Practice point: In order to maintain the claim, a plaintiff must allege
actual or constructive possession of the property and the existence of a
removable cloud on the property, such as a
deed or other instrument, that is invalid or inoperative.
Student note: A motion pursuant to CPLR 3211(a)(1) to dismiss a complaint
based on documentary evidence will be granted only where
the evidence utterly refutes plaintiff's factual
allegations, thereby establishing conclusively a defense as a matter of law.
Case: Carbone v. US Bank N.A., NY Slip Op 08653 (2d Dep't December 13, 2017)
Here is the decision.
