Matter of City of New York (New Cr. Bluebelt, Phase 4)

[*1] Matter of City of New York (New Cr. Bluebelt, Phase 4) 2010 NY Slip Op 50084(U) [26 Misc 3d 1213(A)] Decided on January 25, 2010 Supreme Court, Richmond County Gerges, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 10, 2010; it will not be published in the printed Official Reports.

Decided on January 25, 2010
Supreme Court, Richmond County

In the Matter of the Application of the City of New York relative to acquiring title in fee simple for acquired for the New Creek Bluebelt, Phase 4



(CY) 4018/07



NYC Law Dept.

Office of the Corporation Counsel

Tax & Bankruptcy Litigation Division

100 Church Street

New York, NY 10007

Matthew Cuttler, Esq.

Lisa Bova-Hiatt, Esq.

Attorney for the Plaintiff

Zarin & Steinmetz

81 Main Street, Suite 415

White Plains, NY 10601

Michael D. Zarin, Esq.

David J. Cooper, Esq.

Attorney for the Defendants

John Marangos, Esq.

1134A Hylan Blvd.

Staten Island, NY 10305

Attorney for Demetrio

Abraham G. Gerges, J.

Upon the foregoing papers in this eminent domain proceeding, claimant Gaetano DeMetrio moves for an order, pursuant to Article 15 of the Real Property Actions and Proceedings Law, declaring that he is the rightful owner of the Block 3665, Lots 1, 6, 10, 12, 20, 22 and 25 in Richmond County, Staten Island (the Subject Property or the Seven Lots).

[*2]Facts and Procedural Background

On June 11, 2007, the City of New York (the City) acquired title to the Subject Property. DeMetrio brought the instant application seeking to establish that he held title to the Seven Lots on the date of the taking, since the City contends that he holds title to only Lots 1 and 25 and that F.T.M. Construction Corporation (FTM or the Corporation) holds title to Lots 6, 10, 12, 20 and 22 (the Disputed Lots).

More specifically, DeMetrio contends that he took title to the Seven Lots pursuant to a deed dated February 12, 2003 (the 2001 Foreclosure Deed) and issued by Vincent A. Albunio, Esq., as the Referee in a foreclosure action captioned NYCTL 1998-2 Trust and Bank of New York, as Collateral Agent and Custodian for the 1998-2 Trust v FTM (Richmond Co Sup Ct, Index No. 12955/01) (the 2001 Foreclosure Action) that was commenced on August 6, 2001 as the result of FTM's failure to pay a tax lien in the amount of $3,744.28. The summons in that action refers to Block 3665, Lot 1. The complaint stated that the tax lien covered the premises "bearing tax map designation: Block 3665 Lot(s) 1 which premises is more fully described in Schedule A', annexed hereto and made a part hereof;" Schedule A listed the Seven Lots, which were also described by metes and bounds. The notice of pendency filed on the same day contained the same description of the property, as did the 2001 Foreclosure Deed, the Judgment of Foreclosure and Sale (the 2001 Foreclosure Judgment) and the title insurance policy issued by Stewart Title Insurance Company (Stewart Title). The Deed was recorded on October 23, 2003. The City thereafter sent DeMetrio tax delinquency notices for Lots 6, 10, 12, 20, 22 and 25 for taxes owed back to the date of commencement of the 2001 Foreclosure Action, which he paid.

As is also relevant to the application now before the court, the City appeared in the 2001 Foreclosure Action and the 2001 Foreclosure Judgment contained a provision stating that:

"ORDERED, ADJUDGED AND DECREED that each and all of the defendants in this action and all persons claiming under them, or any or either of them after the filing of the Notice of Pendency of this action, be and they are hereby forever barred and foreclosed of all right, claim, lien, title, interest and equity of redemption in the said premises, and each and every part thereof."

That Judgment was not appealed.

On July 26, 2002, a foreclosure action was commenced with respect to Block 3665, Lot 25 as a result of FTM's failure to pay a tax lien in the amount of $5,027.44 in the action captioned NYCTL 1998-2 Trust v FTM (Richmond Co Sup Ct, Index No 12551/02) (the 2002 Foreclosure Action); a notice of pendency was filed on the same day. The summons referred to property located on Strobe Avenue. The complaint referred to properties listed on Schedule A, "NYC Tax Liens 2001-A," which listed, as is relevant herein, Block 3665, Lots 6, 12 and 25; although the complaint stated that the property was described in Schedule B, no such schedule is annexed to the complaint included in the City's papers. Schedule A annexed to the notice of pendency dated the same day describes only Block 3665, Lot 25, although it also includes "NYC Tax Liens 2001-A". The Judgment of Foreclosure and Sale similarly includes a Schedule A describing Block 3665, Lot 25, as does the Referee's deed dated November 7, 2003, which was recorded on December 12, 2003.

It is also noted that the City sold a lien in the amount of $6,751.54 on Lot 20 on May 13, 2003; a lien in the amount of $11,408.53 on Lot 6 on June 1, 2000; and a lien in the amount of $12,778.20 on Lot 12 on June 1, 2001.

[*3]The Parties' Contentions

Claimant

Claimant argues that since he acquired title to the Subject Property in the 2001 Foreclosure Action, the doctrines of res judicata, collateral estoppel and/or judicial estoppel preclude the City from now seeking to challenge the issue of title as was determined therein, since the City was a party and had a full and fair opportunity to challenge the validity of the title. In this regard, claimant further asserts that the City obtained a benefit from the position that it took in the 2001 Foreclosure Action, since he paid the back taxes due on the properties conveyed pursuant to the 2001 Foreclosure Deed. Claimant thus contends that the City is now attempting to deny the legitimacy of the 2001 Foreclosure Judgment in order to avoid having to pay him just compensation, which would allow the City to receive a double benefit in successive matters based upon inconsistent positions.

Claimant also argues that pursuant to Real Property Tax Law § 1137, the City can no longer challenge the 2001 Foreclosure Deed, since the presumption of title created thereby becomes final after two years. Thus, because it was recorded on October 23, 2003, the Statute of Limitations expired long before this condemnation proceeding was commenced. Claimant further contends that the City cannot benefit from the only relevant exception to this Statute of Limitations applicable to a party who is challenging a tax deed, i.e., that taxes were not owed on the property, since the delinquency notices sent by the City establish that the taxes were in fact owed on the subject lots prior to the commencement of the foreclosure action. Finally, claimant argues that even assuming that the City could challenge title, the metes and bound description of the property as set forth in the 2001 Foreclosure Deed controls.

The City

In opposition to the motion, the City argues that the evidence establishes that DeMetrio held title to only Lots 1 and 25 as of the date of vesting of title. In this regard, it asserts that the summons and complaint, the notice of pendency, the 2001 Foreclosure Judgment and the 2001 Foreclosure Deed clearly reference only Block 3665, Lot 1. In addition, the "New York City Lien Securitization 2000-A, List of Tax Liens sold on June 1, 2000, Schedule A," which is also annexed to the complaint, indicated that Block 3665, Lot 1 is included; significantly, none of the other Disputed Lots can be found on the list. Similarly, an exhibit to the 2001 Foreclosure Deed titled "Real Property Transfer Report" listed only Block 3665, Lot 1, as does the Referee's Report of Sale. Accordingly, the City concludes that FTM was never divested of its title to the Disputed Lots as a result of the 2001 Foreclosure Action, so that the Referee was without authority to convey title to those properties to DeMetrio.

The City further argues that the fact that the metes and bounds description of the property set forth in the 2001 Foreclosure Deed that DeMetrio purchased describes the Disputed Lots as well as Block 3665, Lot 1, does not compel a contrary conclusion, inasmuch as it is clear that the Referee's intent was to convey only Lot 1. The City explains that the metes and bounds description of the property acquired was a drafting error, since the description was taken from a previous deed dated March 18, 1996, which conveyed title to several tax lots from Florence Garson to FTM.

The City also contends that the petition must be dismissed based upon DeMetrio's failure to serve a necessary party, FTM, asserting that if title remains with the Corporation, FTM is entitled to an advance payment. The City also alleges that DeMetrio's claim for relief pursuant to Article 15 of the Real Property Law is misplaced, since this court has the jurisdiction to determine all questions [*4]relating to title in this proceeding pursuant to Eminent Domain Proceeding Law (EDPL) § 505.

In addressing DeMetrio's assertion that it is precluded from relitigating the issue of title pursuant to the doctrines of res judicata or estoppel, the City argues that it did not object to the papers or proceedings in the 2001 Foreclosure Action because the Disputed Lots were never a part of the tax lien sale. Moreover, the City claims that it was only a nominal defendant in that action because it might have acquired additional liens on the Subject Property and the question of title to the Disputed Lots was never an issue.

Claimant's Reply

In reply, claimant asserts that the City treated the Subject Property, including the Disputed Lots, as being owned by him for years. In this regard, he emphasizes that he paid $19,700 to purchase the property and the City collected over $70,000 in taxes for the Seven Lots from him. Only now, when it must pay for the Subject Property does the City claim that the Disputed Lots are still owned by FTM. Claimant further avers that FTM never asserted any claim or interest in the Subject Property and that the City fails to advise the court that on June 12, 2001, the Corporation filed a Certificate of Dissolution with the New York State Department of State pursuant to Article 10 of the Business Corporation Law. Accordingly, pursuant to Business Corporation Law § 1005, FTM was then obligated to "wind up its affairs" and perform "all acts appropriate to liquidate its business." Thus, it should have liquidated its real estate holdings and discharged its liabilities. Instead, the Corporation chose to abandon any claim of title to the Subject Property that it held when it declined to pay the $15,000 due in back taxes or to sell the property. Moreover, FTM was named by the City in this proceeding, but has not appeared to assert any claim. Claimant contends that from this it follows that the City cannot establish any prejudice to any party by recognizing him as the owner of the Disputed Lots.

Claimant also asserts that he exercised due diligence prior to purchasing the Subject Property in the 2001 Foreclosure Action. In this regard, he was aware that the description of the property in the 2001 Foreclosure Judgment and in the Notice of Sale referred to only Lot 1, but also noted that the metes and bounds description included all Seven Lots. He therefore conferred with an Examiner in the Richmond County Clerk's Office, who allegedly informed him that the purchaser at the tax sale would acquire title to the Seven Lots. He further alleges that this information was subsequently confirmed when Stewart Title issued a policy of title insurance covering the Seven Lots. The title company did not record the deed for months after title closed, however, during which time claimant learned that the 2002 Foreclosure Action had been commenced with regard to Lot 25. Although his title attorney told him that an order to show cause seeking to enjoin the proceeding would be filed, nothing was done, so claimant purchased Lot 25 in that sale in order to protect his ownership interests. Claimant also points out that Schedule A of Tax Lien Certificate No 5A, which provided the basis for the 2002 Foreclosure Action, also lists Lots 6 and 12, which he contends further undermines the City's claim that FTM retains title to these lots.

In addition, claimant reiterates his assertion that the City consented to his ownership of the Disputed Lots when it willingly accepted $50,000 in delinquent taxes and over $23,000 for 19 quarters of current taxes from him. He thus concludes that the City's long assent to the 2001 Foreclosure Judgment and the benefits that it gained thereunder should now work to prevent it from taking an inconsistent position in this proceeding so that it can gain a windfall. In so arguing, he again points out that in early 2004, the City sent him Delinquency Notices of Real Estate [*5]Assessments for the Seven Lots, followed by Notices of Intention to Sell Tax/Water Liens pertaining to Lots 6, 10, 12 and 22.

The City's Contention that FTM Must be Joined as a Necessary Party

The Law

Joinder of necessary parties is governed by CPLR 1001. In interpreting this provision, it is well settled that the general policy is "to limit the scope of indispensable parties to those cases and only those cases where the determination of the court will adversely affect the rights of non-parties" (Castaways Motel v Schuyler, 24 NY2d 120, 125 [1969], citing 2 Weinstein-Korn-Miller, NY Civ Prac, P1001[.01]). As is also relevant herein:

"A court may excuse the failure to join a necessary party and allow an action to proceed in the interest of justice upon consideration of five factors enumerated in CPLR 1001(b): (1) whether the petitioner has another remedy if the action is dismissed for nonjoinder, (2) the prejudice that may accrue from nonjoinder to the respondent or to the nonjoined party, (3) whether and by whom prejudice might have been avoided or may in the future be avoided, (4) the feasibility of a protective provision, and (5) whether an effective judgment may be rendered in the absence of the nonjoined party."

(Matter of Red Hook/Gowanus Chamber of Commerce v New York City Bd. of Stds. & Appeals, 49 AD3d 749, 752 [2008]). Accordingly, for example, nonjoinder of a necessary party should be excused when a plaintiff has no other effective remedy and no prejudice is demonstrated (see e.g. Plaut v HGH Partnership, 59 AD2d 686, 686 [1977]), or where jurisdiction over the party can be obtained only by his consent or appearance (27th St. Block Assn. v Dormitory Auth., 302 AD2d 155, 161 [2002], citing CPLR 1001[b]).

Discussion

As is relevant herein, the Certificate of Dissolution that FTM filed on June 12, 2001 establishes that the Corporation sought to wind up its affairs at that time, approximately six years before the commencement of the instant eminent domain proceeding. In view of the fact that FTM no longer exists, the City offers no suggestion as to how a now defunct entity can be joined as a party or how a failure to join a corporation that no longer exists could adversely affect its rights. In addition, the copies of the delinquent tax notices attached to the parties' papers, along with claimant's assertion that he paid the back taxes on the properties previously owned by FTM, which allegation is not denied by the City, evidence the Corporation's intent to abandon the Subject Property. Also significant is the fact that although FTM was served in the instant proceeding, it did not appear and did not interpose any claim for compensation.

Accordingly, under these circumstances, the City's contention that the proceeding must be dismissed in the absence of a necessary party is therefore denied. In the alternative, the court notes that such relief should also be denied on procedural grounds in that the City failed to interpose a demand for relief pursuant to a notice of motion or cross motion (see generally CPLR 2214 and 2215; Chun v North American Mtge. Co., 285 AD2d 42 [2001]; Bauer v Facilities Dev., 210 AD2d 992 [1994]; Guggenheim v Guggenheim, 109 AD2d 1012 [1985]; Braver v Nassau County Office of Administrative Servs., 67 Misc 2d 120 [1971]).

Res Judicata, Collateral Estoppel and/or Judicial Estoppel

The Law

" [T]the doctrine of res judicata operates to "preclude the renewal of issues actually litigated [*6]and resolved in a prior proceeding as well as claims for different relief which arise out of the same factual grouping' or transaction' and which should or could have been resolved in the prior proceeding"'" (Siegel v Competition Imps., 296 AD2d 540, 541 [2002], quoting Koether v Generalow, 213 AD2d 379, 380 [1955], quoting Braunstein v Braunstein, 114 AD2d 46, 53 [1985]).

It is also well settled that:

" The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not tribunals or causes of action are the same' (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see Kaufman v Village of Mamaroneck, 18 AD3d 505 [2005]; Nissequogue Boat Club v State of New York, 14 AD3d 542, 544 [2005]). In order to invoke the doctrine, the identical issue necessarily must have been decided in the prior action and the party precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (see Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002])."

(Laramie Springtree v Equity Residential Props. Trust, 38 AD3d 850, 851 [2007], appeal denied 9 NY3d 806 [2007]). Collateral estoppel effect will not be given if the particular issue "was not actually litigated, squarely addressed and specifically decided'" (Singleton Mgmt. v Compere, 243 AD2d 213, 217 [1998], quoting Ross v Medical Liab. Mut. Ins. Co., 75 NY2d 825, 826 [1990]). "For an issue to have been actually litigated, it must have been properly raised by the pleadings or otherwise placed in issue and actually determined in the prior proceeding'" (Color by Pergament v O'Henry's Film Works, 278 AD2d 92, 94 [2000], quoting Matter of Halyalkar v Board of Regents, 72 NY2d 261, 268 [1988]). In addition, "the party seeking the benefit of collateral estoppel . . . bears the initial burden of demonstrating identity of issue" (Balcerak v County of Nassau, 94 NY2d 253, 258 [1999], citing Matter of Juan C. v Cortines, 89 NY2d 659, 667 [1997], Ryan, 62 NY2d at 501; Schwartz v Public Admr. of County of Bronx, 24 NY2d 65, 73 [1969]).

As is also relevant to the instant dispute, " the question as to whether a party had a full and fair opportunity to litigate a prior determination involves a practical inquiry into the realities of litigation'" (Zimmerman v Tower Ins. Co., 13 AD3d 137, 140 [2004], rearg denied 2005 NY App Div LEXIS 3399 [2005], quoting Singleton Mgt., 243 AD2d at 217).

" [T]he fundamental inquiry is whether relitigation should be permitted in a particular case in light of what are often competing policy considerations, including fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results. No rigid rules are possible, because even these factors may vary in relative importance depending on the nature of the proceedings' (Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147, 153, supra)."

(Chambers v City of New York, 309 AD2d 81, 85 [2003]).

It must also be recognized that estoppel is not generally available against a government entity in the exercise of its governmental functions (see Advanced Refractory Technologies v Power Auth., 81 NY2d 670, 677-678 [1993], quoting D'Angelo v Triborough Bridge & Tunnel Auth., 65 NY2d 714, 715-716 [1985]; Matter of Daleview Nursing Home v Axelrod, 62 NY2d 30, 33 [1984]). In this regard, it has been held that estoppel " is not available against a local government unit for the [*7]purpose of ratifying an administrative error'" (Parkview Assocs. v City of New York, 71 NY2d 274, 282 [1988], cert denied 488 US 801 [1988], quoting Morley v Arricale, 66 NY2d 665, 667 [1985]; accord Oxenhorn v Fleet Trust Co., 94 NY2d 110, 116 [1999] [a mistake does not estop a government entity from correcting errors]). Similarly, "[i]t is well settled that the doctrine of estoppel . . . cannot be relied on to create a right where none exists" (Grishman v New York, 183 AD2d 464, 466 [1992], lv denied 80 NY2d 760 [1992], citing Matter of Hauben v Goldin, 74 AD2d 804 [1980]). This rule applies "notwithstanding any inconsistent statement made by a governmental officer" (Legal Aid Soc. v City of New York, 242 AD2d 423, 426 [1997], citing Grishman, 183 AD2d at 466).

In explaining the rationale behind this rule, the court has explained:

"[B]ecause a governmental subdivision cannot be held answerable for the unauthorized acts of its agents (Albany Supply & Equip. Co. v City of Cohoes, 25 AD2d 700, affd 18 NY2d 968, supra; People v Baldwin, 197 AppDiv 285, 291, affd 233 NY 672), we have frequently reiterated that estoppel is unavailable against a public agency (e.g., Public Improvements v Board of Educ., 56 NY2d 850; Matter of Hamptons Hosp. & Med. Center v Moore, 52 NY2d 88)."

(Granada Bldgs. v City of Kingston, 58 NY2d 705, 708 [1982], rearg denied 58 NY2d 825 [1982]). " Only a showing of fraud, misrepresentation, deception, or similar affirmative misconduct, along with reasonable reliance thereon, will justify the imposition of estoppel'" (Concerned Port Residents Comm. v Incorporated Vill. of Sands Point, 291 AD2d 494, 495-496 [2002], quoting Yassin v Sarabu, 284 AD2d 531 [2001]; DeGori v Long Is. R.R., 202 AD2d 549 [1994]; Simcuski v Saeli, 44 NY2d 442 [1978]).

In contrast, " judicial estoppel "applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted"' (Thrift Assns Serv. v DeBuono, 255 AD2d 809, 813 [1998], quoting Cafferty v Thompson, 223 AD2d 99, 102 [1996], lv denied 88 NY2d 815 [1996], quoting Oneida Motor Frgt. v United Jersey Bank, 848 F2d 414, 419 [1988]). "Under this doctrine, where a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position'" (Moore v County of Clinton, 219 AD2d 131, 134 [1996], quoting Davis v Wakelee, 156 US 680, 689 [1895]). It has been held that under certain circumstances, estoppel by inconsistent positions is available against a governmental agency (see Shepardson v Town of Schodack, 83 NY2d 894, 895-896 [1994]).

Discussion

Even assuming, as argued by claimant, that the issue of title was previously litigated in the 2001 Foreclosure Action, the judgment rendered therein is not dispositive of the issues raised in this proceeding. In so holding, it must be recognized that the issue now before the court is how the 2001 Foreclosure Deed should be interpreted, since it describes the property conveyed as Lot 1 in the body of the complaint, notice of pendency, Foreclosure Judgment and the Foreclosure Deed, but all documents also list the Seven Lots and describe them by metes and bounds in the annexed Schedule A. Thus, since the 2001 Foreclosure Judgment does not resolve the issue of what property was conveyed, neither res judicata nor collateral estoppel would preclude the court from addressing the discrepancy in the deed to determine who actually owned the Subject Property on the date of the taking. Similarly, neither res judicata nor collateral estoppel would support a finding that claimant [*8]acquired title to any lots in addition to Lot 25 in the 2002 Foreclosure Action, since the summons, complaint and deed in that action clearly refer to only Lot 25.

The court similarly holds that the City will not be collaterally estopped from seeking to establish ownership of the Seven Lots in this proceeding because it did not contest title in the 2001 Foreclosure Action. In so holding, the court finds that title was not litigated in that action, since the City sold the tax lien for only Lot 1, so that it had no reason to contest the issue of title to the other lots in the resultant foreclosure action. Similarly, although the tax liens for lots 6, 12 and 25 were sold prior to the commencement of the 2002 Foreclosure Action, the pleadings and deed therein clearly reference only Lot 25, so that the City again had no reason to contest title to Lots 6 and 12. Accordingly, the court finds that the issue of who held title to the Disputed Lots on the date of the taking was not actually litigated, squarely addressed and specifically decided in either the 2001 or 2002 Foreclosure Actions. Thus, under these circumstances, it would be unfair to hold that the City is now estopped from seeking to establish title to the Subject Property in this eminent domain proceeding (see generally Ross, 75 NY2d at 826; Matter of Halyalkar, 72 NY2d at 268; Zimmerman, 13 AD3d at 140; Chambers, 309 AD2d at 85; Color by Pergament, 278 AD2d at 94; Singleton Mgmt., 243 AD2d at 217), particularly since the City's contention that it did not believe that title to the Disputed Lots was an issue in the 2001 Foreclosure Act is supported by the fact that it sold the tax liens on three additional lots in 2002 and a second foreclosure action was thereafter commenced against FTM with regard to Lot 25.

Claimant's reliance upon the doctrine of judicial estoppel is also misplaced for the same reason, i.e., it is the ambiguity in the language employed in the papers, judgment and deed in the 2001 Foreclosure Action that is the crux of the dispute herein, which dispute in no way resulted from a change in position on the part of the City. In so holding, the court also finds that claimant's reliance upon Moore (219 AD2d 131, 135) does not compel a contrary conclusion, since defendants in that case obtained a judgment in their favor in an earlier foreclosure action by representing to the court that the judgment of foreclosure would be subject to the tax sale deeds at issue if any of the property described therein was located within the mortgaged premises, so that their claim in a subsequent action that the judgment of foreclosure gave them title superior to the tax sale deeds was clearly inconsistent with the position taken by them in order to obtain the judgment in the foreclosure action. In contrast, on the instant facts, the issue of who held title to the Disputed Lots was simply not in issue in the 2001or 2002 Foreclosure Actions.

Nor will the City be estopped from now arguing that title to the Disputed Lots remains in FTM because it sent claimant notices of delinquent taxes and accepted payments from him and/or because he relied upon the advise given to him by a City employee. In addressing these issues, the court first rejects claimant's attempt to characterize his reliance upon these actions as judicial estoppel in order to avoid the bar against invoking equitable estoppel against the City. In this regard, it is clear that the City's actions in sending claimant tax delinquency notices and accepting tax payments from him and the action of an employee in giving him legal advice, i.e., telling him that the Disputed Lots would be conveyed in the 2001 Foreclosure Action, are not actions taken in the context of a judicial proceeding. From this it follows that claimant can rely upon estoppel against the City only if he can demonstrate fraud, misrepresentation, deception, or similar affirmative misconduct (see Concerned Port Residents Comm, 291 AD2d at 495-496; Yassin, 284 AD2d 531; DeGori, 202 AD2d 549; Simcuski, 44 NY2d 442). Herein, the court finds that the actions on the part [*9]of the City relied upon by claimant must be characterized as mistakes, which do not rise to this level, so that the conduct cannot serve to convey title to him (see generally Oxenhorn, 94 NY2d at 110; Parkview Assocs., 71 NY2d at 282; Morley, 66 NY2d at 667; Legal Aid Soc., 242 AD2d at 426; Grishman, 183 AD2d at 466; Matter of Hauben, 74 AD2d 804). The court also finds that claimant's reliance upon the legal advice of a clerk is not reasonable.

Further, the court notes that in addressing a similar claim by a defendant that it acquired title to property by virtue of having paid taxes on it, the Court of Appeals held that:

"If the assessors erroneously assessed defendant for property not owned by it, defendant had a remedy at law for relief from such assessment. By payment of taxes thereon, neither that act, nor the error if one was made by the assessors, could operate as an estoppel against the public and vest title to the land in defendant, it being a trespasser thereon. The assessors of the city and the city combined were powerless to thus surrender a public highway or any portion of the same to defendant."

(Mt. Vernon v New York, N. H. & H. R. Co., 232 NY 309, 319 [1922]; accord Hecht v City of New York, 2008 NY Slip Op 50476U, 8 [2008] [petitioner's payment of real estate taxes and his satisfaction of a tax lien was not evidence of legal title to the subject property and could not serve to create title where none existed and divest the City of its ownership of the property]).[FN1]

The 2001 Foreclosure Deed as Conclusive Proof of Title

The Law

As is relevant to the instant dispute, Real Property Law § 240(3) provides, in pertinent part, that "[e]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." "The intent' at issue is the objective intent of the parties manifested by the language of the deed; unless the deed is ambiguous, evidence of unexpressed, subjective intentions of the parties is irrelevant" (Modrzynski v Wolfer, 234 AD2d 901, 902 [1996], citing 2 New York Real Property Service § 20:68, at 78 [1987]). Thus:

"While the construction of a deed is generally a question of law for the court (see Allen v Cross, 64 AD2d 288, 291 [1978]), if there are conflicts or ambiguities in a deed then the matter may be referred for a trial to determine whether the deed was meant to include a particular piece of property (see generally Towner v Jamison, 98 AD2d 970 [1983]). At such a trial, parol evidence is admissible to show what land was intended to be conveyed by the deed (cf. Modrzynski v Wolfer, 234 AD2d 901, 902 [1996])."

(O'Brien v Bocchino, 13 AD3d 1055, 1056 [2004]; accord De Paulis Holding v Vitale, 66 AD3d 816, 817 [2009] [although defendant correctly contended that the metes and bounds description of his deed encompassed the two subject lots, questions of fact sufficient to warrant denial of that branch of his motion for summary judgment existed, since the circumstances that surrounded the [*10]transfer of the property indicated that the prior purchasers only intended to purchase one lot from plaintiff and that this is the only lot which the prior purchasers intended to sell to defendant]; Schweitzer v Heppner, 212 AD2d 835, 838 [1995] [parol evidence can be admissible to explain latent ambiguities or to apply a general deed description to a particular land to which it was intended to refer]). Stated differently, "[w]here . . . the language used in a conveyance is susceptible of more than one interpretation the courts will look into the surrounding circumstances and the situation of the parties" (Rome v Vescio, 58 AD2d 990, 991 [1977], revd on other grounds 45 NY2d 980], citing Loch Sheldrake Assoc. v Evans, 306 NY 297, 304 [1954]).

Real Property Tax Law § 1137, as relied upon by claimant, provides, in pertinent part, that "[a]fter two years from the date of the recording of such deed, the presumption shall be conclusive."

Discussion

As a threshold issue, the court first notes that claimant's characterization of his application as one to quiet title, instead of a motion to resolve the conflicting claims of title pursuant to EDPL § 505(C), is not relevant to the instant dispute, since it clear that the court has jurisdiction to determine title in this proceeding.[FN2]

Turning to the merits, as discussed above, the issue presented on this application is not whether the 2001 Foreclosure Deed is conclusive, but what property was intended to be conveyed by the Deed in view of the conflicting description of the property contained therein. Thus, in view of the ambiguity created by the conflicting language, the court must look to the surrounding circumstances and/or parol evidence to determine the intent of the parties. In so doing, the court finds that the list of tax liens sold prior to the commencement of the 2001 Foreclosure Action and included on the schedule attached to the complaint compels that conclusion that title to only Lot 1 was intended to be conveyed by the Referee. This conclusion is consistent with the fundamental principle that a grantor can convey only that which he has, i.e., unless one has title to the land, he or she cannot convey it (see generally Wallach v Riverside Bank, 206 NY 434, 437 [1912]; Heller v Cohen, 154 NY 299, 308-309 [1897]; see also Rondack Constr. Servs. v Kaatsbaan Intl. Dance Ctr., 54 AD3d 924, 926 [2008] [where the act of a party conducting a judicial sale is unauthorized and property rights of a party in interest are injured, the act must be repudiated]; Geddes Fed. Sav. & Loan Assn. v Ferrante, 226 AD2d 1099, 1099 [1996] [where a Referee's deed had been previously delivered and accepted, the Referee was left with no title to convey to defendant]; Jorgensen v Endicott Trust Co., 100 AD2d 647, 648 [1984] [a Referee's deed conveyed only the interests of the foreclosure parties]; 238 East 9th Street v Bernich, 17 AD2d 399, 400 [1962] [a Referee can convey no greater interest than that held by the mortgagor]). As is also relevant, in addressing a similar issue in which a referee's deed conveyed property described by a metes and bounds description that was not intended to be conveyed, the court held that "[i]t would be manifestly unjust to hold that [defendant] could, in consequence of the error of her own attorneys, become vested with the title to lands which otherwise clearly belonged to the plaintiff" (Clapp v McCabe, 155 NY 525, 532 [1898]).

Conclusion

Accordingly, for the above stated reasons, claimant's motion is denied and the court finds that [*11]he held title to only Block 3665, Lots 1 and 25 on the day of the taking.

The foregoing constitutes the order and decision of this court.

ENTER,

J. S. C. Footnotes

Footnote 1: Although the court recognizes that because of the unusual fact pattern underlying this dispute, where the owner of the Disputed Lots is a now defunct corporation, so that no prejudice would inure to the former owner if DeMetrio was held to have acquired title, these facts do not compel the conclusion that a party may acquire title to property merely by paying delinquent taxes.

Footnote 2: EDPL § 505(C) provides, in pertinent part, that "[t]he court shall have jurisdiction to determine all questions relating to title and priority of interests incident to the acquisition."