The following e-filed papers read herein: NYSCEF Nos.: Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 7-20 Opposing Affidavits (Affirmations) 25 Affidavits/ Affirmations in Reply 26 Other Papers: Affidavits/Affirmations in Support DECISION AND ORDER In this action to quiet title and to seek a declaratory judgment, Defendant STELLAR 341 LLC (hereinafter “STELLAR”) moves via Notice of Motion seq. 001 for an Order pursuant to CPRL §§3211(a)(1) and (7), dismissing the Plaintiffs BETH A. LEVINE and ANDREW M. ST. LAURENT’S (hereinafter “LEVINE”) complaint in its entirety, with prejudice. The present dispute between the parties arose in connection with a proposed development project on STELLAR’s property. STELLAR’s project involves two mixed-use buildings and utilizing the Strip to support structures built over the tunnel. LEVINE and STELLAR both claim title to the Strip. On November 17, 2023, LEVINE commenced the present action against STELLAR to quiet title to the Strip under Index no. 533941/2023. The complaint alleges that LEVINE are owners of 276 9th Street, a property abutting a forty-foot-high tunnel used by The New York City Transit Authority. The tunnel was built on land now owned by STELLAR, which is used and maintained by the New York City Transit Authority by way of an unrecorded easement in their favor. LEVINE alleges that they are the rightful owners of a piece of land located in the backyard of 276 9th Street which is between fifteen and eighteen feet in length and runs from the tunnel wall to the property line evinced in LEVINE’s deed (hereinafter “Strip”). LEVINE allege that they and their predecessors-in-title have acquired ownership of the Strip by adverse possession and through the doctrine of practical location. LEVINE allege 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 276 9th Street. They further allege that STELLAR and their predecessors-in-title have treated the tunnel wall as a boundary marker dividing their property from 276 9th Street since at least 1965. Additionally, it is alleged that the Strip is exclusively accessible from LEVINE’s property and neither STELLAR nor their predecessors-in-title have entered the Strip since at least 1965. LEVINE contend that the Strip is highly visible from STELLAR’s property such that notice as to LEVINE and their predecessors’ possession of the Strip is and has been obvious. A motion to dismiss a complaint pursuant to CPLR §3211(a)(1) can be granted “only when the documentary evidence [submitted by the movant] utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law”. Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314 (2002); Goldman v. Nationstar Mortgage LLC, 205 A.D.3d 1008 (2d Dep’t., 2022); Marinelli v. Sullivan Pavin Block McGrath & Cannavo, P.C., 205 A.D.3d 714 (2d Dep’t., 2022). The documentary evidence must “resolve all factual issues and conclusively dispose of plaintiff’s claim.” Rigwan v. Neus, 205 A.D.3d 1062 (2d Dep’t., 2022); Hoeg Corp. v. Peebles Corp., 153 A.D.3d 607 (2d Dep’t., 2017); Elow v. Svenningsen, 58 A.D.3d 674 (2d Dep’t., 2009). “To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable” (Bath & Twenty, LLC v. Federal Sav. Bank, 198 A.D.3d 855, 855–856, 156 N.Y.S.3d 316; see Cives Corp. v. George A. Fuller Co., Inc., 97 A.D.3d 713, 714, 948 N.Y.S.2d 658). “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” (Bath & Twenty, LLC v. Federal Sav. Bank, [supra at 856,] [internal quotation marks omitted]; see JPMorgan Chase Bank, N.A. v. Klein, 178 A.D.3d 788, 790, 113 N.Y.S.3d 741). “Affidavits, deposition testimony, and letters are not considered documentary evidence within the intendment of CPLR 3211(a)(1)” (Bonavita v. Government Empls. Ins. Co., 185 A.D.3d at 893, 127 N.Y.S.3d 577; see Rodolico v. Rubin & Licatesi, P.C., 114 A.D.3d 923, 925, 981 N.Y.S.2d 144). U.S. Bank National Association v. Kahn Property Owner, LLC, 206 A.D.3d 855 (2d Dep’t., 2022). On a motion to dismiss a complaint pursuant to CPLR §3211(a)(7), the pleading must be afforded a liberal construction, the Court must accept the facts alleged in the complaint as true, “accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit into any cognizable legal theory.” Leon v. Martinez, 84 N.Y.2d 83 (1994); Goshen v. Mutual Life Ins. Co. of N.Y., supra; Marinelli v. Sullivan Pavin Block McGrath & Cannavo, P.C., supra; Lopez-Lobo v. U.S. Nonwovens Corp., 180 A.D.3d 771 (2d Dep’t., 2020); Kupersmith v. Winged Foot Golf Club, Inc., 38 A.D.3d 847 (2d Dep’t., 2007). “Whether a plaintiff can ultimately establish [his or her] allegations is not part of the calculus in determining a motion to dismiss.” EBC I, Inc. v. Goldman, Sachs & Co., 5 NY3d 11 [2005]. It is the movant who has the burden to demonstrate that the pleading states no legally cognizable cause of action. (see Leon, 84 N.Y.2d at 87-88; Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). i. CPLR §3211(a)(1) Defendant has not offered documentary evidence which utterly refutes plaintiff’s allegations as required for a motion to dismiss pursuant to CPLR §3211(a)(1). Defendant offers the following documents in support of their motion to dismiss: The March 1, 2024 Affidavit of Lyle Kamesaki (hereinafter “Kamesaki Affidavit”). Aerial Photos of Stellar’s Property attached as Exh. A to the Kamesaki Affidavit. Stellar’s Property Deed attached as Exh. B to the Kamesaki Affidavit. Plaintiff’s Property Deed attached as Exh. C to the Kamesaki Affidavit. Tax Map attached as Exh. D to the Kamesaki Affidavit. StreetEasy Listing attached as Exh. E to the Kamesaki Affidavit. The February 29, 2024 Affidavit of Pawel Kopcinski (hereinafter “Kopcinski Affidavit”). Geoland Survey attached as Exh. F to the Kopcinski Affidavit. The February 29, 2024 Affidavit of Victor Chu (hereinafter “Chu Affidavit). Drone Photos attached as Exh. G to the Chu Affidavit. Stellar’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 other documents offered by Defendant are not “essentially unassailable” as is necessary to be considered documentary evidence within the meaning of CPLR §3211(a)(1). Accordingly, the portion of Defendants’ motion seeking dismissal of the complaint under CPLR §3211(a)(1) is denied. ii. CPLR §3211(a)(7) — Quiet Title Under RPAPL Article 15 — Adverse Possession 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 the statutory period of 10 years. Munroe v. Cheyenne Realty, LLC, 16 N.Y.S.3d 842, 843 (N.Y. App. Div. 2d Dept. 2015); see Skyview Motel, LLC v. Wald, 82 A.D.3d 1081, 1082, 919 N.Y.S.2d 191. “Under longstanding decisional law applying these traditional common-law elements, 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 (see Walling v. Przybylo, 7 N.Y.3d at 232-233, 818 N.Y.S.2d 816, 851 N.E.2d 1167; Asher v. Borenstein, 76 A.D.3d at 986, 908 N.Y.S.2d 90; Merget v. Westbury Props., LLC, 65 A.D.3d 1102, 1105, 885 N.Y.S.2d 347). However, in 2008 the Legislature enacted changes to the adverse possession statutes contained in RPAPL article 5 (see L. 2008, ch. 269). These changes included rewriting RPAPL 501 to include, for the first time, a statutory definition of the “claim of right” element necessary to acquire title by adverse possession. Pursuant to RPAPL 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.” Hogan v. Kelly, 927 N.Y.S.2d 157, 158-59 (N.Y. App. Div. 2d Dept. 2011). The 2008 Amendments to RPAPL article 5 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. Hogan v. Kelly, 927 N.Y.S.2d 157, 158-59 (N.Y. App. Div. 2d Dept. 2011). Additionally, use or possession of property by predecessors-in-title may be tacked on to establish the statutory period 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[.]” Rose Val. Joint Venture v. Apollo Plaza Assocs., 178 A.D.2d 695, 697, 576 N.Y.S.2d 943 [1991], quoting Pegalis v. Anderson, 111 A.D.2d 796, 797, 490 N.Y.S.2d 544 [1985] ); Akbar Self Help Inc. v. City of New York, 874 N.Y.S.2d 887, 889 (N.Y. Sup. Ct. 2009). Tacking also requires the intent to turn over and the actual turning over of the adversely possessed property. Ram v. Dann, 84 A.D.3d at 1206, 924 N.Y.S.2d 482; Brand v. Prince, 35 N.Y.2d at 637, 364 N.Y.S.2d 826, 324 N.E.2d 314; Stroem v. Plackis, 948 N.Y.S.2d 90, 93 (N.Y. App. Div. 2d Dept. 2012). Defendant argues in support of their motion that Plaintiffs cannot establish any of the elements of adverse possession. They argue that Plaintiffs cannot establish the requisite intent necessary for tacking to apply. They argue that Plaintiffs knowledge of STELLAR’s ownership of the Strip prevents Plaintiffs possession from being “under a claim of right.” They contend that Plaintiff has not substantially enclosed the Strip for purposes of actual possession, and that Plaintiffs’ possession of the Strip cannot be considered open or notorious. In opposition, Plaintiffs claim to have alleged sufficient facts to establish that their possession of the Strip is (1) hostile and under a claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the statutory period of 10 years. The complaint alleges that 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 276 9th Street. For purposes of the Defendant’s motion to dismiss, the intent to transfer necessary for tacking to apply to possession of the Strip can be inferred from Plaintiffs allegations that the Strip has been included in each transfer of their property since at least 1965. Additionally, Plaintiffs contend that all possession of the strip has been exclusive and highly visible to STELLAR and previous owners of STELLAR’s property since 1965 as well. The existence of the New York Transit Authority’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. Lastly, Defendant’s argument that Plaintiffs possession of the Strip is not open or 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. Whether Plaintiffs can ultimately establish the elements of adverse possession is not part of the calculus in determining a motion to dismiss. At this stage, what is considered is whether Plaintiffs have stated a cause of action for adverse possession. Despite arguments that may tend to negate elements of adverse possession if proven true, Defendant has not met their burden pursuant to CPLR §3211(a)(7) to demonstrate that the pleading states no legally cognizable cause of action. When accepting LEVINE’s allegations as true for purposes of Defendant’s motion to dismiss pursuant to CPLR §3211(a)(7), the pleading has stated a cognizable cause of action. Accordingly, the portion of Defendant’s motion seeking dismissal of the cause of action for adverse possession pursuant to CPLR §3211(a)(7) is denied. iii. CPLR §3211(a)(7) — Quiet Title Under RPAPL Article 15 — Doctrine of Practical Location 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 calls of the deeds of the adjoining owners.” Jakubowicz v. Solomon, 968 N.Y.S.2d 112, 113 (N.Y. App. Div. 2d Dept. 2013) (quoting McMahon v. Thornton, 69 A.D.3d 1157, 1160, 897 N.Y.S.2d 247). For the “[p]ractical location of a 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’” (Adams v. Warner, 209 App.Div. 394, 397, 204 N.Y.S. 613, quoting Hubbell v. McCulloch, 47 Barb 287, 299 [1866]); see Tesone v. Hoffman, 923 N.Y.S.2d 704, 705 (N.Y. App. Div. 2d Dept. 2011). In their complaint, Plaintiffs allege that STELLAR and their predecessors-in-title have treated the tunnel wall as the settled boundary marker dividing their property from 276 9th Street since at least 1965. The complaint implies through STELLAR’s lack of use, that they understood the tunnel wall to be the property line between STELLAR’s property and Plaintiffs property, until they planned to use the Strip for a development project. Plaintiffs further allege that their use of the tunnel wall as the property line was highly visible to STELLAR and their predecessors-in-title from at least 1965. STELLAR contends in support of their motion that they never acquiesced to a boundary with 276 9th Street 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 STELLAR as the owner of the Strip. This evidence does not refute the allegations of implicit acquiescence to the boundary line alleged in the complaint. The Court finds that the attached summons and complaint states a cause of action under this legal theory. When reading the pleadings with a liberal construction and affording the plaintiffs the benefit of every possible favorable inference, the facts as alleged in the complaint state that the tunnel wall has been the equally known, understood, and settled boundary line between STELLAR’s property and 276 9th Street for well over 10 years. iv. CPLR §3211(a)(7) — Declaratory Judgment “The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether further relief is or could be claimed. If the court declines to render such a judgment it shall state its grounds” (N.Y. C.P.L.R. 3001). “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” Krawczyk v. Inc. Village of Lindenhurst, 189 N.Y.S.3d 676, 678 (N.Y. App. Div. 2d Dept. 2023); see Staver Co., Inc. v. Skrobisch, 533 N.Y.S.2d 967, 967 (N.Y. App. Div. 2d Dept. 1988); Tropical Restaurante Corp. v. Utica First Ins. Co., 203 N.Y.S.3d 695, 696 (N.Y. App. Div. 2d Dept. 2024). A Justiciable controversy requires there to be a “real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect.” Chanos v. MADAC, LLC, 903 N.Y.S.2d 506, 508 (N.Y. App. Div. 2d Dept. 2010). Here, Plaintiffs allege they exclusively own the Strip, and the tunnel wall is the boundary line between their property at 276 9th Street and Defendant’s property. 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 finds that the attached summons and complaint states a cause of action for declaratory relief. When reading the pleadings with a liberal construction and affording the plaintiffs the benefit of every possible favorable inference, the facts as alleged in the complaint establish a justiciable controversy and cause of action for declaratory judgement. Accordingly, the portion of Defendants’ motion seeking dismissal of the cause of action for a declaratory judgement is denied. In the instant matter, the Court finds that the complaint sufficiently alleges causes of action sounding in adverse possession, the doctrine of practical location, and declaratory relief against Defendant. Moreover, the arguments and evidence proffered by Defendant do not utterly refute LEVINE’s allegations or conclusively establish a defense as a matter of law (Goshen v. Mut. Life Ins. Co. of New York, 774 N.E.2d 1190, 1197 (N.Y. 2002); Leon v. Martinez, 638 N.E. 2d 511, 513 (N.Y. 1994). Therefore, dismissal at this time is not warranted. Accordingly, it is ORDERED that Defendant STELLAR’s motion to dismiss the complaint pursuant to CPRL 3211(a)(1) and (a)(7) is DENIED. Defendant STELLAR shall serve an answer within 30 days of service of this Order with notice of entry. This constitutes the decision and order of the Court. Dated: September 23, 2024
