| De Paulis Holding Corp. v Vitale |
| 2009 NY Slip Op 07576 [66 AD3d 816] |
| October 20, 2009 |
| Appellate Division, Second Department |
| De Paulis Holding Corp., Respondent, v Albert Vitale,Appellant. |
—[*1] John Z. Marangos, Staten Island, N.Y. (Denise Marangos of counsel), forrespondent.
In an action to quiet title to real property, the defendant appeals from so much of an order ofthe Supreme Court, Richmond County (Maltese, J.), entered May 7, 2008, as denied his motionfor summary judgment dismissing the complaint and to dismiss the complaint for failure to statea cause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
In February 1985 the plaintiff acquired title from a third party to two lots of real property inStaten Island. The lots were identified in the deed conveying title as block 7464, lot 74(described as "vacant land") and block 7464, lot 17 (described as the parcel "with buildings andimprovements thereon"). Shortly thereafter, by deed dated February 27, 1985 (hereinafter the1985 deed), the plaintiff transferred title to lot 74 to John Russo, Anna Russo, Phillip Russo, andRosetta Russo. However, the metes and bounds description of the property transferred in the1985 deed was inaccurate and actually encompassed both lot 74 and lot 17. After the transfer, theplaintiff continued to pay taxes on lot 17 and considered itself the owner thereof.
In 1998 the Russos entered into a contract to sell their property to the defendant. Thecontract described the property as "Vacant Land located at Gaton Street, Staten Island, Block7464 Lot 74." However, the 1998 deed from the Russos to the defendant also contained the sameinaccurate metes and bounds description as the 1985 deed, encompassing both lots.Nevertheless, New York City Department of Finance records indicate that subsequent to the1998 transfer, the plaintiff continued to pay real estate taxes on lot 17 and was designated as theowner thereof. In 2006 the plaintiff commenced this action seeking to quiet title, claiming that itwas the sole owner of lot 17. Thereafter the defendant moved, inter alia, for summary judgment.The Supreme Court denied the motion. The defendant appeals.
"Every instrument . . . transferring . . . an estate or interest in realproperty must be [*2]construed according to the intent of theparties, so far as such intent can be gathered from the whole instrument, and is consistent withthe rules of law" (Real Property Law § 240 [3]; see Universal Broadcasting Corp. vIncorporated Vil. of Mineola, 192 AD2d 518, 519 [1993]).
Although the defendant correctly contends that the metes and bounds description of his deedencompasses both lots, there are questions of fact sufficient to deny that branch of his motionwhich was for summary judgment dismissing the complaint (see generally Alvarez vProspect Hosp., 68 NY2d 320 [1986]). Indeed, the circumstances surrounding the propertytransfers indicate that the Russos only intended to purchase lot 74 from the plaintiff, and that thisis the only lot which the Russos intended to sell to the defendant. Moreover, the title policywhich the defendant obtained at the time of his acquisition of the property from the Russos statesthat the "land referred to in this Policy is . . . vacant land, Staten Island, Block7464, Lot 74."
Nor did the Supreme Court err in refusing to grant that branch of the defendant's motionwhich was to dismiss the complaint for failure to state a cause of action pursuant to RPAPL1501. In deciding a motion to dismiss pursuant to CPLR 3211 (a) (7), "we must accept as truethe facts as alleged in the complaint and submissions in opposition to the motion, accord [theplaintiff] the benefit of every possible favorable inference and determine only whether the factsas alleged fit within any cognizable legal theory" (Sokoloff v Harriman Estates Dev. Corp.,96 NY2d 409, 414 [2001]; Richmond Shop Smart, Inc. v Kenbar Dev. Ctr., LLC, 32 AD3d423 [2006]). The defendant argues that the documentary evidence of the deed "flatlycontradicted" the plaintiff's factual allegations and thus the allegations of the complaint shouldnot be deemed true (see Ark Bryant Park Corp. v Bryant Park Restoration Corp., 285AD2d 143 [2001]). However, "[i]n cases where the court has considered extrinsic evidence on aCPLR 3211 motion . . . '[t]he motion should [only] be granted where the essentialfacts have been negated beyond substantial question by the affidavits and evidentiary mattersubmitted' " (Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999],affd 94 NY2d 659 [2000], quoting Blackgold Realty Corp. v Milne, 119 AD2d512, 513 [1986], affd 69 NY2d 719 [1986]).
In the case at bar, it is obvious that the extrinsic evidence, when considered as a whole, didnot negate beyond a substantial doubt the plaintiff's claim of title to lot 17, the disputed property.Furthermore, contrary to the defendant's contention, the Supreme Court did not err inconsidering the extrinsic evidence, even though the metes and bounds description may have beenunambiguous, albeit incorrect. If a deed is ambiguous, parol evidence is admissible (seeReal Property Law § 240 [3]; Wilson v Ford, 209 NY 186, 196 [1913]; seealso Andersen v Mazza, 258 AD2d 726 [1999]; Modrzynski v Wolfer, 234 AD2d901 [1996]).
Here the 1998 deed is ambiguous despite the precise metes and bounds description. At theend of the printed metes and bounds language in this deed, there appears the handwritten andinitialed notation "[b]eing the same premises as conveyed to the grantors by deed in Reel 39page 3493." The defendant does not dispute that reel 39, page 3493, covers only lot 74, and thusthere is an ambiguity on the face of the 1998 deed. Additionally, there is a suspect handwritten,but not initialed, notation at the end of the 1998 deed which adds "+17" to the printed phrase "lot74." Finally, and perhaps most telling, the 1998 deed describes the premises as "Vacant Landlocated at Gaton Street, Staten Island, New York." Accordingly, the Supreme Court properlyconsidered all of the parol evidence to determine whether the defendant was entitled to dismissalof the complaint for failure to state a cause of action.
The defendant's remaining contentions are without merit. Skelos, J.P., Santucci, Belen andHall, JJ., concur. [See 2008 NY Slip Op 31234(U).]