Matter of Gaddi v Gaddi
2012 NY Slip Op 31023(U)
April 13, 2012
Supreme Court, New York County
Docket Number: 108956/2010
Judge: Judith J. Gische
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System's E-Courts Service.
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This opinion is uncorrected and not selected for official
publication.
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Index Numbar : 10895612010
GADDI.CEFERlN0
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GADDI, MARIVICL.
seqquencm Numbsr :002
SUMMARY JUDQMENT
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[* 2]
In the matter of
Ceferino Qaddl and Rosarfo Gaddi,
Plalntlff (s),
DECISION/ ORDER
Index No.:
108Q56/10
Seq. No.:
002
PRESENT:
Hon. Judith J. G bhe
-against-
JSC.
Marlvic L Gaddl,
Defendant (s),
I
for an order pursuant to RPAPL 1501 to
compel a determination of a claim to real
property: Block I344 Lot 1036
335 East 6lMStreet
Unlt 4F
New York, New Yo&
Recitation, as requlred by CPLR 5 2219 [a] of the papers considered in the review of this
(these) motion(s):
Papera
Numbered
Oefs n/m (CPLR 3212) w/BRH affirm, MG amd, exhs . . . . . . . . . . . . . 1
Pltfs' x/m (CPLR 3025)w/ER affirm, AG, SG affids (a8 exhs), exhs . . 2
Defs further support, reply w/BRH affirm, MG affid, sxh . . . . . . . . . . . 3
Defs opp to xlrn w/BRH afnrm, MG affid, exhs . . . . . . . . . . . . . . . . . . 4
P b ' further support, reply w/ER affirm, CG a f f i (as exh),exh ...... 5
Steno2/23/12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Various stips of adJournment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Upon the famgoing papers, the decision and order of the court is as fobl~ows:
OlSCHE J.:
This Is an action to compel the determination of a claim to real property. Plaintiffs
Ceferino Oaddi and Rosarlo Gaddi are, reapechely the brother and sister-in-law of
-Page I 12of
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defendant Marivic L. Gaddi. Since issue ha8 been joined and this motion Is brought
tlmely aiter the filing of the note of Issue, summary judgment relief is available (CPLR
3212; 8rill v. Citv of New York, 2 NY3d 648 [2004]).
Facts and argurnentrr
Ceferino Gaddi, Jr. ("Junior") is the son of Ceferlno Gaddi ("Senior"),
now
deceased. Junior and Marivic ("Sister") are brother and sister. Rosario is Junior's wife.
Other than her name appearing In the caption, there are no allegations by Rosario
against the defendant.
f
It is unrefuted that Sister is the owner o record of the unit 4F within the
condominium building known as 335 East 51 Street, New York, New York ("Unit 4F"
sometimes "apartment"). The deed, made January 18,1985, is signed by the grantor
and the Sister's attorney in fact who had a power of attorney. The closing statement
shows the purchase price of Unit 4F was $95,951.20 and that none of the siblings,
Rosarlo or Senior attended the closlng. The dosing statement also ahows that Sister
obtained a purchase money mortgage in her sole name in the amount of $50,000.
Junior claims that Unit 4F was purchased by Sister as Senior's nominee, while
Senior resided In the Philippines and Sister resided in the United States. According to
Junior, Senior provided Sister with money to buy the apartment and authorized Sister to
execute a note and mortgage for the balance of the purchase. Junior contends that on
April I O , 2001,Senior transferred his ownership of Unit 4F to hlm. Junior contends this
conveyance was made In a single one page document bearing the words "TO MY
FAMILY." The body of this purported conveyance states as follows:
I hereby condonekorgfve the "utangs"made by my mn,
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[* 4]
Ceferino Jr. Consldered as advances towards his
inheritance, drawn against my dollar accounts malntalned
with my daughters Marivic, Blanca and Nenette,
aggregeting approximately $21,000 which is more or lass
the equivalent of Php 1 million. I am also giving my son,
Ceferino Jr., the apartment in New York known as Senate
East Apartment 4-F uncondltlonally. He can transfer the
ttUe immedlately from my daughter Marivic to his name.
This nulllfles and supercedes previous signed
document@)made by me and/or others.
Slgned by:
Witnessed by:
~illeqlble)
Ceferino S. Gaddi
8
Junior, relying on the deposition testimony of his Slster, argues that Hater could
not have afforded to buy Unit 4F on her own, given her modest income and own
expenses. Junior clalms that Sister was evasive about where the money came to buy
-
this - and other apartments In the same building that she purchased during a six year
period. Thus, acmrdlng to Junior, who also provides the sworn affidavlt of Agapita
Gaddl, another sibling ("Agapito"), all these purchases were made using Senior's money
which was transferred by hlm to the Unlted States and 88 his nominee.
in Agaplto's sworn aftidavlt, he states:
1.
That I personally know my late father bought Apt. 4F in New York
with hia own money and placed It under the name of Marlvic Gaddl
[Sisted a6 a Tax Shield . .
.
2
.
That in a meeting held sometime in December 2000, our
family discussed the settlement of the properties of our
late father, Ceferino Gaddi, Sr. and that all the loan
obligations of my siblings to our late father were
condoned. At that meeting, my sister, Merivic L. Gaddl
admitted Apt. 4F was owned by my father and was to be
transferred by him to my brother Ceferfno, Jr. Prior to his
death, my father gave Apt 4F in New York to Ceferlno
Gaddi, Jr, in lieu of his hereditary shares from any other
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properties in.the Phlllppines...
This particular affidavit was prepared in connection wlth lltlgation presently In the
Philippines involving Senlor's last wlll and testament.
In support of her motion for summary Judgment,Sister provides a memorandum
dated March 31,2001, addressed "To Whom it May Concern." The memorandum is
signed by Senior's children (herself and Junior included) and directed to hospital
officials. In the memorandum, the siblings object to Senior being released from the
hospital on a day pass because of his weakened condltlon. The family also states that
"[Senior's] present state of mind does not allow hlm to make the decision to go on [a]
day pass. He is being led to belleve he Is going to the province when he cannot
physically withstand the travel ..." Thus, Sister contends any "transfer" by Senior to
Junior Is meaningless, not only because Senior a u l d not convey that which he did not
own, he was also lacking mental capadty to do so. This particular claim is refuted by
Blenvenido Suba Gaddl who states that he a practfcfng physician and Senfor's attending
doctor whiie he was hospitalized.
He Is also Senior's first cousin.
In his affidavit Dr.
Gaddi states that Senior "until hls death, had his mental faculty, [was] alert and lucid" Dr.
Gaddi proceeds to state that he was personally present when Senlor conveyed Unit 4F
to "Boy"
- a nlckname Sister also uses when referring to Junior.
While it is undisputed that Junlor satisfled the mortgage In Sister's name on Unit
4F, Sister rnalntains that this payment ($30,000) was for fair consideration and that
Junlor cannot establish the material elements of a constructive trust which Junior now
seeks to assart in his proposed amended complaint (discussed, infra). Sister contends
that when she returned to the Phlllppfnes in 1999 to care for her slck father, she
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appointed Junior and wife as caretakers of the apartment which was then tenanted, with
instructions they could rerent the apartment when the tenant ("Mariano") left. instead,
when the after the apartment became vacant, Junior and his wife moved in.
Junior claims he paid off the mortgage not becauae owed Sister any "rent" but
because Senior- the bue owner of UnY 4F - tranaferred ownership of the apartment to
him and, therefore, It was his responsibility to pay the mortgage.
There are two one page documents and some emalla which Junior contends
memorializes the Sister's acquiescence and acknowledgmentthat Unit 4F was a
constructive trust for her father and that Sister who was Senior's nominee, also agreed
to transferred ownership of the apartment to Junior. The flrst document, dated May 1,
2001, bearlng Sister's name, is addressed "To Whom it May Concern." This document
states that:
This is to advise [you] that there has been a change o
f
ownership of apartment 4F, 335 East 51" Str., In favor of
my brother and slster-In-law, namely Caferino L. Gaddi,
Jr. and Rosario E. Gaddi respectively. Further
documentation to this effect shall be submitted In due
course. This certlflcation Is being issued In connection
with the applicatlon of lnoornlng tenant, Yunfang Guo,for
your approval. Thank you.
Yours sincerely,
(Signature)
The next document dated May 15,2001, also has Slstets name on it. It states as
follows:
To Whom It May Concern,
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Please be advhed that I am transferring ownership of my
condominium 4-F (Senate East) . . .in favor of my bmther
and sister-in-law namely Ceferlno L. Gaddi, Jr and
Rosario E. Gaddi reapectively. I hereby authorlze above
named persons to transact t e pay-off of the mortgage
h
and make them as persons responsible for paying the
real estate tax to the crty of New York and the
maintenance fee of the condominium.
Thank you for your attention.
Sincerely yours,
(Signature)
In sum and substance, the emails sent by Sister state that she does not 'Want to
have anything to do with this matter, . ." referrlng to a lawsuit by Mariano "...this is your
problem." Sister also states "I think you should be h e one to pay the homeowner's
insurance for 4F. It Is still in my name but you are now responsible for everything . .
,I'
The ernail states further that her sister-in-law should not have used Sister's account to
pay the mortgage and that Mariano's security depostt should have been applfed to that
payment. Both these amails are from June 2001. In a later email dated April 2002,
Sister states that:
Dad did not give you the condo. It was my mother with
the help [mostly] ofNenette that [you got] the condo... It Is
irrelevant at thls polnt If the condo has not been
transferred to you yet. It is yours and you are the one
getting the rent of about $2,000 per month...It was our
agreement that the condo wlll be transferred only after the
estate of dad is finalized... the common properties will
All
be divided legally. What is the FUSS?
To address clalms by Sister, that the deed IS dispositive proof that she is the
current, sole and rightful owner of Unit 4F,Junior seeks to amend his complaint to assert
a new dairn for a constructive trust. Junior denies that Sister wlll be prejudiced in any
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way by the amendment because Is factual underpinnings are very similar to his present
t
claim, she had notlce of this "nevi' claim for some time, though not specifmlly pleaded,
all discovery necessary to maintain this new claim has already been exchanged and It
only recasts existing facts into a new legal theory.
Discussion
The issue of whether Junfor should be permftted to amend his complaint is
addressed first. CPLR 3025 [b] provides that a party may amend its pleadlng, or
supplement it by 'setting forth additional or subsequent transactions or occurrences, at
any time by leave of court or by stipulation of all parties. Leave shall be freely given
upon such terms as may be just Including the granting of costs and confjnuanms."
Whlle the valldrty of a proposed amended pleading should be examfned by the
court to gauge its legal sufficiency and merit, thls examination is not intended to supplant
a motlon to dismiss or for summary judgment (Hawkins v, Gene$= Plaw corn,, 139
A.D.2d 433 [ld
Dept.19881). On the other hand, a motion to amend must be supported
by an affidavit of merits and the court must examine the proposed amendment In order
to conserne judicial resources (see & Theatre Corp. v Sons R e a h Co., 18 AD3d 352,
i
354-355 [I& 20051).
Dept
Junlor has rectlffsd the mission of his sworn affldavit on the cross motion in chlef
by providing in hls reply an affidavit restating much of what was contained in hfs moving
papers. The affidavtt places In context all the documentary proof previously provided
which Sister addressed on the merits. Therefore, the curatlve amdavit 1 accepted and
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the cross motlon will be declded on the merits. For the reasons that follow, the court
permits amendment of the complaint, although the note of issue was filed.
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"The Statute of Frauds will ordlnarily prevent enforcement of an oral agreement to
convey an interest in land (General Obligatlons Law 5 5703). A constructlve trust will
be impressed, however, when an unfulfilled promise to convay an interest in land
Induces another, in the context of a confidential or flduclary relationship, to make a
. .
transfer resulting in unjust enrichment" McGrath v, Hf 41 NY2d 625,628 [1977]).
im
,
Junior contends that Senlor gave Sister money to buy ths condominium in her name with
the expectation that, at the appropriate time, h e would then give the pmperty to his
chlldren as he saw fit. According to Junior, Senior transferred the property to him before
his death. Subsequently Sister prmked she would fulfil her father's instructions,she
told Junior the apartment was "his," he paid off the mortgage whlch was In her name
only but she will not transfer ownemhip to Junkr.
The elements of a constructive trust are: I) confidential or fduciary relationship,
B
2) a promise either express or implied, 3) a transfer in reliance thereon and 4) unjust
enrichment (Sham v. KnmaIskl, 40 NY2d 119, 121 [1976]). In evaluating a daim for a
constnrctlve trust, "the conveyance ... should be Interpreted 'not literally or Irrespective of
its setting, but sensibly and broadly with all its human implications.' 'I (SharD v,
Kosmalskl, 40 NY2d at 123).
Family members are said to stand in a fiduciary relationship to one another
cGrath v. Hlldinq, supra [husband and wife]; Clnauemanl v. Lario, 37 A,D.Sd 882 [3d
Dept 20071 p~laws];
Jvlarlc Pinina. Inc, v, MadG 271 A.D.2d 507 [Z" Dept. 20001
[brothers]; Farano v, SpDhanellL 7 AD2d 420 [l'' 19591[father and daughters]).
Dept
Therefore, Juniots proposed amended complaint satisffe8 this element. The ernails and
documents Junior relies on provide, at thls stage of the litigatlon, the factual allegatlons
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[* 10]
necessary to satisfy the second element of a promise. An actual "transfef is not
necessary and this element may be may be satlsfled tf the plaintiff alleges slhe
contributed funds, time or effort to the property In rellance of a promise to share some
interest In It (Jiennessv, Hunt, 272 AD.2d 756 [3d Dept 20001). The final prong of
unjust enrichment, I satisfied as well because of Junior's claim he patd off the mortgage
s
in Slster's name.
The pmpbsed amendment is not tlme barred, as Sister argues. The statute of
limltations for a constructive trust Is aix (0) years and It begins to run either when the
constructive trustee acquires the property wrongfully, or when constructive trustee
wrongfully withholds property acquired lawfully from the beneficiary because that Is when
the property Is held adversely and the date the trustee has breached or repudiated the
. .
agreement to transfer the property W n c PI-
'G,
Inc. v, Man 271 A.D.2d at 508).
Here, JunIor and his wife lived In the apartment without Sister's Interference until May
15,2010 when Sister sent them 8 letter demanding they surrender and vamte the
premises. Since thfs claim is timely Interposed and for the reasons stated, the croaa
motion to amend is granted only to the extent that such clalms are asserted by JunIor.
Rosarlo, hl8 wife, has not provided a sworn affidavitof merits, nor do any o the factual
f
allegations support a claim by her. Plaintiffs may serve the amended complaint In the
form proposed.
The court has considered Slster's claim of prejudice. Since the new cause of
action does have distinct elements from the claim already asserted, the court will, on Its
own motion, strlke the note of issue and upon doing so, allow Skter to conduct a limited
depositlon of Junior, solely as to the factual claims asserted In hls new daim for a
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constructive trust and make a demand for any additional relevant documentation. If
Sister decides to re-depose Junior, the deposition shall take place no later than Thirty
(30) Days after 8 copy of this declslon/order appears as having being entered In
SCROLL (the Supreme Court Records On-Line Library). Similarly, if If Sister decides to
demand further documents, such demand shall be made no later than Ten (10) Days
after a copy of this decisionlorder appears as having being entered in SCROLL (the
Supreme Court Records On-Line Library). Responses thereto shall be wlthln Twenty
(20) Days atler senrice thereof.
Summary Judgmentis usually not available unless end until h u e I joined (CPLR 5
s
C u Club, 89 AD2d 508 [I"
om
Dept. 19821). Since
3211 [c]; Gifts of the Orient v , h d e n
Issue has not been joined on the new claim, Sister's motion for summary Judgment Is
prernaturt as to the constructive trust claim, but will be decided as to the existing claim
pursuant to Article 16 of RPAPL which is to compel the determinetlon of a clalm to Real
Property. An action to quiet title may be brought '[wlhere a person claims an estate or
interest in real property . , , to compel the determination of any daim adverse to that of the
plaintiff which the defendant makes . . . ." (RPAPL 5 1501).
"e
h
,
proponent of a motion for summary judgment must make a prima fade
showing of entklement to JUdgm8ntas a matter of law, tendering sufflclent evidence to
demonstrate the absence of any material issues of fact. Faifure to make such a prima
facie showjng requires a denial of the motlon, regardless of the sufficiency of the
opposing papers." {Alvarer v Prow&
Hospit& 68 NY2d 320,324 [1986J).
Sister has proved that she is the record owner of Unit 4F. A recorded deed is
presumptive proof o title (see
f
Inc. v. Urlited Braodg Co., 67 AD2d
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199 [l" 197fll). Here, however, Junior has raked many disputed facts that need to
Dept
be resolved before the court can apply the law:
First, there are his claims that ha paid the mortgage and maintalned the
apartment while Sister was In the Phillppfnes. Junior has presented evidence that the
apartment may have been placed in Sister's name as a convenience by his father, that
Sister was Senior's nomlnee and that Senior transferred the property to Junior. If that
transfer is proved, then there Is the alleged transfer of the apartment by Senlor to Junior
and later, the alleged agreement that Sister would, in fact, effectuate her father's
instructions to transfer tkla to Junior, but failure to do so (see Bvrd v. Brown, 208 AD2d
582 [2dDept 19941). It 1 equally important that the parks are Involved in litigation
s
regarding Senlor's last Wil and testament In the Philippines. The details of that case are
unknown to the court. Viewing the evidence In the light most favorable to Junior, the
non-moving party, and drawing all reasonable inferences in his favor, this rnotlon for
summary judgment must be denled (See Nwri v. Ston and Shop' 6 5 NY2d 825 [1985]).
Havlng allowed: 1) Junior to serve an amended complaint, 2)stricken the note of
issue, 3) ordered limited discovery and 4) denied Sister'a motion for summary judgment,
clearly thls case is not ready for trial. Accordingly, the court hereby schedules a
compliance conference for July 19,2012 at 9:30 a.m. in Part I O . At that time the court
wlll determine whether the case is ready to certify for Mal and, if it is, direct the plalntiff to
flla the Note of Issue.
Conclusion
It is hereby
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[* 13]
ORDERED the motion by defendant Marivk L. Gaddi for summary judgment I
that
s
d8nled; and it is further
ORDERED the cross motion by plaintiffs Ceferlno Gaddi and Rosado Gaddi to
that
serve an amended complaint is granted and plaintiffs may 8ewe the amended complaint
in the form proposed; and it I further
s
ORDERED the court, on its own motion, strikes the note of issue Whout
that
prejudice to reffling It at a later time as pmvlded for id this order, supra; and it is further
Ome~€Dthat
defendant may conduct a limited d~pO8itbn plaintiff bferino
of
Gaddi, solely as to the factual claims asserted In his new claim far a constructive trust; if
defendant decides to re-deposa Ceferlno Gaddi, the depositton shall take place no later
than Thirty (30) Days after a copy of this dactsion/orderappears 3s having being entered
in SCROLL (the Supreme Court Records On-Line Library); and it is further
ORDERED the court hereby schedules a compliance conference for July 19,
that
2012 at 4 3 a.m. In Part 10; and it is further
:0
ORDERED
that any rellef requested but not specifiicalb addressed is hereby
denied; and it Is further
FILED
ORDERED this constitutes the decision and order of thecourt.
that
Dated:
.
New York, New York
April 13,2012
So Ordered:
w
nr
NEW YORK
dUNTY CLERK’S OFFICE
2.
Hon. Judi J.
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ch8, JSC
