LEVINE v. STELLAR 341 LLC (2026)

DECISION & ORDER

In an action pursuant to RPAPL article 15 to quiet title to real property and for related declaratory relief, the defendant appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated September 23, 2024.  The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In November 2023, the plaintiffs commenced this action pursuant to RPAPL article 15 to quiet title to real property and for related declaratory relief.  The plaintiffs are the owners of certain real property located in Brooklyn, which abuts a tunnel used by the New York City Transit Authority.  The tunnel was built on land now owned by the defendant, and is used and maintained by the New York City Transit Authority by way of an unrecorded easement.  The plaintiffs alleged, among other things, that they are the rightful owners of a strip of land approximately 15 to 18 feet in length, which abuts the northernmost portion of the tunnel and the southernmost portion of the plaintiffs' property as described in the plaintiffs' deed (hereinafter the disputed property).  The plaintiffs alleged that since 1965, they and their predecessors in interest have occupied the disputed property, completely enclosing it as part of the backyard of their home for their exclusive use and enjoyment.  The complaint sought, inter alia, a judgment declaring that the plaintiffs acquired title to the disputed property by adverse possession, and owned the disputed property pursuant to the doctrine of practical location.

The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.  The plaintiffs opposed the motion.  In an order dated September 23, 2024, the Supreme Court denied the defendant's motion.  The defendant appeals.

“ ‘On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is afforded a liberal construction and the court must give the party the benefit of every possible favorable inference, accept the facts alleged in the pleading as true, and determine only whether the facts as alleged fit within any cognizable legal theory’ ” (Janover, LLC v. Smith, 245 A.D.3d 907, 909, 247 N.Y.S.3d 263 (2026), quoting Lieberman v. Green, 139 A.D.3d 815, 816, 32 N.Y.S.3d 239 (2016)).  “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Katz v. DePaola, 211 A.D.3d 1020, 1021, 181 N.Y.S.3d 593 (2022) [internal quotation marks omitted];  see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 (1977)).  Further, “ ‘a motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ ” (Red Target, LLC v. Kun Resources, 244 A.D.3d at 1147, 1148, 249 N.Y.S.3d 152, quoting Qureshi v. Vital Transp., Inc., 173 A.D.3d 1076, 1077, 103 N.Y.S.3d 515 (2019)).  “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” (Leader v. Steinway, Inc., 180 A.D.3d 886, 887, 119 N.Y.S.3d 516 (2020) [internal quotation marks omitted] ).

“In 2008, the adverse possession statute (RPAPL art 5) was amended in its entirety (L 2008, ch 269) to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights” (Estate of Becker v. Murtagh, 19 N.Y.3d 75, 81 n 4, 945 N.Y.S.2d 196, 968 N.E.2d 433 (2012)).  However, the 2008 amendments to the adverse possession statutes contained in RPAPL article 5 are not applicable where, as here, the alleged adverse possessor's property right, as alleged, vested prior to the enactment of the amendments (see Megalli v. Yeager, 167 A.D.3d 860, 861, 90 N.Y.S.3d 267 (2018);  SLC Coram, LLC v. 543 Middle Country Rd. Realty, LLC, 161 A.D.3d 1122, 1123, 78 N.Y.S.3d 173 (2018)).  Thus, under the pre-amendment law, the plaintiffs were required to allege that their possession of the property was “(1) hostile and under [a] claim of right;  (2) actual;  (3) open and notorious;  (4) exclusive;  and (5) continuous for the required period” of 10 years (Walling v. Przybylo, 7 N.Y.3d 228, 232, 818 N.Y.S.2d 816, 851 N.E.2d 1167 (2006);  see Megalli v. Yeager, 167 A.D.3d at 861, 90 N.Y.S.3d 267 ).  “In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’ ” (Estate of Becker v. Murtagh, 19 N.Y.3d at 81, 945 N.Y.S.2d 196, 968 N.E.2d 433, quoting RPAPL former 522).

Here, the complaint alleged, insofar as relevant, that the plaintiffs and their predecessors in interest improved and enclosed the disputed property, continuously possessed the disputed property for more than 10 years prior to the commencement of this action, and that such possession was under a claim of right, actual, open and notorious, and exclusive of any other right.  Accepting the facts alleged in the complaint as true and according the plaintiffs the benefit of every possible inference, the plaintiffs stated a cause of action for adverse possession (see Sposato v. Paboojian, 110 A.D.3d 979, 980, 974 N.Y.S.2d 251 (2013)).  Moreover, the evidence submitted by the defendant failed to establish that a material fact claimed by the plaintiffs was not a fact at all and that no significant dispute exists regarding it (see Red Target, LLC v. Kun Resources, 244 A.D.3d at 1148, 249 N.Y.S.3d 152).

Pursuant to the doctrine of practical location, “ ‘[a] practical location of a boundary line and an acquiescence therein for more than the statutory period is conclusive of the location of such boundary ․ although such line may not in fact be the true line according to the calls of the deeds of the adjoining owners' ” (Jakubowicz v. Solomon, 107 A.D.3d 852, 852, 968 N.Y.S.2d 112 (2013), quoting McMahon v. Thornton, 69 A.D.3d 1157, 1160, 897 N.Y.S.2d 247 (2010);  see Czenszak v. Iasello, 227 A.D.3d 772, 773, 212 N.Y.S.3d 123 (2024)).  The “ ‘[a]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled’ ” (Jakubowicz v. Solomon, 107 A.D.3d at 853, 968 N.Y.S.2d 112 [internal quotation marks omitted], quoting McMahon v. Thornton, 69 A.D.3d at 1160, 897 N.Y.S.2d 247;  see Czenszak v. Iasello, 227 A.D.3d at 773–774, 212 N.Y.S.3d 123).

Here, the complaint alleged, insofar as relevant, that the disputed property was completely enclosed as part of the backyard to the plaintiffs' home since at least 1965, and that the enclosure was visible from the defendant's property.  Accepting the facts alleged in the complaint as true and according the plaintiffs the benefit of every possible inference, the plaintiffs sufficiently stated a cause of action for ownership pursuant to the doctrine of practical location (see Czenszak v. Iasello, 227 A.D.3d at 773–774, 212 N.Y.S.3d 123;  Tesone v. Hoffman, 84 A.D.3d 1219, 1220, 923 N.Y.S.2d 704 (2011)).  Contrary to the defendant's contention, an agreement between adjoining owners fixing the true boundary line is not a required element for the doctrine of practical location to apply (see Jakubowicz v. Solomon, 107 A.D.3d at 853, 968 N.Y.S.2d 112).

Furthermore, the affidavits, photographs, and web-page printout submitted by the defendant in support of its motion did not constitute documentary evidence pursuant to CPLR 3211(a)(1) (see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 (2002);  Springer v. Almontaser, 75 A.D.3d 539, 540, 904 N.Y.S.2d 765 (2010)).  Although the tax maps and property deeds submitted by the defendant constituted documentary evidence (see 572 Walt Whitman Rd. Holdings, LLC v. Whitman Capital, LLC, 237 A.D.3d 878, 879, 232 N.Y.S.3d 527 (2025)), those documents were insufficient to utterly refute the allegations in the complaint (see Leader v. Steinway, Inc., 180 A.D.3d at 887, 119 N.Y.S.3d 516).

The defendant's remaining contentions are either not properly before this Court or without merit.

Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.

BRATHWAITE NELSON, J.P., WOOTEN, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.