Decided on May 14, 2025, the Second Department issued a decision in Newburgh Realty II, LLC v. IPA Asset Mgt., LLC, 2025 NY Slip Op. 02926, holding that the fact that a deed was not recorded still left questions of fact regarding a plaintiff’s standing to bring a partition action, explaining:
While CPLR 3211(a)(3) speaks to the plaintiff’s lack of capacity as a basis for dismissing complaints, decisional authorities have addressed a party’s lack of standing as within the scope of the same statutory subdivision. Where a defendant seeks dismissal pursuant to CPLR 3211(a)(3) based on lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing. To defeat a defendant’s motion to dismiss, the plaintiff has no burden of establishing its standing as a matter of law, but must merely raise a question of fact as to the issue.
A person holding and in possession of real property as joint tenant or tenant in common has standing to maintain an action for the partition and sale of the property. Moreover, in order to transfer title, an executed deed must be delivered to and accepted by the grantee, or to a third party on the grantee’s behalf. As a general rule, a deed is presumed to have been delivered and accepted at its date; however, this presumption must yield to opposing evidence. However, evidence that a deed was never recorded is not sufficient to overcome the presumption of delivery, since recording is not required in order to transfer title to real property.
Here, the defendants, as movants, failed to meet their prima facie burden of establishing the plaintiff’s lack of standing. In support of their motion, the defendants asserted that the plaintiff lacked standing to maintain its cause of action for partition and sale, as the plaintiff purportedly did not have any ownership or possessory interest in the property. The defendants contended that Island Properties never delivered the deed to the plaintiff and never recorded the deed, and that, in any event, DeRosa’s signature thereon was not notarized. However, contrary to the defendants’ contention, the fact that the deed was never recorded was insufficient to demonstrate that it was not delivered to the plaintiff or that the conveyance was otherwise invalid. Similarly, the fact that DeRosa’s signature was not notarized failed to establish that the deed was not delivered or that it was invalid. Finally, the defendants failed to meet their prima facie burden of establishing the plaintiff’s lack of standing through DeRosa’s conclusory assertion in an affidavit, without more, that there was no delivery of the deed. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action for partition and sale of the property.
(Internal quotations and citations omitted).