Y. State Dept. ofHealth, 91 AD3d 1224, 1225 n 1 [2012]). As a result, we will address the merits of theappeal notwithstanding her demise.