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THE MOTION TO DISMISS THIS ACTION TO QUIET TITLE SHOULD NOT HAVE BEEN CONVERTED TO A MOTION FOR SUMMARY JUDGMENT TO WHICH PLAINTIFFS HAD NO OPPORTUNITY TO RESPOND; THE COMPLAINT STATED A CAUSE OF ACTION TO QUIET TITLE PURSUANT TO RPAPL ARTICLE 15 (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant’s motion to dismiss the complaint seeking to quiet title should not have been converted to a summary judgment motion. The complaint stated a cause of action to quiet title pursuant to RPAPL article 15:

… [T]he court should not have converted defendant’s motion to dismiss into a motion for summary judgment under CPLR 3211(c), since plaintiffs did not agree to “charting a summary judgment course,” and the case did not involve a “purely legal question without any disputed issues of fact” … . Conversion of the motion prejudiced plaintiffs, who had no opportunity to respond to the contentions raised by defendant for the first time in reply … . …

“To maintain a cause of action to quiet title [to real property], a plaintiff must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title to the property, such as in a deed or other instrument, that is actually invalid or inoperative” (…see RPAPL 1515; RPAPL 1501[1]). Here, the complaint adequately alleges facts that, if established, could support a finding that plaintiffs attained equitable title arising from the contract of sale they allegedly entered into with codefendant … for 25% of the property, as well as their payment of the agreed price and exclusive and actual occupancy of an apartment in the property … . Davis v Augoustopoulos, 2021 NY Slip Op 05772, First Dept 10-21-21

 

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