79 A.D.2d 725 | N.Y. App. Div. | 1980
Lead Opinion
Appeals from orders of the Supreme Court at Special Term, entered January 31, 1980 in Fulton County, which denied plaintiffs’ motion pursuant to CPLR 3211 (subd [b]) to strike the defense of res judicata, and which, after granting plaintiffs’ motion for re-argument, adhered to its original decision. The determination of this appeal depends on the validity of the defense of res judicata arising out of the following real property transaction. On August 18, 1955, Mayer L. Cramer and Ida Cramer, the then owners of lots numbered 260, 261 and 262, located in the Town of Northampton, Fulton County, New York, conveyed Lot No. 260 and part of Lot No. 261 to the plaintiffs. In 1968, the Cramers conveyed the remainder of Lots Nos. 261 and 262 to the defendant Janet C. Hillelson, who, on July 28, .1972, conveyed a part of Lot No. 261 and a part of Lot No. 262 to the defendant Lawrence S. Hillelson. Shortly after the Hillelson conveyance, the plaintiffs discoveréd that the house they had built in 1956 encroached on the property described in the deed to Hillelson. The plaintiffs commenced an action on June 19, 1974 against the Cramers and the Hillel-sons. The complaint in that action alleged only a cause of action to reform their deed to correctly describe the premises the plaintiffs claimed were intended to be conveyed to them, to include the parcel on which they had built their house and which, they contended, had been omitted from their conveyance through the mutual mistake of the parties. At the close of the plaintiffs’ case in that prior action, Trial Term dismissed the complaint on the merits for the plaintiffs’ failure to prove a cause of action against the defendants named therein. The court also stated that the six-year Statute of Limitations governing reformation of instruments based on mistake (CPLR 213, subd 6) was an additional reason for dismissal as to the defendants Hillelson since they had pleaded the Statute of Limitations affirmatively, whereas the Cramers had not. Following this adverse decision, the plaintiffs commenced the present suit on January 29, 1979, pursuant to RPAPL article 15, to compel a determination that they were entitled to at least that portion of the disputed strip on which ■ they had built, by adverse possession. In answer, the defendants interposed affirmatively the defense of res judicata, claiming that the determination in the prior action was a complete bar. The plaintiffs moved at Special Term to strike this defense for insufficiency. The motion was denied by Special Term, which, upon granting the plaintiffs’ motion for reargument, adhered to its original decision. The plaintiffs attempt to appeal both orders. Procedurally, the appeal from the original order should be dismissed as academic and the review herein limited to the order adhering to the initial determination after reargument. This latter order supersedes the original one (Guterding v Guterding, 55 AD2d 614). We agree with Special Term’s denial of the plaintiffs’ motion. The doctrine of res
Herlihy, J., concurs in part and dissents in part in the following memorandum.
Concurrence in Part
I concur in the affirmance of the order of Special Term granting reargument and with the dismissal of the appeal from the order denying plaintiffs’ motion to dismiss the defense of res judicata. The critical points in this case appear to be the alleged facts that: (1) plaintiffs purchased land from the Cramers on August 18, 1955; (2) plaintiffs entered into possession of a strip of land still owned by the Cramers in 1956; (3) in 1968 Cramers conveyed the strip of land possessed by plaintiffs to defendant, Janet C. Hillelson; (4) on July 28, 1972 Janet Hillelson conveyed the strip to Lawrence S. Hillelson; (5) on June 19, 1974 plaintiffs commenced an action against the Cramers and the Hillelsons upon the theory that in fact the original purchase on August 18, 1955 did include the disputed strip of land and sought reformation of their 1955 deed to reflect such fact; (6) the 1974 action went to trial on April 5, 1976 and the court dismissed the complaint at the close of plaintiffs’ case on the merits; (7) the present action was commenced on January 29, 1979 seeking to establish title by adverse possession. To the extent that any adverse possession could have been claimed against the Cramers and by tacking against the defendants herein, it is apparent that the applicable statutory period of 15 years would have expired in 1970 or 1971, well before the conclusion of the prior proceeding. As to any proof of title in plaintiffs based upon a possession adverse to the Cramers, the prior judgment would be conclusive since the gravamen of the action is the same. Accordingly, Special Term properly determined that the defense of res judicata would be valid and conclusive as to the present complaint which specifically pleads that the adverse occupation commenced in 1955. Of course, the