Filippo v Hobbs

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[*1] Filippo v Hobbs 2009 NY Slip Op 51071(U) [23 Misc 3d 1134(A)] Decided on February 27, 2009 Supreme Court, Suffolk County Rebolini, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2009
Supreme Court, Suffolk County

Augustin J. San Filippo, Plaintiff,

against

Albert Allen Hobbs (f/k/a) Albert Allen Hobbs San Filippo, Defendant.



14724/2007



Plaintiff Pro Se:

Augustin J. San Filippo, Esq.

111 North Main Street

Southampton, NY 11968

Attorney for Defendant:

Esseks, Hefter & Angel, LLP

108 East Main Street, P.O. Box 279

Riverhead, NY 11901-0279

William B. Rebolini, J.



This action was brought pursuant to RPAPL Article 15 to compel the determination of claims to real property known as 111 North Main Street, Southampton, New York (herein, "the premises"). In essence, plaintiff seeks a determination of this Court adjudging him to be the owner of a fee absolute of the premises, unencumbered by any claims of the defendant.

Defendant is the son of the plaintiff and plaintiff's now deceased former wife. Plaintiff was born in 1920 and married Alein Hobbs in 1954. Defendant was born to plaintiff and Alein in 1958. Plaintiff acquired the premises in 1965. In 1970, plaintiff and Alein separated; in 1971, plaintiff sued Alein for separation and that action in New York County was settled (after a three day trial) by stipulation entered in open court on March 23, 1977. A single provision of the stipulation is in focus in the instant action, specifically, that which required plaintiff to make a testamentary gift of the premises to the defendant, his son. The stipulation was incorporated into a judgment of divorce (in favor of plaintiff) granted on April 12, 1977 (Shorter, J.) and entered with the New York County Clerk on April 15, 1977, which expressly set forth as a decretal paragraph, inter alia, the stipulation provision requiring plaintiff to make such testamentary disposition of the premises in favor of his son (defendant herein). Among the key terms of the stipulation settling the matrimonial action in 1977 were that the wife Alein relinquished any claim to the premises and the husband (plaintiff herein) relinquished his interest in a New York City townhouse in which the wife resided with defendant (who was then a college student).

In 1984, defendant changed his name from Albert Allen Hobbs SanFilippo to Albert Allen Hobbs in a proceeding in Supreme Court, New York County. In 1989, defendant herein recorded his parents' 1977 divorce judgment in Suffolk County, thereby causing the purported cloud on plaintiff's title to the premises. Defendant's mother, plaintiff's former wife, died in 1998, a fact which plaintiff claims to have learned several years later. Both plaintiff and defendant are attorneys; that they are estranged is acknowledged by each.

The requested relief in this action involving a single claim by plaintiff, denominated as one pursuant to RPAPL §1521.1, is for a determination that any interest of defendant in the premises is invalid, barring defendant therefrom, adjudging plaintiff as the lawful owner thereof, removing the cloud on title from recordation of the 1977 judgment and granting plaintiff damages, costs, [*2]disbursements and other relief. In the answer interposed defendant alleges seven affirmative defenses, to wit, statute of limitations, waiver, estoppel, collateral estoppel, res judicata, ratification and laches, and two counterclaims, specifically, a first counterclaim for an injunction against transfer or encumbrance of the premises by plaintiff and a second counterclaim for specific performance of plaintiff's obligations involving the premises under (inter alia) the stipulation and judgment of divorce in the New York County action. In his reply, plaintiff alleges as an affirmative defense that the counterclaims fail to state a cause of action.

By notice of motion dated September 22, 2008 supported by plaintiff's affidavit and legal memorandum, plaintiff moved for summary judgment. By notice of cross-motion dated November 5, 2008, supported by defendant's affidavit and legal memorandum, defendant cross moved for summary judgment. Plaintiff filed a reply affidavit (sworn to November 12, 2008) and memorandum of law and defendant submitted a reply memorandum of law dated November 17, 2008. The cross motions were deemed submitted as of November 19, 2008.[FN1]

The gravamen of plaintiff's claim herein is that the promise to make a testamentary gift of the premises to defendant herein, which plaintiff acknowledges having made in 1977, is unsupported by consideration and that, as a third party beneficiary of the husband/wife agreement providing for this benefit, the defendant herein is subject to the defenses plaintiff would have had against the promisee (plaintiff's former wife); plaintiff asserts in this action, in substance and plainly stated, that he is entitled to have determined herein (based on defendant having filed the judgment causing the cloud on his title to the premises) whether defendant's claim of an interest in the premises is valid. Contending that he received no consideration for his 1977 promise to bequeath the property to defendant, plaintiff attributes his inaction over many intervening years since the divorce to several factors including his allegedly belated discovery of the circumstances of his former wife's death in 1998 (a circumstance which plaintiff plainly states he believed suspicious and somehow implicating the defendant although no proof is presented that it was either).

First, the Court finds that the 1977 stipulation (which serves as the predicate for plaintiff's assertion that there was a failure of consideration) merged in the judgment of divorce (see, Vest v. Vest, 50 AD3d 776 [2nd Dept., 2008]) and that plaintiff's recourse would lie in CPLR §5015 if that avenue had been timely pursued (see, Cramer v. Sabo, 31 AD3d 998 [3rd Dept., 2006], lv. app. denied 8 NY3d 801 [2007]). Clearly it was not, plaintiff having chosen the present course (RPAPL Article 15) which, if countenanced, would constitute an impermissible collateral attack on a [*3]judgment of this Court (the 1977 New York County Supreme Court divorce judgment). Even if the plaintiff had proceeded under CPLR §5105 as required, the challenge to a judgment thereunder must be brought in a reasonable period of time (see, Sieger v. Sieger, 51 AD3d 1004 [2nd Dept., 2008] citing (inter alia) Richardson v. Richardson, 309 AD2d 795 [2nd Dept., 2003]) and it is the conclusion of this Court that it was not brought in a reasonable period as measured from date of entry of such judgment (see, ibid.).

Additionally, it appears to this Court that the real trigger rousing plaintiff from his decades' long somnolence is some convergence of a general decline in the economy (including real estate) - prompting plaintiff's apprehension for his current wife's financial circumstances (and those of her daughter) upon his demise - and a reaction to what is claimed as belatedly learned knowledge of the death of his former wife; as to the latter, plaintiff strongly suggests foul play and even defendant's involvement by offering documentary proof of his own unfinished efforts to explore the circumstances surrounding that occurrence: plaintiff implies that, as the former wife's closest relative, defendant was somehow involved in or perhaps responsible for his mother's demise, something which is no more than completely speculative on this record. Such unproven conceptions, woven with asserted financial apprehensions for his present family and the circumstance of plaintiff's advanced years and frailty, do not constitute an adequate explanation for the plaintiff sleeping on his perceived rights since 1977, a period of thirty years; in this regard, it is noted that the reason apparent to the Court (even alleged in the amended complaint) for plaintiff's animus for defendant forming the basis for his belated effort to undo that which he voluntarily agreed and consented to (the subject provision of the merged stipulation found in the 1977 divorce judgment) is that, starting at or around the time defendant obtained judicial approval of changing his name to delete plaintiff's last name from his own, the plaintiff and defendant's relations devolved to the unfortunate level that son sued father in federal court for fraud and father floated less than thinly veiled suggestions of the son's involvement in his own mother's demise. While such tragic relations may make understandable the darkest of human reactions, ironically, the presence of the circumstances reflecting declining relations between plaintiff and defendant herein stretching out over time since the 1977 divorce, in the light of plaintiff's failure to sooner act, must lead the Court to conclude that the plaintiff is guilty of laches to such extent that his claim denominated as one under RPAPL Article 15 but, in reality, a veiled attack on the divorce judgment, must be and is hereby determined to be barred.

In so concluding, the Court finds that the defendant would be severely prejudiced by the enormous lapse of time since the transactions giving rise to the subject claim. The passage of time is at the core of laches (see, Matter of Guido, 81 AD2d 614 [2nd Dept., 1981]) and rarely is a case encountered involving the passage of as much time as that at bar. Practically, presentation of a defense to plaintiff's claim as framed would not be possible for defendant to accomplish in that the events assertedly forming the basis of plaintiff's claim are shrouded by the lapse of time; even if it were assumed that defendant's presence for some aspect of the family interactions surrounding the divorce might be ascertainable in defendant's own memory (he was 19 in 1977), any other persons possibly involved in same could not reasonably be expected to be found or to recall such now ancient facts. [*4]

Moreover, the Court is completely unpersuaded as to the plaintiff's contention that he did not receive consideration for the underlying matrimonial agreement.

In light of the Court's findings and conclusions hereunder, the defendant's remaining affirmative defenses need not be further considered as they are academic. However, in that plaintiff has chosen to frame his claim as one to determine rights in real property, the provisions of RPAPL Article 15 apply and require the Court to make a determination of the respective rights to the disputed parcel (see, RPAPL §1521.1[1]; Crawford v. Town of Huntington, 299 AD2d 446 [2nd Dept., 2002] citing (inter alia) Keller v. Village of Castleton-on-Hudson, 173 AD2d 979 [3rd Dept., 1991]). This Court further grants to defendant summary judgment upon his first counterclaim based upon its finding that defendant has demonstrated his entitlement to judgment as a matter of law dismissing plaintiff's claim and granting his first counterclaim requesting injunctive relief in light of plaintiff's express acknowledgment of activities which threaten to jeopardize or defeat or complicate the defendant's interest in the property which is confirmed by this Court in this determination. Defendant's request for summary judgment upon his second counterclaim is denied.

The foregoing constitutes the decision and order of this Court.

Settle judgment (see, 22 NYCRR §202.48).

So ordered.

Dated:February 27, 2009

Hon. William B. Rebolini, J.S.C. Footnotes

Footnote 1:All correspondence between the parties and/or the Court relating to the parties' respective submissions has been reviewed and considered by the Court in connection with this determination; specifically, the Court has considered the following correspondence: defendant's letter to the Court dated September 26, 2008; plaintiff's letter to the Court dated October 1, 2008; plaintiff's letter to the Court dated October 2, 2008; defendant's letter to the Court dated October 3, 2008; defendant's letter to the Court dated November 19, 2008; plaintiff's letter to the Court dated November 19, 2008; plaintiff's 2nd letter to the Court dated November 19, 2008; Plaintiff's letter to the Court dated November 20, 2008; plaintiff's letter to the Court dated November 25, 2008 and plaintiff's letter to the Court dated January 29, 2009.



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