Olivieri v Olivieri

[*1] Olivieri v Olivieri 2009 NY Slip Op 51224(U) [24 Misc 3d 1201(A)] Decided on June 12, 2009 Supreme Court, Kings County Schneier, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 12, 2009
Supreme Court, Kings County

Joseph G. Olivieri, Plaintiff,

against

Carmine Olivieri, THE ROSE N. OLIVIERI TRUST and JOHN & JANE DOES 1-6, Defendants.



20724/07



ATTORNEY FOR PLAINTIFF

CARUSO, CARUSO & BRANDA, P.C.

7302 - 13TH AVENUE

P.O. BOX 280-086

BROOKLYN, NEW YORK 11228-0003

718-680-5778

ATTORNEY FOR DEFENDANTS

SALVATORE E. STRAZZULLO, ESQ.

THE STRAZZULLO LAW FIRM

2059 RICHMOND AVENUE

STATEN ISLAND, NEW YORK 10314

718-494-5700

Martin Schneier, J.

Plaintiff Joseph G. Oliveri ("Joseph") moves, pursuant to CPLR Section 3212, for summary judgment in this partition action. Plaintiff also moves for summary judgment dismissing the counterclaims or, in the alternative, for severance of the counterclaims.

Background

The facts are essentially uncontroverted. On December 18, 2000, The Rose [*2]N. Olivieri Trust (the "trust") was created by its grantor, Rose N. Olivieri ("Rose"). Rose in the trust agreement named her son, Joseph, as the trustee. Also on December 18, 2000, Rose transferred a two story four family house, located at 1774 73rd Street in Brooklyn, New York (the "premises") to "Joseph G. Olivieri trustee of the Rose N. Olivieri." On December 8, 2004, Joseph resigned as trustee of the trust in favor of his brother, Rose's other son and defendant herein, Carmine Olivieri ("Carmine") who now became the trustee. On December 8, 2004, a correction deed was executed which clarified that the owner of the premises was the "Rose N. Olivieri Trust".

On April 3, 2007, Rose died. The Fourth Article in the trust provided, in pertinent part, that:

"A.This trust term shall terminate upon the death of the Grantor, at which time the Trustee shall distribute the remaining trust assets as follows:

1.Fifty (50%) Percent to Joseph G. Olivieri...

2.Fifty (50%) Percent to Carmine Olivieri..."

Joseph commenced this partition action on June 11, 2007. On October 9, 2007, Carmine answered and counterclaimed for breach of fiduciary duty and an accounting.

Discussion

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact. (Kolivas v Kirch,14 AD2d 493 [2d Dept 2005]) "Issue finding, rather than issue determination is the courts function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell, 222 AD2d 547 [2d Dept 1995])

The party moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact (CPLR § 3212[b]; GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 [1985]). However, once the moving party has satisfied this obligation, the burden shifts; "the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action" (Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]). "Mere conclusory assertions, devoid of evidentiary facts, are insufficient for this purpose, as is reliance upon surmise, conjecture, or speculation" (Morgan v. New York Telephone, 220 AD2d 728, 729 [2d Dept 1995]. Furthermore, the court must draw all reasonable inferences in favor of the non-moving party, and may not pass on [*3]issues of credibility (Negri v. Stop and Shop, 65 NY2d 625, 626 [1985]; Rizzo v. Lincoln Diner Corp., 215 AD2d 546 [2d Dept 1995]).

Real Property Actions and Proceedings Law Section 901 provides, in

pertinent part, that;

"1. A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners."

Defendant argues that summary judgment must be denied because the last deed of record indicates that the trust is the legal owner of the premises and, therefore, Joseph lacks standing to maintain this action. However, upon termination of a trust, title to any real property held by the trust is "immediately vested" in the beneficiaries (In re Miller's Will, 257 NY 349, 356 [1931]). Furthermore, upon the termination of the trust the trustee "no longer possessed a right under that instrument to perform any act of administration in respect to such real property" (In re Jone's Will, 306 NY 197, 206 [1954]). Thus, Joseph became a tenant in common with his brother Carmine upon Rose's death and has standing to maintain this action.

Carmine also claims that Joseph's resignation as trustee and his renunciation of any claim as a beneficiary through Rose's Will create factual issues. Carmine fails, however, to identify what these factual issues are. In addition, Rose's Will is irrelevant since the premises are not part of her estate as title to the premises immediately vested in Joseph and Carmine as equal tenants in common upon her death. Thus, Joseph has

established his prima facie entitlement to summary judgment as a matter of law. In opposition, Carmine has failed to raise a triable issue of fact.

With respect to the Joseph's motion for summary judgment dismissing the counterclaims, Joseph does not account for all the monies that Carmine alleges are missing. Thus, Joseph fails to meet his prima facie burden of showing his entitlement to summary judgment as a matter of law.

With respect to the plaintiff's motion for severance of the counterclaims, CPLR Section 603 states that:

"In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate [*4]issue. The court may order the trial of any claim or issue prior to the trial of the others."

Counterclaims for an accounting may be considered incidental to a cause of action for partition (Barcia v Menna, 307 AD2d 243 (2d Dept 2003). The counterclaims in this case arise from Joseph's conduct as trustee for the period of December 18, 2000 to December 8, 2004. These allegations concern conduct that occurred long before Joseph became seized in the premises. Furthermore, because Joseph has established his entitlement to summary judgment in the partition action, it would be unfair to require him to await the outcome of the counterclaims.

Conclusion

In sum, the plaintiff's motion for summary judgment in the partition action is granted. The plaintiff is directed to settle an Order of Reference for the Court to appoint a Referee to conduct the sale, accounting and division of proceeds based on plaintiff, Joseph G. Olivieri, and defendant, Carmine Olivieri, being equal tenants in common of the premises.

The plaintiff's motion for summary judgment dismissing the counterclaims or, in the alternative, for severance of the counterclaims is denied as being moot in view of the courts determination herein.

This constitutes the Decision and Order of the Court.

_______________________

J.S.C.