Gooding v. Bank of N.Y. Mellon

Opinion

Gooding v Bank of N.Y. Mellon

2026 NY Slip Op 05167

September 2, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Eloish Gooding, appellant,

v

Bank of New York Mellon, etc., respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on September 2, 2026

2021-06081, (Index No. 606311/19)

Lara J. Genovesi, J.P.

William G. Ford

Carl J. Landicino

Susan Quirk, JJ.

Vishnick McGovern Milizio LLP, Lake Success, NY (Thomas Weiss of counsel), for appellant.

Greenberg Traurig, LLP, New York, NY (Adam P. Hartley and Patrick G. Broderick of counsel), for respondent.

[*1]

DECISION & ORDER

In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiff appeals from an order of the Supreme Court, Nassau County (David P. Sullivan, J.), entered July 23, 2021. The order converted the plaintiff's motion, inter alia, for a determination that she is the legal owner of the subject property into a motion for summary judgment on the complaint and thereupon denied the motion, and granted the defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.

In 2007, the defendant's predecessor in interest commenced an action against James Mitchell, among others, to foreclose a mortgage on certain real property located in Hempstead. A judgment of foreclosure and sale was entered in the defendant's favor on October 3, 2016. Subsequently the defendant became the owner of the property by virtue of a referee's deed that was recorded on January 26, 2017. The plaintiff then commenced this action pursuant to RPAPL article 15 to quiet title to the property, alleging that she is the owner of the property by adverse possession. The plaintiff moved, inter alia, for a determination that she is the legal owner of the property. The defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint. The Supreme Court converted the plaintiff's motion into one for summary judgment on the complaint and thereupon denied the motion, and granted the defendant's cross-motion. The plaintiff appeals.

"In considering a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must afford the pleading a liberal construction, accept the facts as alleged in the pleading as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Bono v Stim & Warmuth, P.C., 215 AD3d 911, 911 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88). With regard to the defendant's cross-motion, "[w]here evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one" (Jennings v Metropolitan Transp. Auth., 226 AD3d 662, 663-664 [internal quotation marks omitted]; see [*2]Guggenheimer v Ginzburg, 43 NY2d 268, 275).

"In order to establish a claim to property by adverse possession, a claimant must prove, inter alia, that possession of the property was: (1) hostile and under a claim of right[,] (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the required period" (Hogan v Kelly, 86 AD3d 590, 591). Where, as here, the claim of adverse possession was filed after the 2008 amendments to RPAPL article 5 went into effect, a "claim of right" is defined under the statute as "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be" (id. § 501[3]; see Hogan v Kelly, 86 AD3d at 592).

Here, the plaintiff failed to adequately allege or show that she possessed the property under a claim of right or that such possession was hostile. In an affidavit submitted in support of her motion, the plaintiff asserted that Mitchell obtained a mortgage loan on the property in his own name as title owner of the property. Moreover, the plaintiff asserted that Mitchell promised to convey the property to the plaintiff. According to the plaintiff, Mitchell "failed to honor" his promise to convey the property to the plaintiff. However, the plaintiff also submitted a complaint from a prior action she commenced against Mitchell in 2006, wherein she set forth the same theory and provided further details, alleging that Mitchell "did state and promise to the plaintiff . . . that he would transfer and convey to her, at such time as she was able to secure and obtain a mortgage loan for the same, all right, title, and interest to the [property]." The 2006 complaint alleged that Mitchell purchased the property from the prior owner, Frank Attong, by means of a purchase money mortgage loan and was the "nominal owner" on behalf of the plaintiff until she was able to obtain a mortgage loan on the property. The 2006 complaint further alleged that the plaintiff attempted to improve her credit and applied for a mortgage loan, but it did not actually state that the plaintiff was ever able to obtain such a loan. In this action, the plaintiff did not otherwise suggest that she satisfied the terms of the purported agreement between her and Mitchell. Although the record reflects that the plaintiff made some payments to Mitchell to cover the mortgage payments on the property, that alone does not entitle the plaintiff to ownership of the property under the alleged agreement. Mitchell did not transfer the property to the plaintiff, and the defendant's predecessor in interest later commenced the mortgage foreclosure action and the defendant obtained title to the property after the entry of a judgment of foreclosure and sale pursuant to a referee's deed. Under these circumstances, the defendant established that the plaintiff could not have reasonably believed that the property belonged to her alone, which is fatal to her claim of adverse possession (see Leong v Larroca Finest Home Design, LLC, 241 AD3d 1447, 1449; Deutsche Bank Natl. Trust Co. v Nachimovsky, 188 AD3d 811). Moreover, the nature of the agreement between the plaintiff and Mitchell demonstrated that the plaintiff's possession of the property was not hostile (see Oppedisano v Arnold, 143 AD3d 873, 875; Lindbergh v SHLO 54, LLC, 128 AD3d 642, 645).

Accordingly, the Supreme Court properly granted the defendant's cross-motion pursuant to CPLR 3211(a)(7) to dismiss the complaint and denied plaintiff's converted motion.

The parties' remaining contentions need not be reached in light of our determination.

GENOVESI, J.P., FORD, LANDICINO and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court