Levine v Stellar 341, LLC — Pleading Adverse Possession and Practical Location Under Pre-2008 RPAPL; What Counts (and Doesn’t) as “Documentary Evidence” on CPLR 3211(a)(1)

1. Introduction

Levine v Stellar 341, LLC (2026 NY Slip Op 05299 [2d Dept Sept. 16, 2026]) is a procedural-but-substantive boundary dispute arising in Brooklyn. The plaintiffs (Beth A. Levine, et al.) own residential property that abuts land owned by the defendant, Stellar 341, LLC. Along the boundary area is a New York City Transit Authority tunnel situated on the defendant’s land and allegedly used under an unrecorded easement.

The plaintiffs commenced an RPAPL article 15 action to quiet title and obtain declaratory relief, claiming ownership of a narrow strip of land (approximately 15–18 feet) adjacent to their deeded premises (the “disputed property”). They alleged that since at least 1965 they and their predecessors treated the strip as part of their backyard, completely enclosed it, and used it exclusively. The complaint asserted two ownership theories:

  • Adverse possession (vesting before the 2008 statutory amendments); and
  • Doctrine of practical location (boundary fixed by long acquiescence).

The defendant moved to dismiss under CPLR 3211(a)(1) (documentary evidence) and CPLR 3211(a)(7) (failure to state a cause of action). The Supreme Court, Kings County, denied dismissal, and the Second Department affirmed.

2. Summary of the Opinion

The Second Department held that, taking the pleaded facts as true and giving plaintiffs every favorable inference, the complaint sufficiently stated claims for (i) adverse possession under the pre-2008 RPAPL article 5 framework (because the alleged rights vested before the 2008 amendments), and (ii) practical location based on a clearly demarcated, long-standing enclosure visible from defendant’s property.

The Court also held that the defendant’s supporting materials—affidavits, photographs, and a web-page printout—were not “documentary evidence” for CPLR 3211(a)(1) purposes, and that while deeds and tax maps are documentary evidence, they did not “utterly refute” the complaint’s allegations. Accordingly, dismissal at the pleading stage was improper.

3. Analysis

A. Precedents Cited

The decision is heavily grounded in established CPLR 3211 doctrine and New York property rules governing adverse possession and boundary by acquiescence. Each cited precedent supplies a discrete doctrinal building block:

1) Pleading standards on CPLR 3211(a)(7)

  • Janover, LLC v Smith — Quoted for the standard that on a CPLR 3211(a)(7) motion, pleadings are liberally construed, the plaintiff receives every favorable inference, and the court asks only whether facts fit any cognizable theory. The Court uses this as the gateway principle for refusing to adjudicate factual disputes about use, enclosure, and boundary at the pleading stage.
  • Lieberman v Green — Quoted within Janover for the same liberal construction principle, reinforcing that the inquiry is legal sufficiency, not proof.
  • Katz v DePaola — Cited for the rule that when evidentiary material is considered on a CPLR 3211(a)(7) motion (without conversion to summary judgment), dismissal is warranted only if the submissions show that a “material fact” asserted is “not a fact at all” and no significant dispute exists. The Court applies this to hold defendant’s materials did not eliminate disputes about enclosure, exclusivity, or acquiescence.
  • Guggenheimer v Ginzburg — Cited (via Katz) as the foundational Court of Appeals authority articulating that stringent “not a fact at all” threshold. This supports the Second Department’s insistence that credibility and competing inferences are not resolved on 3211(a)(7).

2) Dismissal based on “documentary evidence” under CPLR 3211(a)(1)

  • Red Target, LLC v Kun Resources — Quoted for the rule that dismissal under CPLR 3211(a)(1) is appropriate only when documentary evidence “utterly refutes” the allegations and conclusively establishes a defense. The Court uses this to frame why deeds/tax maps, even if relevant, did not end the case.
  • Qureshi v Vital Transp., Inc. — Quoted within Red Target for the same “utterly refutes” formulation, reinforcing the demanding standard.
  • Leader v Steinway, Inc. — Cited for two distinct propositions: (i) qualifying documentary evidence must be “unambiguous, authentic, and undeniable,” and (ii) even documentary evidence must still “utterly refute” the pleaded facts to warrant dismissal. The Court relies on Leader to reject dismissal because the documents did not conclusively negate decades-long enclosure and acquiescence.
  • Goshen v Mutual Life Ins. Co. of N.Y. — Cited to support that affidavits and similar materials are generally not “documentary evidence” for CPLR 3211(a)(1). The Court uses Goshen to exclude affidavits from the (a)(1) calculus.
  • Springer v Almontaser — Cited alongside Goshen to reinforce that non-documentary submissions (including certain informal materials) do not qualify under (a)(1). Here, it bolsters the conclusion that photos and a web-page printout are not CPLR 3211(a)(1) “documentary evidence.”
  • 572 Walt Whitman Rd. Holdings, LLC v Whitman Capital, LLC — Cited for the proposition that deeds and tax maps can qualify as documentary evidence. The Court accepts these items as documentary, but then holds they still fail the “utterly refutes” requirement.

3) Adverse possession: governing law and elements (pre-2008 vs post-2008)

  • Estate of Becker v Murtagh — Cited for two key points: (i) the 2008 amendments to RPAPL article 5 were intended to discourage opportunistic adverse possession claims, and (ii) for non-written-instrument claims, the claimant must show the land was “usually cultivated or improved” or “protected by a substantial inclosure” (quoting RPAPL former 522). The Court uses Estate of Becker to articulate the applicable pre-amendment evidentiary character of possession.
  • Megalli v Yeager — Cited for the rule that the 2008 RPAPL amendments do not apply where the adverse possessor’s right vested before enactment. This is critical: it determines the substantive law governing the claim and, therefore, what must be pleaded.
  • SLC Coram, LLC v 543 Middle Country Rd. Realty, LLC — Cited for the same vesting/non-retroactivity principle as Megalli, strengthening the conclusion that the older, more claimant-favorable standards apply.
  • Walling v Przybylo — Cited for the classic five elements of adverse possession: hostile/claim of right, actual, open and notorious, exclusive, and continuous for the statutory period (10 years). The Court applies these elements to the pleaded facts (long-term enclosure and exclusive backyard use).
  • Sposato v Paboojian — Cited as an example of pleading sufficiency where adverse possession is supported by factual allegations such as enclosure and improvements. The Court uses it to confirm that this complaint crosses the minimum threshold to proceed.

4) Practical location / boundary by acquiescence

  • Jakubowicz v Solomon — Cited for the definition and requirements of practical location: a clearly demarcated boundary plus mutual acquiescence for more than the statutory period, and also for the specific point that a formal agreement fixing the boundary is not required. This case is the Court’s main authority to reject defendant’s “agreement required” argument.
  • McMahon v Thornton — Quoted (via Jakubowicz) both for the conclusive effect of long acquiescence and for the “clear demarcation” and “mutual acquiescence” formulation. It supplies the doctrinal language the Court maps onto the alleged decades-long fence/enclosure line.
  • Czenszak v Iasello — Cited as a recent application of practical location doctrine; the Court uses it to validate that the pleaded enclosure and visibility allegations can be sufficient at the pleading stage.
  • Tesone v Hoffman — Cited similarly to support that allegations of a long-standing visible boundary can sustain a practical location theory.

B. Legal Reasoning

1) Why pre-2008 adverse possession law applied

A pivotal move in the opinion is temporal: the plaintiffs alleged possession and enclosure beginning in 1965, and continuous possession for more than 10 years. If those allegations are true, the adverse possession claim would have vested decades before the 2008 amendments. Under Megalli v Yeager and SLC Coram, LLC v 543 Middle Country Rd. Realty, LLC, the 2008 amendments do not retroactively govern vested rights. That choice-of-law determination matters because post-2008 RPAPL tightened the doctrine’s reach; the Court therefore evaluates the complaint under the older framework.

2) Why the adverse possession claim was sufficiently pleaded

Applying Walling v Przybylo, the Court treated the complaint’s allegations as satisfying: (i) hostility/claim of right (exclusive backyard claim), (ii) actual occupation (physical use and maintenance), (iii) open and notorious (visible enclosure), (iv) exclusivity (used as part of the home’s yard), and (v) continuity (since at least 1965).

Because the claim was not “founded upon a written instrument,” the complaint also needed to fit RPAPL former 522 as described in Estate of Becker v Murtagh: “usually cultivated or improved” or “protected by a substantial inclosure.” The pleading’s allegation of a complete enclosure and improvements was treated as enough—at the motion to dismiss stage—to meet that requirement.

The Court then applied Katz v DePaola / Guggenheimer v Ginzburg to reject dismissal based on defendant’s submissions: they did not establish that a central pleaded fact (decades-long enclosed exclusive use) was “not a fact at all,” nor did they eliminate significant disputes.

3) Why the practical location claim was sufficiently pleaded

The practical location doctrine requires (a) a clear boundary line on the ground and (b) mutual acquiescence for more than the statutory period. The complaint alleged that the disputed strip was “completely enclosed” as part of plaintiffs’ backyard since at least 1965 and that the enclosure was visible from defendant’s property. Under Jakubowicz v Solomon, McMahon v Thornton, and Czenszak v Iasello, those allegations can support both demarcation and acquiescence: a visible, maintained enclosure over decades supports an inference that adjoining owners accepted it as the boundary.

The Court expressly rejected defendant’s argument that an express agreement between adjoining owners is required, citing Jakubowicz v Solomon: long acquiescence to a demarcated line can itself fix the boundary for legal purposes.

4) Why the CPLR 3211(a)(1) “documentary evidence” argument failed

The decision underscores two separate hurdles a defendant must clear under CPLR 3211(a)(1):

  1. Qualifying form: The proffer must be “documentary evidence” (typically deeds, contracts, mortgages, judgments, or similarly reliable papers). Here, affidavits, photographs, and a web-page printout were rejected as non-documentary under Goshen v Mutual Life Ins. Co. of N.Y. and Springer v Almontaser.
  2. Conclusive effect: Even qualifying documents must “utterly refute” the complaint and conclusively establish a defense (Red Target, LLC v Kun Resources; Leader v Steinway, Inc.). Although the defendant’s tax maps and property deeds qualified (572 Walt Whitman Rd. Holdings, LLC v Whitman Capital, LLC), they did not conclusively negate the possibility that plaintiffs acquired title by adverse possession or that the boundary was fixed by long acquiescence despite deed calls.

C. Impact

The opinion’s practical impact is strongest in three areas:

  • Early-stage survivability of boundary claims: In the Second Department, well-pleaded allegations of long-term enclosure, visible occupation, and exclusive residential use are likely to survive CPLR 3211 dismissal even when deeds and maps show record title in the defendant—because those documents rarely “utterly refute” the lived boundary history.
  • Temporal framing of adverse possession: Litigants will focus on whether the alleged prescriptive period completed before 2008. Plaintiffs can benefit substantially from pleading facts showing vesting pre-amendment; defendants will attempt to show interruption, permissive use, or later commencement to force application of post-2008 standards.
  • Sharper line on CPLR 3211(a)(1) materials: The case reinforces that defendants cannot repackage disputed factual narratives through affidavits, photos, or internet printouts as “documentary evidence.” That keeps many real-property possession disputes in discovery rather than resolving them on pleadings.

4. Complex Concepts Simplified

RPAPL article 15 (quiet title)
A lawsuit used to resolve competing claims to ownership or interests in real property and to obtain a declaration of who holds title.
Adverse possession
A way to acquire ownership by occupying land like an owner for a long time. Under the pre-2008 rule applied here, the claimant must show hostile/claim of right, actual, open and notorious, exclusive, and continuous possession for 10 years, plus (when not based on a writing) that the land was improved/cultivated or protected by a substantial enclosure.
“Claim of right” / “hostile”
Not personal animosity—rather, using the property as one’s own, without recognizing the true owner’s superior right (even if the occupier is mistaken about the boundary).
Substantial inclosure (enclosure)
A meaningful physical boundary—commonly fencing or other enclosing structures—showing the occupier is treating the land as part of their premises.
Doctrine of practical location
If neighboring owners treat a visible, clearly marked line as the boundary for the statutory period, the law can treat that as the legal boundary even if deed descriptions differ. A formal boundary agreement is not required.
CPLR 3211(a)(7)
A motion to dismiss for failure to state a claim. The court assumes the pleaded facts are true and asks only whether they fit a recognized legal theory.
CPLR 3211(a)(1) “documentary evidence”
Dismissal based on reliable documents that conclusively defeat the claim. Not everything written or pictured qualifies; the evidence must be the kind of unambiguous document that can conclusively resolve the issue without fact-finding.

5. Conclusion

Levine v Stellar 341, LLC confirms that in New York boundary disputes pleaded under RPAPL article 15, allegations of decades-long visible enclosure and exclusive backyard use can state viable claims for both adverse possession (under pre-2008 RPAPL where vesting is alleged) and practical location. It also reinforces the narrow scope of CPLR 3211(a)(1): only qualifying documents that utterly refute the complaint justify dismissal, and affidavits, photos, and web printouts generally do not qualify as “documentary evidence.”