                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: March 12, 2015                      518771
________________________________

LASSITER PROPERTIES, INC.,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   January 13, 2015

Before:   Peters, P.J., Rose, Egan Jr. and Clark, JJ.

                               __________


      Muller, Mannix & Hobbs, PLLC, Glens Falls (Daniel J. Mannix
of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.

                               __________


Clark, J.

      Appeal from a judgment of the Court of Claims (Hard, J.),
entered June 24, 2013, upon a decision of the court in favor of
defendant.

      The present dispute arises over timber rights purportedly
possessed by claimant, and the underlying facts are set forth
more fully in our prior decisions (84 AD3d 1559 [2011]; 22 AD3d
895 [2005]). Briefly, in 1925, Oval Wood Dish Corporation
conveyed real property in the Town of Colton, St. Lawrence County
that was to be flooded to create a reservoir. Oval Wood reserved
the right to harvest timber from those lands until they were
"flooded or overflowed," which occurred in the 1950s. In 1988,
claimant acquired a variety of property interests in the
Adirondacks, including whatever timber rights remained extant on
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the flooded parcels. Also in 1988, defendant and claimant
negotiated an arrangement wherein some of claimant's recently
acquired holdings would be sold to a third party, then conveyed
to defendant. Defendant acquired the purported timber rights
upon some of the flooded parcels as part of that transaction, and
granted an easement so that claimant could access its own
property and the remaining flooded parcels upon which it believed
it had timber rights.

      Claimant harvested timber from the flooded parcels on which
it believed it had timber rights until they were sold to
defendant in 2000. Defendant refused to recognize claimant's
timber rights upon those parcels, prompting claimant to commence
this action seeking damages stemming from the deprivation of its
right to harvest timber. The Court of Claims (Siegel, J.), in a
decision affirmed by this Court, partially granted defendant's
motion for summary judgment and held that claimant's contractual
timber rights terminated when the lands were flooded in the 1950s
(84 AD3d at 1560-1561). The Court of Claims (Hard, J.) then
conducted a nonjury trial to determine "whether the numerous
writings and memoranda between the parties could have created a
new agreement as to timber rights" (84 AD3d at 1560 n 2). The
Court of Claims held that they did not, and claimant now appeals.

      In "reviewing a determination after a nonjury trial, this
Court independently considers the weight of the evidence and may
grant whatever judgment is warranted by the record, all while
deferring to the trial judge's factual findings, especially where
those findings are based on credibility determinations" (Smith v
State of New York, 121 AD3d 1358, 1358-1359 [2014]; see St.
Lawrence Factory Stores v Ogdensburg Bridge & Port Auth., 121
AD3d 1226, 1227 [2014]). We agree with the Court of Claims that
defendant was entitled to judgment and, accordingly, affirm.

      Here, the interactions between claimant and defendant prior
to 2000 reflect their mutual, and mistaken, belief that claimant
had timber rights on the partially flooded parcels. The Court of
Claims aptly noted, however, that the parties' 1988 transaction
"was not an agreement by which . . . defendant was to convey
timber rights to claimant and neither party understood it as so."
As claimant appears to acknowledge, the parties' mistake as to
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the existence of timber rights on other property provides no
basis to disturb that transaction (see e.g. Jossel v Meyers, 212
AD2d 55, 57 [1995]). Claimant instead asserts that defendant
should be estopped from denying the existence of the timber
rights because, in 1988, defendant purchased some of the
nonexistent timber rights and granted claimant an easement so
that it could access others. In that regard, "[f]or estoppel by
deed to apply, the party who is sought to be estopped must
. . . have the power to pass title by direct conveyance" (5-48
Warren's Weed Real Property § 48.09 [2014]; see Mutual Life Ins.
Co. v Corey, 135 NY 326, 334 [1892]). It suffices to say that
defendant did not own the property at issue until 2000 and, thus,
its actions prior to that time could not give rise to an estoppel
(see Bisbee v Spacht, 125 AD2d 982, 983 [1986]; compare Village
of Tarrytown v Woodland Lake Estates, 97 AD2d 338, 342 [1983], lv
dismissed 63 NY2d 771 [1984] [grantor previously owned property
and reacquired it]).

     Peters, P.J., Rose and Egan Jr., JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
