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

1393
CA 14-00673
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND SCONIERS, JJ.


ROGER D. CRAIN, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BILL E. MANNISE AND CYNTHIA L. MANNISE,
DEFENDANTS-RESPONDENTS.
------------------------------------------
WILLIAM E. MANNISE AND CYNTHIA L. MANNISE,
THIRD-PARTY PLAINTIFFS,

                    V

MICHAEL ARCURI, THIRD-PARTY DEFENDANT.


MELVIN & MELVIN, PLLC, SYRACUSE (THOMAS BEZIGIAN, JR., OF COUNSEL),
FOR PLAINTIFF-APPELLANT.

MENTER, RUDIN & TRIVELPIECE, P.C., SYRACUSE (TERESA M. BENNETT OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Onondaga County (Donald A. Greenwood, J.), entered January 16, 2014.
The judgment granted the motion of defendants seeking summary judgment
dismissing the complaint and summary judgment on their counterclaim,
declared that defendants are the lawful owners of the disputed
property and denied plaintiff’s cross motion for summary judgment.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the motion is denied,
the complaint is reinstated, the cross motion is granted in part, and
judgment is granted in favor of plaintiff on the first cause of action
as follows:

          It is ORDERED, ADJUDGED AND DECLARED that plaintiff is
     the lawful owner of the disputed property.

     Memorandum: Plaintiff commenced this action pursuant to RPAPL
article 15 seeking to compel a determination of claims to real
property, i.e., the “disputed parcel” comprising approximately one
quarter of an acre, which is described in the deed to plaintiff’s
parcel and also is described in the deed to defendants’ parcel
(hereafter, disputed property). The underlying relevant facts are not
in dispute. The parties own adjacent parcels of property in Onondaga
County. Plaintiff acquired title to his parcel in 1976 from his
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                                                         CA 14-00673

parents, who had purchased it in 1953. Defendants purchased their
parcel from third-party defendant, who transferred title by warranty
deed in April 2008. Third-party defendant had purchased the parcel in
October 2002 through an in rem foreclosure proceeding and thus
acquired title by tax deed from the County of Onondaga. Plaintiff’s
abstract of title demonstrates that the disputed property, which is
vacant, has consistently been part of plaintiff’s parcel. However, in
1959, the disputed property was included, in error, in a deed
transferring defendants’ parcel to a predecessor in interest, and that
error was repeated thereafter each time the parcel now owned by
defendants was transferred. The Onondaga County tax map shows the
disputed property as part of defendants’ parcel and not as part of
plaintiff’s parcel. In 2003, plaintiff’s attorney advised third-party
defendant that he must cease and desist from doing work on the
disputed property and provided him, by letter, with an explanation
that, in 1959 “the description in th[e] deed included land east of the
creek, and the seller did not own any land east of the creek . . .
Nevertheless, the creek has always been the correct westerly boundary
of [plaintiff’s] land.”

     Defendants moved for summary judgment dismissing the complaint on
the ground that the instant action is barred by the six year statute
of limitations (see CPLR 213 [1]), inasmuch as plaintiff was aware of
the tax deed transferring the property to third-party defendant on
October 15, 2002, and plaintiff failed to commence the action until
June 9, 2009. Plaintiff cross-moved for summary judgment on his
complaint and to dismiss defendants’ counterclaim seeking a
declaration pursuant to RPAPL article 15 that they are the “lawful and
rightful” owners of the disputed property. Supreme Court determined
that plaintiff was required to commence the action within six years of
the date of the tax deed, reasoning that the tax deed was voidable,
not void. The court therefore granted the motion and denied the cross
motion, declaring that defendants are the lawful owners of the
disputed property. That was error.

     “It is well settled that an owner in possession has a right to
invoke the aid of a court of equity at any time while he is so the
owner and in possession, to have an apparent, though in fact not a
real incumbrance discharged from the record and such right is never
barred by the [s]tatute of [l]imitations. It is a continuing right
which exists as long as there is an occasion for its exercise” (Ford v
Clendenin, 215 NY 10, 16; see Schoener v Lissauer, 107 NY 111, 116-
117; Miner v Beekman, 50 NY 337, 343). Indeed, “[a] [s]tatute of
[l]imitations is one of repose designed to put an end to stale claims
and was never intended to compel resort to legal remedies by one who
is in complete enjoyment of all he claims . . . The logic of such a
view is inescapably correct, for otherwise, the recording of the deed
resulting from such a proceeding would transform the owner’s absolute
title in fee simple into a right of action only, the exercise of which
is subject to time limitation” (Cameron Estates, Inc. v Deering, 308
NY 24, 31, rearg denied 308 NY 808 [internal citations omitted]; see
Orange & Rockland Util. v Philwold Estates, 52 NY2d 253, 261; see also
Welch v Prevost Landowners, 202 AD2d 803, 804-805; Piedra v Vanover,
174 AD2d 191, 196).
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                                                         CA 14-00673

     We conclude that, inasmuch as plaintiff and his predecessors in
interest have always held title and have been in continuous possession
of the disputed property, the tax deed to defendants’ predecessor in
interest was void with respect to the disputed property because the
County of Onondaga could not convey an interest in land that it did
not have (see generally Washington Temple Church of God in Christ,
Inc. v Global Props. & Assoc., Inc., 55 AD3d 727, 727-728). Indeed,
“[a] purchaser who fails to use due diligence in examining the title
is chargeable, as a matter of law, with notice of the facts which a
proper inquiry would have disclosed” (id. at 728). Here, due
diligence on the part of defendants would have disclosed the error in
the 1959 transfer of the disputed property.




Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
