Upon the foregoing papers, by way of order to show cause, defendants Alonzo Faulkner (named fictitiously herein as John Doe No.1)(hereinafter, "Alonzo") and Delores Haywood McDuffie, n.k.a. Delores Swinesburg (hereinafter, "Delores")(collectively, "Defendants") move for an order (1) pursuant to CPLR 5015(a), vacating the default judgment against Defendants issued on July 13, 2017; (2) dismissing this action pursuant to CPLR 3211(a)(1), (3), (5), (7) and/or (10). The plaintiffs Sabrina Allen, Wallace Haywood III, and Keith Haywood (collectively, "Plaintiffs") oppose the motion.

Under CPLR 5015(a)(1), a defendant may be entitled to vacatur of a default judgment where it demonstrates a reasonable excuse for its delay in appearing and answering the complaint, and a meritorious defense to the action (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). CPLR 317 provides an additional avenue for relief from a default judgment, as it states that "[a] person served with a summons other than by personal delivery to him or to his agent for service under [CPLR] 318... may be allowed to defend the action within one year after he obtains knowledge of entry of the judgment... upon a finding of the court that he did not personally receive notice of the summons in time to defend and has a [*2]meritorious defense" (id., at 141-142).

In this case, Delores established a reasonable excuse for her default under CPLR 317 by alleging that she never received any court papers in this case, and that she first learned of this action when Alonzo called and told her about the default judgment of foreclosure and sale in October 2017. Accordingly, Delores lacked actual notice of this lawsuit in time to defend against it (see Diggs v. Karen Manor Associates, LLC., 117 AD3d 401, 402 [1st Dept. 2014]). With respect to Alonzo, even assuming that Plaintiffs' counsel's affirmation raises factual issues as to whether or not he actually received the summons and complaint, his default will be excused to avoid an inconsistency that could result if it is ultimately determined that Plaintiffs are not entitled to the judgment they seek (see, e.g., Darbeau v. 136 West 3rd St. LLC., 144 AD3d 420, 421 [1st Dept. 2016]). Courts retain the inherent discretionary power to vacate even unexplained defaults for sufficient reason and in the interests of substantial justice (see Goldman v. Cotter, 10 AD3d 289, 293 [1st Dept. 2004]; Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 [2003]).

Upon review of the submissions, this Court further finds that Defendants have set forth at least a potentially meritorious defense to this partition action. As noted in the moving papers, Plaintiffs did not support their complaint, motion for a default judgment, or judgment of foreclosure and sale with documentary evidence establishing that they are in fact the children of Wallace Haywood Jr. and thus inherited his purported 20% ownership interest in the subject premises. Notably, the prior motions for a default judgment and the opposition papers herein were only supported with an affidavit of plaintiff Sabrina Allen and no affidavits were provided by the other plaintiffs. The death notices submitted in opposition to this motion do not constitute competent proof conclusively establishing Plaintiffs' ownership interest in the premises.

Defendants also argue that this action is barred by the ten-year statute of limitations pursuant to CPLR 212(a), and because Alonzo has established the elements of adverse possession. However, a partition action has no statute of limitations so long as co-tenancy exists (see Diana v. DeLisa, 151 AD3d 806, 808 [2nd Dept. 2017]). Defendants claim that Plaintiffs were not co-tenants because their alleged father, Wallace Haywood Jr., was explicitly excluded from his parents' will which purportedly left the premises to Wallace Haywood Jr.'s other brothers and sisters but not himself. However, as noted by Defendants themselves, the will is not controlling because it was never probated. Thus, assuming that Plaintiffs are in fact Wallace Haywood Jr.'s children, they would have inherited his 20% share in the premises pursuant to EPTL §4-1.1, et seq. at the time of his 1995 death.

Defendants argue, in any event, that the presumption of cotenancy has been rebutted and that Alonzo has established possession of the premises by adverse possession, and thus this action must be dismissed. Under RPAPL 541, there is a presumption that a tenant in common in possession of property holds the property for the benefit of all cotenants in common (see Pravato v. M.E.F. Builders, Inc., 217 AD2d 654, 655 [2nd Dept. 1995]). This presumption may be rebutted upon the actual ouster by one tenant of the other. After the ouster, the occupying tenant may then commence to hold the property adversely to his or her co-tenant (see Article Ten Properties, Ltd. v. Kocak, 164 AD2d 448, 450-51 [3rd Dept. 1990]; RPAPL §541). After actual ouster, the cotenant who possesses the property openly, hostilely, exclusively, and continuously for a period of ten years may establish a claim of adverse possession (see DeRosa v. DeRosa, 58 [*3]AD3d 794, 795 [2nd Dept. 2009]; see also Walling v. Przybylo, 7 NY3d 228, 232 [2006]). Where there is no actual ouster, however, "a cotenant may begin to hold adversely only after 10 years of exclusive possession. RPAPL 541's statutory presumption, therefore, effectively requires 20 years — or two consecutive 10-year periods — of exclusive possession before a cotenant may be said to have adversely possessed a property owned by tenants-in-common" (see Myers v. Bartholomew, 91 NY2d 630, 635 [1998][emphasis in original).

In this case, Defendants have set forth a potentially meritorious defense predicated upon adverse possession by averring that a 1997 affidavit from Alonzo's mother, Ida Faulkner, allegedly submitted to the Bronx District Attorney's Office in response to plaintiff Wallace Haywood III's petition for her eviction, stating that she was the "true owner and landlord" of the premises and that the petitioners never owned the premises, constituted an overt act or "ouster" pursuant to RPAPL §541. Plaintiffs did not thereafter commence this action until May 9, 2012, over ten years since the alleged "ouster," thus raising the issue of whether Alonzo gained Plaintiff's share of the premises, if any , by adverse possession (see Myers v. Bartholomew, 91 NY2d 630, 633 ["...actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants..."]). For the foregoing reasons, and because of the strong public policy favoring the disposition of matters of their merits and not on default, Defendants' motion to vacate the default judgment is granted (see Johnson-Roberts v. Ira Judelson Bail Bonds, 140 AD3d 509, 509 [1st Dept. 2016]).

Defendants are not entitled to dismissal of this action pursuant to CPLR 3211(a)(5). A claim of adverse possession must be proven by "clear and convincing evidence" (see Walling v. Przybylo, 7 NY3d at 232). The affidavit from Sabrina Allen raises issues of fact concerning the circumstances surrounding Defendants' possession of the premises, including whether or not Defendants' possession of the premises was "hostile," as Ms. Allen's aunt Ida Faulkner allegedly told her that her paternal grandparents left no will "so my brothers and I were covered under my father's share" (see, e.g., Perez v. Perez, 186 AD2d 376 [1st Dept. 1992]).

Defendants are not entitled to dismissal of this action pursuant to CPLR 3211(a)(7). On a motion to dismiss pursuant to this section of the CPLR 3211(a)(7), a court's role is ordinarily limited to determining whether the complaint states a cause of action (Frank v. DaimlerChrysler Corp., 292 AD2d 118 [1st Dept. 2002]). In other words, the determination is not whether the party has artfully drafted the pleading, but whether deeming the pleading to allege whatever can be reasonably implied from its statements, a cause of action can be sustained (See Stendig, Inc. v. Thom Rock Realty Co., 163 AD2d 46 [1st Dept. 1990]). Defendants here failed to conclusively establish that Plaintiff's first cause of action is time barred, as noted supra. Plaintiffs sufficiently stated a cause of action for fraud and breach of constructive trust by alleging that Defendants wilfully filed a fraudulent deed conveying the premises on or about April 6, 2006. Plaintiff's final cause of action, "theft" to the extent it may be construed as an action for conversion, must be dismissed without prejudice, with leave to replead, as there is no viable cause of action for conversion of real property (see Volodarsky v. Moonlight Ambulette Service, Inc., 122 AD3d 619, 619-620 [2nd Dept. 2014]).

Since Defendants have failed to conclusively demonstrate that Plaintiffs have no ownership interest in the premises, they have failed to show that Plaintiffs lack standing to sue. Finally, Defendants have failed to address that branch of their motion that seeks dismissal [*4]pursuant to CPLR 3211(a)(10).

Accordingly, it is hereby

ORDERED, that Defendants' order to show cause is granted to the extent that the default judgment entered against them on July 13, 2017, is hereby vacated, and Defendants are directed to submit an answer to the complaint within ten (10) days after service of a copy of this Order with Notice of Entry, and it is further,

ORDERED, that Defendants' order to show cause seeking dismissal of this action pursuant to CPLR 3211(a)(3), (5), (7), and (10) is denied, except that Plaintiff's cause of action for "theft" is dismissed without prejudice pursuant to CPLR 3211(a)(7), with leave to replead.

The foregoing constitutes the Decision and Order of this Court.