SEABISCUIT REALTY LLC v. HAYES (2024)

Order, Supreme Court, Bronx County (Paul L. Alpert, J.), entered January 6, 2023, which, to the extent appealed from as limited by the briefs, denied third-party defendant's cross-motion to dismiss the third-party complaint, unanimously affirmed, without costs.

The motion court properly denied that branch of third-party defendant YSLW Teller LLC's cross-motion to dismiss the third-party complaint pursuant to CPLR 3211(a)(1) and (7).  Although we agree that the cross-motion should not have been denied as moot, the motion court otherwise correctly determined that the third-party complaint adequately asserted a claim for adverse possession against YSLW that should proceed on the merits (see Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81, 945 N.Y.S.2d 196, 968 N.E.2d 433 [2012];  see also RPAPL 501[2]).

Contrary to YSLW's contention, the documentary evidence does not conclusively establish that YSLW was a bona fide purchaser without any notice (see Andy Assoc., Inc. v. Bankers Trust Co., 49 N.Y.2d 13, 20, 24, 424 N.Y.S.2d 139, 399 N.E.2d 1160 [1979]).

YSLW's reliance on Real Property Law § 260 is similarly unavailing.  As this Court explained in (Rainbow Coop v. City of New York, 63 A.D.3d 415, 415, 879 N.Y.S.2d 329 [1st Dept. 2009]), Real Property Law § 260 does not weigh upon the effectiveness of an adverse possession claim itself, but rather, protects a subsequent encumbrance as between the parties to that transaction.

We have considered YSLW's remaining contentions and find them unavailing.