Glantzis v Padilla

[*1] Glantzis v Padilla 2004 NY Slip Op 51139(U) Decided on August 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 3, 2004
Supreme Court, Kings County

ANASTASIOS GLANTZIS, Plaintiff,

against

FELIX PADILLA, JR. FELIX PADILLA, SR. "JOHN DOE No. 1 - JOHN DOE #4", JANE DOE #1- JANE DOE #4" being fictitious names for occupants whose actual names are unknown to plaintiff, Defendants.



36392/02

Lewis L. Douglass, J.

In 1973, Felix Padilla Jr. returned from serving in Vietnam. His father, working as a handyman learned from a lawyer, Irving Perelstein that a vacate, dilapidated building was available for sale. That led to the broker who held the listing and then back to the lawyer who drew a contract which provided for a purchased price of $16,000.00, $3,000.00 cash and a ten year mortgage of $154.32 per month. No closing took place. The Padilla's were told by Perelstein that they should continue to paid the $154.32 plus escrow deposits, making a total of $225.00, and they would get a deed at the end of the ten year period. The Padilla's moved in and made extensive repairs.

In the seventh year when the Padilla's attempted to make regular monthly payments, they were told that Perelstein had been murdered and they were advised to consult a lawyer. That led to Bushlow their second lawyer, who made contact with the Estate Marie Almodovar. The Padilla's then began to send the $225.00 to Bushlow, who

in turned sent it to the Estate of Marie Almodovar. The Padilla's knew Ms. Almodovar as an elderly lady in the neighbor but they were unaware that she had any connection with the property.

This arrangement of paying to Bushlow, their second lawyer who in turn forwarded the payments to the Estate, continued until 1979 when the Estate instituted an action in the landlord tenant court to evict the Padilla's. The Padilla's hired a third lawyer who obtained an Order from the Supreme Court staying the landlord tenant eviction proceeding pending "a final determination of the rights of the parties" with a direction that "the plaintiff (the Padilla's) continue monthly payments of $225.00 to the landlord as indicated in the moving papers." [*2]

After making ten years of payments, including payments made subsequent to the Stay, the Padilla's tried to get the Estate to transfer title to them. These efforts were unsuccessful. In 1989, the Padilla's commenced an action seeking either an Order for a specific performance or declaring that they were the rightful owners of the property by reason of adverse possession. That lawsuit and the lawsuit resulting in the Stay seems to have been abandoned.

In 2002, the plaintiff, who operates as a small construction firm purchased the property from the Estate. He acknowledges that exterior of the house was neatly maintained that he was aware that it was occupied and that he never examined the interior of the building. He now brings this action to evict the Padilla's. At this point, the interests of the Padilla's who have lived in the building for the past 30 years as their family residence, clash with the interest of the investor who paid $330,000.00 to the Estate and those funds have been distributed to various heirs pursuant to an Order of the Surrogate's Court.

The defense to this present eviction proceeding is that the Padilla's have acquired title by adverse possessions or in the alternative they argue that they would be entitled to an order from this Court directing the specific performance of the contract that was originally prepared by Perelstein in 1973.



Implicit in plaintiff's position is that he is entitled to rely on the public record which showed the Estate of Mary Almodavor as the owner. This situation, under this argument, is similar to a situation where a seller signs a contract with purchaser number 1, then signs a second contract with purchaser number 2, to whom the property is eventually sold. Since seller number 2 would have had no knowledge of contract number 1, unless it has been filed with the County Clerk, the law protects seller number 2 since he is an innocent purchaser being unaware of contract no.1.

The analogy however fails on two grounds. First this plaintiff was on notice that there was a dispute about this title pending somewhere in the Supreme Court since a rider to the contract provides "purchaser acknowledges receiving notice of two actions filed in the Supreme Court." There is no record of dismissal and apparently the lawsuits were abandoned, but whatever the circumstances surrounding these lawsuits, this purchaser was on notice that there was a dispute about the property involving issues in the Supreme Court rather than simply a routine landlord tenant dispute. The analogy also fails since the defendant's claim of adverse possession is not predicated upon documentary evidence, but rather, the claim of title is based on adverse possession.

Plaintiffs also argue that since the Supreme Court Stayed the landlord tenant action "pending resolution of the interest of the parties," on the condition that Padilla's continue to pay $225.00 a month that the Padilla's can acquire no adverse possession during this period because [*3]the position of the parties was frozen by the Supreme Court by the Stay. That Stay however does not break the 1973 - 1983 period since for whatever reasons no

action was taken on the Stay after it was issued and the lawsuit was abandoned. That Stay in 1980 cannot be deemed as perpetual. It surely would have required that the owner, at some point in time, do something to challenge the continued open possession by the Padilla's.

During all this period of time, beginning in 1973, the Padilla's have paid rent, utilities, and maintenance costs. There is no evidence that the Estate or its representatives paid any expense or even visited the premises for over 30 years.

Plaintiff also argues in his post trial memorandum that there can be no adverse possession because the defendant's initial occupancy was unlawful. But that initial occupancy was done pursuant to the contract prepared by Perelstein and even accepting the argument that Perelstein's action was unauthorized, his action was clearly ratified by accepting the payments. In addition, after Perelstein died those payments continue to be made to the Estate.

This case is analogous to Ray v. Beacon, Hudson Mount Corp. 88 NY2nd 154 where the court said: In determining whether the common-law requirement of "continuity of possession" has been met in an adverse possession claim to an estate in land, a court should consider not only the adverse possessor's physical presence on the land but also the claimant's other acts of dominion and control over the premises that would appropriately be undertaken by owners of properties of similar character, condition and location.

There is no question that the Padilla's exercised the same "dominion and control" over the property as owners of any "similar" one family house for more than twenty five years.

Under these circumstances, I find that the Padilla's have acquired title by adverse possession or in the alternative would be entitled to an Order of specific performance of the original contract since it is clear that the actions of Perelstein were ratified by either Mrs. Almodovar, the owner, or by her Estate.

The plaintiff's complaint is dismissed. Defendant may submit a formal Order declaring the rightful owner of the property is Felix Padilla Sr.

This constitutes the Order and decision of the Court. [*4]

Dated: August 3, 2004____________________

Hon. Lewis L. Douglass