Levine v. Stellar 341, LLC
Opinion
Levine v Stellar 341, LLC
2026 NY Slip Op 05299
September 16, 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.
Beth A. Levine, et al., respondents,
v
Stellar 341, LLC, appellant.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on September 16, 2026
2024-12259, (Index No. 533941/23)
Valerie Brathwaite Nelson, J.P.
Paul Wooten
Janice A. Taylor
Elena Goldberg Velazquez, JJ.
Rukab Brash PLLC, New York, NY (Jack Rukab, Lynn E. Judell, and Jay Cohen of counsel), for appellant.
Harris St. Laurent & Wechsler LLP, New York, NY (Adam Oppenheim of counsel), for respondents.
DECISION & ORDER
In an action pursuant to RPAPL article 15 to quiet title to real property and for related declaratory relief, the defendant appeals from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated September 23, 2024. The order denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is affirmed, with costs.
In November 2023, the plaintiffs commenced this action pursuant to RPAPL article 15 to quiet title to real property and for related declaratory relief. The plaintiffs are the owners of certain real property located in Brooklyn, which abuts a tunnel used by the New York City Transit Authority. The tunnel was built on land now owned by the defendant, and is used and maintained by the New York City Transit Authority by way of an unrecorded easement. The plaintiffs alleged, among other things, that they are the rightful owners of a strip of land approximately 15 to 18 feet in length, which abuts the northernmost portion of the tunnel and the southernmost portion of the plaintiffs' property as described in the plaintiffs' deed (hereinafter the disputed property). The plaintiffs alleged that since 1965, they and their predecessors in interest have occupied the disputed property, completely enclosing it as part of the backyard of their home for their exclusive use and enjoyment. The complaint sought, inter alia, a judgment declaring that the plaintiffs acquired title to the disputed property by adverse possession, and owned the disputed property pursuant to the doctrine of practical location.
The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiffs opposed the motion. In an order dated September 23, 2024, the Supreme Court denied the defendant's motion. The defendant appeals.
"'On a motion to dismiss a pleading pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the pleading is afforded a liberal construction and the court must give the party the benefit of every possible favorable inference, accept the facts alleged in the pleading as true, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Janover, LLC v Smith, 245 AD3d 907, 909, quoting Lieberman v Green, 139 AD3d 815, 816). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR [*2]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 and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Katz v DePaola, 211 AD3d 1020, 1021 [internal quotation marks omitted]; see Guggenheimer v Ginzburg, 43 NY2d 268, 275). Further, "'a motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law'" (Red Target, LLC v Kun Resources, 244 AD3d 1147, 1148, quoting Qureshi v Vital Transp., Inc., 173 AD3d 1076, 1077). "In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as documentary evidence, it must be unambiguous, authentic, and undeniable" (Leader v Steinway, Inc., 180 AD3d 886, 887 [internal quotation marks omitted]).
"In 2008, the adverse possession statute (RPAPL art 5) was amended in its entirety (L 2008, ch 269) to, among other things, discourage people from claiming adverse possession over real property they know belongs to another with superior ownership rights" (Estate of Becker v Murtagh, 19 NY3d 75, 81 n 4). However, the 2008 amendments to the adverse possession statutes contained in RPAPL article 5 are not applicable where, as here, the alleged adverse possessor's property right, as alleged, vested prior to the enactment of the amendments (see Megalli v Yeager, 167 AD3d 860, 861; SLC Coram, LLC v 543 Middle Country Rd. Realty, LLC, 161 AD3d 1122, 1123). Thus, under the pre-amendment law, the plaintiffs were required to allege that their 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" of 10 years (Walling v Przybylo, 7 NY3d 228, 232; see Megalli v Yeager, 167 AD3d at 861). "In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was 'usually cultivated or improved' or 'protected by a substantial inclosure'" (Estate of Becker v Murtagh, 19 NY3d at 81, quoting RPAPL former 522).
Here, the complaint alleged, insofar as relevant, that the plaintiffs and their predecessors in interest improved and enclosed the disputed property, continuously possessed the disputed property for more than 10 years prior to the commencement of this action, and that such possession was under a claim of right, actual, open and notorious, and exclusive of any other right. Accepting the facts alleged in the complaint as true and according the plaintiffs the benefit of every possible inference, the plaintiffs stated a cause of action for adverse possession (see Sposato v Paboojian, 110 AD3d 979, 980). Moreover, the evidence submitted by the defendant failed to establish that a material fact claimed by the plaintiffs was not a fact at all and that no significant dispute exists regarding it (see Red Target, LLC v Kun Resources, 244 AD3d at 1148).
Pursuant to the doctrine of practical location, "'[a] practical location of a boundary line and an acquiescence therein for more than the statutory period 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, 107 AD3d 852, 852, quoting McMahon v Thornton, 69 AD3d 1157, 1160; see Czenszak v Iasello, 227 AD3d 772, 773). The "'[a]pplication of the doctrine requires a clear demarcation of a boundary line and proof that there is mutual acquiescence to the boundary by the parties such that it is definitely and equally known, understood and settled'" (Jakubowicz v Solomon, 107 AD3d at 853 [internal quotation marks omitted], quoting McMahon v Thornton, 69 AD3d at 1160; see Czenszak v Iasello, 227 AD3d at 773-774).
Here, the complaint alleged, insofar as relevant, that the disputed property was completely enclosed as part of the backyard to the plaintiffs' ho
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