Tangredi v Anderson

[*1] Tangredi v Anderson 2007 NY Slip Op 52121(U) [17 Misc 3d 1123(A)] Decided on November 2, 2007 Supreme Court, Dutchess County Pagones, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2007
Supreme Court, Dutchess County

Donald J. Tangredi and Joseph D. Quinn, III, Plaintiffs,

against

Margaret Anderson, a/k/a Margaretta Anderson, a/k/a Margaret "Peggy" Anderson, Defendant.



In the Matter of the Petition of DANIEL F. CURTIN, as Executor of the Estate of MARGARETTA M. ANDERSON, A/K/A MARGARET M. ANDERSON, to compel PATRICIA MOUNT, as Executrix of the Estate of EMMA MAY RYMPH, deceased, to satisfy a legacy of real property and to compel PATRICIA MOUNT to render and settle her account as Executrix of the Estate of EMMA MAY RYMPH,



4415/04



Stephen E. Diamond, Esq.

Gellert & Klein, P.C.

Attorneys for Donald J. Tangredi

And Joseph D. Quinn, III

75 Washington Street

Poughkeepsie, New York 12601

Kevin V. Brennan, Esq.

Attorney for Executrix

Patricia Mount

284 Main Street

Cornwall, New York 12518

Robert J. Lackaye, Esq.

Attorney for Estate of

Margaret Anderson

90 Market Street

P.O. Box 5188

Poughkeepsie, NEW York 12602

James D. Pagones, J.

This motion by the estate of Margaretta M. Anderson ("Anderson") for an order pursuant to Rule 2221 of the CPLR granting renewal and/or reargument of plaintiff's prior motion in the partition action seeking multiple relief including dismissal of plaintiff's complaint, judgment declaring that defendant is the sole owner in fee simple of a parcel of land and cross-motion by plaintiffs in the Supreme Court action for the partition, for an order dismissing the first, second, and third affirmatives defenses contained in the defendant's answer to the complaint and for an order granting summary judgment to plaintiffs, and for an order denying defendant's motion of summary judgment, are resolved as follows.

BACKGROUND

Emma May Rymph ("the decedent") died testate on August 7,

1999. Her will, dated October 1, 1998, was admitted to probate on February 4, 2000. The decedent appointed Patricia Mount ("Mount") to serve as executrix. Mount continues to serve in [*2]that capacity.

Paragraph FOURTH of the will sets forth a specific devise of real property, as follows:

"I give and devise all of the real property of which I die possessed except for the land and improvements thereon, including contents, located at 513 Salt Point Turnpike, Poughkeepsie, New York to my niece, MARGARET "PEGGY" ANDERSON (presently residing at Poughkeepsie, New York)."

Paragraph SIXTH of the will grants the executrix the power to sell.

Margaret Anderson ("Anderson") died testate on January 5, 2007. Her will, dated May 11, 2002, was admitted to probate on March 8, 2007. Daniel F. Curtin serves as executor in that estate.

The decedent owned real property known as 517 Salt Point Turnpike, Poughkeepsie, New York when she died. It consists of approximately 16.491 acres.

On January 1, 1979, the decedent entered into a thirty (30) year lease agreement with Tangredi and Quinn for a portion of the 517 Salt Point Turnpike property. That parcel constitutes 1.406 acres and was known by the parties as 513 Salt Point Turnpike.

Paragraph NINETH (sic) of the lease agreement provides as follows:

"NINETH: Upon the death of the LANDLORD' during the term of this lease, title to all that certain parcel described in the addendum hereto, which parcel includes the demised premises, described above, shall vest in the TENANTS' Donald Tangredi and Joseph D. Quinn, III, as TENANTS IN COMMON'. The parties consent to the recording of a memorandum of this lease agreement to effectuate the foregoing purpose."

The addendum to the lease contains a metes and bounds description of the premises. It acknowledges that the parcel is a portion of the larger tract. The parties never obtained municipal approval to subdivide the premises.

The decedent, Tangredi and Quinn executed a memorandum of lease on January 1, 1979. The memorandum includes an identical metes and bounds description as in the lease. The memorandum further provides as follows:

"Upon the death of the LANDLORD' during the term of this lease, title to all that certain parcel described in the addendum hereto, which parcel includes the demised premises, described above, shall vest in the TENANTS' Donald Tangredi and Joseph D. Quinn, III, as TENANTS IN COMMON'. The parties consent to the recording of a memorandum of this lease agreement to effectuate the foregoing purpose."

The memorandum was recorded in the Dutchess County Clerk's Office on May 15, 1979 in Book 1508 of Deeds at page 76.

On January 15, 1993, the decedent, Tangredi and Quinn executed a lease modification agreement. The decedent consented to the assignment of the lease by Tangredi and Quinn to subtenants, Albert Cicman and Lynn Cicman. Furthermore, the lease modification agreement amended the lease agreement of January 1, 1979 to provide that, not withstanding the assignment, title to the leased premises would vest in Tangredi and Quinn upon the decedent's death prior to the expiration of the term of the lease (December 31, 2008).

Following her appointment as executrix, Mount, utilizing estate assets, attempted without [*3]success to have 517 Salt Point Turnpike subdivided to allow for conveyance of the leased premises to Tangredi and Quinn, with the balance of the larger parcel conveyed to Anderson. Mount continued to collect rent from the premises, ascribing them as estate assets.

On March 31, 2003, Mount issued an executor's deed conveying title to the entire parcel of 16.491 acres to Tangredi, Quinn and Anderson, as tenants in common.

However, the deed was not recorded until April 7, 2004 in the Dutchess County Clerk's Office at Document No.02 2004 4239. The executrix did not seek leave of this court pursuant to SCPA Article 19 to dispose of the real property prior to issuing the deed.

Tangredi and Quinn commenced an action against Anderson in Dutchess County Supreme Court for an order of sale in partition of the entire parcel on September 23, 2004.

The partition action was transferred to this court pursuant to SCPA §501(1)(b) in a decision and order, dated and entered December 18, 2006.

DISCUSSION

Title to the real property which was specifically devised to Margaret Anderson, except for the 513 Salt Point Turnpike parcel, vested in the beneficiary at the moment of the decedent's death. (Waxson Realty Corp. v. Rothschild, 255 NY 332, 336 [1931]; Matter of Seviroli, 31 AD3d 452, 454 [2d Dept. 2006].) Unless the will provides otherwise (not present here), an executrix takes no title to the property since title vests in the devisee subject to the expenses of administration of the estate. (Matter of Seviroli, supra, pg. 454; Matter of Ballesteros, 20 AD3d 414, 415 [2d Dept. 2005]; Matter of Burke, 129 Misc 2d 145, 147 [Sur Ct, Cattaraugus Cty, 1985].) Moreover, the executrix may not take possession of, sell, lease, mortgage, manage, and collect the rents from specifically devised property without leave of the court. (EPTL §11-1.1[b][5][E]; 42 NYJur2d §2088.)

EPTL §13-2.1(a)(2) provides:

"(a) Every agreement, promise or undertaking is unenforceable unless it or some note or memorandum thereof is in writing and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:...

(2) is a contract to make a testamentary provision of any kind."

The quoted statute requires a showing by clear and convincing evidence that the decedent agreed to dispose of her property in a certain manner after her death. (Matter of DeLano, 41 AD2d 880 [3d Dept. 1973].) Tangredi and Quinn have met that burden. The lease, memorandum of lease, lease modification agreement and the dispositive provisions of paragraph FOURTH of the will evince a common objective and purpose of the decedent. The unambiguous objective was for Tangredi and Quinn to receive the smaller parcel of 517 Salt Point Turnpike with its improvements, known as 513 Salt Point Turnpike, if the decedent died prior to the expiration of the lease. She did. The larger tract devolved to Anderson.

DECISION

It is the finding of this court based upon a transparent record that:

1.Tangredi and Quinn became the owners of the smaller parcel of land with its improvements known as 513 Salt Point Turnpike consisting of approximately 1.406 acres, as tenants in common, on August 7, 1999;

2.Margaret Anderson became the sole owner in fee simple of the remaining larger [*4]tract of land known as 513 Salt Point Turnpike consisting of approximately 15.085 acres on August 7, 1999;

3.The executrix's deed, dated March 31, 2003, conveying the entire parcel of 16.491 acres to Tangredi, Quinn and Anderson as tenants in common, and recorded on August 7, 2004, is null and void. It is to be vacated and set aside;

4.The executrix, Patricia Mount, is directed to file an intermediate account on December 13, 2007 at 0930 (SCPA §2205[1].) Adjournments are only granted with leave of the court; and,

5.The partition action commenced under Dutchess County Index # 4415/2004 is dismissed on the basis of the court's findings in items 1 through 3 above. Costs and disbursements are awarded to the Estate of Margaret Anderson.

The estate's motion to renew and reargue is granted. Upon such renewal and reargument, the motion is granted to the extent based upon the foregoing findings and is in all other respects denied. The cross-motion is denied in its entirety.

On this application, the Court considered the notice of motion supported by an affirmation with seven (7) exhibits, notice of cross-motion supported by an affidavit and affirmation with seven (7) exhibits, affidavit of Joseph D. Quinn, III, with sixteen (16) exhibits, Tangredi/Quinn memorandum of law, affirmation in opposition, reply affirmation, Quinn affidavit of amendment, Mount affidavit, Palmer affidavit with three (3) exhibits, Tangredi affidavit, joint affidavit of Albert Cicman and Lynn Cicman with one (1) exhibit, notice of cross-motion for summary judgment and partial summary judgment of dismissal, Estate of Anderson memorandum of law, Harrington reply affirmation and Estate of Anderson memorandum of law (August 6, 2007).

Counsel for the Estate of Margaret Anderson is directed to 1.) submit a judgment dismissing the Supreme Court action consistent with the court's findings and 2.) a decree A.) declaring the proprietary rights of the parties, B.) setting aside the executrix's deed, dated March 31, 2003, and that a memorandum of decree be recorded with the Dutchess County Clerk's Office, and C.) directing the executrix to file her account on December 13, 2007 at 0930, both within ten (10) days of service of a copy of this decision.

This constitutes the decision of the Court.

Dated:Poughkeepsie, New York

November 2, 2007

ENTER

Hon. James D. Pagones, S.C.J. and A.J.S.C. [*5]

TO:

103107 decision