| Quinn v Depew |
| 2009 NY Slip Op 05066 [63 AD3d 1425] |
| June 18, 2009 |
| Appellate Division, Third Department |
| Phyllis R. Quinn, Appellant, v Charlene Depew et al.,Respondents, et al., Defendant. |
—[*1] Robert M. Sinesi, Syracuse, for Charlene Depew, respondent. McDonough & Artz, P.C., Binghamton (Philip J. Artz of counsel), for MPM Real Estate,L.L.C., respondent.
Garry, J. Appeals from two orders of the Supreme Court (Lebous, J.), entered December 2,2008 and December 9, 2008 in Broome County, which granted motions by defendants MPMReal Estate, LLC and Charlene Depew for summary judgment dismissing the complaint againstthem.
Plaintiff and defendant Charlene Depew are two of four siblings. In March 1984, by twoseparate deeds, the parents of these two parties acquired title to three lots in a subdivision locatedon Taft Avenue in the unincorporated community of Endwell, Broome County (hereinafter theTaft Avenue property) and two adjoining lots in the same subdivision (hereinafter the MagnoliaStreet property). As described in the 1984 deeds and as shown on subdivision maps referenced inthe deeds, the Magnolia Street property lies immediately to the east of the Taft Avenue property.The rear line of the Taft Avenue property is a common boundary line with the west line of theMagnolia Street property. The parents owned the properties as tenants by the entirety until thefather died in 1997. Thereafter, the mother solely owned the properties until she died in June2006.
Shortly after acquiring title to these properties, the parents had them surveyed. The map[*2]prepared by the surveyor showed that the two-familyresidence on the Magnolia Street property is located on or very near the common boundary linewith the Taft Avenue property. In December 1984, at the parents' direction, the surveyorprepared a new map and property descriptions which placed the common boundary line to thewest of its previous position. This was accomplished by adding a six-foot-wide strip of land tothe Magnolia Street property and subtracting it from the Taft Avenue property. Plaintiff allegesthat stakes marking the original boundary were removed and new stakes were placed at thelocation of the new line. Plaintiff further alleges that the parents subsequently treated the six-footstrip as part of the Magnolia Street property, laying drainage pipes for the Magnolia Street houseacross the strip of land and maintaining it as part of the Magnolia Street property. The deedscontaining the original property descriptions were recorded after these surveys were completed.The survey map, however, was not recorded, and no deeds reflecting the altered propertydescriptions were apparently ever executed.
In May 2006, the mother had appraisals prepared for various properties she owned, includingthe Taft Avenue and Magnolia Street properties. The dimensions used in the appraisals for theTaft Avenue and Magnolia Street properties are identical to those in the original 1984 deeds.Thereafter, the mother executed her last will and testament, providing in pertinent part: "I giveand bequeath my two-family residence on Magnolia Drive, Endwell, New York, to [plaintiff]."The will further provides that, after other bequests, the rest, residue and remainder of the estate isdevised to Depew. The residual estate included the Taft Avenue property. Depew's husband wasnominated as executor. The mother died shortly after executing this last will and testament. Thewill was admitted to probate without exception.
In December 2006, after searching the title of the Magnolia Street property, the mother'sattorney prepared a deed based on the property description as established in the 1984 deed andsent it, with an abstract of title, to plaintiff's attorney. At the same time, he prepared a deed forthe Taft Avenue property and sent it to Depew. Depew's deed was signed by the executor inDecember 2006 and recorded in April 2007. In June 2007, plaintiff's attorney advised theexecutor by letter that the six-foot strip of land described in the December 1984 survey was to beadded to the Magnolia Street property. After this communication took place, Depew entered intoa contract to sell the Taft Avenue property, as described in her deed from the estate, to defendantMPM Real Estate, LLC. MPM plans to construct a 12-family residence on the Taft Avenueproperty, which allegedly cannot be developed in this manner if the disputed six-foot strip is notincluded.
On August 20, 2007, plaintiff commenced an action pursuant to RPAPL article 15 againstDepew and the executor of the mother's estate seeking possession of the six-foot strip of land.MPM was subsequently granted leave to intervene. Both Depew and MPM moved for summaryjudgment dismissing the complaint. By separate orders unaccompanied by written decisions orother indication of its reasoning, Supreme Court granted both motions and canceled the notice ofpendency. Plaintiff appeals from both orders.
In New York, real property may be conveyed only by a deed or a conveyance in writing(see General Obligations Law § 5-703 [1]). Although a will is not a "conveyance"(Real Property Law § 240 [1]; § 290 [3]), a testator may nonetheless dispose ofproperty by will (see General Obligations Law § 5-703 [1]). On this appeal,Depew and MPM (hereinafter collectively referred to as defendants) contend that the disputedstrip of land was conveyed to Depew as part of the residual estate by the executor's deed to theTaft Avenue property, while plaintiff contends that the mother passed the disputed strip of landto her as part of her bequest of the Magnolia [*3]Street property.
As the parties moving for summary judgment, defendants bore the initial burden ofestablishing their prima facie entitlement to judgment as a matter of law by presentingcompetent, admissible evidence demonstrating the absence of triable issues of fact (seeZuckerman v City of New York, 49 NY2d 557, 562 [1980]; Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]; Wells v Ronning, 269 AD2d 690, 691[2000]). To do so, they relied upon the 1984 deed and the 2006 appraisal of the Magnolia Streetproperty, neither of which include the disputed six-foot strip of land. In addition, they providedan abstract of title and a survey—recently commissioned by Depew—of the TaftAvenue property, showing that no conveyance of the six-foot strip of land has been recorded andthat the house on the Magnolia Street property does not encroach on the Taft Avenue property.MPM provided the affirmation of the mother's counsel attesting that no instrument changing theboundaries of the Magnolia Street property from those shown in the 1984 deed is on record. Thisattorney further attested that the mother obtained the appraisals to determine the comparativevalues of properties she intended to leave to her children so as to establish an equal distributionof the total estate among three of the children, after establishing a trust for a fourth child who isdisabled. He attested that he was never made aware of any change in the dimensions of theproperties that the mother intended to pass to her children and that, based upon her intention tomake an equal distribution, he believes she would have made arrangements to alter the propertylines if she had intended to do so, but he did not learn about the 1984 survey showing an alteredboundary line until after her death.
This evidence was sufficient to meet defendants' prima facie burden to establish theirentitlement to judgment as a matter of law (see Zuckerman v City of New York, 49NY2d at 562). The burden then shifted to plaintiff, as the nonmovant, to "assemble, lay bare andreveal [her] proofs" (Manculich vDependable Auto Sales & Serv., Inc., 39 AD3d 1070, 1072 [2007] [internal quotationmarks and citations omitted]). To meet her burden, plaintiff was required to offer competentevidence in admissible form establishing the existence of genuine, triable issues of material factor demonstrate an acceptable excuse for failing to do so (see Zuckerman v City of NewYork, 49 NY2d at 562).
As documentary evidence, plaintiff relied upon the 1984 surveys, which she contendsdemonstrate her parents' intent to move the boundary line. By affidavit, she alleged that thisintent is further shown by an underground drainage system crossing the six-foot strip that themother had installed for the Magnolia Street property and the alleged maintenance of the strip aspart of the Magnolia Street property. The placement of the underground drainage system acrossthe disputed land and its alleged maintenance as part of the Magnolia Street property, however,are consistent with the mother's rights as the owner of both properties, without regard to thelocation of the boundary line, and, therefore, indicate nothing with regard to any alteration of itslocation. Plaintiff's claims that her brothers gave instructions with regard to the disputed strip ofland to the mother's attorney and that the appraiser "was told" by an unspecified person to addthe strip to the Magnolia Street property were unsubstantiated by any affidavit testimony.Plaintiff's proof consisted of the survey map and property descriptions prepared in 1984, which,in and of themselves, effected no conveyance, did not form the basis of any conveyance over thenext 22 years, were not used when her mother obtained the appraisals, and were not mentionedin her will. Even if plaintiff's claims with regard to her parents' intent in obtaining the survey orthereafter are relevant, to the extent that they are based on conversations or transactions withthem before their deaths, such claims are ultimately inadmissible under the Dead Man's Statute(see CPLR 4519). Thus, even when plaintiff's evidence is viewed in the light mostfavorable to her (see Candelario vWatervliet Hous. Auth., 46 AD3d 1073, 1074 [2007]), her claims amounted to "mereconclusions, expressions of hope or unsubstantiated allegations or assertions" which wereinsufficient to meet her burden to establish the existence of triable issues of fact (Zuckermanv City of New York, 49 NY2d at 562). Supreme Court, therefore, properly granted summaryjudgment to defendants.
Spain, J.P., Lahtinen, Malone Jr. and Stein, JJ., concur. Ordered that the orders are affirmed,with one bill of costs.