Edwards v All Star Recovery Corp
Annotate this CaseDecided on July 11, 2017
Supreme Court, Kings County
Henry Edwards and JACKIE WHITTLE EDWARDS, Plaintiffs, .
against
All Star Recovery Corp, DONALD WISOTSKY, WALTER D. WEST, DEBRA ANN VELOCCI, GREGORY PAUL MICHAEL, JOANNE WISOTSKY, STATE OF NEW YORK, THE UNITED STATE OF AMERICA and JOHN DOE No. 100, Inclusive, the names of the last 100, defendants being fictitious, the true names of said defendants being unknown to plaintiff, it being intended to designate the fee owners, tenants or occupants of the subject premises and/or persons or parties having or claiming an interest in or a lien upon the subject premises, if the aforesaid individual defendants be dead, their heirs at law, next of kin, distributes, executors administrators, trustees, committees, devisees, legatees and the assignees, lienors, creditors and successors in interest of them, and generally all persons having or claiming under, by, through, or the said defendants named as a class, pf any right, title or interest in or lien upon the premises described in the complaint herein, Defendants.
12459/2014
Plaintiff Attorney — Henry Edwards & Jackie Whittle Edwards
Paul Levy, Esq.
58 Hilton Avenue
Hempstead, New York 11550
(516) 292-6278
Defendant Attorney — All Star Recovery Corp.
Howard M. File, Esq.
260 Christopher Lane
Staten Island, New York 10314
(718) 494-8800 Defendant Attorney — Water West, Debra Ann Velocci, Gregory Paul Michael
Calinsky, Dunn, Pasquariello
Michael Carlinsky, Esq.
8 Duffy Avenue
Hicksville, New York 11801
(516) 622-0099
Wayne P. Saitta, J.
Defendant, ALLSTAR RECOVERY CORP, (hereinafter "ALLSTAR"), moves this Court for an Order pursuant to CPLR § 3212 for Summary Judgment against the Plaintiffs seeking dismissal of their complaint and against co-Defendants WALTER WEST, DEBRA ANN VELOCCI and GREGORY PAUL MICHAEL's cross claims for indemnity, Plaintiffs cross move seeking summary judgment against ALLSTAR and seeking a declaratory judgment as to their ownership of 2412 Pitkin Avenue, and Defendants WALTER WEST, DEBRA ANN VELOCCI and GREGORY PAUL MICHAEL cross move seeking dismissal of all claims and cross claims against them.
Upon reading the Notice of Motion for Summary Judgment of Robert A. Farrell, Jr., Esq., Attorney for Defendant, ALLSTAR RECOVERY CORP., dated March 14th, 2016, together with the Affirmation in Support by Eugene Clark, dated March 14th, 2016, together with the Affidavit in Support by Donald Wisotsky, dated March 7th, 2016 and all exhibits annexed thereto; the Notice of Cross-Motion by Richard B. Lefkowitz, Esq., Attorney for Plaintiffs, HENRY EDWARDS and JACKIE WHITTLE EDWRDS, dated June 3rd, 2016, together with the Affidavit of Plaintiff, HENRY EDWARDS, dated June 3rd, 2016, together with the Affirmation in Opposition and in Support of the Cross-Motion by Richard B. Lefkowitz, Esq., dated June 3rd, 2016 and all exhibits annexed thereto; the Reply Affirmation of Robert A. Farrell, Jr., Esq., dated July 8th, 2016 and all exhibits annexed thereto; the Affirmation in Opposition to Plaintiffs' Cross-Motion for Summary Judgment by Robert A. Farrell, Jr., Esq., dated July 8th, 2016 and all exhibits annexed thereto; the Notice of Cross Motion of Defendants WALTER WEST, DEBRA ANN VELOCCI and GREGORY PAUL MICHAEL by Mitchell J. Carlinsky, Esq.; the Affirmation in Opposition of Motion for Summary Judgment and in opposition to Cross Motion for Summary Judgment and in Support of Cross Motion to Dismiss; the Affirmation in Reply and in Opposition to Co-Defendants Cross Motion for Summary Judgment of Robert Farrell, Esq., dated September 7, 2016; after argument of counsel and due deliberation thereon, ALLSTAR's motion for Summary Judgment is granted in part and denied in part, Plaintiffs' cross motion is granted in part and denied in part, and Defendants WALTER WEST, DEBRA ANN VELOCCI and GREGRORY PAUL MICHAEL's cross motion is granted, for the reasons set forth below.
FACTS
Plaintiffs commenced this action to quiet title on a piece of property located at 2412 Pitkin Avenue, Brooklyn, NY, ("the building" or "the property") which they allege they own through adverse possession.
Defendant ALLSTAR is a New York corporation which claims to have acquired title to the property from Defendants JOANNE WISOTSKY, WALTER WEST, DEBRA ANN VELOCCI and GREGRORY PAUL MICHAEL.
Defendants WALTER WEST, DEBRA ANN VELOCCI and GREGRORY PAUL [*2]MICHAEL are alleged to be the heirs of Sophia Wisotsky, deceased, who was the prior deed holder of the property.
Plaintiffs allege that they purchased the property from the prior owner, Sophia Wisotsky, (hereinafter "Sophia"), through an oral agreement she made with them. They state that they and Sophia entered into a "rent to buy" agreement wherein Plaintiffs would pay Sophia rent until they had reached the agreed upon purchase price, at which time the Plaintiffs would own the building. Plaintiffs allege that the agreement was made, and they began making the payments in the early to mid 1970s.
Plaintiffs state that when they took possession, Sophia and her husband had already moved to Suffolk County and were not occupying the building. Plaintiffs state that since they took possession, no person outside of their family has ever occupied any part of the building.
Plaintiffs state they made periodic payments over several years toward the agreed upon purchase price of $60,000. Plaintiffs allege that in 1979, Sophia asked HENRY EDWARDS to visit her at her Suffolk County home at which time she handed him a certified copy of a deed to the property dated November 25, 1968 which granted title to the property to Sophia Witsosky ("Sophia's deed").
Plaintiffs say that once they were given the deed by Sophia, they made no further payments to Sophia, to any of her family members or to any other person. Plaintiffs deny receiving a rent demand at any time during their possession of the property.
Plaintiffs finally allege that at all times since they received the deed, the building has been their sole residence and that they have continuously resided in the property since they first moved in.
It is not contested that there was no deed executed by Sophia or her heirs transferring title of the property to the Plaintiffs.
Sophia Wisotsky died in 1986. She was married to Walter Wisotsky Sr. and they together had two children, a son Donald and a son Walter Wisotsky Jr. Walter Wisotsky Jr.is deceased, and survived by his spouse JOANNE WISOTSKY, who is a defendant in this action.
Walter Wisotsky Jr. is also survived by had three children who are Defendants in this action: Defendant WALTER WEST, Defendant DEBRA ANN VELOCCI and Defendant GREGORY PAUL MICHAEL, (collectively "the grandchildren").
WEST states that he was approached by Eugene Clark, who told WEST that he was a representative of ALLSTAR. WEST attested that Clark stated that he would pay WEST, VELOCCI and MICHAEL for a deed transferring any interest they might have in the property to ALLSTAR. The grandchildren negotiated various sums of money and signed a bargain and sale deed transferring their interests in the property, if any, to ALLSTAR. The deed from the grandchildren to ALLSTAR was signed on June 12, 2014. ALLSTAR also obtained a bargain and sale deed from JOANNE WISOTSKY dated June 12, 2014.
After it obtained the deed from JOANNE WISOTSKY and the grandchildren in 2014, Defendant ALLSTAR began paying the property taxes. Clark claims the building was vacant when ALLSTAR obtained the deed from the grandchildren but that ALLSTAR served notices to quit to the "unknown occupants" of the building to avoid any claim of squatters.
On July 14, 2014, ALLSTAR served a notice to quit on the occupants of the property, demanding they vacate by July 29, 2014. Thereafter, ALLSTAR commenced holdover proceedings against the occupants of 2412 Pitkin Avenue, Apt 1 in housing court.
Plaintiffs then commenced this action to quiet title to the property, arguing they obtained [*3]title by adverse possession. On motion of the Plaintiffs, Judge Bert Bunyan stayed the housing court proceeding pending determination of this action.
In its answer, ALLSTAR asserted counterclaims against the Plaintiffs seeking damages for allegedly improperly filing a notice of pendency and for malicious prosecution. ALLSTAR counterclaimed for ejectment of the Plaintiffs.
ALLSTAR also asserted cross-claims against the Defendants WISOTSKY, WEST, VELOCCI and MICHAEL for breach of contract.
Defendant ALLSTAR moved for summary judgment dismissing Plaintiffs' action to quiet title and granting it summary judgment of its counterclaims. ALLSTAR also moved to dismiss the grandchildren's cross claims for indemnification but did not move for summary judgment on its cross claims against the grandchildren for breach of contract. Plaintiffs cross moved for summary judgment against ALLSTAR seeking a declaratory judgment of adverse possession and dismissal of all counterclaims alleged against them.
WEST, VELOCCI and MICHAEL have appeared in this action. They have opposed ALLSTAR's motion and Plaintiffs' motion to the extent that the motions apply to them. They have filed a cross motion for summary judgment dismissing Plaintiffs complaint against them as well as dismissal of all cross claims alleged against them by ALLSTAR. They did not move for summary judgment on their cross claim against ALLSTAR for indemnification.
ARGUMENTS
ALLSTAR argues that Plaintiffs' claim that they own the property by having purchased it from Sophia is barred by the statute of frauds, as it is undisputed that the Plaintiffs did not receive a deed from her, nor was there any other writing which memorialized the alleged sale.
ALLSTAR also argues that Plaintiffs' adverse possession claim must fail because Plaintiffs' possession of the property was neither hostile nor under a claim of right. ALLSTAR alleges that the Plaintiffs were tenants at the property with Sophia's permission and therefore their possession of the property was not hostile. It submits the affidavit of Donald Wisotsky which states that Plaintiffs occupied the premises solely as tenants with permission of Sophia, her husband Walter Sr and then her son Walter Jr. Donald claimed that he and his brother became co-owners of the property when his father Walter Sr died. Donald stated that no member of his family ever demanded that the Plaintiffs vacate the premises or contested the Plaintiffs' status as tenants.
ALLSTAR argues that the Plaintiffs' possession only became hostile on July 14, 2014, when it served them with notices to quit and they refused to leave.
ALLSTAR further argues that it has title to the property, and therefore is entitled to an order of ejectment.
ALLSTAR finally seeks dismissal of the grandchildren's cross claim for indemnification against them as there was no indemnification agreement between them.
Plaintiffs argue that they own the property through adverse possession.
Plaintiffs argue that they have been in possession of the property, at the exclusion of all others, since the early to mid 1970s. They deny having paid any rent to any person at any time since Sophia gave Plaintiff HENRY EDWARDS her deed in 1979.
Plaintiffs also argue that they paid bills, maintained and repaired the property, and have proof of residence throughout the years since 1979 to show that they resided there. Plaintiffs argue that the affidavit of the non appearing Defendant DONALD WISOTSKY lacks credibility [*4]and it does not raise a question of fact as to whether Plaintiffs are entitled to summary judgment on their adverse possession claim.
The Defendant grandchildren argue that they should not be parties to this action. They do not assert any interest in the property and seek to be let out of the action. They also seek summary judgment dismissing ALLSTAR's cross claims against them.
ANALYSIS
Pursuant to the Statute of Frauds, Plaintiffs cannot rely on their claim of ownership of the property based upon possession of Sophia's deed as they acknowledge there is no writing memorializing the transfer of property. Plaintiffs' stronger claim to ownership of the property is that they acquired the property by adverse possession.
In order to succeed on a claim of adverse possession, a party must provide clear and convincing evidence that the possession was hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period of 10 years. Munroe v Cheyenne Realty, LLC, 131 AD3d 1141, 1142 [2d Dept 2015], lv to appeal denied, 27 NY3d 904 [2016], quoting (Skyview Motel, LLC v. Wald, 82 AD3d 1081, 1082, 919 N.Y.S.2d 191).
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. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 (1985).
Claim of Right
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." Hogan v Kelly, 86 AD3d 590, 591—92, 957 NYS2d 127 [2d Dept 2011], (see Hartman v Goldman, 84 AD3d 734 [2011]).
In 2008, the legislature amended RPAPL article 5 to include a statutory definition of "a claim of right", meaning to mean "a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be". Hogan v Kelly, 86 AD3d 590, 927 NYS2d 157 (2nd Dept 2011). In Hogan, the Second Department stated that the amendment took effect on July 7, 2008 and applied to all claims filed on or after the date of the amendment. Id., at 592. It also held that the amendment should not be retroactively applied to deny a claimant a property right which vested prior to their enactment. Id., at 592.
HENRY EDWARDS' affidavit demonstrates Plaintiffs occupied the property under a claim of right. While the deed annexed to the papers cannot be considered proof of the transfer of ownership of the property, his affidavit sets forth clearly that after receiving the deed, neither he nor any of his family members paid any monies to Sophia or any of her family members.
His belief that he had entered into a rent to buy agreement, together with Sophia's act of giving him her deed and his assertion that he no longer paid rent for the building establishes a reasonable basis for the Plaintiffs to believe that the property belonged to them.
ALLSTAR argues that Plaintiffs' adverse possession claim must fail under CPLR section 4519, New York's Dead Man's Statute, as it is based upon transactions and communications with Sophia Wisotsky, who is deceased. The Dead Man's Statute does prevent Plaintiffs' claim of ownership based on the alleged rent to buy agreement with Sophia, and Sophia's tendering her deed to Plaintiffs. However, the Dead Man's Statute does not bar evidence of those transactions for the purpose of showing that Plaintiffs believe they have a claim of right as an element of [*5]their claim for adverse possession. The Dead Man's Statute does not bar evidence of the transaction offered as evidence as to Plaintiffs' state of mind and belief they had a claim of right.
More importantly, Defendant ALLSTAR relies on the same transaction between Plaintiffs and Sophia Wisotsky regarding Plaintiffs' original entry into the premises. Plaintiffs and Defendant characterize the original agreement differently and offer it for different purposes. Plaintiffs testified that it was a rent to buy agreement to demonstrate a claim of right, and Defendant argues that it was a simple tenancy to show Plaintiffs' possession was permissive. The fact that the two sides characterize the agreement differently does not change the fact that they have both offered evidence about the same transaction. The Dead Man's Statute does not bar a party's claiming against a deceased person's interest from testifying where a survivor of the deceased, or someone who derives their interest from the survivor, offers testimony of the same transaction. Matter of Smith, 171 AD2d 666, 567 NYS2d 147 [2d Dept 1991], Zwarycz v Marnia Const., Inc., 130 AD3d 922, 15 NYS3d 86 [2d Dept 2015], lv to appeal denied, 26 NY3d 917 [2016].
In any event, the 2008 Amendment adding the requirement of a claim of right cannot be applied retroactively to deny a right of adverse possession that vested prior to its enactment. Hogan v Kelly, 86 AD3d 590, 927 NYS2d 157 [2d Dept 2011].
Hostility
"The element of hostile possession does not require a showing of enmity or specific acts of hostility; rather, it can be inferred simply from the existence of the other four elements, thus shifting the burden to the record owner to produce evidence rebutting the presumption of adversity." Nazarian v Pascale, 225 AD2d 381, 638 NYS2d 661 (1st Dept 1996).
The Second Department in Air Stream Corp. v 3300 Lawson Corp., 99 AD3d 822, 826 (2d Dept 2012) held that "[a] rebuttable presumption of hostility arises from possession accompanied by the usual acts of ownership, and this presumption continues until the possession is shown to be subservient to the title of another. However, hostility is negated by seeking permission for use from the record owner" " Thus, in order to establish the hostility element, the party asserting the adverse possession claim must come forward with affirmative facts to establish that the use of the property was under a claim of right and adverse to the interests of the true owners". Air Stream Corp. v 3300 Lawson Corp., 99 AD3d 822, 826 [2d Dept 2012], citing Estate of Becker v Murtagh, 19 NY3d 75 (2012).
It is well settled that if an entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced, and the possessor thereafter has assumed the attitude of hostility to any right in the real owner. Bratone v Conforti-Brown, 79 AD3d 955, 913 NYS2d 732 [2d Dept 2010].
Plaintiffs do not dispute that their possession commenced with permission but Plaintiffs contend that their possession became hostile when they stopped paying rent after Sophia gave them her deed.
Donald Wisotsky stated that all rental payments from "Ms. Edwards" were made to his mother, Sophia, until she died, at which time payments were made to her husband, Walter Sr., until his death, a statement which Plaintiffs deny. The affidavit further states that after Walter Sr. died in 1993, Walter Jr. "managed the property" until he died in 2005, and that no one from his family attempted to revoke the Plaintiffs' status as tenants during their occupancy. Defendant ALLSTAR argues that the Plaintiffs' possession did not become hostile until ALLSTAR served [*6]them with notices to quit in 2014.
Defendants do not allege that the Plaintiffs ever had a lease or any other written agreement.
In circumstances where there is a landlord tenant relationship with no written lease, permission is implied for ten years following the time of the last rent paid, after which the tenant is deemed to have commenced holding adversely. See RPAPL 531; Auto Gobbler Parts, Inc. v Serpico, 109 AD3d 943, 972 NYS2d 78 (2d Dept 2013); Hogan v Kelly, 86 AD3d 590, 957 NYS2d 127 (2d Dept 2011).
Even taking Donald Wisotsky's testimony as true, he does not attest to having collected rent, or that any family member collected rent, since 1993. Therefore, pursuant to RPAPL 531, Plaintiffs use of the property commenced to be adverse in 2003. Auto Gobbler Parts, Inc. v Serpico, 109 AD3d 943, 972 NYS2d 78 (2d Dept 2013). Since it is not contested that the Plaintiffs did not pay any rent since 1993, their possession became hostile by 2003 at the latest.
Actual, open, notorious and exclusive possession
The third element of adverse possession is that the possession be actual, open, notorious and to the exclusion of all others.
In his affidavit, Plaintiff HENRY EDWARDS attests to the fact that he and his family have occupied the property continuously since the early to mid 1970s. Plaintiff JACKIE EDWARDS also stated in her deposition that she and her husband lived there for 35 to 40 years.
Plaintiffs produce bills and school records which show that they have received mail at the address in 1980, 1983, 1986, 1989, 1990, 1991, 1995, 1996, 1997. They include a copy of a birth certificate for their child LaVonda for June 9, 1981, a 1099 tax form for Jackie Edwards from 1991, W2 tax forms for Derrick and Jacquline Edwards for 1994, and joint tax return for 1981, 1996, 1997, 1998 and 1999 by the Plaintiffs. They also annex school records from the Department of Education showing that their children attended school while residing the property from 1986-1994.
Defendant argues that these documents aren't evidence of ownership but establish Plaintiffs' rights as tenants, "at best". However, these submissions are evidence of the element of actual and continuous possession.
Defendant produces a copy of what appears to be an online search, which is largely redacted, that lists an address for a HENRY EDWARDS in North Carolina. There is also a North Carolina Division of Motor Vehicles Driving Record Check showing a license issued to a HENRY EDWARDS in 1986 and renewed thereafter through 2013.
Defendant also submits a copy of a change of voter registration for JACKIE EDWARDS to the property address dated November 24, 2014 as evidence that she did not reside at the property.
Further Clark submits an affidavit in which he states that he conducted an inspection of the building prior to purchasing the building, and found that it was vacant.
There are sufficient questions of fact as to whether Plaintiffs resided in the premises continually for the statutory period to preclude granting summary judgment to either side based on the issue of continuous possession.
Therefore both Plaintiffs' and Defendant ALLSTAR's motions for summary judgment on Plaintiffs' claim for adverse possession must be denied.
ALLSTAR's counter claims
ALLSTAR also seeks summary judgment on its counter claims in its amended answer, [*7]and Plaintiffs seek summary judgment dismissing those counter claims. Its first three counter claims relate to Plaintiffs' filing of a notice of pendency, alleging that doing so constituted frivolous and sanctionable litigation.
"A notice of pendency may be filed only when the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property." Delidimitropoulos v Karantinidis, 142 AD3d 1038, 1039 [2d Dept 2016]. Here, whether or not the Plaintiffs are ultimately successful in their underlying claim for adverse possession, their claims seeking adverse possession are not frivolous and would clearly affect the title to and possession of real property. Accordingly, the filing of the notice of pendency was neither improper nor frivolous. Therefore ALLSTAR's counter claims based on the filing of the lis pendens must be denied.
ALLSTAR's fourth counterclaim alleges Plaintiffs commencement of the underlying action constitutes malicious prosecution.
The elements of malicious prosecution consist of the initiation of a legal action by one party against another, begun with malice and without probable cause to believe it can succeed, and ending in the accused's favor. Purdue Frederick Co. v Steadfast Ins. Co., 40 AD3d 285, 836 NYS2d 28 [1st Dept 2007]. In this case, not only has the case not yet been resolved in ALLSTAR's favor, but the Plaintiffs have a sufficient and reasonable belief in their success on the merits, given the nature and duration of their occupancy of the property. Also Plaintiffs did not commence the case out of malice but rather to prevent their being evicted. Accordingly ALLSTAR's counter claim for malicious prosecution must be dismissed.
ALLSTAR's fifth counterclaim seeks ejectment against the Plaintiffs. Ejectment is an action which can be maintained against a party against whom one has a superior right to possession.
Here, ALLSTAR's claim is that Plaintiffs were tenants under an oral lease, and that their tenancies were not terminated until ALLSTAR served notices to quit on them in 2014. If Plaintiffs were tenants under an oral lease, then they would be tenants of an indefinite term. In the case of indefinite tenancies, a six month notice to quit is required prior to commencing an ejectment action. Kosa v Legg, 12 Misc 3d 369, 816 NYS2d 840 (Sup Ct Kings 2006). The notices to quit were served on Plaintiffs by ALLSTAR on July 14, 2014 and demanded the Plaintiffs surrender possession on or before July 29, 2014 and thus appear on their face to be insufficient predicate notices to maintain an ejectment action.
Additionally, there remain questions of fact as to whether Plaintiffs gained title to the property by adverse possession, and thus whether they have a right to possession superior to ALLSTAR's. As such, there are questions of fact as to who has a superior right to possession that precludes granting summary judgment on the counterclaim for ejectment to either ALLSTAR or Plaintiffs.
Cross claim against ALLSTAR
ALLSTAR also seeks summary judgment dismissing the cross claim against it by WEST, VELOCCI and MICHAEL for indemnification.
In their cross claim against ALLSTAR, they allege they are entitled to be held harmless by ALLSTAR for any liability against them and for indemnification for any judgment, costs and disbursements. They claim is apparently for common law indemnification as they do not allege they contracted for indemnification with ALLSTAR.
"The principle of common-law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to [*8]the injured party." Bellefleur v Newark Beth Israel Med. Ctr, 66 AD3d 807, 888 NYS2d 81 [2d Dept 2009]. Here, Plaintiffs seek no damages against WEST, VELOCCI and MICHAEL and they cannot seek to be indemnified for their attorneys fees in defending this action absent a specific agreement in which ALLSTAR agreed to pay their attorneys fees. For these reasons, their cross claim for common law indemnification from ALLSTAR must be dismissed.
Grandchildren's Motion for Summary Judgment
Defendants WEST, VELOCCI and MICHAEL also cross move for summary judgment. They seek dismissal of Plaintiffs' complaint against them as well as the cross claims of Defendant ALLSTAR against them for breach of contract.
Defendants WEST, VELOCCI and MICHAEL state that they were offered consideration for the forfeiture of any rights to the property and transferred any interest they might have had. They argue that they are not necessary parties as they do not claim or seek any interest in the property.
Defendants WEST, VELOCCI and MICHAEL were given notice and an opportunity to oppose Plaintiffs' claim of adverse possession. They have appeared and asserted that they have no claims to the property and therefore the complaint should be dismissed as against them as moot.
WEST, VELOCCI and MICHAEL also seek summary judgment dismissing ALLSATR's cross claims against them for breach of contract. They argue that they never represented to ALLSTAR that they had an interest in the property.
The deed on its face specifically states that ALLSTAR purchased only that interest in the property that vested in WEST, VELOCCI and MICHAEL, if any.
In fact, the deed which ALLSTAR obtained from WEST, VELOCCI and MICHAEL conveyed only "right, title and interest, if any, of the party of the first part". The deed reads "[p]arty of the first part is conveying any and all interest they may have as heirs and/or distributes of Sophia Wisotsky and/or Walter W. Wisotsky; and Party [sic] of the second part is accepting the premises subject to all judgments, liens, encumbrances and any other issues which may affect title to the premises."
ALLSTAR has not produced any evidence that WEST, VELOCCI and MICHAEL misrepresented their relation to the property. The only representations that ALLSTAR alleges that WEST, VELOCCI and MICHAEL made were that (i) Sophia Wisotsky was e owner of the premises, (ii) Sophia and Walter Sr died intestate, survived by their children Donald and Walter Jr, (iii) Walter Jr died intestate, survived by Joanne Wisotsky and his children, WEST, VELOCCI and MICHAEL. ALLSTAR does not allege that any of those representations are false.
ALLSTAR has failed to show that WEST, VELOCCI and MICHAEL did anything more than what ALLSTAR contracted with them to do, which was to convey their interest to ALLSTAR, if any, to the property. It was ALLSTAR that sought the grandchildren out, despite the fact that no deed conveying any interest in the property to them had ever been recorded.
Significantly, Plaintiffs' claim to title is not based on any flaw in the grandchildren's title but on their own adverse possession.
Therefore ALLSTAR's cross-claims against WEST, VELOCCI and MICHAEL must be dismissed.
WHEREFORE, Defendant ALLSTAR's motion for summary judgment is denied as to Plaintiffs' complaint and its counter claims, and granted as to that part of its motion seeking [*9]dismissal of the cross claim for indemnification by Defendants WEST, VELOCCI and MICHAEL; that part of Plaintiffs' cross motion for summary judgment on its complaint is denied and that part seeking dismissal of ALLSTAR's first through fourth counter claims against them is granted; and that part seeking dismissal of the fifth counterclaim for ejectment is denied; and that part of Defendants WEST, VELOCCI and MICHAEL's motion seeking dismissal of the complaint and cross claims against them is granted and that part of the motion seeking summary judgment granting them summary judgment on their cross claim against ALLSTAR for indemnification is denied, and it is hereby,
ORDERED, that the complaint and all cross claims against Defendants WEST, VELOCCI and MICHAEL are dismissed, and it is further
ORDERED, that Defendants' WEST, VELOCCI and MICHAEL's cross claim against Defendant ALLSTAR is dismissed, and it is further
ORDERED, that Defendant ALLSTAR's first through fourth counterclaims against Plaintiffs are dismissed.
This shall constitute the decision and order of this Court.
ENTER,
_________________________
J S C
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