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Decided on July 14, 2009
Supreme Court, Sullivan County

2399/07
The Law Offices of Diane Van Epps Finnegan, Esq. Attorneys for Defendant 8390 Turnberry Drive Syracuse, New York 13104 By: Diane V. Finegan, Esq. Stoloff & Silver, LLP Attorneys for Plaintiff
26 Hamilton Avenue, PO Box 1129
Monticello, New York 12701
By: Richard A. Stoloff, Esq.
Frank J. LaBuda, J.
In this RPAPL Article 15 proceeding which resurrects a boundary line dispute between the plaintiff's predecessor in title and defendant, defendant seeks summary judgment dismissing the complaint on the grounds that plaintiff has failed to name a necessary party. Plaintiff opposes the motion and cross-moves for discovery. Defendant opposes the cross-motion.
It is undisputed that plaintiff's predecessor in title and defendant, adjoining real property owners, entered into a boundary line agreement dated February 5, 1975 which is recorded in the Sullivan County Clerk's Office in Liber 805 at page 554. Plaintiff's complaint alleges that defendant has incorrectly located and posted the agreed upon boundary line along a line which is wholly within the alleged boundaries of plaintiff's real property. Defendant's counterclaim alleges; that the boundary line, as presently posted, was first walked, agreed upon and posted by both plaintiff's predecessor in title and defendant in 1978, three years after the boundary line agreement was arrived at; that plaintiff has continuously posted the boundary line in its present location since 1978 without complaint from plaintiff's predecessor in title; and that plaintiff [*2]seeks title to 78 acres of defendants lands by erroneously referencing the southerly line of the Town of Bethel as depicted in the Webb survey of 1762, whereas the 1975 boundary line agreement references the southerly line of the Town of Bethel as depicted in the Cockburn & Tappen survey of 1790.
On the motion, defendant asserts that in 2003, it transferred to the United States of America a Warranty Easement Deed Perpetual, recorded in the Sullivan County Clerk's Office at Liber 2571 of Deeds at Page 555, to wetlands purportedly wholly located on its property; that plaintiff is now alleging ownership of lands which includes a substantial portion of the lands subject to the easement; and that prior to the commencement of this action on August 6, 2007, plaintiff was aware of the transfer of the easement as evidenced by the reference to the easement on the uncertified July 27, 2007 Lawson survey map prepared for plaintiff. Defendant argues that pursuant to RPAPL 1511(2), the United States is a necessary party to an action to quiet title to real property upon which it holds an easement; and as the United States may only be sued in the federal district court in an action to quiet title (see 28 U.S.C.

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