Wasson v. Bond

• Decision Date: 26 July 2012
• Citation: 2012 N.Y. Slip Op. 05786,949 N.Y.S.2d 290,97 A.D.3d 1093
• Parties: David WASSON et al., Respondents, v. Ruth BOND et al., Appellants.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 1093

949 N.Y.S.2d 290

2012 N.Y. Slip Op. 05786

David WASSON et al., Respondents,

v.Ruth BOND et al., Appellants.

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

July 26, 2012.

Kernan & Kernan, PC, Utica (Leighton R. Burns of counsel), for appellants.

Cohen & Cohen, Utica (Daniel S. Cohen of counsel), for respondents.

Before: ROSE, J.P., SPAIN, MALONE JR., KAVANAGH and EGAN JR., JJ.

MALONE JR., J.

Appeal from an order of the Supreme Court (Coccoma, J.), entered September 26, 2011 in Otsego County, which granted plaintiffs' motion to dismiss defendants' counterclaims.

In March 2011, plaintiffs commenced this action against defendants alleging various trespasses that purportedly caused damage to plaintiffs' property. In July 2011, defendants answered and alleged in a counterclaim that defendant Ruth Bond acquired title to plaintiffs' property in June 2011 by virtue of a deed executed by Southern New York Railway Inc. (hereinafter the railway). Plaintiffs moved to dismiss the counterclaim on the basis that, during the course of prior litigation, it had been determined that plaintiffs' predecessors in interest held valid title to the disputed property ( see Wasson v. Bond, 80 A.D.3d 1114, 914 N.Y.S.2d 920 [2011] ).¹ Supreme Court granted plaintiffs' motion and defendants appeal.

Supreme Court properly dismissed defendants' counterclaim as barred by res judicata and collateral estoppel inasmuch as the issue of the ownership of the disputed property was previously raised, fully litigated and adjudicated by Supreme Court adversely to Bond ( see generally Buechel v. Bain, 97 N.Y.2d 295, 303, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001],cert. denied535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002];See Why Gerard, LLC v. Gramro Entertainment Corp., 94 A.D.3d 1205, 941 N.Y.S.2d 350 [2012] ). Although defendants now assert that Bond had obtained title to plaintiffs' property by virtue of a deed executed by the railway in June 2011, that deed essentially mirrors the deeds executed by the railway in 2005 and 2006 that purported to convey the railway's alleged interest in the property to Bond, and those deeds were previously determined to be “ineffectual to vest in Bond any title or interest in the [property].” Indeed, it was decided by the court in the prior litigation that the railway's chain of title includes only a right-of-way over the disputed parcel, and the railway never held a fee title interest in it. Thus, no deed executed by the railway can be effective to convey fee title to Bond. Contrary to defendants' contention, the fact that the railway was not a party to the prior action does not...