Weisberg & Weisberg, Great Neck, NY (Joseph A. Lauri and Sidney A. Weisberg of counsel), for appellant.

Anthony Mastroianni (Mary Ellen O'Brien, Saratoga Springs, NY, of counsel), for respondent.

In an action, inter alia, to quiet title pursuant to RPAPL article 15 and for declaratory relief, the defendant appeals from an order of the Supreme Court, Suffolk County (William J. Condon, J.), dated October 13, 2021. The order denied the defendant's motion for summary judgment dismissing the complaint and on its counterclaim for a judgment declaring that the legal description of the defendant's property contained in a deed dated April 19, 2018, sets forth the valid description of the defendant's premises and "that same extends to the bulkhead and wall erected by Defendant."

Ordered that the order is affirmed, with costs.

The plaintiff Michelle A. D'Andrea (hereinafter the plaintiff) and the defendant own adjoining properties in Amityville. The plaintiff commenced this action, inter alia, pursuant to RPAPL article 15 to quiet title and for a judgment declaring, among other things, that she was the sole owner of an approximately four-foot strip of land bordering her property with the defendant. The plaintiff alleged, among other things, that the defendant had encroached onto her property by building a "stone fence" on that portion of the land. The defendant answered the complaint and asserted a counterclaim for a judgment declaring that the legal description of the defendant's property contained in a deed dated April 19, 2018, sets forth the valid description of the defendant's premises and "that same extends to the bulkhead and wall erected by Defendant." The defendant subsequently moved for summary judgment dismissing the complaint and on its counterclaim for declaratory relief. In the order appealed from, the Supreme Court denied the defendant's motion, and the defendant appeals.

Real Property Law § 240 (3) provides that "[e]very instrument creating [or] transferring . . . an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law." "The intent of the parties is manifested by the language of the deed, and unless the deed is ambiguous, 'evidence of unexpressed, subjective intentions of the parties is irrelevant' " (Deckoff v W. Manning Family L.P., 193 AD3d 812, 814 [2021], quoting Perry v Edwards, 79 AD3d 1629, 1630 [2010]). However, if "the language used in a deed is ambiguous such that it is susceptible of more [*2]than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances" (Al's Atl., Inc. v Shatma, LLC, 109 AD3d 491, 492 [2013]; see Hartmann v Harris, 136 AD3d 977, 979 [2016]). Where a deed describes property by reference to a filed map or plat, "the filed map must be taken as part of the deed" (Town of Brookhaven v Dinos, 76 AD2d 555, 562 [1980], affd 54 NY2d 911 [1981]; see Cannon v Hampton, 198 AD3d 1230, 1233 [2021]; Brainin v New York, New Haven & Hartford R.R. Co., 136 App Div 393, 395-396 [1910]). "If a deed is ambiguous, parol evidence is admissible" (De Paulis Holding Corp. v Vitale, 66 AD3d 816, 818 [2009]).

Here, the defendant failed to establish its prima facie entitlement to judgment as a matter of law. The deeds in the plaintiff's chain of title describe the disputed area by reference to a subdivision map that was filed in 1919, and, therefore, the filed map is taken as part of the deeds (see Town of Brookhaven v Dinos, 76 AD2d at 562). Contrary to the defendant's contention, the property description in the subject deeds is ambiguous as to whether the plaintiff's parcel includes the disputed strip. Further, the defendant's submissions in support of its motion failed to eliminate triable issues of fact regarding this ambiguity, and whether the defendant is the owner of the property in question (see Marks v Gaeckle, 199 AD3d 672, 674-675 [2021]; Schrade v CRDN Props., 303 AD2d 890, 891-892 [2003]; cf. Perry v Edwards, 79 AD3d 1629, 1630 [2010]). Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law, its motion for summary judgment was properly denied, regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The defendant's remaining contentions, raised for the first time on appeal, are not properly before this Court. Brathwaite Nelson, J.P., Chambers, Warhit and Taylor, JJ., concur.