2832 Linden Boulevard Realty LLC v. Health Ins. Plan of Greater NY Inc.

The following e-filed papers read herein: NYSCEF Doc No.: Notice of Motion, Affidavits (Affirmations), Memorandum of Law, and Exhibits Annexed 14-37 Affirmation in Opposition     40 Reply Affirmation and Exhibits Attached             46-51 DECISION AND ORDER   In this action pursuant to RPAPL article 15 to determine claims to real property and for declaratory relief, plaintiff 2832 Linden Boulevard Realty LLC (“plaintiff”) moves (motion sequence #1) for summary judgment as against defendants Linden Boulevard Theatres LLC (the “neighboring owner”), New York City Department of Finance (“DOF”), and The City of New York (collectively with DOF, the “City defendants”). Plaintiff has discontinued this action as against the remaining defendant, Health Insurance Plan of Greater New York, Inc. (“HIP”). Background On February 14, 2019, plaintiff apparently purchased from HIP commercial property located at 2832 Linden Boulevard in Brooklyn, New York (Block 4495, Lot 1) (the “property”), in an all-cash deal for $11.3 million, in order to redevelop it as a 240-bed nursing home.¹ The property (aside from the existing, and apparently to be demolished, one-story structure thereon) consists of a plot of land measuring 200 feet in width by 500 feet in length.² The length of the property on one side borders “the easterly side of Ruby Street (60 feet wide).”³ Ruby Street is the so-called “paper street,” meaning that it has been mapped by the City of New York (at least since the early 1900s) but in actuality has never been open, prepared for use, or used as a street; nor has it been assigned a tax lot number (as is the case here). In April 2019 and May 2020, plaintiff (through a building-zoning consultant and then by counsel, respectively) requested, in each instance, that DOF assign a tax lot number to a parcel which adjoins the property at the Ruby Street side (the “additional parcel”). More particularly, the additional parcel extends from the edge of the property to the centerline at Ruby Street’s easterly side.⁴ The additional parcel measures 30 feet in width (i.e., one-half of Ruby Street’s width of 60 feet) by 500 feet in length (i.e., the length of the side of the property adjoining Ruby Street). At the time of its alleged conveyance to plaintiff as part of the property, the additional parcel was fenced off from the property on all four sides and was not used by plaintiff’s predecessor-in-title (i.e., HIP) for parking or for any other purpose.⁵ Plaintiff argued before DOF (and so reiterates in this action) that it owns the additional parcel notwithstanding the metes-and-bound description in the underlying deed to the contrary. For proof of its alleged ownership of the additional parcel, plaintiff relied (and still relies) on the recital in the underlying deed that the conveyance of the property included “any land lying in the bed of any streets and roads abutting the property to the center lines thereof.”⁶ In December 2019 and again in July 2020, DOF denied plaintiff’s requests. DOF explained, in each instance, that it could not determine, based on plaintiff’s submissions,⁷ whether plaintiff owned the additional parcel.⁸ Significantly, DOF never asserted (nor does it assert here) that the City of New York owns the additional parcel.⁹ In August 2020, plaintiff commenced this action for a declaration, pursuant to RPAPL 1501, that it owns the additional parcel and for a declatory judgment, in effect pursuant to CPLR 3001, that defendants (i.e., the neighboring owner and the City defendants) have no interest in the additional parcel.¹⁰ After defendants separately joined issue, plaintiff moved for summary judgment. Whereas the neighboring owner failed to respond to plaintiff’s motion, the City defendants indicated in their response that they took no position (albeit with a qualifier noted below) as to whether plaintiff is (or is not) the owner of the additional parcel. The City defendants qualified their response with a proviso that “should the Court direct any changes to the metes and bounds of the…Property,…it should direct the Plaintiff to comply with the required administrative process, delineated in 19 RCNY §54-01 et seq., in order to effectuate a lawful merger of the [additional] Parcel with the…Property.”¹¹ At the hearing on the motion initially held on June 9, 2021, the Court directed plaintiff to submit supplemental papers concerning the chain of title for the additional parcel. On July 15, 2021, plaintiff submitted its response which, as relevant to the Court’s determination, includes a chart of the chain of title for the former tax lots which comprised the additional parcel (the “chain-of-title chart”).¹² On September 22, 2021, the Court heard futher oral argument and reserved decision. Discussion The starting point is the language of the statute at issue. RPAPL 1501 provides, in relevant part, that: “(1) Where a person claims an estate or interest in real property…[,] such person…may maintain an action against any other person, known or unknown…to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make…” (emphasis added). The purpose of RPAPL 1501, is “to give relief to a party in possession of land where another claimed an interest in the land but had brought no suit to enforce the claim” (Porcher v. Frueauff, 82 NYS2d 10, 11-12 [Sup Ct, NY County 1948] [emphasis added], affd without opinion 276 App Div 997 [1st Dept 1950], appeal dismissed 302 NY 697 [1951], lv denied 278 App Div 764 [1st Dept 1951]). “To maintain an equitable quiet title claim, a plaintiff must allege…the existence of a removable cloud on the property, which is an apparent title, such as a deed or other instrument, that is actually invalid or inoperative” (Ray v. JP Morgan Chase Bank, N.A., 145 AD3d 812, 813 [2d Dept 2016] [emphasis added]).¹³ Whereas allegations of “an [adverse] interest” or “apparent title” are sufficient to withstand a motion to dismiss the complaint for failure to state a claim under CPLR 3211 (a) (7) (see Matter of Marchand v. New York State Dept. of Envtl. Conservation, 51 AD3d 795, 796 [2d Dept 2008]), such allegations are not sufficient where, as here, summary judgment is sought (see CPLR 3212 [b] ["The motion (for summary judgment) shall be granted if, upon all the papers and proof submitted, the cause of action…shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."]). Here, plaintiff has failed to demonstrate, prima facie, its entitlement to summary judgment, without regard to the sufficiency of the City defendants’ response. The reasons are two-fold. First, plaintiff has presented no case or controversy for the Court to resolve because no defendant has asserted an adverse interest in (or an apparent title to) the additional parcel. Although DOF previously denied plaintiff’s requests to recognize the additional parcel as a separate tax lot, plaintiff in this action is not challenging DOF’s determination in that regard.¹⁴ Second, and more fundamentally, where, as here, “the deed describes the grant as starting at a corner of an intersection, and then running along parallel to or bounding on a street or streets to the beginning point, the grant is limited to the exterior line of the street” (here, the exterior line of Ruby Street) (see City of Albany v. State, 28 NY2d 352, 356 [1971] [emphasis added]). In this regard, plaintiff has failed to show that the deeds in the chain of title — for each conveyance for each of the old tax lots comprising the additional parcel — contain specific language indicating that “title extend[ed] to the center line of” Ruby Street (compare Borducci v. City of Yonkers, 144 AD2d 321, 322 [2d Dept 1988]). Moreover, the deeds in the chain of title¹⁵ fail to include even the boilerplate language which is intended to encompass, as part of the conveyance, “any streets and roads abutting the above-described premises to the center lines thereof.”¹⁶ Further undermining plaintiff’s position is the fact that the additional parcel, at the time of its alleged conveyance to plaintiff as part of the property, was fenced off for the entire length of 500 feet on the side which adjoined the property (as well as was fenced off on its other sides), and that it had not been used by plaintiff’s transferor for parking or for any other purpose.¹⁷ Nothing in the record indicates that resort to the administrative remedies under General City Law §35 or New York City Charter §197-c would be futile. Plaintiff’s remedies, at least at this time, are administrative (not judicial) in nature. Conclusion Accordingly, it is ORDERED that plaintiff’s motion in Seq. No. 1 is denied; and it is futher ORDERED that to reflect the prior stipulated dismissal of defendant Health Insurance Plan of Greater New York, Inc. from this action, the caption is amended to read as follows 2832 Linden Boulevard Realty LLC, Plaintiff v. Linden Boulevard Theatres LLC, New York City Department of Finance, and The City of New York, Defendants; 515466/20 The Corporation Counsel of the City of New York is directed to electronically serve a copy of this decision and order on the other parties’ respective counsel and to electronically file an affidavit of service thereof with the Kings County Clerk. This constitutes the decision and order of the Court. Dated: December 21, 2021