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

782
CA 10-01353
PRESENT: SMITH, J.P., CENTRA, FAHEY, GORSKI, AND MARTOCHE, JJ.


RONALD C. ROSS, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                                MEMORANDUM AND ORDER

MICHAEL ROSS ROSA, DEFENDANT-APPELLANT-RESPONDENT.


CAMARDO LAW FIRM, P.C., AUBURN (JOSEPH A. CAMARDO, JR., OF COUNSEL),
FOR DEFENDANT-APPELLANT-RESPONDENT.

MILLER MAYER, LLP, ITHACA (JOHN MOSS HINCHCLIFF OF COUNSEL), FOR
PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Cayuga County (Mark H. Fandrich, A.J.), entered March 31, 2010. The
order denied each of the parties’ cross motions for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting plaintiff’s cross motion
insofar as it seeks to dismiss those parts of the counterclaims
sounding in fraud and as modified the order is affirmed without costs.

     Memorandum: Plaintiff, who owns property adjoining property
owned by defendant, commenced this action pursuant to RPAPL article 15
seeking, inter alia, a determination with respect to the common
boundary line between those properties. Defendant initially moved for
a protective order, plaintiff cross-moved to dismiss the counterclaims
and for summary judgment on the complaint, and defendant then cross-
moved for summary judgment “with respect to the portions of the land
being claimed by Plaintiff.” Both parties now contend that Supreme
Court erred in denying their respective cross motions. We conclude
that the court properly denied the cross motion of defendant and that
part of the cross motion of plaintiff for summary judgment inasmuch as
there are triable issues of fact precluding that relief (see generally
Zuckerman v City of New York, 49 NY2d 557, 562). We further conclude,
however, that those parts of the counterclaims sounding in fraud are
time-barred (see CPLR 213 [8]). Consequently, we conclude that the
court erred in denying those parts of plaintiff’s cross motion seeking
dismissal of the counterclaims insofar as they sound in fraud, and we
thus modify the order by granting those parts of plaintiff’s cross
motion and dismissing the counterclaims only to the extent that they
sound in fraud. Finally, we note that defendant has withdrawn his
fourth counterclaim, alleging that plaintiff violated the Zoning Law
                           -2-                  782
                                          CA 10-01353

of the Town of Fleming.




Entered:   June 10, 2011         Patricia L. Morgan
                                 Clerk of the Court
