Brocho V'Hatzlocho Corp. v Metropolitan Transp. Auth.

[*1] Brocho V'Hatzlocho Corp. v Metropolitan Transp. Auth. 2013 NY Slip Op 51038(U) Decided on July 2, 2013 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 3, 2013
Supreme Court, Kings County

The Brocho V'hatzlocho Corporation, Plaintiff,

against

Metropolitan Transportation Authority, Defendant.



23735/12



Plaintiff was represented by Ira Kleiman, Esq. of Brief Carmen & Kleiman, LLP. Defendant was represented by Helene Fromm, Esq., Deputy General Counsel of the Metropolitan Transportation Authority.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers submitted on Defendant's motion for an order, among other things, pursuant to CPLR 3211 (a) (1) and (a) (7), dismissing the Verified Compliant:

-Notice of Motion to Dismiss Verified Complaint

Affirmation in Support or [sic] Motion to Dismiss Verified Complaint

Exhibits A-C

-Memorandum of Defendant Metropolitan Transportatio [sic] Authority in Support of Motion to Dismiss the Verified Complaint

-Affidavit in Opposition to Motion to Dismiss

Exhibits A-C

-Plaintiff's Memorandum of Law in Opposition to Motion to Dismiss

-Reply Affirmation in Support of Motion to Dismiss

Exhibit A

-Reply Memorandum of Law of Defendant Metropolitan Transportation Authority in Support of Motion to Dismiss the Verified Complaint

Plaintiff was represented by Ira Kleiman, Esq. of Brief Carmen & Kleiman, LLP. Defendant was represented by Helene Fromm, Esq., Deputy General Counsel of the Metropolitan Transportation Authority. [*2]

Plaintiff The Brocho V'Hatzlocho Corporation is the owner of real property at 538 Johnson Avenue, Brooklyn, designated on the Tax Map as Section 10, Block 2994, Lot 11. Defendant Metropolitan Transit Authority ("MTA") claims ownership to property designated as Section 10, Block 2994, Lot 9, immediately adjacent to Plaintiff's property. In its Verified Complaint, Plaintiff seeks a determination that it is the owner of the adjacent property by reason of adverse possession, and an injunction against Defendant's entering onto the disputed property or transferring title to it.

Defendant MTA moves pre-answer for an order, pursuant to CPLR 3211 (a) (1) and (a) (7) and CPLR 6514, dismissing the Verified Complaint, directing that Plaintiff permanently vacate the disputed property, and cancelling the notice of pendency. Defendant contends primarily that "[t]he law of adverse possession does not apply to defendant Metropolitan Transportation Authority in the circumstances of this case." (See Notice of Motion to Dismiss Verified Complaint, dated April 4, 2013.)

"Adverse possession requires that the possession be hostile and under claim of right, actual, open and notorious, exclusive, and continuous for a period of 10 years." (Galchi v Garabedian, 105 AD3d 700, 700-01 [2d Dept 2013].) Plaintiff's Verified Complaint alleges these elements commencing "on or about October 1997" (see Verified Complaint ¶¶ 5, 7.) Since, if proved, Plaintiff's purported adverse possession would have "ripened into title" prior to the effective date of certain amendments to the Real Property Actions and Proceedings Law, the amendments are not applicable here. (See Hogan v Kelly, 86 AD3d 590, 591-92 [2d Dept 2011].) The "version of the law in effect at the time the purported adverse possession allegedly ripened into title is the law applicable to the claim" (id. at 592.)

CPLR 3211 (a) (1) provides for dismissal of one or more causes of action where "a defense is founded upon documentary evidence." "A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) will be granted only if the documentary evidence submitted by the defendant utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law." (Siracusa v Sager, 105 AD3d 937, 938 [2d Dept 2013] [internal quotation marks and citation omitted].) "To qualify as documentary evidence, printed materials must be unambiguous and of undisputed authenticity." (Sobel v Ansanelli, 98 AD3d 1020, 1022 [2d Dept 2012] [internal quotation marks and citation omitted].) Affidavits, letters, and emails do not qualify as "documentary evidence" for purposes of CPLR 3211 (a) (1). (See Cives Corp. v George A. Fuller Co., Inc., 97 AD3d 713, 714 [2d Dept 2012]; Jones v Rochdale Vill., Inc., 96 AD3d 1014, 1017 [2d Dept 2012].)

The only purported "documentary evidence" submitted by Defendant in support of its motion are copies of New York City Department of Finance Quarterly Statements of Account for the disputed property from July 2008 through November 2012, showing that property taxes had not been paid. Assuming that the property tax records are in admissible form and that they constitute "documentary evidence" for purposes of CPLR 3211 (a) (1), they do not warrant dismissal of the Verified Complaint. The Court notes that, with the exception of the most recent Quarterly Statement, which shows the "Owner name" as "NYC MTA" and its "Mailing address" on Madison [*3]Avenue, all of the statements show the "Owner name" as "Not On File" and either a blank "Mailing address" or the notation "Bad Location Address."

More importantly, as Defendant recognizes, "the failure to pay taxes is not conclusive evidence" on a claim for adverse possession. (See Gerwitz v Gelsomin, 69 AD2d 992 [4th Dept 1979]), and in some circumstances would be "irrelevant" (see Robinson v Robinson, 34 AD3d 975, 977 [3d Dept 2006].) It is not evidence that utterly or conclusively disputes the plaintiff's claim.

To the extent, therefore, Defendant seeks dismissal pursuant to CPLR 3211 (a) (1), its motion must be denied.

CPLR 3211 (a) (7) provides for dismissal where "the pleading fails to state a cause of action."

"In determining whether a pleading is sufficient to withstand a motion to dismiss pursuant to CPLR 3211 (a) (7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion to dismiss will fail . . . The pleading must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of any possible favorable inference." (Matter of Baugher, 98 AD3d 1111, 1112 [2d Dept 2012] [internal quotation marks, brackets, and citations omitted].)

The Verified Complaint alleges that "defendant MTA claims, and it appears from the public records, that it may claim an interest in and to" the disputed property (see Verified Complaint ¶ 10), and that "defendant MTA has and continues its ownership of the property" (see id. ¶ 15.) Defendant contends that, by reason of its status as a "public authority" (see Public Authorities Law § 1263), as a matter of law no one may obtain any title to or interest in its property by adverse possession.

Defendant relies initially on a line of cases holding that "a municipality cannot lose title through adverse possession to property which it owns in its governmental capacity, or which has been made inalienable by statute"; but that "[c]onversely, when a municipality holds real property in its proprietary capacity, there is no immunity against adverse possession" (see Monthie v Boyle Rd. Assoc., 281 AD2d 15, 20 [2d Dept 2001]; see also Gallo v City of New York, 51 AD3d 630, 631 [2d Dept 2008]; Albany Parking Serv. v City of Albany, 3 AD3d 711, 711 [3d Dept 2004]; Starner Tree Serv. Co. v City of New Rochelle, 271 AD2d 681, 682 [2d Dept 2000]; Casini v Sea Gate Assn., 262 AD2d 593, 594 [2d Dept 1999].)

Although these principles are usually stated as applicable to property owned by a "municipality," the "immunity" from adverse possession has been conferred on other governmental entities. (See Schwartz v Trustees of Freeholders and Commonalty of Town of Huntington, 85 AD3d 1008, 1009 [2d Dept 2011]; Kings Park Yacht Club, Inc. v State of New York, 26 AD3d 357, 357 [2d Dept 2006]; Monthie v Boyle Rd. Assoc., 281 AD2d at 20.) Defendant cites no appellate authority applying these principles to a claim of adverse possession to property held by a public [*4]authority like defendant MTA, but at least one trial court has so held (see Man Yum Ng v Metropolitan Transportation Authority, 17 Misc 3d 1110 [A], 2007 NY Slip Op 51916 [U] [Sup Ct, Kings County 2007]), and Plaintiff here does not challenge it. The Court notes, moreover, that Defendant performs "an essential governmental function" (see Public Authorities Law §1264 [2].)

Defendant would have this Court go further, however, and hold that all property to which Defendant has title is immune from adverse possession. Defendant cites the Court of Appeals decision in Matter of County of Monroe (72 NY2d 338 [1988]) in support of its contention that the governmental/proprietary distinction should be abandoned. There, the court addressed the City of Rochester's imposition of its land use requirements on the County of Monroe, and held that the governmental/proprietary "labeling device" should be replaced with a "balancing of public interests"

analytic approach. (See id at 341.) That ruling and its rationale are clearly inapposite here. As Plaintiff appropriately points out, the Court of Appeals continues to use the governmental/proprietary analytic approach in other areas (see State NY ex rel. Grupp v DHL Express (USA), Inc., 19 NY3d 278, 286 [2012]; Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 445-52 [2011]; Karedes v Colella, 100 NY2d 45, 50-51 [2003].) Perhaps more compelling, are the authorities cited above that continue to apply the governmental/proprietary distinction to adverse possession, notwithstanding Matter of County of Monroe (72 NY2d 338.)

As a fall-back, Defendant contends that, if the governmental/proprietary distinction is maintained, then all of the MTA's property should be deemed to be held "in a governmental, rather than proprietary capacity" (see Schwartz v Trustees of Freeholders and Commonalty of Town of Huntington, 85 AD3d at 1009), not as a matter of fact (which would be, at best, unusual on a CPLR 3211 [a] [7] motion to dismiss), but as a matter of law by reason of the statutory provisions that determine Defendant's existence and operation. Specifically, Defendant argues:

"MTA is public benefit corporation created by the Legislature to develop and further public transportation and implement a unified mass transportation policy within the metropolitan commuter transportation district (MCTD) (consisting of the City of New York and surrounding suburban counties.) (NY Pub. Auth. L. §§ 1262 1264 (1).) The Legislature has declared that such purposes are in all respects for the benefit of the people of the State of New York and that MTA shall be regarded as performing an essential governmental function. (NY Pub. Auth. L. § 1264 (2).)

MTA is further empowered "[t]o acquire, hold and dispose of real or personal property in the exercise of its powers." (NY Pub. Auth. L. § 1265 (7).) Thus, the Legislature has authorized MTA, in furtherance of its governmental purpose, to hold real property and to generate revenue from the sale or other disposition of real property, in order to support mass transportation in the MCTD. MTA's ownership of the Property is integral to its transportation mission. Its intention to dispose of the Property and its solicitation of proposals from prospective purchasers, as alleged (Verified Complaint ¶¶ 16-18), is likewise integral to that mission. The Property is held by MTA in its governmental capacity and immune from adverse possession." (Memorandum of Defendant Metropolitan Transportatio [sic] Authority in Support of Motion to Dismiss the Verified Complaint [*5]["Defendant's Memorandum of Law"] at 4 [emphasis added] [footnote omitted].)

Accepting Defendant's description of the statute as accurate for purposes of this motion, the argument may prove too much. The immunity from adverse possession conferred on certain governmental property is based upon the inalienability of property dedicated to the public trust and not held for the purpose of sale or other disposition. (See City of New York v Wilson & Co., Inc., 278 NY 86, 97 [1938]; People v Baldwin, 197 AD 285, 288 [3d Dept 1921], aff'd 233 NY 672 [1922]; Sadowski v Taylor, 56 AD3d 991, 995 [3d Dept 2008]; Rodriguez v Catskill Revitalization Corp., 302 AD2d 762, 764 [3d Dept 2003]; Casini v Sea Gate Assn., 262 AD2d 593, 594-95 [2d Dept 1999]; Montfort v Benedict, 199 AD2d 923, 925 [3d Dept 1993]; City of Tonawanda v Ellicot Ctr. Homeowners Assn., 86 AD2d 118, 125 [4th Dept 1982]; Matter of City of New York [Mileau Corp.], 72 AD2d 745, 746 [2d Dept 1979]; Lewis v Village of Lyons, 54 AD2d 488, 490 [4th Dept 1976].)

For purposes of this motion, this Court need go no further than to determine that defendant MTA has not established that the disputed property here is immune from adverse possession as a matter of law.

Defendant's final contention is that "Plaintiff's overt acknowledgment of MTA's ownership is fatal to its adverse possession claim" (see Defendant's Memorandum of Law at 7.) Defendant sees "overt acknowledgment" in the allegations in the Verified Complaint that the MTA "claims, and it appears from the public records, that it may claim an interest in and to" the disputed property, and that the MTA "has and continues its ownership of" the disputed property (see Verified Complaint ¶¶ 10, 15.) "Under the law as it existed at the time title allegedly vested in [Plaintiff], in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner did not destroy the element of claim of right'." (See Matter of Lee, 96 AD3d 941, 942 [2d Dept 2012] [emphasis added]; see also Walling v Przybylo, 7 NY3d 228, 232 [2006]; Merget v Westbury Props., LLC, 65 AD3d 1102, 1105 [2d Dept 2009].)

Assuming that the quoted allegations from the Verified Complaint are found to be judicial admissions that are conclusive on the facts asserted (see Zegarowicz v Ripati, 77 AD3d 650, 653 [2d Dept 2010]), and that they would qualify as "overt acknowledgment" of Defendant's ownership of the disputed property, which Defendant does not address by reference to any case authority, the acknowledgment was clearly not made "during the statutory period" (see Matter of Lee, 96 AD3d at 942.) Contrary to Defendant's contention (see Defendant's Memorandum of Law at 6-8), Plaintiff's failure to pay taxes on the disputed property adds nothing.

The Court will not address the Affidavit in Opposition to Motion to Dismiss of Sholom Laine, Plaintiff's President. "In opposing a motion pursuant to CPLR 3211 (a) (7), a plaintiff may submit affidavits for a limited purpose only, . . . to remedy defects in the complaint." (Woss, LLC v 218 Eckford, LLC, 102 AD3d 860, 860 [2d Dept 2013] [quoting Rovello v Orofino Realty Co., 40 NY2d 633, 636 (1976)].) Here, Defendant has not identified any defect in the Verified Complaint [*6]that requires a remedy.

To the extent Defendant seeks cancellation of the notice of pendency (see CPLR 6514), the only ground offered is dismissal of the Verified Complaint (see Town of Oyster Bay v Doremus, 94 AD3d 867, 870 [2d Dept 2012]), and the issue has been rendered moot.

Defendant's motion is denied. Defendant shall serve and file its answer no later than thirty (30) days after the date of this order, which is being mailed to the parties this date.

July 2, 2013___________________

Jack M. Battaglia

Justice, Supreme Court