TERENCE FALZANO PLAINTIFF APPELLANT v. TERI GLAZER DEFENDANT RESPONDENT AND BETTIE SPRAGUE DEFENDANT (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking to resolve a dispute over the ownership of a portion of a right-of-way that runs through a subdivision. Teri Glazer (defendant) moved to dismiss the complaint, and plaintiff appeals from an order granting that motion. We affirm.

Nonparty Vincent Nebbia was the original owner of the subdivision and the right-of-way. In 1989, Nebbia deeded one of the lots (Glazer lot) to defendant and defendant Bettie Sprague as joint tenants with rights of survivorship (Glazer deed). Sprague and Nebbia died prior to the commencement of this action. In 2020 and 2021, the apparent successor in interest to Nebbia conveyed to plaintiff several other lots in the subdivision and purported to convey the entire right-of-way. At issue on this appeal is the ownership of a portion of the right-of-way that abuts defendant's lot. According to plaintiff, he owns the entire right-of-way. However, it is undisputed that the legal description in the Glazer deed, which was executed and recorded in 1989, includes both a segment of the right-of-way and the Glazer lot. After defendant allegedly denied plaintiff access to the right-of-way segment, plaintiff commenced this action pursuant to RPAPL 1501, arguing only that the segment was erroneously included in the Glazer deed and thereby implying that Nebbia had not intended to convey the segment to defendant and Sprague.

Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1), submitting, inter alia, the Glazer deed in support thereof. Supreme Court granted the motion on the ground that the documentary evidence established that plaintiff had no ownership interest in the right-of-way segment because Nebbia conveyed it to defendant and Sprague in 1989.

We reject plaintiff's contention that the court erred in granting the motion and conclude that the Glazer deed “resolves all factual issues as a matter of law, and conclusively disposes of [plaintiff's] claim[s]” (Dersam v Ontario Ins. Co., 236 AD3d 1427, 1429 [4th Dept 2025] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550 [4th Dept 2012], lv denied 20 NY3d 861 [2013]). Contrary to plaintiff's contention, the evidence that he submitted in opposition to the motion did not show that his cause of action may be meritorious in spite of the Glazer deed (cf. Matter of Koegel, 160 AD3d 11, 27 [2d Dept 2018], affd 37 NY3d 444 [2021]). The unambiguous and undisputed legal description in the Glazer deed refutes plaintiff's allegation that Nebbia had not intended to include the segment in the deed. Even assuming, arguendo, that the deed did not refute that allegation, we conclude that, absent allegations of fraud on the part of defendant or Sprague, Nebbia's alleged unilateral mistake is insufficient to warrant the relief plaintiff seeks, i.e., the effective reformation of the Glazer deed's legal description to omit the right-of-way segment (see Thompson v McQueeney, 56 AD3d 1254, 1258 [4th Dept 2008]; see also Baird v Baird, 221 AD3d 1465, 1466 [4th Dept 2023]; see generally RPAPL 1521 [1]). There are no allegations of fraud in the complaint, and plaintiff's contentions on appeal regarding fraud are not preserved for our review (see Ciesinski v Town of Aurora, 202 AD2d 984, 985 [4th Dept 1994]).

Plaintiff also argues, for the first time on appeal, that he was denied a meaningful opportunity to participate in the hearing on the motion and was deprived of due process as a result. That contention is not properly before us (see id.). In any event, plaintiff was represented by counsel at the time, and his attorney participated in the hearing on his behalf (see CPLR 321 [a]).

We have considered plaintiff's remaining contentions and conclude that none warrants modification or reversal of the order.

Entered: October 9, 2026

Ann Dillon Flynn

Clerk of the Court