Quiet Title—Adverse Possession—Doctrine of “Practical Location”—Declaratory Relief—Motion To Dismiss Pursuant to CPLR §§3211(a)(1) and (7) Denied


This decision involved an action to quiet title and obtain declaratory relief. A defendant moved, pursuant to CPLR §§3211(a)(1) and (7), to dismiss the plaintiff’s complaint in its entirety with prejudice.

The dispute related to a proposed development project on the defendant’s property. The defendant’s real estate project utilizes a “Strip to support structures built over (a) tunnel.” Each party claimed title to the Strip. The plaintiffs (plaintiff) commenced the subject action to quiet title to the Strip.

The plaintiff alleged that they own a property “abutting a forty foot-high tunnel used by the (NYC) Transit Authority (TA).” The tunnel had been built on land now owned by the defendant. It is now “used and maintained by the (TA) by way of an unrecorded easement in their favor.”

The plaintiff claimed that they are the “rightful owners of the piece of land located in the backyard” of their property “which is between fifteen and eighteen feet in length and runs from the tunnel wall to the property line evinced in (plaintiff’s) deed” (Strip).

The plaintiff alleged that “they and their predecessors-in-title have acquired ownership of the Strip by adverse possession and through the doctrine of practical location.”

The plaintiff asserted that their predecessors in title “have substantially enclosed the Strip since 1965 and have transferred their interest in the Strip along with each successive transfer of title to (plaintiff’s property).” The plaintiff further alleged that the defendant and their predecessors-in-title “have treated the tunnel wall as a boundary marker dividing the property… since at least 1965.”

Additionally, the plaintiff alleged that the Strip is “exclusively accessible from the (plaintiff’s) property and neither (defendant) nor their predecessors-in–title have entered the Strip since at least 1965.” They also argued that the Strip is “highly visible from (defendant’s) property such that notice as to (plaintiff) and their predecessors’ possession of the Strip is and has been obvious.”

The court found that the defendant failed to offer “documentary evidence” which utterly refutes plaintiff’s allegations as required for a motion to dismiss pursuant to CPLR §3211 (a) (1).

The court noted that the defendant had submitted documents which included affidavits, deeds, aerial photographs, a tax map, a StreetEasy listing, a survey and drone photos.

The court explained that the defendant’s property deed, plaintiff’s property deed, and tax map are “documentary in nature, but this evidence alone does not ‘utterly refute’ any of the plaintiff’s factual allegations or conclusively establish a defense to plaintiff’s claims.”

The court stated that other documents submitted by the defendant “are not ‘essentially unassailable’ as is necessary to be considered documentary evidence within the meaning of CPLR §3211 (a) (1).”

The court denied that part of the defendant’s motion seeking dismissal of the complaint pursuant to CPLR §3211(a)(1). It further explained that in order to “prevail on an adverse possession claim, a party must provide clear and convincing evidence that their possession was (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for a statutory period of 10 years.”

In 2008, the Legislature amended the adverse possession statutes embodied in RPAPL Article 5 and included, “for the first time, a statutory definition of the ‘claim of right’ element necessary to acquire title by adverse possession. Pursuant to RPATL 501 (3), ‘a claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be.’”
The 2008 amendments became effective on July 7, 2008, “but in cases where title allegedly vested prior to this enactment date, as in the present case, the new statutory definition of ‘claim of right’ is not controlling.”

Prior to the amendments, “under longstanding decisional law...a party seeking adverse possession could assert that he or she was acting under a ‘claim of right’ regardless of whether he or she had actual knowledge of the true owner at the time of possession.”

The court also noted that “use or possession of property by predecessors-in-title may be tacked on to establish the statutory requirement for adverse possession if the predecessors’ use or possession also meets the requirements of adverse possession, and there is ‘an unbroken chain of privity between the adverse possessors.’”

The court further stated that “[t]acking also requires the intent to turn over and the actual turning over of the adversely possessed property.” The defendant argued that the plaintiff cannot “establish the requisite intent necessary for tacking to apply.” It alleged that the “plaintiff’s knowledge of (defendant’s) ownership of the Strip prevents plaintiff’s possession from being ‘under a claim of right.’” They argued that the plaintiff had not “substantially enclosed the Strip for purposes of actual possession, and that plaintiffs’ possession of the Strip cannot be considered open or notorious.”

The plaintiff claimed that they met their burden to establish adverse possession. They alleged that the “plaintiff’s predecessors-in-title installed a fence completely enclosing their backyard including the Strip and have transferred their interest in the Strip with each successive transfer of their interest in (the subject property).”

With respect to the defendant’s motion to dismiss, the court explained that “the intent to transfer necessary for tacking to apply to possession of the Strip can be inferred from plaintiffs’ allegations that the Strip had been included in each transfer of their property since at least 1965.”
The plaintiff also argued that “all possession of the Strip has been exclusive and highly visible to (defendant) and previous owners of (defendant’s) property since 1965 as well.”

The court reasoned that existence of the TA's “easement does not destroy the allegation that plaintiffs enjoy exclusive control over the land making up the Strip which is not within the confines of the easement.” The court opined that the defendant’s assertion that the “plaintiffs’ possession of the Strip is not open and notorious based on the visibility of the Strip from certain vantage points from defendant’s property does not on its face disprove the allegations in the complaint that the adverse possession of the Strip has been highly visible since 1965.”

The court observed that whether the plaintiff can “ultimately establish the elements of adverse possession is not part of the calculus in determining a motion to dismiss.” The salient issue was whether the plaintiff had stated a cause of action for adverse possession “[d]espite arguments that may tend to negate elements of adverse possession if proven true,” the court held that the defendant failed to meet its burden pursuant to CPLR §3211(a)(7) to demonstrate that the pleading states no legally cognizable cause of action. Thus, the court denied the defendant’s motion to dismiss the adverse possession claim.

The court then explained that in order to “prevail in an action to quiet title pursuant to the doctrine of practical location, a ‘practical location of a boundary line and an acquiescence therein for more than the statutory period of 10 years is conclusive of the location of such boundary… although such line may not in fact be the true line, according to the (clauses) of the deeds of the adjoining owners.”

The court noted that in order for the “practical location of the boundary line to be effective, it must be an act of the parties, either express or implied; and it must be mutual, so that both parties are equally affected by it. It must be definitely and equally known, understood and settled. If unknown, uncertain or disputed, it cannot be a line practically located.”

The plaintiff alleged that the defendant and the predecessors-in-title “have treated the tunnel wall as the settled boundary marker dividing their property from (plaintiff’s property) since at least 1965.” The complaint “implied” based on the defendant’s “lack of use that they understood the tunnel wall to be the property line between (defendant’s) property and plaintiffs’ property, until they planned to use the Strip for the development project.” The plaintiff also argued that their use of the tunnel wall “as the property line was highly visible” to the defendant and their predecessors-in-title “from at least 1965.”
The defendant countered “that it had never acquiesced to a boundary with (plaintiffs’ property) which excluded the Strip, and that plaintiffs cannot prove acquiescence because the deeds to both properties in question and the area’s tax map show (defendant) as the owner of the Strip.”The court found that the evidence did not “refute the allegations of implicit acquiescence to the boundary line alleged in the complaint.”

Thus, the court held that the complaint stated a cause of action based the doctrine of practical location. The alleged facts assert that the “tunnel wall has been the equally known, understood, and settled boundary line between (defendant’s) property and (plaintiff’s property) for well over 10 years.”
With respect to the request for a declaratory judgment, the plaintiff contended that it “exclusively own[ed] the Strip and the tunnel wall is the boundary line between their property… and defendant’s property.” The court observed that the “property rights of both parties are involved in this matter, and a declaration of rights to the Strip will have significant practical effects with regard to both parties use and enjoyment of their property.”
The court held that the complaint adequately stated a cause of action for a declaratory judgment and denied the defendant’s motion to dismiss the claim for the declaratory relief.

Accordingly, the court held that the plaintiff had sufficiently alleged causes of action sounding in adverse possession, the doctrine of practical location, and declaratory relief against the defendant.

The court further explained that the “arguments and evidence proffered by defendant did not utterly refute (plaintiff’s) allegations or conclusively establish a defense as a matter of law.” Thus, the defendant’s motion to dismiss was denied.

Levine v. Stellar 341 LLC, Supreme Court, Kings County, Case No. 533941/2023. Decided Sept. 23, 2023. Campanelli, J.

…

Commercial Landlord-Tenant—Sinkhole Outside the Premises—Tenant Claimed Flooding Made Occupancy “Untenable”—Landlord Argued That Tenant’s Motion for Summary Judgment Should Be Delayed Because There Had Been No Discovery, Expert Testimony, Or Information as to the Last Time Tenant Visited the Premises and Absent “Before-and-After Evidence” as to the Current Condition, Court Cannot Rule Whether There Is a Present Violation of Lease—Landlord Alleged Tenant Breached Lease By Failing To Obtain Adequate Insurance—Court Denied Tenant’s Motion For Summary Judgment—Tenant Failed To Meet Its Prima Facie Burden and Even If It Had, There Are Triable Issues of Fact—No Discovery Had Taken Place, There Were Conflicting Fact Affidavits as to Condition of the Premises and Performance Under the Lease—“Rather Scarce Record” Tenant’s Motion for Summary Judgment Denied Without Prejudice


This decision involved an alleged breach of a commercial lease. A tenant leased the subject premises from the defendant landlords pursuant to a lease dated January 18, 2027. In September 2018, a “sinkhole formed outside the Premises, which caused flooding of the building and made occupancy untenable.” The tenant claimed that it had been “out of possession of the premises since then.”

After the landlords filed their answer, the tenant moved for partial summary judgment, “seeking declaratory relief and dismissal of the landlords’ affirmative defenses.” The court denied the tenant’s motion without prejudice, “with leave to renew upon further discovery.” The tenant argued inter alia, that the landlords had “admitted in a separate action that the sinkhole was caused by defendants’ contractors and that the lease is suspended.”

The landlords countered that the tenant failed to establish its prima facie burden and cannot meet such burden since there has been “no discovery, nor any expert testimony, nor any mention of the last time the (tenant) visited the Premises.” They asserted that absent “any before-and-after evidence of the condition of the Premises, it is impossible for this Court to rule as a matter of law whether there is a present violation of the lease.”

The landlords offered fact witness affidavits which contradicted the tenant’s allegations as to the condition of the premises. They also argued that the tenant’s motion for summary judgment should be denied because the tenant “violated their own obligations under the lease by failing to procure adequate insurance coverage.”

The tenant had provided “only the affidavit of “A.” “A” “largely provides testimony which contradicts statements made by (landlords’) fact witnesses about the condition of the premises and certain repairs that have been made.”

The court found that the tenant had failed to meet its prima facie burden on its motion. The tenant “failed to show that it performed under the contract given its failure to obtain and maintain adequate insurance coverage, which was the reason why (tenant’s) motion for a Yellowstone injunction was denied.” Moreover, the tenant also failed to provide “sufficient evidence of the past and present condition of the premises, or any expert testimony regarding the insufficiency of (landlords’) repairs.” The court reasoned that even if the tenant had met its prima facie burden, “triable issues of fact exist.”

The court further noted that there had been no discovery and there were “three conflicting fact affidavits regarding the condition of the premises and performance under the lease.”

The court concluded that based on the tenant’s “heavy burden, the insufficient record and the issues of fact which exist in the rather scarce record, the court is unable to grant (tenant) summary judgment.”

Accordingly, the court denied the tenant’s motion for partial summary judgment without prejudice, with leave to renew upon further discovery. The court also noted the court’s “free mediation services.”

JF Hospitality Group LLC v. CRP 701 W. 135th St. A LLC, Supreme Court, New York County, Case No. 150979/2023. Decided Sept. 20, 2024. Rosado, J.



Scott Mollen is a partner at Herrick Feinstein.