Opinion
111385/07.
Decided March 18, 2009.
It is ordered that the motion by defendants 715 Ninth Avenue Housing Development Fund Corp., Sudduth, Scott, Singlar, Salmon, Knutson, Smith, Stridiron, Galamidi (formerly Maria Jiminez), Navarrette, Teos, Hinostroza and Harmon to dismiss the action pursuant to CPLR 3211(a) 1 and 7 is granted and the Clerk shall enter judgment accordingly. The motion to transfer the action to Justice Kapnick was denied at oral argument (tr. p. 3).
In 1989, plaintiff Mordred Realty Corp. ("Mordred") conveyed the residential condominium unit in the building at 715 Ninth Avenue in Manhattan to 715 Ninth Avenue Housing Development Fund Corporation ("HDFC"). Although the contract of sale between the parties provided in paragraph 46 thereof that there was no intention to convey the "air and/or development rights," and that "at the closing the parties shall execute necessary documentation setting forth this agreement," the deed delivered to HDFC by Mordred contained no such reservation and provided that the transfer included "an undivided 70% interest in the common elements of the property." Since the air rights are included within common elements, the plaintiffs have brought this action to reform the 1989 deed based on an "inadvertent failure to reserve the air and/or development rights to Mordred" (complaint ¶ 23). It is alleged that such alleged error was not discovered until February 2005 when HFDC declined to execute a deed correcting the asserted mistake. Defendants assert that the action is untimely.
"The statute of limitations on a claim of reformation based on mistake is six years, accruing on the date of the mistake. . . . This rule also applies to scrivener's errors." [1414 APF, LLC v. Deer Stags, Inc., 39 AD3d 329, 330 (1st Dept. 2007)]. Accord. Taintor v. Taintor, 50 AD3d 887 (2nd Dept. 2008); National Amusements, Inc. v. South Bronx Development Corp., 253 AD2d 358 (1st Dept. 1998).
There is a recognized exception to the foregoing rule in that "as to one who is in possession of real property under an instrument of title, the statute never begins to run against his right to reform that instrument until he has notice of a claim adverse to his under the instrument, or until his possession is otherwise disturbed: [Hart v. Blabey, 287 NY 257, 262-263 (1942)]. See also, Wilshire Credit Corporation v. Ghostlaw, 300 AD2d 971, 973 (3rd Dept. 2002). This exception does not apply here as Mordred was not in "possession" of the air rights sought herein, as that term is envisioned in the aforesaid judicially established exception to the six year statute of limitations of CPLR 213(6), nor of any property conveyed by the instrument sought to be reformed. See also, Green Harbor Homeowners' Association v. Ermiger, 50 AD3d 1199 (3rd Dept. 2008); Pulver v. Dougherty, 58 AD3d 978 (3rd Dept. 2009); Kendall v. Oakland Golf Club, 282 App. Div. 1057 (1st Dept. 1953). Accordingly, the action is time-barred.
The court makes no determination with respect to the alternative defense that the release contained in the April 8, 2005 stipulation bars this action, but notes that the fact that the stipulation containing the release was executed only two months after Mordred became aware of the position of HDFC with respect to the air rights would tend to support defendants' position. "The meaning and coverage of a general release necessarily depends upon the controversy being settled and upon the purpose for which the release was given. A release may not be read to cover matters which the parties did not intend to cover." [Gale v. Citicorp., 278 AD2d 197 (2nd Dept. 2000)]. See also, Mangini v. McClury, 24 NY2d 556 (1969); Augello v. Koenig-Rivkin, 56 AD3d 503, 504 (2nd Dept. 2008).