| Sposato v Paboojian |
| 2013 NY Slip Op 06849 [110 AD3d 979] |
| October 23, 2013 |
| Appellate Division, Second Department |
| Leonard Sposato, Respondent, v Susan Paboojian,Appellant. |
—[*1] Brian R. Hoch, White Plains, N.Y., for respondent.
In an action pursuant to RPAPL article 15 to compel the determination of claims toreal property, the defendant appeals from an order of the Supreme Court, WestchesterCounty (Tolbert, J.), entered February 21, 2012, which denied her motion to dismiss thecomplaint for failure to state a cause of action.
Ordered that the order is affirmed, with costs.
The plaintiff commenced this action pursuant to RPAPL article 15 to compel thedetermination of claims to real property. The plaintiff alleged that he was the owner of adisputed strip of land under a theory of adverse possession. The defendant moved todismiss the complaint for failure to state a cause of action. The Supreme Court denied thedefendant's motion.
"On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure tostate a cause of action, the court must afford the pleading a liberal construction, accept allfacts as alleged in the pleading to be true, accord the plaintiff the benefit of everypossible inference, and determine only whether the facts as alleged fit within anycognizable legal theory" (Breytman v Olinville Realty, LLC, 54 AD3d 703, 703-704[2008]; see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). 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 criterion iswhether the proponent of the pleading has a cause of action, not whether he has statedone, and, unless it has been shown that a material fact as claimed by the pleader to be oneis not a fact at all and unless it can be said that no significant dispute exists regarding it. . . dismissal should not eventuate" (Guggenheimer v Ginzburg, 43NY2d 268, 275 [1977]; seeNunez v Mohamed, 104 AD3d 921, 922 [2013]; Rabos v R&R Bagels & Bakery,Inc., 100 AD3d 849, 851-852 [2012]).
Adverse possession requires that possession be hostile and under a claim of right,actual, open and notorious, exclusive, and continuous for a period of 10 years (seeRPAPL 501; Galchi vGarabedian, 105 AD3d 700, 700-701 [2013]; Sprotte v Fahey, 95 AD3d1103, 1104 [2012]; Kelly vBastianic, 93 AD3d 691, 693 [2012]). Here, accepting all of the facts alleged inthe complaint as true and according the plaintiff the benefit of every possible inference(see Leon v Martinez, 84 NY2d at 87), [*2]thecomplaint states a cause of action for adverse possession (see Matter of Lee, 96 AD3d941, 943 [2012]; Maya'sBlack Cr., LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1177 [2011]; Hodges v Beattie, 68 AD3d1597, 1599 [2009]). Furthermore, since the evidentiary materials submitted by thedefendant do not, as a matter of law, resolve the parties' factual disputes such that it canbe said that allegations in the complaint were not facts at all, the Supreme Court properlydenied the defendant's motion to dismiss the complaint for failure to state a cause ofaction (see Guggenheimer v Ginzburg, 43 NY2d at 275; Constructamax, Inc. v DodgeChamberlin Luzine Weber, Assoc. Architects, LLP, 109 AD3d 574 [2013];Rabos v R&R Bagels & Bakery, Inc., 100 AD3d at 851-852; Williams v NewYork City Hous. Auth., 238 AD2d 413 [1997]).
The defendant's remaining contention is academic in light of our determination.Skelos, J.P., Cohen, Miller and Hinds-Radix, JJ., concur.