260 260 v. 260 (2026)

Argued—March 23, 2026

DECISION & ORDER

C/

In an action, inter alia, for declaratory relief and the partition and sale of real property, the plaintiff appeals from an order of the Supreme Court, Kings County (Anne J. Swern, J.), dated December 5, 2024.  The order granted the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint and to cancel a notice of pendency filed against the subject property.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint and to cancel a notice of pendency filed against the subject property is denied.

In July 2024, the plaintiff commenced this action, inter alia, for a judgment declaring that it holds a 50% interest in certain real property and the partition and sale of the subject property.  The plaintiff alleged, among other things, that a prior owner of the subject property died intestate and that the subject property automatically vested in his wife and daughter, as distributees.  The plaintiff also alleged that it acquired a 50% interest in the subject property from the daughter and that the defendant acquired only a 50% interest in the subject property from a successor in interest to the wife.  The defendant moved pursuant to CPLR 3211(a)(1) to dismiss the complaint and to cancel a notice of pendency filed against the subject property.  In an order dated December 5, 2024, the Supreme Court granted the defendant's motion.  The plaintiff appeals.

“[A] motion to dismiss a complaint pursuant to CPLR 3211(a)(1) on the ground of documentary evidence may only be granted where the proffered documents utterly refute the plaintiff's allegations, conclusively establishing a defense as a matter of law” (Canty v. Burns, 238 AD3d 840, 841 [internal quotation marks omitted] ).  “In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable” (Bianco v. Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1328).  “Judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (id.).

“A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Indymac Venture, LLC v. Nagessar, 121 AD3d 945, 946 [internal quotation marks omitted];  see Staver Co. v. Skrobisch, 144 A.D.2d 449, 450).  “Accordingly, where a cause of action is sufficient to invoke the court's power to ‘render a declaratory judgment ․ as to the rights and other legal relations of the parties to a justiciable controversy’ (CPLR 3001;  see 3017[b] ), a motion to dismiss that cause of action should be denied” (Indymac Venture, LLC v. Nagessar, 121 AD3d at 946).

Here, the documentary evidence submitted by the defendant concerning the chain of title of the subject property did not utterly refute the plaintiff's claim that it is entitled to a judgment declaring that it holds a 50% interest in the subject property (see Security Title Guar. Corp. of Baltimore v Old Republic Natl. Title Ins. Co., 239 AD3d 1015, 1016;  Indymac Venture, LLC v. Nagessar, 121 AD3d at 946).  Contrary to the defendant's contentions, the chain of title did not establish that the wife had the authority to convey a 100% interest in the subject property to the defendant's grantor (see Matter of Blango, 166 AD3d 767, 768;  Matter of Torricini, 249 A.D.2d 401, 402).

Moreover, a broker agreement, to which the defendant was not a party, did not conclusively establish that the plaintiff was equitably estopped from asserting an interest in the subject property based upon the alleged concealment of its predecessor in interest (see Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 750).  The defendant failed to rebut the plaintiff's factual allegation that the defendant was on notice of a potential defect in the chain of title based upon a title report issued in anticipation of the defendant's acquisition of the subject property, which stated that the title was “under investigation” (see DK Gates Homes, LLC v. HSBC Bank USA, N.A., 188 AD3d 815, 816).

Accordingly, the Supreme Court erred in granting the defendant's motion pursuant to CPLR 3211(a)(1) to dismiss the complaint and to cancel a notice of pendency filed against the subject property.

The parties' remaining contentions are without merit.

BARROS, J.P., WAN, GOLIA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court