ARKIN SIMON SIMON PARTNERSHIP v. State of New York, respondent. (2025)

DECISION & ORDER

In an action, inter alia, for a judgment declaring that the plaintiff is the owner of certain real property by adverse possession and pursuant to RPAPL article 15 to quiet title to real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered June 9, 2023.  The order granted the motion of the defendant State of New York pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant State of New York which was pursuant to CPLR 3211(a) to dismiss the cause of action for a judgment declaring that the plaintiff is the owner of certain real property by adverse possession insofar as asserted against it, and adding thereto a provision deeming that branch of the motion to be for a judgment declaring that the defendant State of New York is the owner of Nassau County tax lot 782, and thereupon granting that branch of the motion;  as so modified, the order is affirmed, with costs to the defendant State of New York, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the defendant State of New York is the owner of Nassau County tax lot 782.

In March 2021, the plaintiff commenced the instant action, inter alia, pursuant to RPAPL article 15 to quiet title to Nassau County tax lot 782 (hereinafter lot 782) and for a judgment declaring that the plaintiff is the owner of lot 782 by adverse possession.  The defendant State of New York moved pursuant to CPLR 3211(a) to dismiss the second amended complaint insofar as asserted against it, arguing that it had acquired title to lot 782 by eminent domain in December 1961 pursuant to Highway Law § 30 and that, accordingly, lot 782 was immune from adverse possession.  In an order entered June 9, 2023, the Supreme Court granted the State's motion.  The plaintiff appeals.

“ ‘On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference’ ” (Bronxville Scout Comm. v. County of Westchester, 229 A.D.3d 753, 754, 216 N.Y.S.3d 202, quoting Granada Condominium III Assn. v Palomino, 78 A.D.3d 996, 996, 913 N.Y.S.2d 668).  “A motion to dismiss based on documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, resolves all factual issues as a matter of law, and conclusively disposes of the claims at issue” (id. [citations and internal quotation marks omitted];  see First Korean Church of N.Y. v. 35 Ave & Parsons, LLC, 221 A.D.3d 971, 972, 202 N.Y.S.3d 129;  Bedford–Carp Constr., Inc. v. Brooklyn Union Gas Co., 215 A.D.3d 907, 908, 188 N.Y.S.3d 554;  Yue Fung USA Enters., Inc. v. Novelty Crystal Corp., 105 A.D.3d 840, 841, 963 N.Y.S.2d 678).  “In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable” (Bronxville Scout Comm. v. County of Westchester, 229 A.D.3d at 754–755, 216 N.Y.S.3d 202 [internal quotation marks omitted];  see Leader v. Steinway, Inc., 180 A.D.3d 886, 887, 119 N.Y.S.3d 516;  Granada Condominium III Assn. v. Palomino, 78 A.D.3d at 997, 913 N.Y.S.2d 668).

“ ‘[I]t is well settled that a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute’ ” (Bronxville Scout Comm. v. County of Westchester, 229 A.D.3d at 755, 216 N.Y.S.3d 202, quoting Monthie v. Boyle Rd. Assoc., 281 A.D.2d 15, 20, 724 N.Y.S.2d 178;  see Mazzei v. Metropolitan Transp. Auth., 164 A.D.3d 1227, 1228, 83 N.Y.S.3d 590 ).  “ ‘Conversely, when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession’ ” (Bronxville Scout Comm. v. County of Westchester, 229 A.D.3d at 755, 216 N.Y.S.3d 202, quoting Monthie v. Boyle Rd. Assoc., 281 A.D.2d at 20, 724 N.Y.S.2d 178;  see Mazzei v. Metropolitan Transp. Auth., 164 A.D.3d at 1228, 83 N.Y.S.3d 590).  “[T]here is a well-recognized distinction between lands held by the State as sovereign in trust for the public and lands held as proprietor only, for the purpose of sale or other disposition ․;  [the State] cannot lose such lands as it holds for the public, in trust for a public purpose[, such] as highways” (Casini v. Sea Gate Assn., 262 A.D.2d 593, 594–595, 692 N.Y.S.2d 676 [internal quotation marks omitted]).

Here, the evidentiary materials submitted by the State utterly refuted the allegations in the second amended complaint and resolved all factual issues.  In support of its motion, the State submitted, inter alia, a certified notice of appropriation, which established that the State acquired lot 782 by eminent domain in 1961 in accordance with Highway Law § 30 to build a highway.  Contrary to the plaintiff's contention, the State established as a matter of law that lot 782 was immune from adverse possession (see Bronxville Scout Comm. v. County of Westchester, 229 A.D.3d at 755, 216 N.Y.S.3d 202;  Filomio Truck Sales, Inc. v. City of New York, 191 A.D.3d 525, 526, 138 N.Y.S.3d 339;  Casini v. Sea Gate Assn., 262 A.D.2d at 594–595, 692 N.Y.S.2d 676).  The State owns the property in a governmental capacity even though it has taken no action to develop lot 782 into a public highway (see Bronxville Scout Comm. v. County of Westchester, 229 A.D.3d at 755, 216 N.Y.S.3d 202;  Filomio Truck Sales, Inc. v. City of New York, 191 A.D.3d at 526, 138 N.Y.S.3d 339;  West Ctr. Cong. Church v. Efstathiou, 215 A.D.2d 753, 627 N.Y.S.2d 727).

The plaintiff's remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the State is the owner of lot 782 (see Lanza v. Wagner, 11 N.Y.2d 317, 229 N.Y.S.2d 380, 183 N.E.2d 670).

BARROS, J.P., MILLER, DOWLING and VENTURA, JJ., concur.