IN RE: the Estate of Kenneth Robinson (2026)

Petitioner Marcello Roque brough this action in Supreme Court, Richmond County, seeking to obtain title to 245 Westervelt Avenue, Staten Island, New York, by claiming adverse possession. The claim was transferred to this Court by order dated September 21, 2023.

By order dated April 16, 2025, counsel for Roque was relieved, and Roque was ordered to appear on June 4, 2025 either self-represented or by counsel and prepared to proceed. Roque failed to appear and the proceeding was dismissed due to his default.

On June 19, 2025, Roque filed a motion to restore this proceeding to the Court's calendar and vacate his default. Such motion was returnable before this court on October 1, 2025. On that date, service of the motion was deemed incomplete and opposing counsel was afforded time to oppose the motion. The motion was then marked fully submitted after Roque filed papers in further support on October 28, 2025. By decision dated December 15, 2025, this court dismissed the motion holding that Roque did not demonstrate a potentially meritorious cause of action. New Seven Colors Corp. v. White Bubble Laundromat, Inc., 89 AD3d 701, 702 (2d Dept. 2011). Specifically, Roque failed to establish the elements of adverse possession under Real Property Actions and Proceedings Law § 501.

On January 27, 2026, Roque filed a notice of motion to reargue that decision and order. This motion was placed on the court's calendar of April 15, 2026. On that date, Roque again failed to appear. The written decision and order of this Court dated April 29, 2026 dismissed the motion to reargue due to the default in appearance, and Roque's failure to timely file the motion pursuant to CPLR § 2221(d).

On May 15, 2026, Roque filed the instant notice of motion seeking to vacate the decision of this Court dated April 29, 2026.

Roque argues that his April 15, 2026 nonappearance should be excused because it was the product of circumstances related to his anxiety, depression, and PTSD conditions. Roque contends that lapses in medical treatment due to changes in his health insurance and location rendered him physically and mentally unable to appear before the Court.

"A party seeking to vacate an order entered upon his or her failure to appear at a hearing must demonstrate a reasonable excuse for the default and a potentially meritorious claim or defense to be raised at the hearing." Residential Mortgage Loan Trust v. Battle, 207 AD3d 764 (2nd Dept 2022). A motion to vacate a default is addressed to the sound discretion of the motion court. See Bernstein v. Geiss, 111 AD3d 774 (2nd Dept 2013). Therefore, even if the Court found that Roque's explanation was a reasonable excuse for the default, he still must offer a potentially meritorious cause of action. In the interests of justice, the Court considered the arguments Roque offered in his January 27, 2026 notice of motion to reargue/renew.

As explained in the December 15, 2025 decision and order, Roque has not satisfied the elements required to establish adverse possession. Roque argues that the proceeding was dismissed simply because of his nonappearance. However, it was also based on the failure of Roque to present a meritorious cause of action, as discussed infra.

Further, if this court treats Roque's motion as one to reargue under CPLR § 2221(d), such section provides that a motion to reargue must establish that the underlying decision overlooked relevant facts or misapplied law. See McGill v. Goldman, 261 AD2d 593 (2nd Dept 1999). Roque's arguments fail to identify specific facts overlooked or law misapplied in the Court's written decision.

Finally, Roque seeks to provide certified versions of the property-related documents submitted as evidence in the earlier motions. Certified copies, although required as evidence, would not change the outcome. Those documents, uncertified, did not establish the elements required to prevail on a claim of adverse possession. Therefore, the certified versions would not alter the Court's prior determination of Roque's adverse possession claim even if the Court found that he offered reasonable justifications for their omission. See CPLR § 2221(e) (providing that a motion for leave to renew must provide "new facts" that would change the prior decision).

The motion is therefore dismissed.

This decision shall constitute the order of the Court.

Dated: August 10, 2026

MATTHEW J. TITONE, Surrogate

Matthew J. Titone, S.