Hughes-Reddick v Hughes

[*1] Hughes-Reddick v Hughes 2017 NY Slip Op 50805(U) Decided on June 19, 2017 Supreme Court, Kings County Edwards, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
Supreme Court, Kings County

Marie Hughes-Reddick, Plaintiff,

against

Georgia M. Hughes a/k/a Georgia Slaughter Hughes, deceased, by CHARLENE SMITH, appointed by Order of this Court to act as Temporary Administrator of the Estate of Georgia M. Hughes a/k/a Georgia Slaughter Hughes, Fatimat Talabi, MERS a/k/a Mortgage Electronic Registration Systems, Inc., as nominee for Wall Street Mortgage Bankers, Ltd., Defendants.



15299/2013



Plaintiff represented by Michelle D. Zitofsky, Esq., Simon & Gilman, LLP

Defendant Fatimat Talabi represented by Edward A. Vincent, Esq., Borchert & LaSpina, P.C.

Defendant Federal National Mortgage Association represented by Todd Harris Hesekiel, Esq., Ackerman, Levine, Cullen, Brickman & Limmer, LLP
Genine D. Edwards, J.

The following filed papers read herein

Papers Numbered

Notice of Motion, Notice of Cross-Motion 1, 2

Affirmations in Opposition 3, 4

Affidavit in further Opposition 5

Reply Affirmations 6, 7

DECISION AND ORDER

[*2]BACKGROUND

In this 2013 action to quiet title, plaintiff claims that she is the daughter and heir of Ira Hughes ("Ira"). Decedent Ira was the owner of 42 Troy Avenue and 44 Troy Avenue in Brooklyn until his death in 2003. It is alleged that upon his death Ira's wife, defendant Georgia Hughes ("Georgia"), became the owner of both premises. Georgia obtained letters of administration after Ira's death. In 2005, she sold both premises to defendant Fatimat Talabi ("Fatimat"). Georgia died in 2015.

Before this Court are Fatimat's motion for summary judgment and a cross-motion for summary judgment by defendant Federal National Mortgage Association ("FNMA").

LAW

Summary Judgment is a drastic remedy that deprives a litigant of his or her day in court and should, therefore, only be employed when there is no doubt as to the absence of triable issues of material fact. Kolivas v. Kirchoff, 14 AD3d 493, 787 N.Y.S.2d 392 (2d Dept. 2005); Andre v. Pomeroy, 35 NY2d 361, 362 N.Y.S.2d 131 (1974). The proponent of the motion has the initial burden of laying bare its claim demonstrating by admissible evidence that there are no issues of fact for a jury to determine. Alvarez v. Prospect Hosp., 68 NY2d 320, 508 N.Y.S.2d 923 (1986); In re Cassini, 120 AD3d 799, 992 N.Y.S.2d 93 (2d Dept. 2014). "If the moving party fails to make such a showing, the motion must be denied, irrespective of the sufficiency of the opposing papers." Edwards v. Great Atlantic & Pacific Tea Company, Inc., 71 AD3d 721, 895 N.Y.S.2d 723 (2d Dept. 2010); Flynn v. Fedcap Rehabilitation Services, Inc., 31 AD3d 602, 819 N.Y.S.2d 290 (2d Dept. 2006). "Once the movant provides sufficient proof, the burden of production rests on the adverse party to demonstrate the existence of a triable issue of fact." Zapata v. Buitriago, 107 AD3d 977, 969 N.Y.S.2d 79 (2d Dept. 2013).

ANALYSIS

Applying these principles to the instant matter, Fatimat correctly avers that a deed made to an unmarried couple creates a joint tenancy with a right of survivorship. Joseph v. Dieudonne, 124 AD3d 601, 1 N.Y.S.3d 250 (2d Dept. 2015); Morgan v. Morgan, 111 AD2d 790, 490 N.Y.S.2d 539 (2d Dept. 1985). In 1966, the premises, 42 Troy Avenue in Brooklyn, was transferred to "Ira Hughes and Georgia M. Hughes, 'His Wife,'" as indicated by the deed. Upon Ira's death, Georgia became the sole owner of that property. In opposition, plaintiff argues that a genuine issue of fact exists as to whether Ira and Georgia were married in 1966 when the premises was transferred to them. Plaintiff proffers an application for Ira's veteran's benefits wherein Georgia certified that she married Ira in 1994 as well as Ira's funeral program, which indicates that Georgia married Ira in 1994. It is pellucidly clear that these documents are not in admissible form.

Notwithstanding plaintiff's arguments, caselaw holds that where, as here, property is deeded to a man and woman who are not married, but the deed indicates they are, a joint tenancy with a right of survivorship is created. Padova v. Eckhardt, 118 Misc 2d 853, 461 N.Y.S.2d 716 (Sup. Ct., Nassau County 1983) (when a joint tenancy is intended claims by an alleged tenant in common are precluded). Consequently, since Georgia survived Ira she became the sole owner of 42 Troy Avenue at the time of Ira's death. Georgia was well within her right to transfer that property as she desired. Georgia sold 42 Troy Avenue to Fatimat in 2005. Plaintiff has no claim to that premises.

Turning to Fatimat's arguments regarding the premises 44 Troy Avenue in Brooklyn; Ira purchased 44 Troy Avenue from the City of New York in 1978. Ira died intestate in May 2003. Thus, his heirs, by operation of law, would own the premises upon his death. EPTL §4-1.1. Clearly, Georgia is Ira's heir, but as Fatimat inquires, is plaintiff Ira's heir? Fatimat responds in the negative and supports that position by annexing to her motion plaintiff's birth certificate, asserting that it is prima facie evidence that Ira is not plaintiff's father, pursuant to Public Health Law §4103. However, to be admissible, that section requires a certified birth certificate, which was not provided to this Court. Moreover, the caselaw holds that a birth certificate is proof of birth, and not parentage. Matter of Meyer, 206 Misc. 368, 132 N.Y.S.2d 825 (Surrogate's Court, New York County 1954); In re Lang's Estate, 140 N.Y.S.2d 566 (Surrogate's Court, Kings County 1955). Hence, Fatimat fails to sustain her burden.

It should be noted that, contrary to Fatimat's contentions, establishing paternity is not limited to any specific time period. Matter of Williams, N.Y.L.J., March 28, 1994, at 33, col. 1 (Surrogate's Court, Westchester County) (questions of inheritance by non-marital children are governed by EPTL §4-1.2, which does not have a time limitation).

Converse to Fatimat's averment that the six-year statute of limitations expired, the statute of limitations applicable to this quiet title action is ten years, pursuant to CPLR §212(a). Elam v. Altered Ego Realty Holding Corp., 114 AD3d 901, 981 N.Y.S.2d 124 (2d Dept. 2014) (a quiet title action is governed by CPLR §212(a)'s ten-year statute of limitation); In re Marini, 119 AD3d 584, 989 N.Y.S.2d587 (2d Dept. 2014). In this matter, the statute of limitations accrued in 2005 when Georgia sold the premises to Fatimat. Meyers v. Bartholomew, 91 NY2d 630, 674 N.Y.S.2d 259 (1998). Therefore, plaintiff's 2013 action is timely.

With respect to Fatimat's last question,[FN1] she failed to adduce any prior adjudication by any Court, other than the Decree Appointing Administrator.

As to FNMA's cross-motion, again, this is an action to quiet title therefore any cases or statutes regarding fraudulent transfer do not apply. Id. Additionally, based upon the aforementioned analysis regarding 42 Troy Avenue in Brooklyn, FNMA is a bona fide encumbrancer and is entitled to summary judgment with respect to that premises. Real Property Law §266.

With respect to 44 Troy Avenue in Brooklyn, EPTL §11-1.1 gives an administrator broad powers over a decedent's estate, including the power to sell real property. Matter of Mahler, NYLJ, April 18, 2014 at 30, col 4 (Surrogate's Court, Kings County); Matter of Millamena, NYLJ, February 24, 2012 at 22, col 1 (Surrogate's Court, Kings County); Matter of Murphy, NYLJ, June 2, 2005 at 32, col 4 (Surrogate's Court, Kings County). But a review of the deed at issue reveals that it is not an administrator's deed. The deed reads, "Georgia M. Hughes individually, and as surviving tenant by the entirety of Ira Hughes," which negates FNMA's claim that Georgia transferred the premises in her capacity as the administrator of Ira's estate. Therefore, as this Court analyzed heretofore, there remains a question of fact as to whether Georgia and plaintiff were tenants in common.

As indicated above, this matter is governed by a ten-year statute of limitations pursuant [*3]to CPLR §212(a). FNMA avers that the statute expired because it accrued upon Ira's death, citing Padova. But, as plaintiff correctly posits, the Second Department found that case ignored the presumption found in RPAPL §541, to wit, until sale of the property or ouster, a cotenant living at the property retains occupancy for the benefit of all other cotenants. Upon sale of the premises by the possessing cotenant, the ten-year statute of limitations begins to run. Pravato v. M.E.F. Builders, Inc., 217 AD2d 654, 629 N.Y.S.2d 796 (2d Dept. 1995). See also Myers, 91 NY2d at 632-638; Bank of America v. 414 Midland Avenue Associates, LLC, 78 AD3d 746, 911 N.Y.S.2d 157 (2d Dept. 2010); Russo Realty Corp. v. Orlando, 30 AD3d 499, 819 N.Y.S.2d 265 (2d Dept. 2006). Applying these holdings to the case at bar, Georgia was in possession of the premises for the benefit of plaintiff until she sold the premises to Fatimat in 2005. Then the ten-year statute of limitations commenced running.

In reply, FNMA contends that an ouster of plaintiff was accomplished when Georgia filed for letters of administration. However, the documents in support of Georgia's petition for letters of administration clearly provide that plaintiff was Ira's daughter, and, thus, do not amount to an ouster. Plaintiff's action was timely commenced in 2013, during the eighth year of Georgia's exclusive occupancy. Meyers, 91 NY2d at 634-635.

Conclusion

Accordingly, this Court finds that Fatimat and FNMA established summary judgment regarding the premises known as 42 Troy Avenue in Brooklyn, but both defendants failed to shoulder their burden of proof regarding 44 Troy Avenue in Brooklyn.

This constitutes the decision and order of this Court.

Dated: June 19, 2017

Hon. Genine Edwards

J. S. C. Footnotes

Footnote 1: The fourth issue is whether a party (Plaintiff) can claim an interest in a property where the Premises were already adjudicated in a prior legal action to be owned by another party (Georgia)? Notice of Motion for Summary Judgment, page 3.