LACOPARRA v. BELLINO (2001)

In an action for reformation of a deed, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Rockland County (Sherwood, J.), dated July 9, 2001, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 To reform a written instrument based upon mutual mistake or fraud, the proponent of reformation must show, by clear and convincing evidence, “not only that mistake or fraud exists, but exactly what was really agreed upon between the parties” (Backer Mgt. Corp. v. Acme Quilting Co., 46 N.Y.2d 211, 219, 413 N.Y.S.2d 135, 385 N.E.2d 1062;  see, Chimart Assocs. v. Paul, 66 N.Y.2d 570, 574, 498 N.Y.S.2d 344, 489 N.E.2d 231).   In support of their motion for summary judgment, the defendants sustained their initial burden of demonstrating that the disputed parcel was not omitted from the subject deed due to a mutual mistake or fraud.   In opposition to the motion, the plaintiffs failed to come forward with clear and convincing evidence sufficient to raise a triable issue of fact as to whether the parties actually reached an agreement to include the disputed parcel in the deed, or whether, as a result of fraud, the deed did not express the true intentions of the parties.   Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment (see, Chimart Assocs. v. Paul, supra;  Backer Mgt. Corp. v. Acme Quilting Co., supra;  K.I.D.E. Assocs. v. Garage Estates Co., 280 A.D.2d 251, 720 N.Y.S.2d 114;  Schultz v. Hourihan, 238 A.D.2d 818, 656 N.Y.S.2d 526;   Romeo v. Tsunis Hotel Partners, 218 A.D.2d 646, 630 N.Y.S.2d 366).