Vaughan v. Commonwealth Land Title Ins. Co., 133 A.D.2d 626, 519 N.Y.S.2d 734 (N.Y.A.D. 2 Dept., Oct 05, 1987) (NO. 1471E)

Supreme Court, Appellate Division, Second Department, New York.
Susan VAUGHAN, et al., Respondents-Appellants,v.COMMONWEALTH LAND TITLE INSURANCE COMPANY, et al., Appellants-Respondents, etal., Defendants-Respondents.

Oct. 5, 1987.

 Purchasers brought breach of contract action against title insurer, vendors, and surveyor.   The Supreme Court, Suffolk County, Jones, J., granted summary judgment against insurer and surveyor and in favor of vendors.   Insurer, surveyor, and purchasers appealed.   The Supreme Court, Appellate Division, held that:  (1) property as conveyed suffered from no encumbrances;  (2) action against vendors was properly dismissed;  (3) action against insurer should have been dismissed;  and (4) surveyor was negligent as matter of law.
 Modified and, as modified, affirmed.

West Headnotes
[1] Boundaries  3(3)59k3(3) Most Cited Cases (Formerly 59k8(3))
When description of real property by courses and distances conflicts with one by monumentation, former must yield to latter.
[2] Vendor and Purchaser  61400k61 Most Cited Cases
Where courses and distances description did not close, it was appropriate to conclude that vendors and purchasers intended conveyance of parcel of real estate as described by monumentation.
[3] Insurance  2635217k2635 Most Cited Cases (Formerly 217k426.1)
Insureds could not recover damages for breach of title policy;  property as conveyed suffered from no encumbrances.
[4] Negligence  321272k321 Most Cited Cases (Formerly 272k1)
Surveyor, who prepared survey with substantially inaccurate westerly boundary and who prepared property description wherein boundary did not close, was negligent as matter of law, in action arising out of sale of real property. **734 Kirschenbaum & Kirschenbaum, P.C., Garden City (Ira Levine, of counsel), for appellant-respondent Commonwealth Land Title Ins. Co.
 Toaz, Buck, Myers, Bernst, Young, Cote & Lawrence, Huntington (Andrew W. Lawrence, Jr., of counsel), for appellant-respondent August Nappi.
 Dollinger, Gonski, Grossman, Permut & Hirschhorn, Carle Place (Matthew Dollinger and Leslie A. Foodim, of counsel), for respondents-appellants.

 *627 Before THOMPSON, J.P., and NIEHOFF, SULLIVAN and HARWOOD, JJ.


 MEMORANDUM BY THE COURT.
 *626 In an action, inter alia, to recover damages for breach of contract pursuant to a policy of title insurance, (1) the defendants Commonwealth Land Title Insurance Company (hereinafter Commonwealth) and August Nappi separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Jones, J.), dated January 6, 1987, as denied those branches of their motion for summary judgment which were to dismiss the plaintiffs' complaint as against them, and granted the plaintiffs' cross motion for summary judgment as against them as to liability, and (2) the plaintiffs cross-appeal from so much of the same order as granted the motion of the defendants Lillian M. Smith, Joan Anderson and Janet Doroski to dismiss the complaint as against them.
 ORDERED that the order is modified, on the law, by (1) deleting from the third decretal paragraph thereof the provision granting that branch of the plaintiffs' motion which was for summary judgment as against Commonwealth, and substituting therefor a provision denying that branch of the motion, and (2) deleting the fourth decretal paragraph thereof, and substituting therefor a provision granting Commonwealth's motion for summary judgment dismissing the complaint as against it;  as so **735 modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the plaintiffs to Commonwealth.
 [1][2] The defendants Smith, Anderson and Doroski agreed to sell to the plaintiffs certain real property which was described both by courses and distances and by monumentation.   The boundary defined by the courses and distances description did not close.   When a description by courses and distances conflicts with one by monumentation, the former must yield to the latter (see, Bedlow v. N.Y.F.D.D., 112 N.Y. 263, 278, 19 N.E. 800; Robinson v. Kime, 70 N.Y. 147, 154;  Baldwin v. Brown, 16 N.Y. 359, 361;  Cronk v. Wilson, 40 Hun. 269, 274-275).   *627 Furthermore, where, as here, the courses and distances description does not close, it is appropriate to conclude that the parties intended a conveyance of the parcel as described by monumentation (see, Robinson v. Kime, supra ).   Because the parcel thus conveyed suffers from no encumbrances, the plaintiffs' action against the sellers for a breach of the covenant against the grantors' acts was properly dismissed.
 [3] Concerning the title insurer's liability, the plaintiffs have not shown any breach on the part of the insurer with respect to any of the obligations assumed by it (see, Udell v. City Title Ins. Co., 12 A.D.2d 78, 80, 208 N.Y.S.2d 504).   Therefore, the court should have granted the title insurer's (Commonwealth's) motion for summary judgment dismissing the complaint as against it.
 [4] Finally, we conclude that the surveyor's (the defendant Nappi's) preparation of a survey with a substantially inaccurate westerly boundary, as well as his preparation of a description wherein the boundary did not close, amounts to negligence as a matter of law.   Therefore, the court correctly granted the plaintiffs' motion for summary judgment with respect to the surveyor's liability.
519 N.Y.S.2d 734, 133 A.D.2d 626
END OF DOCUMENT