ADVERSE POSSESSION AND A MOTION TO DISMISS

Halo v Schmidt, 2021 NY Slip Op 06609, Decided on November 24, 2021, Appellate Division, Second Department:

"The plaintiff and the defendant own adjacent parcels of real property in New City. In 2018, the plaintiff allegedly learned that his driveway encroached on the defendant's property and commenced the instant action, inter alia, in effect, for a judgment declaring that he owns the contested portion of the driveway by adverse possession. The defendant moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint. By order entered May 24, 2019, the Supreme Court, inter alia, denied that branch of the defendant's motion. The defendant appeals.

"The sole consideration in determining a pre-answer motion to dismiss a declaratory judgment action is 'whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'" (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 857, 858, quoting Minovici v Belkin BV, 109 AD3d 520, 524). Further, "where, as here, evidentiary material is submitted and considered on a motion 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, and the motion should not be granted 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" (Matter of Chet's Garage, Inc. v Village of Goshen, 161 AD3d 727, 731).

Here, the complaint alleged that the plaintiff's predecessor adversely possessed the subject property for more than 10 years prior to the commencement of this action, potentially implicating both the prior and current versions of RPAPL 522(1) (see Houdeck Real Estate Co., LLC v Bayport Postal Realty, LLC, 180 AD3d 761, 762; Hodges v Beattie, 68 AD3d 1597, 1598-1599). Accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87), even under the current version of the RPAPL, we cannot say as a matter of law that the plaintiff does not have a cause of action for adverse possession (see Maya's Black Cr., LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1177). The evidentiary materials submitted by the defendant in support of his motion do not, as a matter of [*2]law, resolve the parties' factual disputes such that it can be said that the allegations in the complaint as to the cause of action for adverse possession are not facts at all (see Mazzei v Metropolitan Transp. Auth., 164 AD3d 1227, 1228)."

CREATING A CONTRACT

LLC v S&R Main Realty, LLC, 2019 NY Slip Op 05171, Decided on June 26, 2019, Appellate Division, Second Department:

"On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Nonnon v City of New York, 9 NY3d 825, 827). When evidentiary material is considered on such a motion, "the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate" (Guggenheimer v Ginzburg, 43 NY2d 268, 275).

"To create a binding contract, there must be a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms" (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d 584, 589; see Detringo v South Is. Family Med., LLC, 158 AD3d 609, 610; Total Telcom Group Corp. v Kendal on Hudson, 157 AD3d 746, 747).

Here, the defendants conclusively demonstrated, based on the plaintiff's allegations and the documentary evidence the defendants submitted in connection with the motion, that the plaintiff had no cause of action for specific performance or the declaratory relief it sought because no contract of sale existed between the parties. The defendants demonstrated that the parties entered into a contract for the sale of the subject property in April 2014, but the plaintiff cancelled that contract in June 2014. They further demonstrated that the parties entered into a subsequent contract on renegotiated terms in July 2014, but that contract terminated on March 31, 2016. Finally, the defendants established that communications between the plaintiff's managing member and the defendants' counsel in October 2016 did not create a binding contract, because there was no "manifestation of mutual assent sufficiently definite to assure that the parties [were] truly in agreement with respect to all material terms" (Matter of Express Indus. & Term. Corp. v New York State Dept. of Transp., 93 NY2d at 589; see Detringo v South Is. Family Med., LLC, 158 AD3d at 610; Total Telcom Group Corp. v Kendal on Hudson, 157 AD3d at 747; Saul v Cahan, 153 AD3d 947, 950). Accordingly, we agree with the Supreme Court's determination granting the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint and to cancel the notice of pendency."

YOU GOT SERVED?

Maybe not, as this case is being remanded for a hearing. Reading the defendant's allegations, it would appear he may need to get his separated wife's testimony that he did not live with her and that she never told him of the service of papers.

US Bank, Natl. Assn. v Schumacher, 2019 NY Slip Op 03839, Decided on May 15, 2019, Appellate Division, Second Department:

"The Supreme Court should not have denied the defendant's motion pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him without conducting a hearing. CPLR 308(2) authorizes service, inter alia, by delivery of the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place, or usual place of abode of the person to be served, and by mailing the summons to the person to be served at his or her last
known residence or actual place of business. The term "usual place of abode" means a place at which the person lives with a degree of permanence and stability and to which he or she intends to return (see Feinstein v Bergner, 48 NY2d 234, 239, n 3; HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 777).

"Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant was validly served" (U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988; see Fuentes v Espinal, 153 AD3d 500, 501; Citibank, N.A. v Balsamo, 144 AD3d 964, 964). "However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing" (U.S. Bank, N.A. v Peralta, 142 AD3d at 988-989; see Fuentes v Espinal, 153 AD3d at 501; Citibank, N.A. v Balsamo, 144 AD3d at 964).

Here, the plaintiff's affidavit of service constituted prima facie evidence of proper service pursuant to CPLR 308(2) upon the defendant (see Fuentes v Espinal, 153 AD3d at 501). The process server averred, inter alia, that on August 23, 2014, at 10:26 a.m., he served the defendant with the summons and complaint in this action by delivering them to Michelle Schumacher, the defendant's wife, a person of suitable age and discretion, who indicated that the premises were the defendant's dwelling place or usual place of abode in Hicksville.

However, the defendant rebutted the process server's affidavit through his specific averments that, at the time of the purported service, on August 23, 2014, the Hicksville address was not his residence, actual dwelling place, or usual place of abode. More specifically, the defendant averred that on August 23, 2014, he and his wife lived separate and apart, and that he lived in South Ozone Park, Queens. Moreover, the defendant submitted copies of a lease to the premises in Queens covering the period from October 1, 2012, to October 1, 2014; a Con Edison bill for electrical service at the address in Queens covering the period from July 30, 2014, to August 28, 2014; and an order of the Supreme Court, Nassau County, dated March 9, 2010, in a prior foreclosure action commenced by the plaintiff's predecessor in interest, dismissing that action. The order dated March 9, 2010, inter alia, directed dismissal of the complaint in the prior action upon a determination, made after a hearing to determine the propriety of service, that the Hicksville address was not the defendant's actual dwelling place or his usual place of abode on August 28, 2008, the date of purported service in that action. The plaintiff's submissions in opposition to the defendant's motion failed to establish that service was proper.

Under these circumstances, the Supreme Court should have conducted a hearing to determine whether the defendant was properly served pursuant to CPLR 308(2) (see Bank of Am., N.A. v Tobing, 145 AD3d 941, 942; see also Deutsche Bank Natl. Trust Co. v Stolzberg, 165 AD3d 624, 625-626; Bank of Am., N.A. v Latif, 148 AD3d 967, 969; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d at 777-778). Accordingly, we remit the matter to the Supreme Court, Nassau County, for a hearing to determine whether personal jurisdiction over the defendant was obtained, and a new determination of his motion thereafter."

WHAT IS DOCUMENTARY EVIDENCE UNDER CPLR 3211(a)(1)

Attias v Costiera, 2014 NY Slip Op 06163, Decided on September 17, 2014, Appellate Division, Second Department:

""On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff's allegations are accepted as true and accorded the benefit of every possible favorable inference" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996; see Leon v Martinez, 84 NY2d 83, 87). A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint on the ground that a defense is founded on documentary evidence "may be [*2]appropriately granted only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d 923, 924-925). "The evidence submitted in support of such motion must be documentary or the motion must be denied" (Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [internal quotation marks omitted]; see Fontanetta v John Doe 1, 73 AD3d 78, 84; see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C 3211:10, at 21-23).

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" (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). "[J]udicial 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" (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). At the same time, "[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (Granada Condominium III Assn. v Palomino, 78 AD3d at 997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Suchmacher v Manana Grocery, 73 AD3d 1017, 1017).

Here, the affidavits submitted by the defendants, their attorney's affirmation, and the correspondence that was submitted in support of the defendants' motion did not constitute documentary evidence within the meaning of CPLR 3211(a)(1), and should not have been relied upon by the Supreme Court in directing the dismissal of the complaint pursuant to CPLR 3211(a)(1) (see Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714; Granada Condominium III Assn. v Palomino, 78 AD3d at 997; Fontanetta v John Doe 1, 73 AD3d at 84-85). The only documentary evidence submitted in support of the defendants' motion was the contract of sale and the rider to the contract of sale. However, these submissions did not "utterly refute" the plaintiff's allegations or "conclusively establish[ ] a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Rodolico v Rubin & Licatesi, P.C., 114 AD3d at 924-925; JP Morgan Chase Bank, N.A. v Balliraj, 113 AD3d 821, 821; Uzzle v Nunzie Ct. Homeowners Assn., Inc., 70 AD3d 928, 930). Accordingly, the Supreme Court erred in granting that branch of the defendants' motion which was to pursuant to CPLR 3211(a)(1) to dismiss the complaint."

Thanks to email from David Gabay, Law Offices of David A. Gabay, PC