Adam Leitman Bailey, P.C. was recently retained by a title company to represent a Lender’s interest in an adverse possession action in Queens. The Lender had commenced an action to foreclose a mortgage against the subject property which resulted in an auction taking place. However, before the closing of the sale could take place, a tenant of the subject property commenced an adverse possession action. As a result of the adverse possession action, there was a cloud on title, and the lender and purchaser could not close on the auction sale.

The tenant made meritless and incoherent claims of adverse possession, contending that mere lawful residency and employment on the property for the statutory time period qualified them to adversely possess the subject premises.

Once retained, and against the urgency of needing to close of the foreclosure sale, Adam Leitman Bailey, P.C. immediately moved for joinder under CPLR § 1001(a) and § 1002 on the grounds that any judgment would significantly impact the Lender’s secured interest as the mortgagee. Adam Leitman Bailey, P.C. concurrently moved to dismiss the Complaint on behalf of the Lender under CPLR §

3211(a)(1), § 3211(a)(3), and § 3211(a)(7).
In the joinder motion, Adam Leitman Bailey, P.C. argued that the Lender must be joined as a necessary party because it held a mortgage secured by

the Property that was subject to the adverse possession claim. Any judgment would directly impact the Lender’s ability to recover on its mortgage. Adam Leitman Bailey, P.C. further argued that the Lender had commenced a foreclosure action that had proceeded to a foreclosure auction, but Plaintiff’s adverse claim created a stain on title that prevented closing on the Property. Consequently, the Lender’s inclusion in this action was vital to protect its interests.

In the motion to dismiss, Adam Leitman Bailey, P.C.presented several legal arguments on behalf of the Lender. Adam Leitman Bailey, P.C. argued that: (i) the Complaint should be dismissed because a corporation must be represented by counsel and Plaintiff filed pro se; (ii) Plaintiff failed to meet the claim of right requirement for adverse possession under the 2008 amendments by showing a reasonable basis for its belief in ownership; and (iii) Adam Leitman Bailey, P.C. pointed to the recorded ACRIS documents establishing Plaintiff was on notice of the true owner and the Lender’s first mortgage lien.

Adam Leitman Bailey, P.C. researched and analyzed the legislative history regarding the 2008 changes to New York’s adverse possession laws. Adam Leitman Bailey, P.C. showed how the amendments heightened the claim of right standard for adverse possessors to have a reasonable basis for their claim of ownership. Furthermore, Adam Leitman Bailey, P.C. obtained and submitted copies of ACRIS records such as the deed, title report, and mortgage showing the defect in Plaintiff ’s claim.

The Court fully adopted Adam Leitman Bailey, P.C.’s legal arguments made on behalf of the Lender and dismissed the Plaintiff ’s Complaint in its entirety. By obtaining dismissal, Adam Leitman Bailey, P.C. protected the Lender’s mortgage lien secured by the Property and prevented any stains on the title as the Lender completed sale of the foreclosed Property.