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