Town of Fowler v. Parow

• Decision Date: 23 November 2016
• Parties: TOWN OF FOWLER, Respondent, v. David E. PAROW, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

144 A.D.3d 1444
42 N.Y.S.3d 416
2016 N.Y. Slip Op. 07898

TOWN OF FOWLER, Respondent,
v.
David E. PAROW, et al., Appellants.

Supreme Court, Appellate Division, Third Department, New York.

Nov. 23, 2016.

42 N.Y.S.3d 416

Conboy, McKay, Bachman & Kendall, LLP, Watertown (Stephen W. Gebo of counsel), for appellants.

Case & Leader, LLP, Gouverneur (Henry J. Leader of counsel), for respondent.

Before: PETERS, P.J., GARRY, EGAN JR., ROSE and MULVEY, JJ.

ROSE, J.

144 A.D.3d 1445

Appeal from an order of the Supreme Court (Demarest, J.), entered July 30, 2015 in St. Lawrence County, which, among other things, granted plaintiff's motion for summary judgment.

Plaintiff commenced this action for declaratory and injunctive relief pursuant to RPAPL article 15 to determine title to a 20–foot–wide strip of land running along the shoreline of Sylvia Lake in the Town of Fowler, St. Lawrence County, in front of two cottage lots, one now owned by defendant Cynthia Carr and the other by defendants Andrew Parow and Shelby Parow. The disputed strip of land consists of a sand beach and adjoins a public bathing beach owned and operated by plaintiff. The parties trace the ownership of their properties back to a common grantor, Reuben Cary, who acquired 30 acres of land

42 N.Y.S.3d 417

and subdivided it, as shown on a 1919 survey map, into numbered cottage lots lying along the shoreline. Plaintiff owns cottage lots 30 and 31, where it now operates a public bathing beach, and the Parows and Carr own cottage lots 29 and 28, respectively.

Plaintiff's claim to the disputed strip of land is based upon its interpretation of two lost and unrecorded 1920 deeds whereby Cary conveyed cottage lots 28 and 29 to Carr's and the Parows' predecessors in interest. Plaintiff concedes that these lost and unrecorded deeds conveyed lots 28 and 29, but claims that the deed descriptions contained language excepting and reserving title to the disputed strip of land to Cary. Thus, under plaintiff's theory, Cary retained title to the disputed strip of land and later conveyed it to Charles Force, plaintiff's predecessor in interest, allowing it to ultimately take fee title in 1977 when it purchased five parcels of land from Glen VanValkenburg and Mildred VanValkenburg, successors in interest to Force. The VanValkenburg deed to plaintiff included “parcel II,” which encompassed cottage lots 30 and 31, as well as “parcel IV,” which purported to include the disputed strip of land along the shoreline in front of lots 28 and 29.

In their answer, defendants allege that plaintiff does not have title to the disputed strip of land and, even if it does, the Parows and Carr have a prescriptive easement based on their long-standing use of the beach for boat dockage and other purposes. Following discovery, plaintiff moved for summary judgment and defendants cross-moved for summary judgment dismissing the complaint or for a declaration that they have a prescriptive easement. Supreme Court ultimately granted

144 A.D.3d 1446

plaintiff's motion, finding that plaintiff has superior title to the disputed strip of land based on its 1977 deed from the VanValkenburgs. In addition, Supreme Court found that issues of fact exist as to whether the Parows and Carr have a prescriptive easement and, thus, denied defendants' motion. This appeal by defendants ensued.

“In an action to determine title pursuant to RPAPL article 15, the plaintiff has an affirmative duty to show that title lies in it, which is not satisfied merely by pointing to weaknesses in [the] defendants' title” (Crawford v. Town of Huntington, 299 A.D.2d 446, 447, 749 N.Y.S.2d 737 [2002] [internal quotation marks and citations omitted], lv. denied 99 N.Y.2d 507, 757 N.Y.S.2d 818, 787 N.E.2d 1164 [2003] ; see Mazzoni v. Village of Seneca Falls, 68 A.D.3d 1805, 1806, 891 N.Y.S.2d 782 [2009] ). While “[t]he failure to record a deed does not deprive a person of the opportunity to assert a claim of legal title to property [and a] lost deed...