Matter of Estate of Tartaglia v Tartaglia

[*1] Matter of Estate of Tartaglia v Tartaglia 2008 NY Slip Op 52244(U) [21 Misc 3d 1126(A)] [21 Misc 3d 1126(A)] Decided on November 6, 2008 Sur Ct, Nassau County Riordan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2008
Sur Ct, Nassau County

In the Matter of the Estate of Elizabeth Tartaglia, Plaintiff,

against

Joseph Tartaglia, Defendant.



341348



Attorneys for Joseph Tartaglia in S/C action

Hopkins & Kopilow, Esqs.

100 Quentin Roosevelt Blvd., Ste. 506

Garden City, New York11530

Attorneys for Carolyn Tartaglia

Mahon, Mahon, Kerins & O'Brien, LLC

254 Nassau Boulevard

Garden City South, New York 11530

Attorneys for Joseph Tartaglia

Murray & Hopkins, Esqs.

132 Clyde Street, Suite 1

West Sayville, New York 11796

Proposed incoming attorney for Joann Taylor

Law Office of Mitchell J. Devack, PLLC

The Financial Center of Mitchell Field

90 Merrick Avenue, Suite 500

East Meadow, New York 11554

Guardian ad Litem

Herbert Tamaras, Esq.

794 Connecticut View Drive

Oyster Bay, New York11771

John B. Riordan, J.

In an action transferred to this court from Supreme Court, Nassau County, defendant Joseph Tartaglia moves for an order directing the County Clerk of Nassau County to cancel a notice of pendency filed in connection with the action and for an order quieting title in the defendant, Joseph Tartaglia, and for such other relief as to the court seems just.

The defendant Joseph Tartaglia is the grandson of plaintiff Elizabeth Tartaglia, the decedent in the probate proceedings currently pending before this court. Decedent's daughter Joann Taylor is representing the estate in the Supreme Court action in her capacity as preliminary executor. A brief recitation of the essential allegations in the pending proceedings and the identities of the parties involved may facilitate an understanding of the court's decision on the instant motion.

The decedent, Elizabeth Tartaglia, and her husband, also named Joseph Tartaglia, took title to the subject premises in Massapequa Park, New York by deed dated November 24, 1958. The deed identifies the grantees as "Joseph Tartaglia and Elizabeth, his wife" thus presumptively creating a tenancy by the entirety (Matter of Squires, 208 Misc 856 [Sur Ct, Suffolk Co 1955]; Sterns v Stevans, 20 Misc 2d 417 [Sup Ct, Nassau Co 1959]). Joseph Tartaglia died November 29, 1996. Assuming the validity of the tenancy by the entirety, Elizabeth became the sole owner of the premises upon Joseph's death (Kahn v Kahn, 43 NY2d 203 [1977]; Bertles v Nunan, 92 NY 152 [1883]).

On March 30, 1999, decedent executed a deed conveying title of the property to herself and her grandson Joseph, the defendant herein, as joint tenants with right of survivorship. Thereafter, decedent executed a deed dated November 17, 2004, recorded February 28, 2005, conveying her remaining interest in the property to her daughter, Joann Taylor, reserving a life estate. Another deed was executed by decedent on December 8, 2004, recorded on December 30, 2004, whereby decedent purportedly again conveyed her remaining interest in the property, this time outright to Joseph. The Supreme Court action transferred to this court seeks to vacate both the 1999 and the 2004 deeds conveying an interest in the property to Joseph. The notice of pendency now sought to be canceled was filed in 2008.

In addition to Joseph and Joann, the decedent was survived by another daughter, Carolyn Tartaglia and by four other grandchildren, all Joseph's siblings and the children of decedent's predeceased son, John. One of those grandchildren, Jacquelyn Tartaglia, is an infant and her interests are being represented by a court-appointed guardian ad litem.

In addition to the Supreme Court action, there are also two probate petitions which have been filed regarding the decedent's estate. The first will is dated April 28, 2000 and bequeaths decedent's entire estate to Joseph, to the exclusion of all other distributees. A later will, dated October 12, 2005, bequeaths decedent's entire estate to Joann, also to the exclusion of all other distributees.

To be successful in her effort to attain ownership of the subject property, Joann must prevail in the probate of the later will, and successfully vacate both deeds in favor of Joseph, executed five years apart. To complicate matters, there is evidently a $250,000.00 mortgage on the property which Joseph has been paying, but which he claims he is no longer able to carry. [*2]Furthermore, Joann's sister Carolyn, who has been appointed the administrator of the estate of their father, Joseph Tartaglia, alleges that the marriage between their parents appears to have been invalid as their mother, the decedent, was still married to another man at the time of their purported marriage. If that is true, then when the property was purchased in 1958, Elizabeth and Joseph most likely took title as tenants in common, although even that is not entirely clear, the statutory provision creating a joint tenancy with right of survivorship in such circumstances not having been enacted until 1975 (L. 1975, ch. 263; Compare Crawley v Shelby, 37 AD2d 673 [3d Dept 1973][conveyance to two unmarried people as husband and wife created tenancy in common], with Guidice v Lofaso, 199 Misc 401 [Sup Ct, Queens Co 1951[conveyance to two unmarried people as husband and wife created joint tenancy with right of survivorship]). Thus, whether Joann will ultimately prevail in her pursuit of full title to the subject property is, at best, questionable at this point. What is clear is that, assuming arguendo that the property is an estate asset, the only asset of the estate is encumbered by a large mortgage which none of the parties are evidently willing or able to pay. Regardless of Joann's contention that the mortgage was obtained by Joseph and the obligation to satisfy the mortgage should also be Joseph's, the fact remains that unless the property is sold, there will likely be a foreclosure before all of the various lawsuits in this case have been either resolved or adjudicated, and foreclosure will be in no one's interest. Although Joann complains that the contract sales price of $450,000 does not reflect fair market value, she fails to provide any evidence whatever of that contention. Carolyn, as administrator of the estate of her father Joseph Tartaglia has indicated her support of the instant motion to cancel the notice of pendency, as has the guardian ad litem appointed to represent the interests of the infant distributee.

CPLR 6514(b), relied upon movant, permits the court to cancel a notice of pendency where the action was either brought in bad faith or is not being diligently prosecuted. Movant's counsel has had great difficulty deposing Joann in this action and that might itself justify the canceling of the notice of pendency (Sloben v Stam, 157 AD2d 835 [2d Dept 1990]). CPLR 6515 provides additional grounds upon which to cancel a notice of pendency, and, even though not pled by the movant, that does not prevent the court from that granting relief (SCPA 202). Specifically, CPLR 6515 authorizes the court in its discretion to cancel a notice of pendency upon such terms as are just, which generally means the moving party will give an undertaking in a sum fixed by the court (CPLR 6515; 5303 Realty Corp. v O. & Y. Equity Corp., 64 NY2d 313, 320 [1984]).

Here, the court is satisfied that the undertaking proposed by Joseph's counsel that his firm will retain the entire net proceeds of sale in an interest-bearing escrow account until further order of this court, provides sufficient security to the plaintiff, considering the likelihood of her ultimate success on the merits, and all the other considerations extant in this case.

Accordingly, the motion is granted. The court directs the Nassau County Clerk to cancel the notice of pendency filed in connection with the instant action and determines that Joseph Tartaglia may convey good and marketable title to the subject premises pursuant to the terms of the contract of sale annexed to the moving papers. All net proceeds of sale shall be retained by the law firm of Murray and Hopkins in a segregated, interest-bearing escrow account until further

order of this court. Movant's counsel are directed to notify the court and all opposing counsel upon the closing of title and indicate the amount of the net proceeds to be held in escrow. [*3]

Settle order on five days notice with five additional days if service is by mail.

Dated:November 6, 2008

John B. Riordan

Judge of the

Surrogate's Court