Matter of Nazarro

[*1] Matter of Nazarro 2005 NY Slip Op 50396(U) Decided on March 29, 2005 Surrogate's Court, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 29, 2005
Surrogate's Court, Bronx County

In the Matter of the Estate of Dominick Nazarro, Deceased.



149-A/06

Lee L. Holzman, J.

In this motion and cross-motion for summary judgment, the primary issue relates to the ownership of realty located at 1710 Eastchester Avenue, Bronx, New York ("the premises") that was deeded by the decedent's mother on March 15, 1985 to her two sons, the decedent and Giro Nazzaro. The petitioner, who is the decedent's daughter, his sole distributee and the administratrix of his estate, seeks an order declaring that she and Giro own the premises as tenants-in-common. She also requests that the premises be sold so that the proceeds may be divided between the two co-tenants and that the respondents be directed to account for all rent received from the premises since the date of the decedent's death on September 27, 1987.

The respondents are the decedent's brother Giro and his wife, Barbara. In their cross-motion, in addition to opposing the petitioner's motion, they request summary judgment in their favor on alternative grounds. First, they contend that a 1989 deed from Giro to Barbara, purporting to transfer the entire premises to her instead of just his interest as a tenant-in-common, constituted an ouster of the petitioner and that, since this proceeding was not commenced until more than 10 years after the ouster, the petitioner's claim is barred by the statute of limitations (CPLR 212 [a]; RPAPL § 541 [a]). Their alternative contention is that the deed from the decedent's mother to her two sons should be reformed to reflect that the mother was transferring the property to them as joint tenants with survivorship rights. The respondents allege that the decedent's mother told them that she wanted her surviving son to own the entire premises and that she did not want the petitioner, her granddaughter, to have any interest in the premises because the granddaughter had problems and would seek to borrow money from her. The respondents' final request for relief is that a April 16, 1999 lis pendens filed by the petitioner should be canceled. The petitioner opposes the cross-motion on the basis that there are questions of fact that preclude it from being granted.

Many of the facts are not disputed. The March 15, 1985 deed conveying the premises to the grantor's two sons does not specifically categorize the manner in which they were to hold the premises. After the deed was executed, the decedent and his mother continued to occupy the upper level of the premises. Giro used the ground level commercial space for his fast food business. After the decedent's death on September 27, 1987, his mother continued to occupy the upper level until her death in 1997 and Giro continued his business on the ground level. On March 4, 1989 Giro deeded the entire premises to Barbara. The petitioner obtained letters of administration in this estate on April 24, 1996. Although the petitioner commenced a [*2]proceeding in the Supreme Court in 1999, that action was transferred to this court and supplanted by the petition filed in this court on July 18, 2000. The petitioner maintains it was not until after she obtained letters of administration that she had any knowledge about either her father's possible interest in the premises or Giro's conveyance of the premises to Barbara.

Summary judgment cannot be granted unless it appears that no material triable issue of fact exists (Phillips v. Kantor & Co., 31 NY2d 307 [1972]; Glick and Dolleck v. Tri-Pac Export Export Corp., 22 NY2d 439 [1968]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]; Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc., 46 NY2d 1065 [1979]). Once the movant has made out a prima facie case, the burden of going forward with proof, in evidentiary form, establishing that the movant is not entitled to judgment shifts to the party opposing the motion (Zuckerman v. City of New York, 49 NY2d 557 [1970]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and that issues of credibility may not be determined on the motion but must await the trial (Westhill Export, Ltd. v. Pope, 12 NY2d 491 [1963]; Esteve v. Abad, 271 APP. DIV. 725 [1947]).

The deed from the decedent's mother to her two sons did not expressly state that it created a joint tenancy. Consequently, the presumption under EPTL 6-2.2 (a) is that the deed conveyed the property to the decedent and Giro as tenants-in-common. Although there is a "heavy presumption" that the brothers held the property as tenants-in-common, this presumption may be overcome by a "high order of evidence .... clearly and convincingly" establishing that the grantor intended to create a joint tenancy (Matter of Vadney, 193 AD2d 994, 995 [1993], holding that the statutory presumption that a tenancy-in-common was created by a deed from the decedent to herself and her son was rebutted by the testimony and contemporaneous notes of the scrivener attorney establishing "that he had explained the effect of the deed to decedent and that it was only as a result of his error that words of survivorship were omitted from the instrument").

Here, the respondents' self-serving declarations about the decedent's mother's intent and her reasons for having this intent do not rise to the "high order of proof" presented in Matter of Vadney, supra. Furthermore, even though proof that might be barred at the trial under CPLR 4519 may be utilized to defeat a motion for summary judgment, such evidence may not be considered in granting the motion (Philips v. Kantor & Co., supra; McEvoy v. Garcia, 114 AD2d 401 [1985]). Thus, summary judgment may not be granted to the respondents on their contention that the decedent's mother intended to create a joint tenancy. However, in addition to their self-serving allegations about the decedent's intent, which have not been supported by any other evidence in the application sub judice, they have also alleged that they paid for all of the expenses of the premises, both before and after the death of the decedent's mother, that the decedent's mother lacked both sophistication and proficiency in English, that she had a poor relationship with the petitioner and that the petitioner knew or should have known about the deeds in question for at least several years prior to her claiming an interest in the premises. The petitioner has denied some, but not all, of these allegations. Considering both that every favorable inference must be accorded to the respondents in their opposition to the petitioner's motion for summary judgment and that the court may not determine credibility issues on this [*3]motion, summary judgment may not be granted to the petitioner because factual issues exist with respect to whether the decedent's mother's intent to create a joint tenancy was not reflected by the required language in the deed due to scrivener's error (Matter of Vadney, supra).

There remains for determination the respondent's contention that the petitioner's claim is barred by the statute of limitations. Under the common law, exclusive possession by one co-tenant, regardless of its length, was not considered adverse to any other co-tenants because "each co-tenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner" (Myers v. Bartholomew, 91 NY2d 630, 633 [1998]). RPAPL 541 modified the common law by providing that after 10 years of exclusive possession by one co-tenant, the possession may now be considered adverse and the property may be acquired by the co-tenant in possession by adverse possession after an additional 10 years, or a total of 20 years of exclusive possession (Myers v. Bartholomew, supra). Nevertheless, both under the common law and RPAPL 541, continuous exclusive possession may be considered adverse to other co-tenants prior to 10 years where there has been an ouster of the other co-tenants. The ouster of a co-tenant only occurs where the "knowledge of its existence is brought home to the co-tenant" (Culver v. Rhodes, 87 NY 348, 354 [1882]) or should have been known as a result of an "unmistakable repudiation" and either "notice thereof" or by "unequovical acts, so open and public that notice may be presumed of the assault upon ...(the co-tenants') title" (Kraker v. Roll, 100 AD2d 424, 434 [1984]).

Here, the respondents contend that the deed from Giro to his wife constituted an ouster of the petitioner. Although the deed was recorded, the respondents do not allege that Giro received any consideration for the conveyance. The respondents rely upon the cases holding that the sale of the entire property by one co-tenant to a stranger, accompanied by the grantee taking possession of the premises, constitutes an ouster of the other co-tenants (Prarato v. M.E.F. Builders, 217 Ad2d 654 [1995]; Kraker v. Roll, supra). In these cases, the required public notice of the ouster consists of two prongs, occupancy by someone other than a co-tenant and recording the deed. However, where the co-tenant deeds the premises (usually for nominal or no consideration) and continues to occupy the premises in the same manner as prior to the conveyance, such a deed does not constitute sufficient public notice of an "unmistakable repudiation" of the other co-tenants' title to the property (Culver v. Rhodes, supra, holding that the conveyance of property by a co-tenant in possession, where there was no change in the possession or occupancy after the conveyance, did not constitute an ouster of the other co-tenant).

To hold that the deed from Giro to his wife constituted an ouster of his co-tenant would impose the duty upon a co-tenant to periodically check whether other co-tenants had deeded more than they owned to a third party. The law does not burden an innocent co-tenant with undertaking such diligence to thwart the chicanery of a co-tenant. Consequently, in the absence of any ouster and the failure of the respondent to occupy the premises exclusvively for 20 years prior to the commencement of this proceeding, the petitioner's claim is not barred by the statute of limitations.

Even though the title to the premises remains in dispute as a result of the court's denial of summary judgment in favor of any party on this issue, the respondents' application to cancel the April 16, 1999 lis pendens must be granted. A notice of pendency is effective for a [*4]period of three years and may be extended only prior to its expiration (CPLR 6513; Matter of Sakow, 97 NY2d 436 [2002]). Here, the lis pendens expired in 2002 without being renewed prior thereto, thus requiring its cancellation.

For the reasons stated above, the motion and cross-motion are denied in their entirety except that the cross-motion is granted to the extent that the application to cancel the lis pendens is granted. The matter shall appear on the ready for trial calendar upon compliance with Uniform Rules 207.29 and 207.30.

Settle order.

Dated: March 29, 2005

SURROGATE