*668Christ, P. J., Rabin, Martuscello, Benjamin and Kleinfeld, JJ., concur.
Citator
UpLaw has not yet analyzed Harbor Associates, Inc. v. Asheroff. The absence of a flag is not a finding that it is good law.
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HARBOR ASSOCIATES, INC. v. ASHEROFF,35 A.D.2d 667[2d Dept 1970]
HARBOR ASSOCIATES, INC., Respondent, v. HYMAN ASHEROFF, Appellant.
Appellate Division of the Supreme Court of New York, Second Department.
Appeal by defendant from so much of a judgment of the Supreme Court, Nassau County, entered December 4, 1968 after a nonjury trial, as adjudged him guilty of trespass on plaintiff's land under water and awarded plaintiff $10 damages therefor, upon the trial court's finding of a statutory presumption of plaintiff's ownership of the land. We previously dismissed the appeal unless appellant would cause a proper transcript of the trial record to be settled and filed (Harbor Assoc.v.Asheroff,33 A.D.2d 778); appellant has complied with this condition and so the appeal was restored. Judgment affirmed insofar as appealed from, without costs. In our opinion plaintiff did not establish aPage 668statutory presumption of title pursuant to section 321 Real Prop. Acts. of the Real Property Actions and Proceedings Law and CPLR4523because its title certificate did not show an unbroken chain of title for 20 years. The title certificate was insufficient in this respect because (a) there was a gap in the chain between the ownership by Morgan Island Estates and the ownership by the County Treasurer, who conveyed the property to Knocklong Corp. by a tax deed; and (b) the tax deed extinguished prior titles and created a new, independent title from the sovereign (Hefnerv.NorthwesternLife Ins. Co.,123 U.S. 747;Eisenhutv.Marion De Vries,Inc.,150 Misc. 804,806, affd.243 App. Div. 539), and this tax deed was given less than 20 years before the trespass which was the subject of this action. However, plaintiff established its ownership of the subject underwater land by proof of a chain of title derived through the 1888 Ropes Patent embracing this and other underwater land in Dosoris Creek and Hempstead Harbor, adjacent to Morgan's Island (People ex rel. Underhillv.Saxton,15 App. Div. 263, affd.154 N.Y. 748;Morganv.Cityof Glen Cove,6 A.D.2d 704, affd.5 N.Y.2d 1041) or, alternatively, through a chain of title from the County Treasurer's tax deed, which is conclusively presumed regular after two years (Real Property Tax Law, § 1020). We find no merit in defendant's contention that plaintiff has a mere incorporeal hereditament, rather than fee ownership of the subject lands (see 1891 Opns. Atty. Gen. 273; 1892 Opns. Atty. Gen. 83;Peoplev.Steeplechase Park Co.,218 N.Y. 459,471-472; see, also,NewYork Foundationv.People,259 N.Y. 54;Matter of City ofN Y[Upper New York Bay],246 N.Y. 1; 3 Warren's Weed, New York Real Property [4th ed.], p. 5). Nor do we find merit in his contention that this underwater land could not be owned separately from the upland (cf.Riviera Assn.v.Town of NorthHempstead,52 Misc.2d 575[opinion adopted by the Court of Appeals in the companion case ofMannor Mar. Realty Corp.v.Wachtler,22 N.Y.2d 825];Claudiov.Village of Greenport,55 Misc.2d 371); and, apart from that conclusion on the law, we note that the record in this case demonstrates that the underwater land now owned by plaintiff encompasses part of what was upland at the time the Ropes Patent was granted, so there has in fact been no separation of ownership. Finally, we have,suasponte, conformed the pleadings to the proof under the power granted us by CPLR3025(subd. [c]) (seeTinkessv.Burns,24 A.D.2d 545,546; 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3025.31). Christ, P.J., Rabin, Martuscello, Benjamin and Kleinfeld, JJ., concur.