Goodwin v Nixon

[*1] Goodwin v Nixon 2007 NY Slip Op 51111(U) [15 Misc 3d 1142(A)] Decided on May 31, 2007 Supreme Court, Bronx County Suarez, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 31, 2007
Supreme Court, Bronx County

Gerthenie Goodwin as Administrator of the Estate of Leander Jones, Plaintiff,

against

Cheryl Nixon, Estate of Dorothy Kelly, Defendants.



24759/2006



Colvin Goddard, Esq.

Law Offices of Colvin Goddard & Associates, P.C.

P.O. Box 901250

Far Rockaway, New York 11690-1250

718-868-2401

Jason S. Garber, Esq.

Borah, Goldstein, Altschuler, Nahins & Goidel, P.C.

377 Broadway

New York, New York 10013-3993

212-431-1300 x551

Lucindo Suarez, J.

The issue in this motion for summary judgment is whether the defenses of adverse possession, statute of limitations or laches extinguish the property interests of a tenant in common to defeat a partition action.

This court holds they do not, as there is insufficient evidence to: raise the presumption of marriage; show by convincing evidence that possession for the requisite period of time was visible, hostile and under claim of right, actual, open and notorious, exclusive, and continuous; establish that the action was timely commenced; or demonstrate that any delay resulted in prejudice. Therefore, defendants' motion for summary judgment is denied.

The subject property was conveyed to "Leander Jones and Dorothy Kelly Jones, his wife . . . [their] heirs and successors and assigns . . ." by deed dated November 15, 1967 and recorded November 22, 1967. Leander Jones died on March 31, 1993. Dorothy Kelly Jones deeded the property to herself as "Dorothy H. Kelley," this purportedly being her unmarried name, by deed dated August 24, 1994 and recorded September 13, 1994. Dorothy H. Kelley is alleged to have died on July 23, 2004. In 2005, defendant Cheryl Nixon, "being the sole heir and distributee of Dorothy H. Kelley," deeded the property to herself. Plaintiff Gerthenie Goodwin, the sole heir and distributee of Leander Jones, commenced a partition action. Plaintiff Gerthenie Goodwin and defendant Cheryl Nixon do not share any parents in common.

Plaintiff Gerthenie Goodwin seeks partition of the property claiming that Leander Jones and Dorothy H. Kelley were never married and therefore plaintiff held the property as a tenant in common with Dorothy H. Kelley upon Leander Jones's death; and upon Dorothy H. Kelley's death, holds the property as a tenant in common with Cheryl Nixon. Defendant Cheryl Nixon claims that Leander Jones and Dorothy H. Kelley were married, and therefore Dorothy H. Kelley became the sole owner upon his death; and Cheryl Nixon, as Dorothy H. Kelley's only heir, became the sole owner upon her death. [*2]

The marital status of Leander Jones and Dorothy H. Kelley at the time of the 1967 conveyance defines the estate created, which in turn determines how the property is distributed upon the intestate death of one of the co-tenants.

If Leander and Dorothy were married, then the 1967 conveyance created a tenancy by the entirety. A tenancy by the entirety "confers on the surviving spouse a right to absolute ownership of the property upon the other spouse's death . . . [which] remains fixed and cannot be destroyed without the consent of both spouses." V.R.W., Inc. v. Klein, 68 NY2d 560, 564, 503 NE2d 496, 498, 510 NYS2d 848, 850 (1986). Thus, upon Leander's death, Dorothy would have acquired sole ownership of the property, to which defendant Cheryl Nixon, as purported sole distributee of Dorothy, would have been entitled upon Dorothy's death.

Defendants rely upon a "presumption" of marriage to establish the creation of a tenancy by the entirety in 1967. Defendants present no competent proof that Leander and Dorothy were married, such as a marriage certificate or proof of a valid "ceremonial" marriage. See Matter of Esmond v. Thomas Lyons Bar & Grill, 26 AD2d 884, 274 NYS2d 225, 227 (3d Dep't 1966).Reliance upon the "presumption" of marriage herein is misplaced, since the presumption arises only if its proponent sets forth sufficient facts from which a marriage may be inferred. See Matter of Masocco v. Schaaf, 234 A.D. 181, 183, 254 N.Y.S. 439, 442 (3d Dep't 1931). Defendants failed to provide such a foundation here, having offered only the 1967 deed, which under the circumstances, is insufficient to prove the creation of a tenancy by the entirety.

If Leander and Dorothy were not married, then the 1967 conveyance created a tenancy in common, without rights of survivorship. In 1967, a conveyance to persons who were not actually married, as "tenants by the entirety," "as husband and wife" or using similar language of marriage, created only a tenancy in common unless it contained express language of survivorship.[FN1] See Klein v. Shields, 115 AD2d 19, 498 NYS2d 821 (1st Dep't 1986); Place v. Cundaro, 34 AD2d 698, 309 NYS2d 714 (3d Dep't 1970). The 1967 deed, purporting to convey the property to "Leander Jones and Dorothy Kelly Jones, his wife," contained no language of survivorship. Thus, upon Leander's death, plaintiff would have become a tenant in common with Dorothy, and upon Dorothy's death, defendant Cheryl Nixon would have become a tenant in common with plaintiff.

Alternatively, defendants claim that if the 1967 conveyance created a tenancy in common, then Dorothy's conveyance to herself in 1994 ousted plaintiff and started Dorothy's period of adverse possession. Defendants claim that Dorothy acquired title by adverse possession in 2004, see RPAPL §§511, 541, thereby rendering this partition action, commenced in 2006, untimely. This theory must also fail.

The possession of property by one tenant in common, even if exclusive, is presumed to be for the benefit of the other tenants in common. RPAPL §541. This presumption ceases upon ten years of continued exclusive occupancy or upon ouster, at which time adverse possession commences. Id. Adverse possession may be demonstrated only by clear and convincing evidence that possession for the requisite period of time was hostile and under claim of right, actual, open and notorious, exclusive, and continuous. Brand v. Prince, 35 NY2d 634, 324 [*3]NE2d 314, 364 NYS2d 826 (1974).

While the initial entry upon the premises must be truly adverse, adverse possession may also commence when the "authority [under which initial entry was permitted] has been repudiated and renounced and the possessor thereafter has assumed the attitude of hostility to any right in the real owner." Hinkley v. State, 234 NY 309, 316-17, 137 N.E. 599, 601-02 (1922); Perez v. Perez, 228 AD2d 161, 163, 644 NYS2d 168, 170 (1st Dep't 1996), appeal dismissed, 89 NY2d 917, 676 NE2d 502, 653 NYS2d 920 (1996). It does not appear, nor is it claimed, that Dorothy's initial occupation of the property was wrongful in any respect. Defendants must therefore demonstrate that the 1994 deed constituted an act of repudiation and renouncement of plaintiff's rights, sufficient to be deemed ouster, such that it initiated the period of adverse possession. This court is not convinced, however, that the 1994 conveyance constituted ouster of the plaintiff.

In the absence of an explicit "notice in fact" of the ouster to the co-tenant, "the occupant must make his possession so visibly hostile and notorious, and so apparently exclusive and adverse, as to justify an inference of knowledge on the part of the tenant sought to be ousted." Culver v. Rhodes, 87 NY 348, 355, 42 Sickels 348, 355 (1882). "Paying mortgage and taxes or maintenance expenses, and providing for upkeep of the property, do not constitute acts sufficient to establish a claim of right for purposes of adverse possession as against a co-tenant." Perez, 228 AD2d at 163, 644 NYS2d at 170; see also Kraker v. Roll, 100 AD2d 424, 434, 474 NYS2d 527, 534 (2d Dep't 1984).

Under certain circumstances, deeding or selling the property to a third party who takes possession may indeed be an ouster of co-tenants. "However, where the co-tenant deeds the premises (usually for nominal or no consideration) and continues to occupy the premises in the same manner as prior to the conveyance, such a deed does not constitute sufficient public notice of an unmistakable repudiation' of the other co-tenants' title to the property," even where the deed is recorded. In re Estate of Nazarro, 7 Misc 3d 1001(A), 801 NYS2d 237 (Table), 2005 WL 709755, 2005 NY Slip Op. 50396(U) (Surr. Ct. Bronx County 2005), citing Culver, supra . This is precisely what occurred in the present case. The 1994 deed therefore did not amount to an ouster of plaintiff and adverse possession did not commence.

Even assuming, arguendo, that the 1994 deed ousted plaintiff, defendants have still failed to establish adverse possession. The ten-year period necessary to establish adverse possession under RPAPL §511 and CPLR 212(a) would have concluded on August 21, 2004. See General Construction Law §58. Because Dorothy died before expiration of the ten-year period, she could not have adversely possessed the property.

Defendants further claim that Dorothy's estate acquired title by adverse possession, ostensibly through defendant Nixon's occupancy of the premises. It is, of course, possible to establish adverse possession by tacking together successive possessions of persons in an unbroken chain of privity with the person through whom adverse possession is claimed. See Belotti v. Bickhardt, 228 NY 296, 306, 127 N.E. 239, 242-43 (1920). Each successive possession, however, must meet the requirements for adverse possession. See Rose Valley Joint Venture v. Apollo Plaza Assoc., 178 AD2d 695, 576 NYS2d 943 (3d Dep't 1991).

While privity may be established by descent, Belotti, 228 NY at 307, 127 N.E. at 243, which does not here appear to be disputed, defendants have set forth no proof to show that [*4]defendant Nixon, or anyone else in her stead, actually occupied the property at any time, let alone at the time immediately following Dorothy's death and continuing at least until the expiration of the statutory period. Therefore, defendants have not shown that the partition action is time-barred.

Defendants lastly assert that plaintiff's action is barred by laches since, by bringing the action after Dorothy died, plaintiff has deprived the defendants of her testimony regarding the intentions of the parties. It is not known to which parties defendants refer. Essential to a claim of laches is delay which is demonstrably prejudicial to the opposing party. Defendants have made no showing that they have been hindered in the preparation of their case or have been prevented from taking some measure in support of their position See Loomis v. Civetta Corinno Const. Corp., 54 NY2d 18, 429 NE2d 90, 444 NYS2d 571 (1981); In re Estate of Barabash, 31 NY2d 76, 81, 286 NE2d 268, 271, 334 NYS2d 890, 894, reh'g denied, 31 NY2d 963, 341 NYS2d 1029 (1972). Nor have defendants established prejudice from the loss of this testimony, since they have failed to show that the testimony would have been in any way favorable to them.

Defendants also assert that plaintiff, as Leander's administratrix, should have had constructive knowledge of Dorothy's 1994 deed because it had been recorded, and, in the exercise of her fiduciary duties, she should have learned the status of his property interests. Again, defendants' reliance on the cases cited is misplaced, as plaintiff, a potential out-of-possession tenant in common, is not a subsequent purchaser in good faith for whose benefit (and detriment) the recording statutes were enacted. See Doyle v. Lazarro, 33 AD2d 142, 143, 306 NYS2d 268, 270 (3d Dep't 1970), aff'd 33 NY2d 981, 309 NE2d 138, 353 NYS2d 740 (1974). If plaintiff is not a co-tenant in the property by virtue of Leander and Dorothy having been married, then the 1994 deed and its recording had no effect upon her. If plaintiff is a co-tenant in the property, she will still not be charged with the duty "to periodically check whether other co-tenants [have] deeded more than they owned." In re Estate of Nazarro, supra .

As to plaintiff's duties upon the death of her father, plaintiff cannot be faulted for any alleged inaction in regard to the property, if she does in fact have an interest, as "vesting by descent occur[s] by operation of law, irrespective of the apparent failure to appoint an administrator or to file new deeds." Kraker, 100 AD2d at 429, 474 NYS2d at 531-32.

Accordingly, it is

ORDERED, that defendants' motion for summary judgment is denied.

This constitutes the decision and order of the court.

Dated: May 31, 2007

____________________________

Lucindo Suarez, J.S.C.

Footnotes

Footnote 1: EPTL §6-2.2 was amended in 1975 to reverse this presumption and create a joint tenancy under these circumstances. L. 1975, ch. 263, §1. The amendment was not to be retroactively applied. L. 1975, ch. 263, §3.