Levy v. Braley
| Decision Date | 17 October 1991 |
| Citation | 574 N.Y.S.2d 873,176 A.D.2d 1030 |
| Parties | Norman LEVY, Respondent, v. J. Warren BRALEY, Individually and as Administrator of the Estate of Franklin M. Gleason, et al., Appellants, and Bernard L. Shuldiner et al., Respondents-Appellants, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Connor, Curran & Schram (Nelson R. Alford Jr., of counsel), Chatham, for appellants.
Kleinman, Saltzman & Goodfriend (Kevin Stevens, of counsel), West Nyack, for Norman Levy, respondent.
Before CASEY, J.P., MIKOLL, YESAWICH, LEVINE and CREW, JJ.
Appeals from two judgments of the Supreme Court (Leaman, J.), entered April 13, 1990 and May 24, 1990 in Columbia County, upon a decision of the court in favor of plaintiff and in favor of defendants Bernard L. Shuldiner and Norma Shuldiner on their cross claim against defendant J. Warren Braley.
This action pursuant to RPAPL article 15 arises out of a boundary dispute between plaintiff and defendants J. Warren Braley, Bernard L. Shuldiner and Norma Shuldiner over approximately 12 acres of undeveloped land located in the Town of Austerlitz, Columbia County. The property in question lies between a stone wall on the east and a wire fence on the west. Plaintiff's source of title is an 1841 deed to John Philips, expressly covering some 32 acres, describing the boundaries of the parcel in general compass directions along courses delineated by a fence, stakes and stones, a stone ledge, certain highways and the lands of abutting owners, but without any specification of distances. All succeeding conveyances of the parcel were based upon that description excepting, however, a transfer in 1881 of 1 1/2 acres of the parcel from Peter Philips and his wife to James Philips. The plot conveyed in 1881 was described in the deed as being bounded on three sides by the grantor's land and on the fourth side by the same highway that constituted the eastern boundary of the land conveyed to John Philips in 1841. The 1 1/2-acre parcel was referred to at the trial in various maps introduced in evidence as the "Howe parcel".
The Shuldiners' claim is based upon a 1967 conveyance to them of 22 acres of land from Braley and the late Franklin M. Gleason, whose estate was also named as a defendant. This property purportedly came out of a 200-acre parcel sold to Braley and Gleason in 1964. The description of the 200-acre plot in their deed had been used in prior conveyances going back to 1870, in a deed from Charles Loomis to Sill Niles. That parcel, in turn, was part of a 400-acre conveyance in 1832. However, the description of the 22 acres in the 1967 Shuldiner deed is not derived from either the deed description of the 200-acre parcel or that of the 400-acre parcel. Rather, the Shuldiner deed refers to various independent courses and specific distances, despite the absence of any evidence that the land was surveyed with that conveyance. A survey of the Shuldiner property was performed in 1974 by Raymond Lubianetsky, a licensed surveyor, and that survey map (hereinafter the Lubianetsky survey) was introduced into evidence at the trial. The Lubianetsky survey depicted the eastern boundary of the Shuldiners' property as a stone wall abutting the Howe parcel at its southern end and abutting plaintiff's land for the remainder of its length.
At trial, the parties offered conflicting lay testimony regarding possessory use of the disputed parcel by their respective predecessors in title. Additionally, plaintiff introduced expert testimony from two licensed surveyors and a title abstractor, and Braley also used a licensed surveyor as an expert witness. Each side's experts employed survey maps to support their positions. Following the nonjury trial, Supreme Court found in favor of plaintiff and granted him title to the disputed property. The Shuldiners were awarded monetary relief against Braley and the Gleason estate based upon the warranties contained in their deed. These appeals...
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...weight to be accorded an expert's testimony in a nonjury trial is entitled to deference by a reviewing court" ( Levy v. Braley, 176 A.D.2d 1030, 1033, 574 N.Y.S.2d 873 [1991] ). Although an expert's testimony may be rejected by the trial court if it is improbable, in conflict with other evi......
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