Diana v Delisa

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Diana v Delisa 2012 NY Slip Op 30347(U) January 27, 2012 Sup Ct, Nassau County Docket Number: 10-021170 Judge: Steven M. Jaeger Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. .$ [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEVEN M. JAEGER, Acting Supreme Court Justice ANNA ROSAC. DIANA, a/kia ANNA ROSA TRIAL/lAS , PART 41 NASSAU COUNTY C. DELISA INDEX NO. : 10- 021170 Plaintiff MOTION SUBMISSION DATE: 11- 17- -againstGAETANO DELISA a/kia THOMAS DELISA and JOHN DELISA MOTION SEQUENCE NOS. 2 and 3 Defendants. The following papers read on this motion: Notice of Motion , Affirmation , and Exhibits Notice of Cross- Motion and Affidavit in Support Affirmation in Opposition to Deft' s Cross Motion and In Reply to Plaintiff' s Motion Affidavit in Reply to Opposition to Cross- Motion and In Support of Application for Affirmative Relief Motion pursuant to CPLR 3212 by the plaintiff Anna Rosa C. Diana , a/kla Anna Rosa C. Delisa for inter alia summary judgment: (1) granting her an order of partition with respect to stated real property; and (2) dismissing the defendant' counterclaim. Cross motion by the defendant Gaetano Delisa, a/kla Thomas Delisa , for an order inter alia dismissing the plaintiff's second , and third through seventh causes of action and for summary judgmenton stated claims. [* 2] The plaintiff Anna Rosa C. Diana. a/kla , Anna Rosa C. Delisa (" the plaintiff' ) and her brother , the defendant Gaetano Delisa Ana" or , a/kia , Thomas Delisa (" Thomas " or the " defendant" ), currently own two properties as joint tenants. The two properties include a single- family dwelling located at 379 Hillcrest Avenue , Upper Brookvile , New York , and a second property located at 1849 Bellmore Avenue , Bellmore , New York containing two 10; 11- 17; rental tenancies, one commercial , one residential (Cmplt. Delisa Aff. 4; Cmplt. mixed use A. 5; 28- 29). According to Anna , she possesses a 50% joint interest in the Upper Brookvile home and a 330/0 11- 12; Cmplt. interest in the Bellmore property (A. Delisa Aff. , 'i 11- 12). Notably, Anna contends that Thomas has undertaken control and management of the Bellmore property and maintains the bank account into which rent proceeds were to be deposited (A. Delisa Aff. 20; Cmplt. 18- 19; 20- 21). With respect to the Upper Brookvile residence , an attached 1997 form deed contains a type-written provision identifying: (1) the parties ' parents (Frank and Rachel Delisa); Anna; and Thomas asjoint , co- purchasers of the property - after , states: " all as which an initialed (in the deed' s left margin), handwritten notation joint tenants with right of survivorship " (Pltff's Exh. [* 3] After the Delisas acquired the Upper Brookville residence , Anna resided there with Thomas , another brother (codefendant John Delisa), and her parents until 2002 , when she married and moved out , although Thomas - upon his 2008 marriage - remained in the home and currently utilzes the premises as his marital residence (A. Delisa Aff. , ~~ 5- , 37; Cmplt. ~~ 5- , 13). In 2008 , by which time the parties ' parents had both passed away, a series of disputes arose between Anna , John and Thomas with respect to inter alia the ownersJ1ip and management of the two properties (Cmplt. ~~ 10- , 16- 17). Anna claims that Thomas - who is the executor of his father Frank Delisa estate - excluded her from the Upper Brookvile premises (Cmplt. ~~ 5- 28; 31- 32). Moreover , Thomas has allegedly refused to account for the rents he has collected from the Bellmore property s two tenants; continually delayed the commencement of probate proceedings which would have facilitated settlement of the parties ' interests in the Upper Brookville home; and mismanaged the Bellmore , mixed use property by allowing it to fall into disrepair , and to generate tax liens and violations (A. Delisa Aff. ~,- 14- 29; Mastroianni Aff. , 14- 16; 20- 24; Cmplt. ,-,- 14- 25- 29- 30). Anna further asserts that Thomas has caused a valuable commercial tenant to quit the Bellmore premises , which leasehold is now vacant; that a second ," [* 4] residential tenant at the Bellmore property has refused to pay rent for several months because needed repairs have not been made; that there is no money in the Bellmore property bank account to pay taxes , make needed repairs; that Thomas has not cooperated in efforts to sell the Bellmore property; and that he has not followed through on alleged promises to purchase Anna s interest in the Upper Brookvile residence Delisa Aff. , which has recently been appraised at some $950 000. 00 ~,- 29- 30; 31; 34- 35; Cmplt. , ~,- 20- 25- (A. , 38- 39; Mastroianni Aff. , Exh. Thomas has denied Anna s claims asserting, among other things , that he did not make all the decisions or act unilaterally with respect to the Bellmore property; that Anna has never made any significant contribution to mortgage or maintenance expenses associated with either of the properties; that he advanced his own funds in connection with the upkeep of the properties; that Anna was not denied access to the relevant bank statements and/or financial information; and that he has , in general , attempted to cooperate with Anna relative to their joint ownership of the properties to no avail (G. Delisa Aff. , ,-,- 2- 6; 7- 8; G. Delisa Supp. Aff. ,-,- at 2- 4). . Moreover , Thomas claims he has been amenable to selling the Bellmore property and is willing to cooperate with the plaintiff with respect to her claim to access to [* 5] the Upper Brookvile property (T. Delisa Aff. , ~,- 2- 6; 7- 8; T. Delisa Supp. Aff. ,-,- 6- 7). After further negotiations between the parties failed , Anna commenced the within action as against Thomas and John Delisa , who has defaulted in the action (Cmplt. 'i,- 35- 36). Anna s amended , verified complaint contains seven causes of action , including claims for partition in connection with the two involved properties and additional causes of action for inter alia an accounting; use and occupancy damages; rent allegedly due , and waste. Thomas has answered , denied the material allegations of the complaint and interposed- several affirmative defenses and a counterclaim. The counterclaim avers in sum , that the parties ' father made a bequest in his wil (not attached by Thomas) leaving his interest in the Upper Brookvile home exclusively to Thomas and that as a result , Anna is entitled to only a 25% interest therein - not the 50% interest she claims to possess. Moreover , the counterclaim further alleges that since Anna allegedly made no contribution towards that property while she resided there , she has therefore been unjustly enriched in an unstated amount (A. Ans. 25- 34). Anna now moves for summary judgment on her first and fourth causes of action for partition and for judgment dismissing Thomas ' counterclaim. [* 6] Thomas has cross moved for dismissal of the second , third and fifth through seventh causes of action , and also for summary judgment on certain claims for affirmative relief referenced in his notice of cross- motion. Anna s motion is granted to the extent indicated below. The cross motion is denied. Pursuant to both the common law and statute , a party, jointly owning property with another , may as a matter of right , seek physical partition of the property or partition and sale when he or she no longer wishes to jointly use or own the property also v. Buske v. Gannon 78 AD3d 634; Graffeo Pando , 702; v. see 74 AD3d 667; RPAPL 9 901(1) , 933 NYS2d 66 (2 85 AD3d 700 Calcador, v. Company Lipman AD3d Ollivier v. , Trotta v. (Manganiello v. Paciello Dept. 2011); Cadle Tapia 79 AD3d 993 , 996; 46 AD3d 613, 614; Donlon Diamico 33 AD3d 841 842). More specifically, joint tenancies may be severed by a " court-ordered partiti n that adjusts the rights of the parties and permits * * * sale (of the property) if it appears that a partition cannot be made without great prejudice to the owners Graffeo v. AD3d 841 (Trotta v. Ollivier , supra 933 NYS2d 66; RPAPL 99 901(1), 915; Paciello , supra 46 AD3d 613, , 842 see also , Duff Duff, 614; Donlon v. Diamico , supra , 33 21 AD3d 928 , 929). Notably, " partition is [* 7] an equitable remedy in nature and Supreme Court has the authority to adjust the rights of the parties so each receives his or her proper share of the property and its benefits AD3d see 1105 Varrone 65 AD3d 600 v. (Brady , Buske Equity Search 602; Gannon 78 AD3d 634 v. 635; , Inc. v. Kao , 37 Wawrzusin Wawrzusin 212 AD2d 779 , 780; RPAPL 99 943 945 , 1201). Although the right to maintain an action for a partition is not absolute and (Kopsidas v. Krokos 294 AD2d 406 is subject to the equities between the parties 407), " (a) plaintiff establishes his or her right to summary judgment on an action for partition and sale by demonstrating ownership and right to possession of the property James v. (Cadle Company Donlon 52 AD3d 474; Joseph 297 AD2d 329 , 330 Calcador 85 AD3d 700 , supra, Diamico , supra see also 33 AD3d 841; James , 702; Dalmacy Pickert 51 AD3d 1109, , McCormick 1110). With these principles in mind , the Court agrees that Anna has prima facie demonstrated her entitlement to judgment as a matter of law with (Cadle respect to her first and fourth causes of action sounding in partition Company 79 AD3d 1123; v. Calcador , supra 85 AD3d 700 James v. James , supra , 702; 52 AD3d 474; Shui Ying Lee Donlon v. Jing Ting Lee Diamico, supra 33 AD3d 841; RPAPL 9 901(1)). Specifically, Anna has shown that she is a joint ," [* 8] tenant in both the Bellmore and Upper Brookvile properties which is all that * * (she) needed to maintain the present partition action 297 AD2d 329 330). Further James, supra v. (James the equities favor her position Joseph , supra showing that: (1) aprimafacie , Anna has also made v. (Dalmacy Donlon 52 AD3d 474; Diamico , supra 33 AD3d at 842); and (2) that a sale of the two properties is warranted since both are " so circumstanced that a partition thereof cannot be made without great prejudice to the . owners AD3d 700 702; v. Shui Ying Lee v; (Cadle Company Jing Ting Lee, supra Calcador , supra , 85 79AD3d 1123; Graffeo Paciello , supra 46 AD3d at 615). In opposition to the motion , Thomas has failed to raise a triable issue of fact. Thomas has not argued or established that a sale of the Bellmore property is (Bentley unwarranted v. Dox 12 AD3d 1187). Nor has he offered a sustained factual theory which would defeat Anna Upper Brookvile premises Donlon v. Diamico, supra (see Pickert, supra 51 AD3d 1109; , McCormick 33 AD3d 841; entitlement to a sale of the prima facie Bentley v. Dox , supra). Rather , Thomas opposing submissions primarily focus upon the dispute between himself and Anna with respect to the maintenance , upkeep and repair , and other costs associated with the two properties. ," [* 9] Turning to Thomas ' cross motion , Thomas claims inter alia that Anna is not entitled to bring an action grounded upon an accounting because he is not a fiduciary (Kreines Aff. ,-,- 44- 45). It is well settled , however , that a claim for an (see , Trotta accounting among joint tenants lies in a partition action supra v. Pickert McCormick 933 NYS2d at 70; Cossar 93 AD2d 515 517 , supra, cf, v. Grossman v. Worthing Baker see , 1322 , McCormick 182 AD2d 1119; Me Vicker (Wong Ollivier Worthing 51 AD3d 1109; RPAPL 99 943 , 945 1201). Indeed accounting is a necessary incident of a partition action supra 46 AD3d 1322 v. (a)n Chi-Kay Cheung, Pickert, supra 51 AD3d 1109; Sarma 163 AD2d 721 , 722; Cossar , supra 93 AD2d 515 , 517). Accordingly, and at this juncture Anna s fifth and sixth causes of action which seek inter alia an accounting with respect to rents allegedly collected by Thomas and an apportionment of those rents , are viable claims - as to which issues of fact exist at this juncture (Trotta Ollivier , supra 933 NYS2d at 70). Similarly, issues of fact exist with respect to Anna s claim that Thomas has committed waste in connection with the Bellmore property by negligently and/or improperly managing, maintaining and/or repairing the premises (Cmplt. , ,-,- 4243)(see , McIntosh v. McIntosh 58 AD3d 814 (" A tenant in common " has the right to take and occupy the whole of the premises and preserve them from waste or [* 10] injury, * * *" J). Nor has Thomas shown his entitlement to dismissal of the second and third causes of action , which demand an accounting and/or rental amounts attributable to the allegedly unauthorized occupancy of Thomas ' wife at the Upper Brookvile property. The Court notes that Thomas has also requested certain affirmative relief inter alia that on his cross motion with respect to the Bellmore property, claiming, he is entitled to whathe describes as: (1) the " benefit of funds equal to any funds and/or monies or benefit received by the Plaintiff' and (2) further , related relief directing the plaintiff to account to him for " any and all sums that" he should have received " from the accounts maintained with respect to " the Bellmore property (Notice of Cross Motion , ~~ (c)-(dJ). Putting aside the fact that Thomas ' answer does not contain a demand for affirmative relief in connection with the Bellmore property (Ans. ~,- 25- 34), the record before the Court is plainly insufficient to support any summary disposition with respect to Thomas ' claims at this point. Lastly, that branch of Anna s motion which is to dismiss Thomas counterclaim should be granted to the extent indicated below. Specifically, Thomas ' counterclaim alleges , in sum , that Anna possesses only a 25% interest in the Upper Brookvile home , and additionally, that Anna has been unjustly enriched since Thomas paid the mortgage andrelated expenses since. , ,- [* 11] 1997, while Anna has allegedly made no contributions to the costs associated with the property (Ans. 'i~ 27- 33). Although Thomas alleges inter alia that Anna s interest in the Upper Brookvile property is actually 25% since the parties ' father deeded his interest in the property exclusively to him (Ans. , ~~ 29- 30), the deed by which the parties and their parents originally acquired the property establishes that the parties ( and thier parents) took title thereto as joint tenants with a right of survivorship; that upon the death of their parents , who were also joint tenants in the property, the parties herein then became the sole , surviving co-owners of the premises notwithstanding the alleged bequest made by the parties ' father in his last wil and testament bequeathing his share of the property exclusively to Thomas (Ans. 29)(see , Trotta v. Ollivier, supra 933 NYS2d at 69). Notably, " (tJhe right of survivorship has been defined as ' a right of automatic inheritance ' where , upon the death of one joint tenant , the property does not pass through the rules of intestate succession , but is automatically inherited by (Trotta the remaining tenant" of Schrier v. Ollivier, supra Tax Appeals Trib. of State ofN. Y 194 AD2d 273 Island Trust Co. 133 AD2d 212 215 York Practice with Forms 9 169: 111). see generally see also , Matter 933 NYS2d at 69 275; Gotte v. Long 30A , Carmody Wait 2d , New [* 12] However , questions of fact exist at thus juncture with respect to that portion of the counterclaim which is predicated upon an unjust enrichment theory of recovery (Ans. , ,-,- 32- 34). Specifically, the parties ' conflicting claims and contentions relating to the properties cannot be summarily resolved as a matter of law Lipman 74 AD3d 667 (see generally, Manganiello Gallotta 70 AD3d 1009 , 1010; Wolfe v. Lauriello 669; Wolfe 187 AD2d 628 629). . In sum , the motion for an order of partition should be granted to the extent that a sale shall be ordered upon confirmation of the report of a referee to be (see supra 85 AD3d 700 supra 70 AD3d 1009; , 702; v. , Cadle Company appointed in the order to be settled hereon Lipman, supra Manganiello Equity Search , Inc. v. Calcador , Lauriello Kao , supra Gallotta 37 AD3d 1105; Wolfe Wolfe , supra 187 AD2d 628 , 629; RP APL 911). The Court has considered Thomas ' remaining contentions and concludes that they are lacking in merit. Settle order on notice. Dated: January 27 2012 ENTE .IAN t6aa 3 1 7.0\7. COUNTY COUNTY eLltt'l OfftCE

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