| Matter of North Dock Tin Boat Assn., Inc. v New York State Off. ofGen. Servs. |
| 2012 NY Slip Op 04802 [96 AD3d 1186] |
| June 14, 2012 |
| Appellate Division, Third Department |
| In the Matter of North Dock Tin Boat Association, Inc., et al.,Appellants, v New York State Office of General Services et al., Respondents, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for New YorkState Office of General Services, respondent. Rapport, Meyers, Whitbeck, Shaw & Rodenhausenn, L.L.P., Hudson (Victor M. Meyers ofcounsel), for City of Hudson, respondent.
Garry, J. Appeal from a judgment of the Supreme Court (McGrath, J.), entered April 8, 2011in Columbia County, which, in a combined proceeding pursuant to CPLR article 78 and actionspursuant to RPAPL article 15 and for declaratory judgment, granted motions by respondentsOffice of General Services and City of Hudson to dismiss the petition/complaint.
Petitioners occupy cabins located on a 14.4-acre parcel of real property (hereinafter thesubject property) in an area of the City of Hudson, Columbia County that was formerlysubmerged under the North Bay of the Hudson River. In 2009, respondent City of Hudsonapplied to respondent Office of General Services (hereinafter OGS) for letters patent transferringthe subject property from the State to the City pursuant to Public Lands Law § 75 (7). InDecember 2009, the letters patent were executed by the Commissioner of General Services and[*2]approved as to form by the Attorney General and, on January10, 2010, they were recorded with the Department of State and delivered to the City. Thereafter,petitioners commenced this combined CPLR article 78 proceeding and actions pursuant toRPAPL article 15 and for a declaratory judgment seeking to set aside the transfer and quiet titleto the subject property. Petitioners contend that the State had no power to convey the property,having transferred it in 1785 to 18 individuals who founded the City (hereinafter the proprietors),and that petitioners subsequently acquired title by adverse possession. OGS and the City(hereinafter collectively referred to as respondents) moved separately to dismiss thepetition/complaint, and Supreme Court granted the motions. Petitioners appeal.
Supreme Court properly dismissed the cause of action pursuant to CPLR article 78 because itwas not filed "within four months after the determination to be reviewed [became] final andbinding" (CPLR 217 [1]). Such finality occurs when the decision maker has arrived at "adefinitive position on the issue that inflicts actual, concrete injury [that] . . . may notbe prevented or significantly ameliorated by further administrative action or by steps available tothe complaining party" (Matter of BestPayphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30,34 [2005]; see Matter of Dugan vLiggan, 90 AD3d 1445, 1447 [2011]). Petitioners contend that the conveyance of thesubject property from the State to the City became final and binding when the letters patent wererecorded in the Columbia County Clerk's office on January 20, 2010, so that the CPLR article 78proceeding was timely when commenced on May 19, 2010, just less than four months later.However, a transfer of real property takes place "at the delivery of a properly executed deed,rather than when the deed is recorded" (Cicero v Aspen Hills II, LLC, 85 AD3d 1411, 1412 [2011];see Real Property Law § 244; Manhattan Life Ins. Co. v Continental Ins.Cos., 33 NY2d 370, 372 [1974]). Here, the transfer was accomplished when the Statedelivered the executed letters patent to the City on January 12, 2010; thereafter, no furtheradministrative actions or other steps were available to petitioners to avoid the claimed harmregardless of the date when they were recorded. Supreme Court thus properly concluded that thisclaim was time-barred.
As to the causes of action pursuant to RPAPL article 15 and for a declaratory judgment,petitioners assert that they have an adverse possession claim against descendants of theproprietors to whom the State allegedly conveyed the subject property in 1785. Petitionersconcede that the subject property is not susceptible to an adverse possession claim if it was nottransferred from the State's ownership, as it was formerly under navigable waters (see Sadowski v Taylor, 56 AD3d991, 995 [2008]; see generally Hinkley v State of New York, 234 NY 309 [1922];Knickerbocker Ice Co. v Shultz, 116 NY 382 [1889]). Chapter 83 of the Laws of 1785,among other things, established the City of Hudson, laid out its boundaries and granted a specificparcel of land located within those boundaries and below the high water mark of the HudsonRiver to the proprietors. The legislation recites that the proprietors requested this grant to protectwharfs and a shipyard being constructed on land that they had purchased to establish the newsettlement, and describes the transferred property as "all the land lying under the water, anddirectly opposite to the tract of land so purchased by [the proprietors] as aforesaid from highwater mark [180] feet to the channel of the said river in a course north [57] degrees west" (L1785, ch 83, § 24). According to petitioners, the formerly submerged land on which theircabins are now located was included in this conveyance.
Supreme Court dismissed this claim pursuant to CPLR 3211 (a) (1), determining thatrespondents successfully established by documentary evidence that the 1785 grant to theproprietors did not include the subject property. Such a motion "may be granted where the [*3]documentary evidence submitted resolves all factual issues as amatter of law and definitively disposes of the plaintiff's claim" (Wallach v Hinckley, 12 AD3d893, 894 [2004]). In support of their motion, respondents submitted maps, surveys and otherdocuments pertaining to the area in question. Respondents rely in particular upon the language inthe 1785 legislation describing the property conveyed to the proprietors (see L 1785, ch83, § 24) and on an 1839 map depicting the location of this property along the high watermark and the contours of the river as it existed at that time, including the area of the North Baywhere petitioners' cabins are now located, as well as a 1905 map of water grants by the State inthe North Bay area, revealing that the land where petitioners' cabins are now located was notincluded among these grants. We agree with Supreme Court that these documents, assupplemented by other maps, deeds and surveys submitted by respondents, conclusivelydemonstrate that the property where petitioners' cabins are now located lies wholly north and eastof the land conveyed to the proprietors, that no part of the subject property was included in the1785 conveyance, and that the property remained in State ownership until the letters patent wereissued to the City.[FN*]
Where, as here, "[petitioners'] legal conclusions and factual allegations are flatly contradictedby documentary evidence, they are not presumed to be true or accorded every favorableinference, and the criterion becomes whether the proponent of the pleading has a cause of action,not whether he [or she] has stated one" (Griffin v Anslow, 17 AD3d 889, 891-892 [2005] [internalquotation marks and citations omitted]; accord Morgenthow & Latham v Bank of N.Y.Co., 305 AD2d 74, 78 [2003], lv denied 100 NY2d 512 [2003]). Petitioners did notidentify any ambiguities or inaccuracies in respondents' documentary evidence, nor did theyotherwise show that this evidence did not resolve the legal and factual issues underlying theirclaims; accordingly, their second and third causes of action were properly dismissed for failure tostate a cause of action (see Crepin vFogarty, 59 AD3d 837, 839 [2009]; Adamkiewicz v Lansing, 288 AD2d 531,532 [2001]; compare Lopes v Bain,82 AD3d 1553, 1554-1555 [2011]; Witiuk v Mykytiw, 216 AD2d 779, 780-781[1995]).
Finally, petitioners assert that they were deprived of due process of law by respondents'failure to give them personal notice of the City's application for letters patent. The record revealsthat the prospective transfer was addressed at public meetings of the City's Common Council,and that the statutory requirements for notice of the application by publication and posting werefully met (see Public Lands Law § 77). We reject petitioners' claim that theyshould have received personal notice based on their longstanding occupancy of the subjectproperty. Due process does not require personal notice in every circumstance where a propertyinterest may be affected by government action; instead, a balancing process is employed todetermine what constitutes " 'notice reasonably calculated, under all the circumstances, to appriseinterested parties of the pendency of the action and afford them an opportunity to present theirobjections' " (Matter of Zaccaro v Cahill, 100 NY2d 884, 888 [2003], quotingMullane v Central Hanover Bank & Trust Co., 339 US 306, 314 [1950]). Notice bypublication is sufficient as to "[t]hose whose names or whereabouts are unknown and cannot belearned with due diligence or those whose interests are uncertain" (Congregation Yetev LevD'Satmar v County of Sullivan, 59 [*4]NY2d 418, 423[1983]). Here, petitioners' identities could not have been readily ascertained, as they held nodeeds and never paid taxes on the subject property; further, their claim to a legally protectedownership interest was uncertain at best. Accordingly, the statutorily required constructive noticewas constitutionally sufficient (see Matter of Zaccaro v Cahill, 100 NY2d at 889;compare Mennonite Bd. of Missions v Adams, 462 US 791, 798 n 4 [1983];Congregation Yetev Lev D'Satmar v County of Sullivan, 59 NY2d at 426).
Peters, P.J., Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: Respondents also submittedcertain affidavits from surveyors, title examiners and others that were not considered as they "donot constitute documentary evidence upon which a proponent of dismissal can rely" (Crepin v Fogarty, 59 AD3d 837,838 [2009]; see Wallach v Hinckley, 12 AD3d at 895).