Smith v Smith

[*1] Smith v Smith 2012 NY Slip Op 50916(U) Decided on May 15, 2012 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2012
Supreme Court, Kings County

Lorraine Smith, as the Administrator of the ESTATE OF HELEN BROOKS SMITH a/k/a HELEN L. SMITH, Plaintiff,

against

Albert L. Smith, et. ano., Defendants.



15550/09



Attorney for Plaintiff

Mark E. Feinberg, Esq.

142 Joralemon Street, 5th Floor

Brooklyn, NY 11201

(718) 855-0009

Attorney for Defendant Albert L. Smith

Howard M. Lefkowitz, Esq.

32 Flag Hill Road

Chappaqua, NY 10514

(914) 769-7668

Attorney for Defendant Manufacturers and Traders Trust Company

Andrew C. Lang, Esq.

Friedman Harfenist Kraut & Perlstein LLP

3000 Marcus Avenue, Suite 2E1

Lake Success, NY 11042

(516) 355-9600

Francois A. Rivera, J.

The following papers numbered 1 to 7 read herein:

Papers Numbered [*2]

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 - 3

Opposing Affidavits (Affirmations)4, 5-6

Reply Affidavits (Affirmations)7

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, plaintiff Lorraine Smith, as the Administrator of the Estate of Helen Brooks Smith a/k/a Helen L. Smith, Deceased moves for an order 1) pursuant to CPLR 3211 (a)(1), (5), (6) & (7) and/or CPLR 3211 (b), dismissing the first, second and third counterclaims of defendant Albert L. Smith (Albert) and 2) pursuant to Real Property Actions and Proceedings Law (RPAPL) § 915, an interlocutory judgment determining each party's rights, title and interest in the subject property, including rent and the appointment of disinterested freeholders. The motion is opposed by Albert and defendant Manufacturers and Traders Trust Company (MTT).

Facts and Procedural Background

Plaintiff commenced this action on June 23, 2009 seeking partition and sale of the subject property at 577 Decatur Street in Brooklyn. Title to the property was formerly held outright by the decedent, Helen Brooks Smith (Helen). By bargain and sale deed dated June 15, 1995 and recorded August 10, 1995, Helen conveyed the property to herself and Albert as tenants in common. At some point,[FN1] an agreement was allegedly entered into by Helen and Albert (the "agreement") which recites that the sum of $70,000.00 is "owed" by Albert to Helen "on the purchase of" the subject property, that Albert will pay to Helen $70,000.00 to Helen over fifteen years at an annual interest rate of 5% (a total of $99,540 to be paid over fifteen years), that if Albert fails to make payments, Helen "can carry out legal action against" the subject property and that if Helen is unable to receive payments, her sons Charles Smith and George Smith will "be her beneficiary for payment." The agreement further stated that Albert would be responsible for the maintenance of the property, shall have all rights concerning structural changes to the property and that Albert "is the present owner" of the property." The agreement contains signatures of Helen and Albert but no acknowledgment.

Helen died on May 11, 1997. On December 14, 1998, Helen's son, Charles Smith (Charles) was issued letters of administration. The Surrogate's Court decree included a prohibition against the selling or encumbering of any real property of Helen without a further order of the Surrogate's Court and the filing of a bond. On August 26, 2002, Albert and Charles signed an agreement which stated that as of said date, nineteen payments were made to Charles totaling $11,400.00 and that there was a balance owed by Albert in the amount of $18,600.00. The parties agreed that the Albert would make monthly payments of $600.00 and that the balance owed would be paid in full upon the sale or refinance of the property. The parties also agreed that Albert would "continue to carry out ownership responsibilities such as mortgage payments, tax, insurance etc."

According to a document designated as a "satisfaction," signed by Albert on June 2, 2005 and by Charles on July 17, 2005, the parties agreed that as of June 2005, "all moneys owed" to [*3]Charles on the subject property had been paid in full, that Albert is "the sole owner" of the property and that Charles "and any other family member" of Helen "have no ties or claim to" the subject property. The document appears to have been notarized on either June 23, 2005 or July 23, 2005.

On May 19, 2006, Albert executed a mortgage on the property to secure a loan from Interbay Funding, LLC in the amount of $300,000.00. By a decision dated December 19, 2007, the letters of administration issued to Charles were revoked and letters of administration were issued to plaintiff. In July 2008, plaintiff filed a proceeding in Surrogate's Court to assert a one-half interest in the subject property and thereafter moved for summary judgment. By order dated March 9, 2009, the Surrogate's Court granted plaintiff's motion for summary judgment and directed that Albert ""turn over a one-half interest" in the property. The order further vacated one-half of the mortgage executed by Albert, which the court stated was held by MTT.

After the complaint in this matter was filed on June 23, 2009, MTT interposed an answer, filed on July 21, 2009, containing general denials and two affirmative defenses- failure to state a cause of action and failure to join a necessary party. Albert interposed an answer, dated September 11, 2009, wherein he asserted five affirmative defenses and three counterclaims. Albert's first counterclaim sounds in breach of contract and seeks specific performance of the agreement. Albert's second counterclaim is for the imposition of a constructive trust. By his third counterclaim, Albert seeks sole title to the property under the theory of adverse possession.

On March 11, 2010, plaintiff filed a motion for summary judgment providing for an immediate sale of the property and a hearing determining the apportionment of all sale proceeds. On April 30, 2010, Albert filed a cross motion for an order granting Albert a default judgment on his counterclaims based on plaintiff's failure to serve a reply. On June 1, 2010, plaintiff filed an amended cross motion seeking an accelerated judgment pursuant to CPLR 3211(a)(5). By order dated October 12, 2010, this court denied plaintiff's motion for summary without prejudice on the ground that complete pleadings were not attached. Plaintiff's motion pursuant to CPLR 3211(a)(5) was denied with leave to renew within 30 days. Albert's cross motion for a default judgment was denied and plaintiff's reply to Albert's counterclaims was deemed served. The reply, filed on October 14, 2010, states that each counterclaim has been "resolved by the Order of a Court of competent jurisdiction."

On October 27, 2010, plaintiff filed an amended reply which adds the following affirmative defenses to each counterclaim: statute of limitations; statute of frauds; failure to state a cause of action; unclean hands; failure to include necessary parties; that the documents relied on by Albert cannot be construed as a conveyance of real property or a testamentary instrument; that the time requirements for adverse possession have not been satisfied and that the counterclaims are barred by res judicata and collateral estoppel.

On November 3, 2011, plaintiff filed a motion for renewal of her summary judgment motion and for an order dismissing the counterclaims of Albert pursuant to CPLR 3211(a)(5) and (a)(6) based on collateral estoppel and res judicata. By order dated March 11, 2011, plaintiff's motion for summary judgment was granted to the extent that the estate was deemed the owner of a one-half interest in the subject property as determined by the Surrogate's Court order. Plaintiff's motion to dismiss the counterclaims was denied for plaintiff's failure to make a prima facie showing. The order further directed an accelerated hearing to determine if the property can be reasonably subdivided. [*4]Following the accelerated hearing, this court determined that the property cannot be reasonably subdivided without prejudice and, following the resolution of all issues, shall be sold and the proceeds therefrom distributed to the parties accordingly. A settled order so directing was filed on October 19, 2011.

On November 17, 2011, plaintiff filed the instant motion to dismiss the counterclaims pursuant to CPLR 3211 (a)(1), (5), (6), (7) and/or CPLR 3211 (b) and for an interlocutory order pursuant to RPAPL § 915.

Law and Application

CPLR 3211 (a) provides, in relevant part:

(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that:

1. a defense is founded upon documentary evidence; or

* * *

5. the cause of action may not be maintained because of arbitration and award, collateral estoppel, discharge in bankruptcy, infancy or other disability of the moving party, payment, release, res judicata, statute of limitations, or statute of frauds; or

6. with respect to a counterclaim, it may not properly be interposed in the action; or

7. the pleading fails to state a cause of action.

CPLR 3211 (b) provides:

(b) Motion to dismiss defense. A party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.

Turning first to the third counterclaim based on adverse possession, it is the contention of plaintiff that Albert, as a cotenant, has not possessed the property in an openly hostile manner for the requisite amount of time to support his cause of action. "Where parties hold property as tenants in common, Real Property Actions and Proceedings Law § 541 creates a statutory presumption that a tenant in common in possession holds the property for the benefit of the cotenant" (Russo Realty Corp. v Orlando, 30 AD3d 499, 500 [2006]; see RPAPL 541). "The presumption ceases only after the expiration of 10 years exclusive occupancy of such tenant or upon ouster" (Pravato v M.E.F. Bldrs., 217 AD2d 654, 655 [1995]). "Although actual ouster usually requires a possessing cotenant to expressly communicate an intention to exclude or to deny the rights of cotenants, the common law also recognizes the existence of implied ouster in cases where the acts of the possessing cotenant are so openly hostile that the nonpossessing cotenants can be presumed to know that the property is being adversely possessed against them" (Myers v Bartholomew, 91 NY2d 630, 633 [1998]). Albert contends that an ouster, or at least an "implied ouster," occurred as the result of his deduction of $600 per month from his payments to Helen under the agreement as "rent" due from Lorraine, who occupied a portion of the premises. However, this conduct, standing alone, cannot create the presumption that Albert was possessing the property adversely. There is no allegation or evidence [*5]presented that the $600 represented the full rental value (rather than 50%) of the space occupied by Lorraine (cf. Loveless Family Trust v Koenig, 77 AD3d 1447, 1449 [2010]). Moreover, the fact that Albert paid all of the expenses related to the property is insufficient to establish a claim of right for purposes of adverse possession as against his cotenant (see Loveless Family Trust, 77 AD3d at 1449; Perez v Perez, 228 AD2d 161, 162 [1996], lv dismissed 89 NY2d 917 [1996]).

As a result, the third counterclaim must be dismissed on statute of limitations grounds pursuant CPLR 3211(a)(5).

In determining whether a complaint is sufficient to withstand a motion pursuant to CPLR 3211 (a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). The court must accept the facts alleged in the complaint to be true and determine only whether the facts alleged fit within any cognizable legal theory (see Dye v Catholic Med. Ctr. of Brooklyn & Queens, 273 AD2d 193 [2000]). The court "is not concerned with determinations of fact or the likelihood of success on the merits" (Detmer v Acampora, 207 AD2d 477 [1994] see Stukuls v State of New York, 42 NY2d 272, 275 [1977]). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005]). However, bare legal conclusions are not entitled to the benefit of the presumption of truth and are not accorded every favorable inference (see Doria v Masucci, 230 AD2d 764 [1996]).

"When the moving party offers evidentiary material, the court is required to determine whether the proponent of the pleading has a cause of action, not whether [he or] she has stated one" (see Meyer v Guinta, 262 AD2d 463, 464 [1999]). The Appellate Division, Second Department, reasoned in Sokol v Leader (74 AD3d 1180 [2010]), that: "On a motion made pursuant to CPLR 3211(a)(7) to dismiss a complaint, the burden never shifts to the non-moving party to rebut a defense asserted by the moving party. " CPLR 3211 allows [a] plaintiff to submit affidavits, but it does not oblige him [or her] to do so on penalty of dismissal'. . . . Unless the motion is converted into one for summary judgment pursuant to CPLR 3211(c), affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint,' and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading.' . . . Thus, a plaintiff will not be penalized because he has not made an evidentiary showing in support of his complaint.'" (Id. at 1181 [internal citations omitted]).

The Court in Sokol further reasoned, that: "A court is, of course, permitted to consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211(a)(7) (see CPLR 3211[c] ). If the court considers evidentiary material, the criterion then becomes whether the proponent of the pleading has a cause of action, not whether he has stated one.' ... Yet, affidavits submitted by a defendant will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no cause of action.' ... Indeed, a motion to dismiss pursuant to CPLR 3211(a)(7) must be denied "unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it." (Id. at 1181—1182 [internal citations omitted]).[*6]

To succeed on a motion to dismiss pursuant to CPLR 3211 (a)(1), the documentary evidence which forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Trade Source v Westchester Wood Works, 290 AD2d 437 [2002]). If documentary evidence disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(1) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (McGuire v Sterling Doubleday Enters., 19 AD3d 660 [2005], lv denied 7 NY3d 701 [2006]).

Turning to the second counterclaim, "[t]he necessary elements for the imposition of a constructive trust are: (1) a confidential or fiduciary relationship; (2) a promise; (3) a transfer in reliance on that promise; and (4) unjust enrichment" (Maiorino v Galindo, 65 AD3d 525, 526 [2009]; see Sharp v Kosmalski, 40 NY2d 119, 121 [1976]; Pereira v Glicker, 61 AD3d 948, 949 [2009]; Nastasi v Nastasi, 26 AD3d 32, 37 [2005]). In his second counterclaim, Albert does not allege that he had a confidential or fiduciary relationship with Helen. Further, it is not alleged in any of the affidavits submitted by Albert that he maintained a confidential or fiduciary relationship with Helen. As a result, the second counterclaim is dismissed pursuant to CPLR 3211(a)(7).

The third counterclaim sounds in breach of contract and specific performance. To establish the essential elements of a cause of action for breach of contract, the complaint must allege the existence of a contract, the plaintiff's performance under the contract, the defendant's breach of that contract, and the resulting damages (see JP Morgan Chase v J.H. Elec. of NY, Inc., 69 AD3d 802, 803 [2010] ). To be entitled to specific performance, a party must prove that he or she has substantially performed his or her contractual obligations and that he or she is ready, willing, and able to perform those obligations not yet performed (Dixon v Malouf, 70 AD3d 763 [2010]; Israel v Charnews, 46 AD3d 753, 754 [2007]; Johnson v Phelan, 281 AD2d 394, 395 [2001]). Viewing the first counterclaim in a light most favorable to Albert, the court finds that the allegations are sufficient to make out a claim for breach of contract and specific performance.

The documentary evidence cited by plaintiff does not conclusively dispose of Albert's claim. The agreement, while lacking the elements necessary to constitute a conveyance or testamentary instrument, may be construed reasonably as a contract for the sale of Helen's interest in the property upon the completion of a schedule of payments. It is noted that: "Executory contracts are not terminated by the death of a party unless the contract is personal in its nature. When they are otherwise, the obligations survive against the party's estate. It is a presumption of law, in the absence of express words, that the parties to a contract intend to bind not only themselves, but their personal representatives. The presumption is that the party making a contract intends to bind his executors and administrators, unless the contract is of that nature which calls for some personal quality of the testator, or the words of the contract are such that it is plain no presumption of the kind can be indulged in" (Gura v Herman, 227 App Div 452, 454 [1929][citations and internal quotation marks omitted]).

The agreement is purportedly signed by Helen, the party to be charged (General Obligations Law § 5-703[2]). It may be presumed that Helen, if she signed the agreement, intended to bind her estate, [*7]particularly in light of the provision allowing payments to be made to her sons if she were unable to receive same.

While plaintiff argues that the agreement was forged and questions whether the alleged payments were actually received by the estate, these remain issues of fact which must be resolved at a hearing or trial. The affidavits and documentary evidence do not conclusively resolve plaintiff's arguments in her favor.

Accordingly, plaintiff is not entitled to dismissal of plaintiff's first counterclaim under CPLR (a)(1) or (7).

The statute of limitations for a breach of contract claim is six years (CPLR 213 [2]). A breach of contract cause of action accrues at the time of the breach (Ely-Cruikshank Co., Inc. v Bank of Montreal, 81 NY2d 399, 402 [1993]). Albert alleges that the sums due under the contract were paid in full and a satisfaction was issued by Charles in July 2005, but that plaintiff refused to execute a deed. As the claim accrued on or after July 2005, it was timely interposed in this 2009 action.

As a result, plaintiff's motion to dismiss the first counterclaim on statute of limitations grounds under CPLR 3211 (a)(5) is denied.

While plaintiff seeks dismissal under CPLR 3211 (b), this section applies to defenses rather than counterclaims. Because there is no explanation by plaintiff as to why the first counterclaim "may not properly be interposed in the action" pursuant to CPLR 3211 (a)(6), dismissal under this section is denied.

Conclusion

Plaintiff's motion to dismiss the first counterclaim pursuant to CPLR 3211 (a)(1), (5), (6) and (7) is denied.

Plaintiff's motion to dismiss the second counterclaim is granted pursuant to CPLR 3211 (a)(7).

Plaintiff's motion to dismiss the third counterclaim is granted pursuant to CPLR 3211 (a)(5) (statute of limitations).

Plaintiff's motion for an interlocutory judgment pursuant to RPAPL § 915 is denied without prejudice to renew following resolution of the issues ensuing from Albert's first counterclaim.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:The copy of the agreement submitted by the parties does not include a date.