The following papers numbered 1 to 7 read herein:^[FN1]

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2

Opposing Affidavits (Affirmations)3

Reply Affidavits (Affirmations)4

Sur-ReplyAffidavits (Affirmation)5-6, 7

Other Papers

Upon the foregoing papers, Michael Gould (defendant) moves (a) for summary judgment, pursuant to CPLR 3212, dismissing this action to quiet title to real property located at 9 Spencer Place in Brooklyn (the Property) and (b) for cancellation of any notices of pendency Leonard Scrubb (Mr. Scrubb) and Janice Scrubb (Ms. Scrubb) (collectively, plaintiffs) filed against the Property.

Defendant loaned either $1500 or $4000 ^[FN2] to Mr. Scrubb during the summer of 1980. Mr. Scrubb, who undisputedly owned the Property at that time, secured that loan by giving defendant some manner of deed to the Property.^[FN3] Mr. Scrubb claims he fully repaid that loan within nine months, whereas defendant claims that Mr. Scrubb defaulted and repaid only $500. Defendant's attorney recorded a deed in 1981 that purportedly conveyed the Property from Mr. Scrubb to defendant, though plaintiffs claim they received no notice of this or any purported conveyance.

Mr. Scrubb purportedly conveyed the Property to his wife, Ms. Scrubb, by warranty deed in 1997. Ms. Scrubb attempted to sell the Property to a third party in 1999, but that transaction fell through after the potential buyer discovered the conflicting 1981 deed. Defendant informed Ms. Scrubb in 2002 that he wanted possession of the property, and later that year commenced an action to collect rent from one of the Property's tenants. Shortly thereafter, Mr. Scrubb brought this action to quiet title.

Mr. Scrubb commenced this action on January 2, 2003, and concurrently filed a notice of pendency against the Property with the Kings County Clerk's Office. The verified complaint sought to quiet title to the Property under RPAPL article 15. Defendant's verified answer asserted affirmative defenses of failure to state a cause of action and failure to join an indispensable party. The Honorable Gloria Cohen Aronin's October 9, 2003 order denied a dismissal motion by defendant and granted a motion by plaintiffs to both add Ms. Scrubb to the caption and extend their time to serve a complaint. This court's February 1, 2007 order denied a summary judgment motion by defendant. Plaintiffs amended their verified complaint in 2009, but altered their allegations only regarding the nature of the deed Mr. Scrubb gave as security at the time of the 1980 loan (see n 2, supra). Defendant subsequently filed an amended verified answer, which added the statute of limitations as an affirmative defense.

Defendant again moves, pursuant to CPLR 3212, for summary judgment, this time solely on the grounds that the applicable statute of limitations bars plaintiffs' action. Plaintiffs assert, in opposition, that the deed that purportedly conveys the Property to defendant must be treated as a mortgage pursuant to Real Property Law § 320. Defendant replies that RPAPL article 15 actions are subject to CPLR 212 (a)'s 10-year period of limitations and that this action is thus time-barred. Plaintiffs argue, in a sur-reply by leave of the court, that Ms. Scrubb resides at the Property with her son and that, as an owner in possession, she has a continuing right to seek to quiet title. Defendant asserts, in response, that neither Scrubb resides at the Property, and that Ms. Scrubb was never properly added as a party.

"Summary judgment is a drastic remedy made in lieu of a trial which resolves the case as a matter of law" (Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 54 [2011], citing Andre v Pomeroy, 35 NY2d 361, 364 [1974]; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). A summary judgment movant must show prima facie entitlement to judgment as a matter of law by producing sufficient admissible evidence demonstrating the absence of any material factual issues (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failing to make such a showing requires denying the motion regardless of the sufficiency of any opposition (Vega v Restani Cosntr. Corp., 18 NY3d 499, 502 [2012]). Making a prima facie showing justifying a grant of summary judgment shifts the burden to the opponent to introduce "evidentiary proof in admissible form sufficient to require a trial of material questions" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Considering a summary judgment motion requires viewing the evidence in the light most favorable to the motion opponent (Vega, 18 NY3d at 503). Nevertheless, "mere conclusions, expressions of hope or unsubstantiated allegations are insufficient" to defeat a summary judgment motion (Zuckerman, 49 NY2d at 562). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal citation and quotation marks omitted]).

Courts often reiterate that making multiple summary judgment motions in the same action is improper unless the subsequent motions are premised upon newly discovered evidence or some other sufficient cause (Courthouse Corporate Ctr., LLC v Schulman, 89 AD3d 672, 672 [2011]; 2009 85th St. Corp. v WHCS Real Estate Ltd. Partnership, 292 AD2d 520, 520 [2002]; Flomenhaft v Fine Arts Museum of Long Is., 255 AD2d 290, 290 [1998]). Generally, "[p]arties will not be permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment" (NYP Holdings, Inc. v McClier Corp., 83 AD3d 426, 427 [2011] [alterations in original], quoting Phoenix Four v Albertini, 245 AD2d 166, 167 [1997]). A court must consider the merits of a summary judgment motion purportedly premised on newly discovered facts (see EDP Hosp. Computer Sys., Inc. v Bronx-Lebanon Hosp. Ctr., 63 AD3d 665, 666 [2009]; Auffermann v Distl, 56 AD3d 502, 502 [2008]), but a summary judgment motion should be denied if the underlying arguments could all have been raised on a prior summary judgment motion (see Courthouse Corporate Ctr., LLC, 89 AD3d at 672; Flomenhaft, 255 AD2d at 290; Dillon v Dean, 170 AD2d 574, 574 [1991]).

Here, defendant premises his motion entirely upon the assertion that plaintiffs' claim is time barred as they did not commence this action until more than 10 years after defendant purportedly took ownership of the Property. Defendant clearly could have raised this argument in his 2007 summary judgment motion or at any time before then and has not asserted that he bases his current motion upon any newly discovered facts. Indeed, defendant has demonstrated personal knowledge of the facts underlying his statute-of-limitations argument. The parties submitted amended pleadings in 2009, but no facts therein have any bearing on defendant's statute-of-limitations defense. Therefore, defendant's summary judgment motion should be denied as procedurally improper.

Considering the merits of defendant's motion would not alter this outcome. An [*4]owner in possession of certain real property has a continuing right to seek to remove any cloud on the property's title (see Orange & Rockland Util. v Philwood Estates, 52 NY2d 253, 261 [1981] ["the law (concerning an owner in possession removing a cloud on title) is well settled that the right is never barred by the Statute of Limitations'"], quoting Ford v Clendenin, 215 NY 10, 16 [1915]; see also Piedra v Vanover, 174 AD2d 191, 195-96 [1992]; Greenberg v Schwartz, 273 App Div 814, 814 [1948]). CPLR 212 (a)'s language reflects this right by stating, "An action to recover real property or its possession cannot be commenced unless the plaintiff, or his predecessor in interest, was seized or possessed of the premises within ten years before the commencement of the action." The statutory language thus makes plain that the 10-year period of limitations for bringing an action to quiet title does not begin to run so long as the potential plaintiff (or predecessor in interest) possesses the underlying property (CPLR 212 [a]; see Gifford v Whittemore, 4 AD2d 379, 385 [1957]; Greenberg, 273 App Div at 814; cf. James v Lewis, 135 AD2d 785, 786 [1987]; Downes v Peluso, 115 AD2d 454, 454 [1985]).

Here, defendant alleges that plaintiffs do not reside at the Property, but he has failed to make a prima facie showing supporting this allegation, much less that plaintiffs do not possess the property. Plaintiffs assert that Ms. Scrubb resides on the Property with her son and that they have paid all maintenance expenses, utility bills, real estate taxes and insurance premiums for the property. Contrary to defendant's assertions, Ms. Scrubb was properly added as a plaintiff in this action by Justice Aronin's October 9, 2003 order. Furthermore, defendant does not contest that plaintiffs have always collected and retained all rent payments from the Property's tenants. Hence, a triable factual issue would remain regarding whether plaintiffs were owners in possession of the Property within the 10 years before this action started, and summary judgment could not be granted based on the statute of limitations.

CPLR 6514 (a) requires a court direct any county clerk to cancel a notice of pendency when the time to appeal from a final judgment against the filing plaintiff has expired. No such final judgment has been issued against plaintiffs, and, therefore, the portion of defendant's motion seeking to cancel plaintiffs' notice of pendency against the property should also be denied. Accordingly, it is

ORDERED that defendant's motion is denied in its entirety.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.