Galli v Galli

[*1] Galli v Galli 2012 NY Slip Op 51182(U) Decided on June 27, 2012 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 27, 2012
Supreme Court, Kings County

Robert Galli, Plaintiff,

against

Mary Jean Galli, and The People of the State of New York, Defendants.



4659/10



Plaintiff

Peter Moulinos, Esq.

Moulinos and Associates

NY NY

Defendant:

Jack S. Chrisomalis, Esq.

Brooklyn NY

_______________

Arthur M. Schack, J.

Papers numbered 1 to 6 were read on this motion:Papers Numbered:Notice of Motion/Affidavits (Affirmations) Annexed1

Notice of Cross Motion/Affidavits (Affirmations) Annexed2Affirmations in Opposition____________________________3, 4Reply Affirmations__________________________________5, 6

________________________________________________________________________Plaintiff ROBERT GALLI (ROBERT) moves for summary judgment, pursuant to CPLR Rule 3212, to quiet title to the property located at 1011 Lancaster Avenue, Brooklyn (Block [*2]7394, Lot 34, County of Kings), because he and his parents, by adverse possession, for more than twenty (20) years maintained and possessed the subject property continuously, exclusively, openly, notoriously and under a claim of right hostile to the ownership interest of his aunt, defendant MARY JEAN GALLI (MARY JEAN).Defendant MARY JEAN cross moves for summary judgment and dismissal of plaintiff ROBERT's complaint, pursuant to CPLR Rule 3212. She asserts that plaintiff ROBERT cannot prove adverse possession because plaintiff ROBERT and his predecessors in interest do not have a "claim of right."

The subject property is a two-family Gravesend house that has been in the possession of various members of the Galli family since 1946. Plaintiff ROBERT, by various conveyances, is vested with a 75% ownership interest in the property. At issue is the 25% ownership interest of MARY JEAN, the surviving spouse of ROBERT's uncle, Henry Galli (HENRY), the brother of ROBERT's father, Joseph Galli (JOSEPH).

For the reasons to follow, the Court finds that plaintiff ROBERT establishes that he owns by adverse possession defendant MARY JEAN's interest in the premises. Therefore, plaintiff ROBERT's motion for summary judgment is granted and the cross-motion of MARY JEAN for summary judgment is denied.

Background

1011 Lancaster Avenue, was purchased by ROBERT's father, JOSEPH, and his grandmother Mary Galli (MARY), in January 1946, as tenants in common. After MARY died, in 1954, her 50% interest in the property became possessed by her nine children: Frank Galli, Vincent Galli, Nancy Alfano, Helen Fasone, Rose Volpe, Gus Galli, JOSEPH, HENRY and Fred Galli (FRED). The nine children sold MARY's 50% interest in the property to two of them, HENRY and FRED. FRED, in September 1972, conveyed his 25% interest in the property to JOSEPH. JOSEPH died in April 1977 and his 75% interest in the property was conveyed by operation of law to his wife, ROBERT's mother, Rose Galli (ROSE). In 1993, ROSE conveyed her 75% interest in the property to ROBERT and herself as joint tenants with right of survivorship. ROSE subsequently passed away in 2005. Thus, ROBERT became the sole owner of a 75% interest in the property.

HENRY passed away in May 2001, with MARY JEAN his sole heir. HENRY did not bequeath any interest in the property to MARY JEAN. Defendant MARY JEAN did not commence any proceedings in Surrogate's Court to obtain a deed to HENRY's 25% interest in the subject property.

Plaintiff ROBERT alleges: HENRY abandoned the subject property in 1960, when he declared to JOSEPH that he did not want to have anything to do with the property; and, HENRY never contributed any monies toward any expenses, repairs or renovations of the

property. Defendant MARY JEAN, in her March 3, 2011 deposition [exhibit I of motion], does not dispute that neither HENRY nor she contributed any monies toward the expense, repair or renovation of the property. She testified at p. 13, lines 5 - 16:

Q.So going back to your husband Henry what percentage of

ownership did he have in the house? [*3]

A.One quarter.

Q.And what did he do to maintain the house since he was a one

quarter owner?

A.Well, he didn't really do too much because they occupied the

house. My husband since he was married he and I never occupied

any part of the home. They occupied the home, they collected rent from

upstairs from Nancy Alfano. [Emphasis added]

Further, defendant MARY JEAN testified at p. 13, line 24 - p. 17, line 18:

Q.When you say they occupied the house who are you referring to?

A.The Gallis. Joseph Galli, his wife Rose and the children Joseph

and Robert.

Q.Joseph and Rose Galli were they the parents of Robert Galli?

A.Yes.

Q.Is it your testimony that Joseph and Rose occupied and had

possession of the house?

A.They occupied it.

Q.Were they in total possession of the house?

A.I don't know how to answer that?

Q.Did they have the keys to the house?

A.I guess so.

Q.Did Henry have any keys to the house?

A.I don't know.

Q.Did you have any keys to the house?

A.No.

Q.You said they collected rent from the tenant upstairs?

A.Nancy Alfano which was the sister. Alfano was her married

name. She was originally Nancy Galli. She was the sister of Henry

and Joseph Galli.

Q.And at what time was she residing at the apartment upstairs

and paying rent?

A.Up until she died.

Q.And can you tell me, approximately, when she started living

upstairs and started paying rent to Joseph and Rose?

A.I think 1950s. She lived next door and upon her husband's

death she moved into 1011 Lancaster Avenue with her son Charles

Alfano.

Q.And at that time was Henry a 25 percent owner?

A.Yes.

Q.And did Henry collect any rent?

A.No.

Q.Did he ask for any rent? [*4]

A.No.

Q.Was he offered any rent?

A.No.

Q.Did he pay towards any of the costs associated with the house?

A.No. He and the son Charles painted Nancy's apartment.

Q.Would he visit the house back then?

A.Did I visit?

Q.Henry?

A.Yes.

Q.When was the last time you knew Henry went to the house?

A.I have no idea.

Q.When did Henry pass away?

A.He passed away in 2001. May 8, 2001.

Q.Before he passed away do you know when was the last time

you've been to the house?

A.No.

Q.When was the last time you've been to the house?

A.I don't remember. I used to go there and stay outside the

house and sit on the porch for lack of a better word with Rose and

Nancy.

Q.When was that?

A.1970s. I have no idea.

Q.At any time have you collected any rent from the house?

A.No, I've never received any money whatsoever.

Q.Have you contributed towards any of the costs associated with

the house?

A.No. Just as I said Coney Island Hospital that payment [HENRY's

payments in 1961 to settle MARY's 1954 hospital bill which was the

subject of a Municipal Court lien on the premises].

Q.For all these years have you even made any inquiry as to who

contributes or who pays bills associated with the house?

A.No. This was my husband's family, his ownership. I stayed

out of it. [Emphasis added]

Moreover, defendant MARY JEAN testified at p. 33, lines 1 - 16:

Q.Do you know what type of property the house is at Lancaster

Avenue?

A.What do you mean by type?

Q.How many floors is it?

A.There is two floors and the basement.

Q.And do you know if it's a two family or a three family?

A.I have no idea. [*5]

Q.Do you know if Hank ever had keys to the property?

A.I have no idea. I'm sure he had keys when he used to live

there when his mother was alive. And after she passed away he

stayed there until we were married in 1957. [Emphasis added]

ROBERT, in his affidavit in support of his motion, states, in ¶ 6, that "[s]ince at least 1972, my parents Joseph Galli and Rose Galli and I, have continuously possessed, controlled, managed and maintained the property exclusively, openly and notoriously, and under a claim of right hostile to any ownership interest that any other individual may claim to have once had." Further, he states, in ¶ 9, that neither HENRY nor MARY JEAN made any claims to the property since 1960 and they "did not believe they were owners of the property having exercised no control, possession or claim to the property since 1960." Moreover, Robert points out in, ¶ 11, that the property has been in the

exclusive possession of himself and his mother, ROSE, for more than twenty (20) years

prior to the commencement of the instant action. In ¶ 13, ROBERT cites MARY JEAN's deposition to confirm that neither she nor HENRY "ever occupied or resided at the property" since 1960. ROBERT, in ¶ 16, states "[t]here is no question of fact that the continuous possession of my interest in the property has been open, actual, hostile and notorious under claim of right." He enumerates, in ¶ 20, the extensive repairs, improvements and alterations made to the property since 1972 by JOSEPH, ROSE and himself, and exhibit J of plaintiff's motion contains numerous pages with photocopies of repair and home improvement bills and checks. In ¶ 22, ROBERT states that since JOSEPH acquired FRED's interest in 1972, "my father, mother and I paid all taxes, insurance premiums, assessments and other related expenses including water, sewer and gas charges held ourselves out to the world as the sole owners of the property." Exhibit K of plaintiff's motion demonstrates these payments. ROBERT notes, in ¶ 23, that since 1986, his niece, Stacy Galli [STACY], rented the upstairs apartment, without any consent or authorization from HENRY and that the "rents collected during her occupancy have been exclusively retained by myself and my mother Rose when she was alive and were never paid, split or shared with my uncle Henry Galli or Defendant Mary Jean Galli."

STACY, in her affidavit, attached to the motion, corroborates ROBERT's statements about her occupancy of the upstairs apartment since 1986. She states, in ¶ 3,

that neither HENRY when he was alive nor MARY JEAN: "ever visited the property or

went inside to view the property since I began to reside there in 1986"; never had keys to

the premises; and, "never expressed any claim or interest in the property or made it

known to anyone within our family that they were owners of the property or they had any interest in the property." Also, she also states, in ¶ 6, that "I also have been paying rent to my uncle Robert since I began to reside at the property in 1986."

Therefore, it is clear, as will be discussed, that plaintiff ROBERT demonstrates that he adversely possessed MARY JEAN's 25 % interest in the property for more than twenty (20) years, the statutory period. Further, defendant MARY JEAN's assertion that plaintiff ROBERT fails to have a "claim or right," is unavailing.

Discussion[*6]

The proponent of a summary judgment motion must make a prima facie showing

of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).

CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]).

Plaintiff ROBERT meets his CPLR Rule 3212 (b) burden by making a prima facie showing, to the Court, that as a matter of law he obtained ownership by adverse possession of defendant MARY JEAN's 25% ownership interest in 1011 Lancaster Avenue. Moreover, after viewing the evidence in support of plaintiff ROBERT in the light most favorable to defendant MAY JEAN there are no issues of material fact that would bar the Court from directing judgment in favor of plaintiff ROBERT. Defendant MARY JEAN, in her opposition papers, fails to demonstrate triable issues of fact.

Adverse possession "although not a favored method of procuring title, is a

recognized one. It is a necessary means of clearing disputed titles and the courts adopt it and enforce it, because, when adverse possession is carefully and fully proven, it is a means of settling disputed titles and this is desirable." (Belotti v Bickhardt, 228 NY 296, 308 [1920]). The Court of Appeals, in Walling v Przybylo (7 NY3d 228, 232 [2006[), instructed:

Adverse possession must be proven by clear an convincing

evidence (Ray v Beacon Hudson Mtn. Corp., 88 NY2d 154 [1996]).

"Where there has been an actual continued occupation of premisesunder a claim of title, exclusive of any other right, but not founded

upon a written instrument or a judgment or decree, the premises so

actually occupied, and no others, are deemed to have been held

adversely." (RPAPL 521).

To establish a claim of adverse possession, the following

five elements must be proved: Possession must be (1) hostile and

under claim of right; (2) actual; (3) open and notorious; (4) exclusive;

and (5) continuous for the required period (Belotti v Bickhardt, 228 [*7]

NY 296 [1920]; see also Van Valkenburgh v Lutz, 304 NY 95, 99

[1952]; Speigel v Ferraro, 73 NY2d 622, 624 [1989]; Ray v Beacon

Hudson Mtn. Corp., 88 NY2d at 159).

(See Brand v Prince, 35 NY2d 634, 636 [1974], In re Lee, ___ AD2d ___, 2012 NY Slip Op 05000 [2d Dept June 20, 2012]; Sprotte v Fahey, 95 AD3d 1103 [2d Dept 2012];

Vitale ex rel. Callaghan v Witts, 93AD3d 714, 715 [2d Dept 2012]; Ram v Dann, 84 AD3d 1204, 1205 [2d Dept 2011]; Almeida v Wells, 74 AD3d 1256, 1258 [2d Dept 2010]; DeRosa v DeRosa, 58 AD3d 794, 795 [2d Dept 2009], lv denied 12 NY3d 710 [2009]; MAG Associates, Inc. v SDR Realty, Inc., 247 AD2d 516, 517 [2d Dept 1998]).

In the instant action, it is clear that plaintiff ROBERT proved, "inter alia, that possession of the property was: (1) hostile and under a claim of right, (2) actual, (3) open and notorious, (4) exclusive, and (5) continuous for the statutory period (see Walling v Przybylo, 7 NY3d 228, 232; Belotti v Bickhardt, 228 NY 296, 302; Walsh v Ellis, 64 AD3d 702; CPLR 212[a])." (In re Lee at * 1). Plaintiff ROBERT and with his predecessors in interest, his parents, continuously, exclusively, and openly actually occupied the premises since at least 1972. Their occupation was hostile to the interests of HENRY and then subsequently to the interest of MARY JEAN. Defendant MARY JEAN testified in her deposition that HENRY and she did not live in the house since they were married in 1957 and she last visited the house in the 1970s. She acknowledged that neither HENRY not herself: collected rents from the tenants, Nancy Alfano and then STACY; paid for any expenses for the premises; and, had any keys to the subject premises. Further, defendant MARY JEAN testified at p. 13, line 12 of her deposition, with respect to plaintiff ROBERT and his parents, "they occupied the house."

Defendant MARY JEAN argues that plaintiff ROBERT does not have a "claim of right" because ROBERT acknowledges as a cotenant she has a 25% interest in the subject property and ROBERT never "ousted" HENRY or herself. Prior to 2008 it was clear in

case law that "a party seeking adverse possession could assert that he or she was acting under a claim of right' regardless of whether he or she had actual knowledge of the true owner at the time of possession (see Walling v Przybylo, 7 NY3d at 232, 233; Asher v Borenstein, 76 AD3d 984, 986 [2d Dept 2010]; Merget v Westbury Props., LLC, 65 AD3d 1102, 1105 [2d Dept 2009]." (Hogan v Kelly, 86 AD3d 590, 591 [2d Dept 2011]). The Court, in Hogan v Kelly at 591-592, explained:

In 2008 the Legislature enacted changes to the adverse possession

statutes contained in RPAPL article 5 ( see L. 2008, ch. 269). These

changes included rewriting RPAPL 501 to include, for the first time,

a statutory definition of the "claim of right" element necessary to

acquire title by adverse possession. Pursuant to RPAPL 501 (3),

"[a] claim of right means a reasonable basis for the belief that the

property belongs to the adverse possessor or property owner, as the

case may be." The 2008 amendments to RPAPL article 5 took effect [*8]

on July 7, 2008, and apply to all claims filed on or after the effective

date of the amendments.

Further, the Court, in Hogan v Kelly at 592, instructed that if an action is:

commenced after the effective date of the 2008 amendments . . .

[it] cannot be retroactively applied to deprive a claimant of a property

right which vested prior to their enactment . . . Therefore, the version

of the law in effect at the time the purported adverse possession

allegedly ripened into title is the law applicable to the claim, even if

the action was commenced after the effective date of the new legislation.

Last week, the Appellate Division, Second Department, in In re Lee at * 2, held:

Under the law as it existed at the time title allegedly vested

in the plaintiffs, "in the absence of an overt acknowledgment during

the statutory period that ownership rested with another party, actual

knowledge of the true owner did not destroy the element of claim of

right" (Mergert v Westbury Props, LLC, 65 AD3d 1102, 1105; see

Walling v Przybylo, 7 NY3d at 232; Hogan v Kelly, 86 AD3d at 592;

Asher v Borenstein, 76 AD3d at 986). "The issue is actual occupation,'

not subjective knowledge" (Walling v Przybylo, 7 NY3d at 233, quoting

Humbert v Trinity Church, 24 Wend 587, 604 [emphasis omitted] ). Title by adverse possession in the instant action vested in plaintiff ROBERT prior to the enactment of the 2008 RPAPL amendments and thus the 2008 amendments do not apply to plaintiff's claim. Plaintiff's claim of adverse possession began to accrue as early

as 1972 when plaintiff's father obtained an additional 25% interest in the property from FRED and began to exclusively and openly control possession of the property. If ouster is presumed, plaintiff's interest in the property would have adversely possessed that of HENRY in 1982. If no ouster is presumed, the twenty (20) year statutory period applies and the vesting of adverse possession by a cotenant would have occurred by 1992. (Myers v Bartholomew, 91 NY2d 630 [1998]; RPAPL § 541).

Prior to the 2008 amendments, the essential inquiry in any action for adverse possession is whether the real owner acquiesced "in the exercise of an obvious adverse or hostile ownership through the statutory period." (Monnot v Murphy, 207 NY 240, 245 [1912]). (See Walling v Przybylo, supra). The Court will presume hostility if the use is open, notorious and continuous for the full statutory period. (See Belotti v Bickhardt, supra; MAG Associates, Inc. at 517; Robarge v Willett, 224 AD2d 746, 747 [3d Dept 1996], Sinicropi v Town of Indian Lake, 148 AD2d 799, 800 [3d Dept 1989]). An inference of hostile possession under claim of right will be drawn when the other elements of adverse possession are established, and there has been no admission that title belongs to another prior to the vesting of title. (Vitale ex rel. Callaghan v [*9]Witts at 715; Bratone v Conforti-Brown, 79 AD3d 955, 957 [2d Dept 2010]; United Pickle Products Corp. v Prayer Temple Community Church, 43 AD3d 307, 308 [1d Dept 2007]; Harbor Estates Limited Partnership v May, 294 AD2d 399 [2d Dept 2002]).

Moreover, when at issue is the purported interests held by tenants in common, acquisition of said property by adverse possession is subject to the provisions of RPAPL §541:

Where the relation of tenants in common has existed, the

occupancy of one tenant, personally or by his servant or by his tenant,

is deemed to have been the possession of the other, notwithstanding

that the tenant so occupying the premises has acquired another title

or has claimed to hold adversely to the other. But his presumption

shall cease after the expiration of ten years of continuous exclusive

occupancy by such tenant, personally or by his servant or by his

tenant, or immediately upon an ouster by one tenant of the other and

such occupying tenant may then commence to hold adversely to his

cotenant.

While courts generally presume that a cotenant's possession is by and for the

benefit of all other cotenants, pursuant to RPAPL §541, this presumption of mutual benefit may be rebutted by committing acts that constitute ouster. (Myers v Bartholomew, at 633]). Absent ouster, "the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession." (Myers v Bartholomew at 638). In the instant action, the Court does not have to engage in the vexing task of determining if plaintiff ROBERT ousted defendant MARY JEAN or not. It is clear that the elements of adverse possession were met in a timely manner, whether she was ousted or not. In addition, "[t]he common law also recognizes the existence of implied ouster in cases where the acts of the possessing cotenant are so openly hostile that the non-possessing cotenants can be presumed to know that the property is being adversely possessed against them." (Myers v Bartholomew at

633).

Therefore, it is clear that plaintiff ROBERT makes a prima facie for full ownership of 1011 Lancaster Avenue by adverse possession. Plaintiff ROBERT and his parents, for more than twenty (20) years prior to the effective date of the 2008 RPAPL amendments, maintained and possessed the subject property continuously, exclusively, openly, notoriously and under a claim of right hostile to the ownership interest of defendant MARY JEAN.

Conclusion

Accordingly, it is

ORDERED, that the motion of the plaintiff, ROBERT GALLI, for summary judgment, pursuant to CPLR Rule 3212, to quiet title to the property located at 1011 Lancaster Avenue, Brooklyn (Block 7394, Lot 34, County of Kings), because he and his parents, by adverse possession, for more than twenty (20) years prior to 2008 maintained and possessed the subject property continuously, exclusively, openly, notoriously and under a claim of right hostile to the ownership interest of defendant MARY JEAN GALLI, is granted; and it is further

ORDERED that title to the property located at 1011 Lancaster Avenue, Brooklyn (Block 7394, Lot 34, County of Kings) is quieted, in that plaintiff ROBERT GALLI is vested with 100% of the ownership of the property located at 1011 Lancaster Avenue, Brooklyn (Block 7394, Lot [*10]34, County of Kings); and it is further

ORDERED, the cross motion of defendant, MARY JEAN GALLI, for summary judgment and dismissal of plaintiff ROBERT GALLI's complaint, pursuant to CPLR Rule 3212, is denied.

This constitutes the Decision and Order of the Court.

ENTER

________________________________

HON. ARTHUR M. SCHACK

J. S. C.