        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1075
CA 15-02043
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, NEMOYER, AND TROUTMAN, JJ.


JOHN GUTHRIE, MICHAEL PEDERSEN, LAWRENCE
BRESEE, JULIA BRESEE, GARY CROMER AND KAREN
CROMER, PLAINTIFFS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

EDWARD L. MOSSOW AND SUSAN MOSSOW,
DEFENDANTS-RESPONDENTS.


GIACONA LAW, P.C., AUBURN (DOMINIC V. GIACONA OF COUNSEL), FOR
PLAINTIFFS-APPELLANTS.

NORMAN J. CHIRCO, AUBURN, FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered February 12, 2015. The
judgment declared that the right in common to use certain undivided
lakeshore has not been extinguished and that defendants have a common
right to use such property as a community beach.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by converting the action to one
pursuant to RPAPL article 15, vacating the declarations, and
dismissing the complaint, and as modified the judgment is affirmed
without costs.

     Memorandum: The parties are owners of property in the
Manchester-Kilmer Tract (Tract) in the Town of Cato. The Tract, as
depicted in a filed subdivision map, consists of 99 numbered parcels
of equal dimensions, divided into three rows of 33 lots, bordering on
an undivided strip of land along the shore of Cross Lake. Plaintiffs
own lots in the row closest to the lakeshore, and defendants own lots
in the row farthest from the lakeshore.

     A dispute arose concerning the parties’ respective rights to the
use and possession of the undivided strip along the lakeshore, and
plaintiffs commenced this action seeking, inter alia, judgment
declaring that they are each the lawful owners in fee simple of that
part of the disputed strip abutting their respective lots. Following
a nonjury trial, Supreme Court concluded, inter alia, that plaintiffs
failed to establish that they acquired title by adverse possession or
otherwise to the disputed strip abutting their respective lots, and it
issued declarations concerning the rights of the parties.
                                 -2-                          1075
                                                         CA 15-02043

     At the outset, we note that a declaratory judgment action is not
the proper procedural vehicle to determine title to disputed property
(see Franza v Olin, 73 AD3d 44, 45). “Rather, the correct procedural
vehicle is an action pursuant to RPAPL 1501,” and we exercise our
power to convert that part of the action seeking declaratory judgment
to such an action (id.; see CPLR 103 [c]), and we vacate the
declarations. Contrary to plaintiffs’ contention, we conclude that
the court properly determined that they failed to meet their burden of
establishing by a preponderance of the evidence that they had acquired
title to the portions of the disputed strip of lakeshore abutting
their properties (see Leitch v Jackson, 243 AD2d 873, 874), and we
therefore dismiss the complaint. Finally, we note that plaintiffs
have not addressed in their brief any issues concerning their requests
for injunctive and other relief, and they have thus abandoned any such
issues (see Village of Gainesville v Hotis, 39 AD3d 1167, 1168;
Ciesinski v Town of Aurora, 202 AD2d 984, 984).




Entered:   December 23, 2016                    Frances E. Cafarell
                                                Clerk of the Court
