Matter of Crispo v Crispo-Cisafulli

[*1] Matter of Crispo v Crispo-Crisafulli 2009 NY Slip Op 50282(U) [22 Misc 3d 1125(A)] Decided on February 5, 2009 Supreme Court, New York County Shulman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 3, 2009; it will not be published in the printed Official Reports.

Decided on February 5, 2009
Supreme Court, New York County

In the Matter of the Application of Pasquale J. Crispo and Michael A. Crispo, as Holders of One-Half of all of the Outstanding Shares Entitled to Vote inan Election of Directors of 208 East 124th Street Realty Corp. for Dissolution of 208 East 124th Street Realty Corp., a Domestic Corporation, and Individually for Partition, Plaintiffs,

against

Joanne Crispo-Crisafulli and Gloria Crispo as Shareholders of 208 East 124th Street Realty Corp. and Individually as, Respondents in the Dissolution Petition, and Albert DeVincenzo Jr., Betty Ann Devincenzo, Mary Ann DeVincenzo Gavioli, John DeVincenzo, Ellen DeVincenzo Pucciarelli and Charles DeVincenzo, Individually, Defendants.



A. CRISPO, as Holders of 116369/06



Appearances of Counsel:

Wayne A. Gavioli, Esq.

Counsel for Moving Defendants

845.624.2525

Miller & Eisenman, LLP

Counsel for Plaintiffs

212.679.0400

Gary C.DiLeonard, Esq.

Counsel for Non-moving defendants

718.544.1478

Martin Shulman, J.

In this action for partition, five of the co-defendants move for partial summary judgment [*2]and related relief (motion sequence number 002). For the following reasons, this motion is granted in part and denied in part.

BACKGROUND

The Parties

This action for partition concerns a five-story, 15-unit, residential, rent-stabilized apartment building located at 208 East 124th Street, in the County, City and State of New York (the "building"). See Notice of Motion, Exhibit G (complaint), ¶ 6. 208 East 124th Street Realty Corp. ("208 Realty"), a closely held, New York State licensed corporation, is part owner and manager of the building. Id., ¶¶ 3, 6. Plaintiffs Pasquale J. Crispo and Michael A. Crispo (collectively "plaintiffs") are brothers who each own 50 of 208 Realty's 200 outstanding shares of stock, while two of the defendants, their sisters Joanne Crispo-Crisafulli and Gloria Crispo (the "Crispo defendants"), each own 50 of the remaining shares. Id., ¶¶ 1-2, 4-5, 7-8. The specific percentage of 208 Realty's ownership of the building is an issue which has yet to be resolved. Additionally, plaintiffs and the Crispo defendants seek to dissolve 208 Realty.

The remaining co-defendants are the cousins of the other litigants. Defendants Albert DeVincenzo Jr., Betty Ann DeVincenzo, Mary Ann DeVincenzo Gavioli, John DeVincenzo and Ellen DeVincenzo Pucciarelli (the "DeVincenzo defendants") claim that the building was originally owned outright by their grandfather, Modesto DeVincenzo. Id., Gavioli Affirmation, ¶ 2. They further claim that Modesto DeVincenzo's will provided that ownership of the building would pass in equal parts to his four children, Charles, Albert, Mildred and Carmine DeVincenzo,[FN1] with two caveats: 1) that Carmine's portion of the estate be held in trust and that the income generated thereby be paid to Carmine periodically; and 2) that, should Carmine die before receiving the monies due to him, his share of the estate would be given to his three siblings instead, and not pass to his wife or issue. Id., ¶¶ 3-6; Exhibits A, B. The DeVincenzo defendants state that Carmine DeVincenzo died shortly after his father, and argue that his share in Modesto DeVincenzo's estate therefore passed to Charles, Albert and Mildred DeVincenzo, with the result that Carmine's surviving wife and children now have no interest in said estate (i.e., the building). Id., ¶ 7. They also state that Charles DeVincenzo conveyed his interest in the building to his sister Mildred via deed dated November 16, 1985, and that he no longer has any interest in the estate. Id., ¶ 13; Exhibit E. The DeVincenzo defendants do not reside in the building; however, they assert that they own the building as tenants in common by virtue of an indenture granted to them after the probate of Modesto DiVincenzo's estate (which took place after the death of their father, Albert DiVincenzo, Sr.). Id.; Exhibit C.

Plaintiffs, for their part, claim that Modesto DeVincenzo never owned the building outright himself, and that, instead, it was his wife, Antonetta DeVincenzo, who was the building's original sole owner. See P. Crispo Affidavit in Opposition, ¶ 5. Plaintiffs further claim that Antonetta DeVincenzo died intestate, as a result of which a 1/3 share of her estate (i.e., the building) passed to Modesto DeVincenzo, and a 2/3 interest passed to her four children Charles, Albert, Mildred and Carmine. Id.; Exhibit C. Finally, plaintiffs state that they and the [*3]Crispo defendants are deadlocked over the management of 208 Realty, and request that the matter of the building's partition be sent to a referee prior to 208 Realty's eventual dissolution. Id., ¶¶ 2, 3; Exhibit A. They also renew their earlier requests, discussed below, for certain discovery and for the appointment of a receiver.

The Crispo defendants aver that all discovery demands have been met, and oppose both the application for the appointment of a receiver and the request for a reference on the issues of ownership and rents paid. See DiLeonardo Affirmation in Opposition, ¶¶ 3-7. They also assert that, since 1990, they have been responsible for the day to day management of the building, and that they have expended considerable sums in connection with maintenance and repairs, taxes, water and sewage charges, insurance, etc. Id., J. Crispo Affidavit in Opposition, ¶¶ 2-12; Exhibits 3-12.

Prior Proceedings

Plaintiffs commenced this action on October 31, 2006 by service of a complaint that sets forth causes of action for: 1) the dissolution of 208 Realty; and 2) the partition of the building. See Notice of Motion, Exhibit G. The Crispo defendants served an answer on March 14, 2007, that includes counterclaims for: 1) an accounting; 2) money damages for sums expended for repair and maintenance of the building; 3) money damages for their services in managing the building; and 4) a declaration as to the various parties' rights to the building. Id. The DeVincenzo defendants served an answer on June 6, 2007, that includes counterclaims for: 1) partition of the building; 2) an accounting of rents; 3) money damages for unpaid rent; 4) embezzlement; 5) breach of fiduciary duties; 6) conversion; and 7) fraud. Id.

Plaintiffs previously moved for summary judgment on the two causes of action in their complaint (motion sequence number 001). On January 18, 2008, this court (DeGrasse, J.) issued a decision denying that motion on the grounds that: 1) there was an open issue of fact "as to whether shareholder dissension which would warrant a dissolution exists;" and 2) "plaintiffs, as individual shareholders of [208 Realty] do not have interests which enable them to sue for the partition of the premises." See P. Crispo Affidavit in Opposition, Exhibit B. Justice DeGrasse's decision also denied plaintiffs' application for the appointment of a receiver. Id.

Thereafter, the DeVincenzo defendants filed this motion (motion sequence number 002), seeking summary judgment on their first and second counterclaims (for partition of the building and an accounting of rents, respectively) as well as an order to appoint a receiver and to compel the production of certain discovery materials. Plaintiffs join in with the DeVincenzo defendants' request for partition, but defer to the court's January 18, 2008 decision with respect to the other issues. The Crispo defendants have served general opposition to the motion.

DISCUSSION

When seeking summary judgment, the moving party bears the burden of proving, by competent, admissible evidence, that no material and triable issues of fact exist. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985); Sokolow, Dunaud, Mercadier & Carreras LLP v Lacher, 299 AD2d 64 (1st Dept 2002). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman v City of New York, 49 NY2d 557 (1980); Pemberton v New York City Transit Auth., 304 AD2d 340 (1st Dept 2003). Here, the DeVincenzo defendants request summary judgment on two of [*4]their counterclaims.[FN2]

Partition

The DeVincenzo defendants' first counterclaim [FN3] seeks an order of partition pursuant to RPAPL § 901 which provides, in pertinent part, that: 1.A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners.

"A tenancy in common exists when two or more persons each own and possess an undivided interest in property, real or personal." In re Estate of Reynolds, 40 AD3d 320, 321 (1st Dept 2007), quoting Chiang v Chang, 137 AD2d 371, 373 n2 (1st Dept 1988). "It is well settled that, as a general principle, one who holds an interest in real property as a tenant in common may seek physical partition of the property, or, a partition and sale thereof unless it appears that physical partition alone would greatly prejudice the owners of the premises." Ferguson v McLoughlin, 184 AD2d 294 (1st Dept 1992), quoting Bufogle v Greek, 152 AD2d 527, 528 (2d Dept 1989).

Here, the documentary evidence presented clearly demonstrates that the DiVincenzo defendants own a portion of the building as tenants in common. See Notice of Motion, Exhibit C. Further, neither plaintiffs nor the Crispo defendants oppose the partition and sale of the building, since they also seek the dissolution of 208 Realty (which holds at least a portion of their interests in the building). Thus, there are no triable issues presented as to whether the DiVincenzo defendants are entitled to summary judgment ordering the partition and sale of the building.

Pursuant to RPAPL § 915:

[An] interlocutory judgment shall determine the right, share or interest of each party in the property, as far as the same has been ascertained. Where the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners, the interlocutory judgment . . . shall direct that the property or the part so circumstanced be sold at public auction.

Thus, the court finds that the first portion of the DiVincenzo defendants' motion should be granted to the extent that the building should be sold at the earliest opportunity. However, it is still unclear exactly what "right, share or interest" in the building is currently held by the DiVincenzo defendants, by plaintiffs and the Crispo defendants and/or by 208 Realty. [*5]Accordingly, the court finds that the issue of determining the percentages of ownership in the building that are held by the various parties to this action should be sent to a referee to hear and report.

Accounting

The DeVincenzo defendants' second counterclaim seeks an accounting of rents. See Notice of Motion, Exhibit G (DiVincenzo Defendants' Answer), ¶¶ 14-18. Neither plaintiffs nor the Crispo defendants oppose this application in the papers that they served in connection with this motion. RPAPL § 945 provides that "[t]he court may adjust the rights of a party as against any other party by reason of the receipt by the latter of more than his proper proportion of the rents or profits of a share." In H & Y Realty Co. v Baron, 160 AD2d 412 (1st Dept 1990), the Appellate Division, First Department, observed that:

It is well established that a tenant-in-common is liable for rent to his cotenant if he occupies the property to the exclusion of that cotenant. Similarly, a tenant-in-common who occupies the premises to the exclusion of his cotenant is responsible for all charges on the property, including real estate taxes.

160 AD2d at 414 [internal citations omitted].

Here, the Crispo defendants admit that they have both occupied the building and provided for its day-to-day management and expenses since 1990. See J. Crispo Affidavit in Opposition, ¶¶ 2-12; Exhibits 3-12. Since the Crispo defendants and/or 208 Realty (which evidently holds at least a portion of the Crispo defendants' interest in the building) clearly co-own the building along with the DiVincenzo defendants as tenants in common, the law plainly requires the Crispo defendants to account to the DiVincenzo defendants for the amounts of rents collected and expenses paid during their period of occupancy and control. It has long been held that, in partition actions, the issue of rents received is one that is properly computed by reference. Walsh v Ruland, 263 AD 921 (3d Dept 1942). Accordingly, the court finds that the second portion of the DiVincenzo defendants' motion should be granted, and the issue of the computation of such accounting should be sent to a referee to hear and report.

Appointment of a Receiver

The prayer for relief in the DeVincenzo defendants' motion also seeks the appointment of a receiver for the building, although the body of the motion does not otherwise address this issue. See Notice of Motion, Gavioli Affirmation at 10 (pages not numbered). Pursuant to CPLR §6401(a):

Upon motion of a person having an apparent interest in property which is the subject of an action in the supreme or a county court, a temporary receiver of the property may be appointed, before or after service of summons and at any time prior to judgment, or during the pendency of an appeal, where there is danger that the property will be removed from the state, or lost, materially injured or destroyed.

However, in his January 18, 2008 decision, Justice DeGrasse found that: Moreover [Joanne] Crispo-Crisafulli has submitted proof that the payment of real estate taxes and water and sewage charges assessed against the premises are current. In addition, there is proof that a policy of insurance is in force. Accordingly, the appointment of a receiver is unwarranted inasmuch as it does not appear that the premises are in danger of being lost.

[*6]See P. Crispo Affidavit in Opposition, Exhibit B. Here, the Crispo defendants have presented documentary evidence that they continue to pay the building's real estate taxes, water and sewage charges and insurance premiums, as well as to collect rents and pay for repairs. See J. Crispo Affidavit in Opposition, ¶¶ 2-12; Exhibits 3-12. In the absence of any countervailing evidence or argument from the DiVincenzo defendants, there is no reason to disturb Justice DeGrasse's prior ruling that a receiver is unnecessary in this case. Accordingly, the court finds that the portion of the DiVincenzo defendants' motion that seeks the appointment of a receiver should be denied.

Discovery

The final portion of the DeVincenzo defendants' motion seeks an order that "court ordered discovery be provided after service of responses to counterclaim and cross claims is served." See Notice of Motion, Gavioli Affirmation, at 10 (pages not numbered). Like the previous portion of the motion, however, defendants' papers do not otherwise address or mention this issue. The Crispo defendants' opposition papers note that "this prayer for relief has been made moot by the Preliminary Conference Order of March 3, 2008," because the discovery deadlines set forth in that order rendered the DiVincenzo defendants' March 5, 2008 Answer to Cross Claims untimely. See DiLeonardo Affirmation in Opposition, ¶ 5; Exhibits 1, 2. Upon reviewing that order, the Crispo defendants' contention appears to be correct. Accordingly, the court finds that the final portion of the DiVincenzo defendants' motion should be denied.

Accordingly, it is

ORDERED that the portion of the DeVincenzo defendants' motion seeking summary judgment is granted to the extent that judgment is granted on their first and second counterclaims, and the motion is otherwise denied.

Settle order on notice.

The foregoing is the decision and order of this court. A copy of this decision and order has been sent to counsel for the parties.

Dated:February 5, 2009



Hon. Martin Shulman, J.S.C. Footnotes

Footnote 1: Plaintiffs and the Crispo defendants are the children of Mildred DeVincenzo. The DeVincenzo defendants are the children of Albert DeVincenzo. See Notice of Motion, Gavioli Affirmation, ¶¶ 10, 15.

Footnote 2: Although the DiVincenzo defendants do not specifically denominate their motion as one for summary judgment, it plainly requests such a judgment on two of their counterclaims. Further, discovery is substantially complete and the court has already entertained one motion for summary judgment. Thus, this is not a case in which the parties have failed to "deliberately chart[ ] a course for summary judgment." See, e.g., Chong Min Mun v Soung Eun Hong, 44 AD3d 534 (1st Dept 2007), citing Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 (1976); Four Seasons Hotels Ltd. v Vinnik, 127 AD2d 310, 320-321 (1st Dept 1987).

Footnote 3: See Notice of Motion, Exhibit G (DiVincenzo Defendants' Answer), ¶¶ 3-13.