Rich v Rich

[*1] Rich v Rich 2005 NY Slip Op 51780(U) [9 Misc 3d 1124(A)] Decided on November 1, 2005 Supreme Court, Rockland County Smith, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2005
Supreme Court, Rockland County

Osbaldo Rich, Plaintiff,

against

Evelyn A. Rich, Defendant.



7139/05



Daniel E. Bertolino, P.C.

Attys. For plaintiff

495 South Main Street (Route 304)

New City, New York 10956

Montalbano, Condon & Frank, P.C.

67 North Main Street

P.O. Box 1070

New City, New York 10956

Attorneys for defendant

Mary H. Smith, J.

This is an unfortunate dispute between plaintiff Osbaldo Rich, the adopted adult son of [*2]Ellis D. Rich, deceased, and defendant Evelyn A. Rich, Ellis' mother.[FN1] Their dispute essentially is as to which of them is the lawful owner of property located at 22 Holland Lane, Monsey, New York. According to Osbaldo, this property belonged to his father Ellis, who purchased same in May, 1981. Together he and Ellis resided at the property. Although Evelyn's name is listed on the deed, Osbaldo maintains that his father, at the time, had insufficient credit in which to obtain a mortgage in his own name and so his mother Evelyn was put on the deed "as an accommodation party." Osbaldo insists that Evelyn did not contribute any money towards the purchase of the house and that Ellis Rich alone paid all bills toward the maintenance of the house, including mortgage, taxes, insurance.[FN2] Osbaldo claims to himself have contributed towards the house bills for the last twenty years. Ellis and Evelyn had taken title with joint rights of survivorship because, according to Osbaldo, it was anticipated that Evelyn would predecease Ellis. However, on April 9, 2005, Ellis died at 66 years of age, leaving Evelyn, then 96 years of age, with sole title to the property.

Two weeks after Ellis' death, Osbaldo received a notice in the mail entitled, "Notice to Terminate Tenancy," which was signed by Ellis' sister's husband, as "attorney in fact." Said notice apprized Osbaldo that he had until May 31, 2005, to vacate the premises. When Osbaldo failed to vacate the premises by May 31st, a holdover summary proceeding was commenced by Evelyn against Osbaldo in Justice Court of the Town of Ramapo. A warrant of eviction was issued by Justice Court on August 5, 2005, enforcement of which was stayed through September 8, 2005. An eviction thereafter was scheduled for September 20, 2005.

Osbaldo commenced this action on September 19, 2005, by way of service of a summons, complaint [FN3] and Order to Show Cause, the latter of which contains a Temporary Restraining Order enjoining the Sheriff from executing any judgment and/or warrant for removal of Osbaldo from the premises pending further Order. Osbaldo insists that it was never Ellis' intention to have his mother have an ownership interest in the house and that instead it was Ellis' intention that Osbaldo, as his only child, inherit the house.[FN4] Osbaldo argues that Evelyn, now 97 years of age, "Is of questionable mental capacity" and he suspects that Mirabelle Rich Becker, Ellis' sister and [*3]sole surviving heir to Evelyn's estate, is orchestrating Evelyn's actions herein and devising this scheme wherein she will inherit not only her mother's assets, but her brother's as well, "thereby effectively stealing" Osbaldo's rightful inheritance.[FN5] He further seeks herein an Order pursuant to CPLR 325, subdivision (b) transferring the summary proceeding to this Court and staying Osbaldo's eviction until this action is finally adjudicated.[FN6]

Defendant, not surprisingly, has a very different factual presentation and she vigorously opposes plaintiff's request for relief, declaring this action "nonsense." According to Evelyn, Osbaldo is attempting to stay in her house "and pay nothing," and that his papers are filled with "lies and misstatements." Moreover, Evelyn adamantly states that she is "quite clear in [her] understanding of what is going on." As evidenced by a copy of her bank passbook, Evelyn avers that she had contributed $20,000.00 towards the purchase of the subject premises and this is the reason why the deed is in both Ellis and her names. She opines that Osbaldo, who was approximately 14 years at the time of the purchase, would not be in possession of knowledge of the financials relating to same. According to Evelyn, this money has never been repaid to her and Ellis never requested her to sign a deed conveying the property to him alone.

Further, defendant has submitted evidence that, commencing in November, 2003, Ellis had re-financed the house 3 times, which resulted in his obtaining $393,750 cash. Evelyn insists that she is entitled to one-half of this sum, or $196,875.00, which she claims Osbaldo possesses.

Accordingly, defendant seeks an Order pursuant to CPLR 6314 vacating the Temporary Restraining Order and, alternatively, seeks a myriad of relief, including an Order requiring Osbaldo to post an undertaking in a sum sufficient to hold defendant harmless from the mortgage payments she otherwise is required to make and from attorney's fees she will incur in this litigation, for an injunction restraining plaintiff from encumbering or disposing of $196,875.00, one-half of the mortgage proceeds from re-financing that he allegedly possesses, an Order determining that Osbaldo has no right to remain in possession of the subject premises and an Order releasing the Sheriff from any restraint preventing him from executing a judgment and/or warrant for the removal of Osbaldo from the premises.

Osbaldo replies, adamantly denying knowledge about, let alone possession of, the cash out re-financings done by Ellis immediately prior to his death; he suggests that the money may have gone towards home improvements, his father's cancer medical treatment and, perhaps, tax liens. Further, if Evelyn lent his father money towards the down payment for the house, he contends that his father, over the years, had given his mother in excess of $128,000.00, as [*4]evidenced by copies of checks submitted at bar.

By way of reply, defendant contends that Ellis did not make gifts of money to her, as claimed by Osbaldo. Rather, for unknown reasons, Ellis had kept a checking account in Chicago, Illinois and, when he needed money, he would write a check to his mother who thereupon would deposit same in her personal account and withdraw from her account an equivalent amount of money to cover the check that had been deposited.

To the extent that plaintiff seeks removal relief pursuant to CPLR 325, subdivision (b), said motion is granted and the Justice Court proceeding is hereby consolidated with this action, as this Court finds that complete relief may not be afforded plaintiff in Justice Court with respect to his equitable claims herein and, further, given the absence of specific opposition by defendant to this aspect of requested relief. Although CPLR 325, subdivision (b) applies only to an action which "is pending," it has been held that a summary proceeding remains "pending" until the execution of the warrant, which here has been stayed. See Bernard v. Kuha, 90 Misc 2d 148 (NY Co. Ct. 1977); TKU-Queens Corp., Inc. v. Mabel Food Corp., 90 Misc 2d 48 (NY Civ. Ct. 1977). Plaintiff shall serve a copy of this Order upon the Clerk of Justice Court of the Town of Ramapo within twenty (20) days after the date hereof who, upon receipt of same, shall transfer the file pertaining to Index No. 05-060572, Rich v. Echevarria to the Clerk of this Court.

Although plaintiff does not specifically cite CPLR 2201, it would appear that he seeks a discretionary stay pursuant thereto, which permits a Court, "in a proper case, upon such terms as may be just," to stay a matter. While there is no "bright-line standard" for determining when the issuance of a stay is appropriate, see 326-330 East 35th Street Assoc. v. Sofizade, 191 Misc 2d 329 (App. T. 2002), a Court must consider and balance all of the relevant factors. See 1675 Realty LLC v. Castillo, 7 Misc 3d 134(A) (App. T. 2005). Specifically, when deciding whether to grant a stay, the Court must consider the risk of inconsistent adjudications, the proof and potential waste of judicial resources. See Allen v. Rosenblatt, 5 Misc 3d 1014(A) (Civ. Ct. 2004).

After this Court's careful consideration of the difficult circumstances presenting and the fact that the parties' respective legal rights clearly cannot be resolved on the papers at bar, as well as specifically the facts that plaintiff Osbaldo has resided in the subject property with his father for approximately 25 years, he claims he has contributed "substantial sums" of money towards the house's upkeep and maintenance, that he is desirous of continuing to reside in what has been his home and his father's legacy to him and he claims that he can afford to make the mortgage payments, that the absence of a stay will result in his being evicted and the property being forthwith sold, and further that defendant Evelyn has her own home and is not looking to reside at the subject premises, and that she cannot afford to continue to make the $3,1360.00 per month mortgage payments, a stay of the summary proceeding is granted pursuant to CPLR 2221 on the condition that Osbaldo make timely and full payment of the mortgage, with proof thereof to be forwarded to defendant's attorney's monthly.[FN7] Additionally, as a condition of this stay, plaintiff shall post within thirty (30) days after the date hereof an undertaking in the sum of $3,000.00 to cover defendant's legal expenses related to this motion, in the event she ultimately prevails.

In the event that plaintiff chooses not to make the mortgage payments or fails to timely [*5]pay same, then upon submission of an affidavit on notice, accompanied by a proposed Order, this Court will vacate the stay, allow the warrant of eviction to proceed and shall issue an Order directing that the proceeds from the sale of the house be kept in defendant's attorney's escrow account pending further Order.

Concomitantly, defendant's cross-motion is denied except to the limited extent as set forth herein above.

While the Court is not convinced at this time that plaintiff will be able to satisfy his heavy burden on any of the interposed causes of action, and it is apparent that there is compelling evidence that defendant is the legal and rightful owner of the premises, nevertheless, the relief fashioned on this motion will enable plaintiff every opportunity to establish his legal/equitable entitlement to the house or to its equity value, while keeping defendant relatively whole in the process.

The parties shall appear at 9:30 a.m. on November 30, 2005, for a preliminary conference. This date may not be adjourned without the Court's consent. Any party's failure to appear may result in the imposition of costs and/or sanctions.

At this conference, the parties shall further be prepared to argue, with supporting authority, the propriety of this Court's conducting a hearing to determine the mental capacity of Evelyn in the circumstances presenting, where plaintiff's request for same seemingly is based solely upon the fact that Evelyn is 97 years of age and Osbaldo's lay opinion, and not upon any objective, specific facts which tend to question her mental capacity.



Dated: November 1, 2005

New City, New York__________________

MARY H. SMITH

J.S.C. Footnotes

Footnote 1:Plaintiff Osbaldo was in foster care as a child and Ellis became his foster parent when Osbaldo was 14 years of age. Ellis adopted Osbaldo in 1992, at which time Osbaldo was 25 years old. According to Osbaldo, he had prevailed upon Ellis not to adopt him before his college education was completed so that Osbaldo would receive the maximum amount of education scholarships and financial aid.

Footnote 2:Plaintiff notes that Evelyn has always owned her own house in the Bronx.

Footnote 3:Osbaldo has asserted four causes of action against Evelyn for imposition of a constructive trust since, he alleges, the circumstance of title solely in her name has resulted in substantial unjust enrichment to her, and for breach of contract, for monies had and received and for an accounting.

Footnote 4:Osbaldo also demonstrates that he had been named the sole beneficiary on Ellis' Teachers' Retirement Pension.

Footnote 5:Osbaldo notes that Mirabelle had petitioned Surrogate Court to become the executrix of Ellis' estate, inaccurately stating in the petition that Ellis had no children. Two days prior to Ellis' passing, Osbaldo avers that Mirabelle and Evelyn emptied Ellis' bank safe deposit box, the contents of which Osbaldo does not know. Further, Osbaldo states that three days after his father's death, Evelyn purportedly amended her Trust Agreement, which had named her two children Ellis and Mirabelle as beneficiaries, in equal shares, to disinherit Osbaldo as Ellis' surviving heir.

Footnote 6:The Court notes that while plaintiff cites CPLR 325, subd. (b) as a basis for relief, no argument in support of removal to this Court is actually set forth in the moving papers.

Footnote 7:The Court notes that Osbaldo claims to have paid the April, 2005, mortgage payment.