HILL v. CARBORUNDUM CORPORATION

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Supreme Court, Appellate Division, Fourth Department, New York.

Gary HILL, as administrator of estate of Vincent A. Hill, Sr., deceased, and Leona Hill, Respondents, v. CARBORUNDUM CORPORATION, Industrial Holdings Corp., The Carborundum Corporation, Kennecott Copper, Inc., British Petroleum, Inc., and Standard Oil of Ohio, Inc., Appellants.

Gary HILL, as administrator of estate of Vincent A. Hill, Sr., Deceased, and Leona Hill, Respondents, v. CARBORUNDUM COMPANY, INC., formerly known as Stemcor Corporation, formerly known as, or a subsidiary, division or successor corporation of Carborundum Corporation, Kennecott Corporation, Kennecott Copper, Inc., Kennecott Mining Corporation, British Petroleum, Inc., or Standard Oil of Ohio, Inc., Appellants.

Decided: April 25, 1997

Before DENMAN, P.J., and PINE, CALLAHAN, BALIO and FALLON, JJ. Gibson, McAskill & Crosby by Jeffrey C. Sendziak, Buffalo, for Appellants. Thomas C. Pares, Buffalo, for Respondents.

Supreme Court erred in denying defendants' motion for summary judgment dismissing the complaint, which alleges that decedent sustained injuries on July 30, 1987 while cleaning a furnace on property owned by defendants.   In support of their motion, defendants submitted proof establishing that they did not own the property in question at the time of decedent's injuries.   An executed deed demonstrated that the property had been conveyed to Washington Mills Electro Mineral Corporation on May 6, 1987.   Other proof established that the deed was delivered to the grantee on the date of its execution.   Although the deed was not recorded until July 11, 1989, it is well settled that “[a] transfer of real property is accomplished only by delivery of an executed deed (see, Real Property Law § 244;  Manhattan Life Ins. Co. v. Continental Ins. Cos., 33 N.Y.2d 370, 353 N.Y.S.2d 161, 308 N.E.2d 682)” (Matter of Roll v. D'Elia, 167 A.D.2d 545, 546, 562 N.Y.S.2d 213).

Because the liability of defendants is predicated on their alleged ownership of the property, defendants met their initial burden of establishing entitlement to judgment as a matter of law, thus shifting the burden to plaintiffs to raise an issue of fact (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Plaintiffs failed to meet that burden.

Order insofar as appealed from unanimously reversed on the law without costs, motion granted and complaint dismissed.

MEMORANDUM: