Hitchcock v. Abbott

• Decision Date: 01 July 2004
• Docket Number: 94993.
• Citation: 9 A.D.3d 563,780 N.Y.S.2d 398,2004 NY Slip Op 05716
• Parties: RICHARD E. HITCHCOCK et al., Appellants, v. GERALD ABBOTT et al., Defendants, and STEPHEN MERSEREAU et al., Respondents.
• Court: New York Supreme Court — Appellate Division

9 A.D.3d 563

780 N.Y.S.2d 398

2004 NY Slip Op 05716

RICHARD E. HITCHCOCK et al., Appellants, v. GERALD ABBOTT et al., Defendants, and STEPHEN MERSEREAU et al., Respondents.

94993.

Appellate Division of the Supreme Court of the State of New York, Third Department.

July 1, 2004.

Appeals (1) from an order of the Supreme Court (Moynihan, Jr., J.), entered January 31, 2003 in Washington County, which, inter alia, granted motions by defendants Stephen Mersereau, Lauren Tyler, June Boyack and Town of Ticonderoga to dismiss the complaint against them, and (2) from an order of said court (Sise, J.), entered June 18, 2003 in Washington County, which denied plaintiffs' motion for reargument and/or renewal.

CARDONA, P.J.

As set forth in two prior decisions of this Court (Hitchcock v Boyack, 277 AD2d 557 [2000]; Hitchcock v Boyack, 256 AD2d 842 [1998]), plaintiff Richard E. Hitchcock (hereinafter plaintiff) is a property owner claiming easements for the use of a certain roadway leading from the Village of Ticonderoga, Essex County, to Black Point (now known as Tiroga Point) on Lake George, as well as the use of Black Point Sand Beach. Plaintiff originally commenced an action, pro se, pursuant to RPAPL article 15, to quiet title against, among others, Henry R. Boyack (now deceased) and his wife, defendant June Boyack. Plaintiff later moved for leave to join defendants Robert Stefanic, Edda Stefanic, Arthur Secor and Lucile Secor to the action (Hitchcock v Boyack, 256 AD2d 842, 843 [1998], supra). This Court affirmed the dismissal of the complaint upon the failure to join all necessary parties, including plaintiff's wife, Jane Hitchcock (id.). Plaintiff then commenced a second action, pro se, against the same defendants for nuisance, alleging, among other things, that they obstructed his use of the roadway and beach (Hitchcock v Boyack, 277 AD2d 557 [2000], supra). This Court again upheld the dismissal of the action for, inter alia, failure to join all necessary parties (id.). The Boyacks thereafter sold their property to defendants Stephen Mersereau and Lauren Tyler.

In July 2001, plaintiff, still pro se, commenced the instant action to quiet title to the property, naming numerous interested parties as plaintiffs. After several of these parties advised that they would not consent to being plaintiffs, the complaint was amended to remove them from the action. In April 2002, plaintiff hired an attorney and Supreme Court granted plaintiffs' motion for leave to serve a second amended complaint on the condition that a "thorough title search" was to be conducted to determine the proper parties. Plaintiff's counsel conducted a title search and served a second amended complaint, naming several more parties to the action.

Mersereau, Tyler, June Boyack and defendant Town of Ticonderoga (hereinafter collectively referred to as defendants) moved to dismiss the second amended complaint for failure to join all necessary parties, including plaintiff's wife, Jane Hitchcock, and the owners of the servient estates. In response to those motions, plaintiffs submitted an affirmation from their counsel explaining that Jane Hitchcock conveyed all of her interest in the subject property to plaintiff, including her life estate, in a quitclaim deed dated June 28, 2001. An unsigned, unrecorded copy of that deed was attached as an exhibit. Supreme Court (Moynihan, Jr., J.), inter alia, granted defendants' motions to dismiss, ruling that plaintiffs failed to conduct a sufficient title search, name Jane Hitchcock as a party and name all the owners of the servient estates. In doing so, the court noted that the second amended complaint stated that the owners of the servient estates were not all known, but included "the Public Trust" and "George Weed and his estate," entities not named as party defendants. The court also found that the second amended complaint improperly named the Boyacks as defendants since they no longer owned the property sold to Mersereau and Tyler. Plaintiffs appeal this order.

Subsequently, plaintiffs moved for reargument and/or renewal. In his affirmation, plaintiffs' attorney maintained that a thorough title search had been conducted, and he attached as exhibits current tax maps, survey maps, copies of all involved deeds and a flow chart explaining the chain of title. The attorney averred that, "[u]pon completion of the title search, it was determined that the owners of the servient estates are the Secors, Stefanics, Mercereau, Tyler, and the Towns of Ticonderoga and Putnam. All of these property owners are named as party Defendants." According to plaintiffs' attorney, while the second amended complaint did indicate that all owners of the servient estates had not been named, those allegations were originally included in plaintiff's pro se amended complaint and "mistakenly retained in the Second Amended Complaint." It was also reiterated that Jane Hitchcock was not a necessary party and a copy of the signed and recorded quitclaim deed conveying her interest to plaintiff was included in the motion papers. Supreme Court (Sise, J.) denied plaintiffs' motion for reargument and/or renewal, prompting this appeal from that order as well.¹

Upon review of this record, we find that grounds for dismissal pursuant to CPLR 1001 were not established and, therefore, plaintiffs' motion for reconsideration² should have been granted. Notably, the quitclaim deed attached to plaintiffs' motion for reconsideration sufficiently demonstrates that Jane Hitchcock is no longer a necessary party. Although defendants questioned whether that deed transferred all of her interest to plaintiff, we note that it specifically states, inter alia, that it was conveying "the appurtenances and all...