Mikkelson v Kessler
Annotate this CaseDecided on June 8, 2009
Supreme Court, Greene County
John E. Mikkelson, Plaintiff,
against
Robin Lynn Kessler a/k/a Robin Schafer, Citibank and Board of Managers of the Mountain View Estates Condominium, Defendant.
03-1164
For Plaintiff:
James Jay Byrne, Esq.
36 New York Avenue
Huntington, NY 11743
For Defendant:
Quinn & Tyrell, Esqs.
3330 Park Avenue
Wantagh, NY 11793
George J. Pulver, J.
The Court previously denied Plaintiff's motion for summary judgment in this real property action due to a sharp factual dispute as to the existence and/or execution of a Quitclaim deed. When this Court's determination was upheld on appeal (see, Mikkelson v Kessler, 50 AD3d 1443), a bench trial was conducted on January 7, 2009 and post-trial submissions filed. Now then, having reviewed such submissions and having reflected upon the evidence adduced at trial the Court renders the following findings of fact and conclusions of law.
In the late 1980s, Plaintiff John E. Mikkelson (hereinafter Plaintiff) and his then-wife, together with Defendant Robin Lynn Kessler (hereinafter Defendant) and her then-husband, purchased two condominium units (hereinafter referred to as "Unit A-4" and "Unit B-4") in Mountain View Estates, Jewett, New York [Plaintiff's Exhibits 1, 2]. The four friends owned both units as tenants in common, each person owning a 25% share of each unit.
In June 1992, with Defendant and her then-husband experiencing marital difficulties, the friends executed two Quitclaim Deeds transferring full ownership of Unit A-4 to Plaintiff and his then-wife and full ownership of Unit B-4 to Defendant and her then-husband [Plaintiff's Exhibits [*2]23, 24; Trial Transcript, at pp. 37-40, 72-76, 108-111]. The couples completed these Quitclaim deeds on pre-printed Bloomberg forms obtained by Defendant from Staples without consulting an attorney [Trial Transcript, at pp. 174, 188]. The deeds were never recorded, and the original documents were presumed lost, thus when Unit B-4 was sold in 1998 all four individuals signed the deed of transfer.
In 2003, when a title search revealed that she owned a 25% interest in Unit A-4, Defendant inquired of Plaintiff about her ownership interest in Unit A-4, repeatedly asking for a key to the premises. Of course, the reason the title search had revealed this 25% interest was because the Quitclaim deeds were never recorded, but Defendant maintained that the document she had signed had only been meant to transfer business management decision-making authority. At complete loggerheads, Plaintiff ultimately commenced the instant action against Defendant pursuant to Real Property Actions and Proceedings Law to quiet title.
Not insignificant to this Court is the fact that both Defendant's ex-husband and Plaintiff's ex-wife support Plaintiff's contention that the intent of the four individuals in 1992 was to transfer title so that one couple would own one Unit and the other couple would own the other Unit. Similarly persuasive is the fact that, when the non-recorded Quitclaim Deeds were presumed lost, both Defendant's ex-husband and Plaintiff's ex-wife executed new documents each transferring his/her 25% interest in Unit A-4 to Plaintiff to ratify or "make good" on their 1992 agreement/intent. Defendant's ex-husband also testified at trial in accord with Plaintiff's version of events that full ownership rights were intended to be transferred via execution of the Quitclaim deeds in 1992.
Then, in Perry Mason-like fashion, photocopies of the "lost" Quitclaim deeds were located by Citimortgage Inc., the servicer of a mortgage held by Citibank on Unit A-4 and Unit B-4) on January 2, 2009. Such photocopies completely negate Defendant's prior sworn assertions (during deposition and in opposition to summary judgment motion) that she neither executed nor delivered to Plaintiff a deed transferring her interest to Plaintiff relative to Unit A-4 [Plaintiff's Exhibits 23, 24, 25]. Plaintiff's signature is contained on both Quitclaim deeds [id.]. Confronted with these documents at trial, Plaintiff conceded that she had mailed the Quitclaim deeds (which she had heretofore denied having executed) to Citibank [Trial Transcript, at p. 174] but now purported to profess ignorance of the legal significance of a Quitclaim deed despite her Masters Degree [Trial Transcript, at pp. 185-187], maintaining that the documents were "management agreements" just for billing purposes.
Title to real property may be established absent recording of a deed (see, 75A NY Jur2d, Lost and Destroyed Instruments § 42, p. 470, citing Jamieson & Bond Co. v Reynolds, 174 AD 78 [2d Dept. 1916]; see also, Goodell v Rosetti, 52 AD3d 911, 913 citing General Obligations Law 5-0703). There is a strong presumption that a deed purporting to transfer ownership in real property has been delivered and accepted (see, Manhattan Life Ins. Co. v Continental Ins. Cos., 33 NY22d 370, 372). Defendant's actions subsequent to execution of the 1992 Quitclaim deeds are illuminating on these issues.
IRS documents filed for the tax year 1998 reveal that she paid $10,043.71 in interest to the mortgagee on Unit B-4 [Plaintiff's Exhibit 19] and then deducted that same amount on Schedule E "Supplemental Income and Loss" [Plaintiff's Exhibit 21].If Defendant's argument that the Quitclaim deeds were not intended to transfer title but, rather, were only [*3]"management agreements" is to be accepted, she would at most be entitled to claim 50% of the $10,043.71 (assuming that she had received her husband's 25% share as part of their divorce). The only way that Defendant would be entitled to claim the entire $10,043.71 is based on the 1992 Quitclaim deeds which she denies transferred title. Further supporting this theory is the Separation Agreement of Defendant and her then-husband - which only provided for the equitable division of Unit B-4, making no mention whatsoever of Unit A-4.
Basically, Defendant was caught in her lies when Citimortgage Inc. produced copies of the 1992 Quitclaim deeds which Defendant thought were forever lost. This Court does not for one minute believe that Defendant did not intend to transfer her 25% interest in Unit A-4 to Plaintiff in 1992, nor does it believe for one minute that Defendant did not fully understand the legal significance of the Quitclaim deeds she executed at that time. Rather, the Court believes that sometime after her divorce in 2003, Defendant saw an opportunity to attempt to recoup some of the money she had lost on Unit B-4 by asserting partial ownership in Unit A-4 and that she lied, as needed, to continue this charade of ownership believing that no one would ever find the written deeds that would prove her wrong.
As requested, the Court takes judicial notice of Defendant's opposition papers to the motion to amend the complaint; Defendant's admissions at her deposition; Defendant's opposition papers to the motion for summary judgment (including her Affidavit regarding only signing a management agreement); and the Affirmation of Thomas J. Tyrrell, Esq. in support of Defendant's cross motion for summary judgment concerning a lack of a writing.
Counsel for Plaintiff shall submit for signature a Judgment consistent with the relief sought in Plaintiff's Requested Findings of Fact and Conclusions of Law paragraph 43 as well as a Bill of Costs and Disbursements and an Affirmation of Plaintiff's Counsel Fees associated with this protracted litigation caused entirely by Defendant's dishonesty.
Defendant's affirmative defenses are dismissed for failure to state a cause of action and Defendant's counterclaims are dismissed as without merit.
The foregoing constitutes the Decision and Order of the Court. Counsel for plaintiff is directed to enter this Decision and Order without notice and to serve Defendant with a copy thereof with notice of entry.
All exhibits have been returned to counsel for Plaintiff who should maintain his own exhibits and shall transmit Defendant's exhibits to counsel with a copy of this Decision and Order (see, supra).
SO ORDERED.
Dated: May, 2009
Catskill, NY
______________________________
HON. GEORGE J. PULVER JR.
Acting Justice of the Supreme Court
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