Hardin v Rubin

[*1] Hardin v Rubin 2004 NY Slip Op 51115(U) Decided on June 30, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2004
Supreme Court, Kings County

Carolyn Joan Hardin, Plaintiff,

against

Cary Rubin, Defendant.



5725/04

Laura Jacobson, J.

Defendant moves for an Order pursuant to Civil Practice Law and Rules §3211, dismissing plaintiff's lawsuit. In her complaint, plaintiff seeks a determination that she owns a 50% interest in the real property known as 1428 East 14th Street, Brooklyn, New York 11230. Plaintiff opposes the motion. On the return date of defendant's motion, both sides presented oral argument.

In this action, the parties' rights will be determined by a will left by plaintiff's ancestor, Michael Highduke. Mr. Highduke died in 1983. Pursuant to the terms of his will, he left a life estate in his estate to his surviving children, with the remainder interest to vest in his last surviving child. Mr. Highduke had two children, William and Margaret, the former being the executor of Mr. Highduke's will. Mr. Highduke's estate included the premises in question here. [*2]

In 1984, William executed an executor's deed of the subject premises which conveyed the premises to himself and Margaret as tenants in common. In 1985 he and Margaret executed a correction deed conveying the premises to themselves as joint tenants with right of survivorship. Neither of these deeds followed Mr. Highduke's expressed testamentary intent. In 1994 William conveyed his joint tenancy interest directly to himself as a tenant in common, recording the deed on July 8, 1994.

William died in January 1995, and Margaret conveyed the premises to defendant in October of that year, retaining a life estate for herself until her death in 2000. Plaintiff is William's daughter, and the devisee of William's real property interests.

Plaintiff claims that the New York Real Property Law §240-c, which became effective August 19, 1994, and which authorizes a conveyance to oneself to break a joint tenancy without use of a strawman, supports her contentions in this case. Plaintiff claims that William's 1994 conveyance destroyed the joint tenancy, thereby making William's interest in the premises inheritable by plaintiff. Prior to August 19, 1994, in order to convert a joint tenancy unilaterally to a tenancy in common, a joint tenant was required to convey his interest in the property to a strawman to break the joint tenancy. That strawman would immediately convey the property back to the original joint tenant, who would then hold as a tenant in common. Although the statute dispensing with the strawman requirement was not yet in effect at the time of the conveyance and its subsequent recording, plaintiff argues that the conveyance should nevertheless have been effective in breaking the joint tenancy, because the requirement for a strawman was an anachronism already abandoned at that time by other states. Plaintiff further argues that any reformation of the original two conveyances subsequent to Mr. Highduke's death, with the aim of conforming them to Mr. Highduke's will, is barred by the statute of limitations. Finally, plaintiff argues that Margaret's participation in the 1985 correction deed shows her consent to the merger of the life estates and remainder interest into a fee simple absolute, held by William and Margaret as joint tenants.

Defendant argues that the state of the law, at the time the 1994 conveyance was made, did not permit such a conveyance, and that it was therefore invalid as a matter of law. Thus defendant argues that the joint tenancy survived until William's death, at which time full fee ownership vested in Margaret as the surviving joint tenant. Defendant additionally argues that William's two deeds of 1984 and 1985 were a breach of his fiduciary duty as executor of Mr. Highduke's will, in that they did not conform to the requirements of that will. Defendant claims that if William's attempt to break the joint tenancy were held to be valid, it would unjustly enrich his heir, the plaintiff in this action. Finally, defendant argues that William's failure to file an accounting of Mr. Highduke's estate has tolled the statute of limitations with respect to associated causes of action, and that the deeds of 1984 and 1985 can and should therefore be reformed to conform with Mr. Highduke's testamentary plan.

The legal effect of William's 1994 [*3]conveyance to himself

At the time of William's conveyance to himself in 1994, New York law did not recognize such a conveyance as being a valid severance of a joint tenancy. The statute, New York Real Property Law §240-c, did not become operative until August 19, 1994, a date specifically selected by the State Legislature. There was no provision to make the statute retroactive. Where the language of a statute is clear and unambiguous, it should be construed according to the plain language used. Orens v. Novello, 99 N.Y.2d 180, 185 (2002). As the effective date of the statute was specifically enumerated by the Legislature, this court will not give the statute retroactive effect.

The deed severing the joint tenancy was invalid under New York law at the time it was both executed and recorded. The new statute was not yet effective, and there was no New York case law dispensing with the strawman requirement. Since the Legislature chose not to give the law immediate or retroactive effect, that decision must be respected by this court. This court therefore finds that William's 1994 conveyance did not sever the joint tenancy, and that Margaret, the last surviving joint tenant, took full fee ownership on William's death.

The equities of the case The plain intention of Mr. Highduke's will was to devise concurrent life estates to William and Margaret, with a contingent remainder interest to vest in the surviving sibling. Neither William's conveyance of 1984 nor William and Margaret's corrective deed of 1985 reflect this testamentary intent. William had a fiduciary duty as the executor of his father's estate to follow his father's testamentary wishes, and failed to do so. This duty was still operative at the time of the corrective deed of 1985. Although Margaret signed the corrective deed of 1985, there is no evidence that she had separate representation, nor that the consequences of the deed were explained to her. Given this and William's continuing fiduciary duty, the corrective deed of 1985 cannot be considered to be an agreed merger of the present and future interests of the parties.

Plaintiff cannot receive equitable relief without clean hands. "It is well settled that one who has acted inequitably in connection with the matter in litigation may not obtain equitable relief where the [other] party . . . was injured by his conduct." Nicolaides v. Nicolaides, 173 A.D.2d 448, 451 (2nd Dept. 1991). To change the effective date of the statute as enacted by the Legislature would ratify William's previous breach of his fiduciary duty.

Conclusion

Under applicable New York law at the time, William's conveyance to himself in 1994 failed to break the joint tenancy of the real property in question. William's interest in the property died with him, and plaintiff's claimed interest in the property never came into being. Plaintiff therefore fails to state a claim on which relief may be granted. Accordingly, the motion to dismiss by defendant is granted, and plaintiff's action is hereby dismissed for failure to state a claim. [*4]

This constitutes the decision of this Court.

Settle Order on notice.

DATED: JUNE 30, 2004

___________________________________

LAURA JACOBSON, JSC