Cornell v Estate of Jennie B. Dance

[*1] Cornell v Estate of Jennie B. Dance 2010 NY Slip Op 52130(U) [29 Misc 3d 1233(A)] Decided on December 13, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2010
Supreme Court, Queens County

Wilhelmina Cornell

against

The Estate of Jennie B. Dance, et al.



23854/2009



Appearances of Counsel:

For the Plaintiff: Steven Zalewski & Associates, P.C., by Dustin Bowman and Michael Stevens, Esqs., 125-10 Queens Boulevard, Kew Gardens, New York 11415

For the Defendants: Michael F. Mongelli II, P.C., by Hope A. Achiron, Esq., 41-07 162nd Street, Flushing, New York, NY 11358

Charles J. Markey, J.

Plaintiff moves for summary judgment on all causes of action or, in the alternative, to eject defendants Bruce Dance and Paige Johnston-Charles (the "defendants") from certain real property, or to require defendants to pay fair market use and occupancy during the pendency of the action or submit an undertaking therefor, or to require the defendants to pay the carrying charges of the subject property during the pendency of the action.

The complaint in this matter alleges a cause of action to compel the determination of a claim to real property pursuant to RPAPL article 15, as well as causes of action for ejectment and for money damages for use and occupancy. The action arises out of a dispute between plaintiff and the defendants regarding their respective claims to certain real property located at 109-78 200th Street, Hollis, New York. Plaintiff asserts that she is the sole owner of the subject property while defendants argue that they hold an undivided one-half interest in the property, as tenants in common with plaintiff.

The controversy herein has its genesis in a deed dated April 18, 2001, whereby Bertha [*2]Hill transferred the subject property to "JENNIE B. DANCE, for her life, but only if she remains in the property alone; in the event any other relative or other person, other than the owner, moves into the property, then JENNIE B. DANCE shall forfeit her life estate, and may be evicted immediately, and the property shall immediately revert to the remainderman, WILHELMINA CORNELL, now residing at 5721 Ogontz Avenue, Philadelphia, PA 19141, as Joint Tenants with the right of survivorship."

Thereafter, Jennie B. Dance executed a deed dated November 9, 2006, purporting to convey "her undivided one-half (½) interest" in the property to Bruce Dance and Paige Johnston-Charles. On June 14, 2008, Jennie B. Dance died.

Plaintiff contends that the above-quoted language from the April 18, 2001 deed designating to whom the subject property was being granted and the estates being transferred by Bertha Hill conveyed a life estate in the property to Jennie B. Dance and the remainder in fee to plaintiff. Thus, according to plaintiff, Jennie B. Dance could not have conveyed an undivided one-half interest in the property, but only the life estate she held. Any interest Jennie B. Dance conveyed to defendants, plaintiff concludes, terminated upon her death on June 14, 2008. Defendants counter that the deed dated April 18, 2001, transferred the property from Bertha Hill to Jennie B. Dance and Wilhelmina Cornell, as joint tenants with the right of survivorship. The joint tenancy was subsequently terminated, defendants assert, by Jennie B. Dance's conveyance of her interest to them, which made them tenants in common with plaintiff.

Preliminarily, as a procedural matter, although defendants advise the Court that a personal representative of the estate of decedent Jennie B. Dance has not yet been appointed and that the court lacks jurisdiction over the estate, the personal representative of the estate is not a necessary party to this action. Decedent transferred the interest she claimed to have in the subject property prior to her death.

Even if she had not conveyed her interest prior thereto, decedent's death would have terminated any life estate she held in the property (see, 1 Rasch, New York Law and Practice of Real Property § 6:8, at 69 [2d ed.]; 5-47 Warren's Weed, New York Real Property § 47.09 [2010]). In addition, if Jennie B. Dance was a joint tenant, at the instant of her death the title inured to the surviving tenant (see, 1 Rasch, New York Law and Practice of Real Property § 14:44, at 306 [2d ed.]). Thus, a determination of the claims of the other parties herein to the real property in issue will not inequitably affect decedent's estate (CPLR 1001[a]; id.). It is not necessary for the personal representative of decedent's estate to be joined if complete relief is to be accorded between plaintiff and defendants (CPLR 1001[a]). Therefore, the action may proceed despite the absence of the personal representative of the estate of Jennie B. Dance.

Real Property Law section 240(3) provides that every instrument transferring an estate or interest in real property "must be construed according to the intent of the parties, so far as such [*3]intent can be gathered from the whole instrument, and is consistent with the rules of law." It is clear from the detailed provision of the 2001 deed from Bertha Hill regarding the form of the estates being transferred that the grantor intended to convey to Jennie B. Dance an estate that entitled her to immediate possession of the property for the purpose of residing there for her lifetime and to plaintiff an estate to commence in possession at a future time (see, 5-47 Warren's Weed, New York Real Property § 47.01 [2010]).

To effectuate that intent, the deed must be construed as conveying a life estate in the property to Jennie B. Dance with title passing to the remainderman, Wilhelmina Cornell, upon Dance's death or upon Dance's earlier forfeiture of the life estate for breach of the condition imposed in the provision (see, 4-37 Warren's Weed, New York Real Property § 37.103 [2010].) Although the words "as Joint Tenants, with the right of survivorship" are appended to the designation of the estates, it would be inconsistent with the rules of law to find that Bertha Hill intended to create a joint tenancy with one joint tenant as a joint tenant for life while a co-joint tenant was one in fee (see, 1 Rasch, New York Law and Practice of Real Property § 14:35, at 302 [2d ed.]). Joint tenants must share the same interests, are deemed to take and hold together as one, and have interests of the same duration (id.)

Furthermore, for a joint tenancy to be created, it must clearly appear from the terms of the instrument in its entirety that the intention is to create a joint tenancy (see, 1 Rasch, New York Law and Practice of Real Property, § 14:38, at 303 [2d ed.]). Here, however, it appears from the context that the words "Joint Tenants, with the right of survivorship" in the deed from Bertha Hill were used merely to express her intent to convey interests in the property to both Jennie B. Dance and Wilhelmina Cornell, and to have title pass to Wilhelmina Cornell upon termination of the life estate of Jennie B. Dance.

While a life tenant has the right to convey the life estate, the life tenant can convey no more than she owns (Real Property Law § 245; see, 1 Rasch, New York Law and Practice of Real Property § 6:17, at 73 [2d ed]). A conveyance made by a tenant for life of a greater estate than she possesses passes to the grantee the title, estate or interest which the tenant can lawfully convey (Real Property Law § 247).

In this instance, upon the foregoing papers, Jennie B. Dance could convey to defendants only a life estate for her life (see, 1 Rasch, New York Law and Practice of Real Property § 6:17, at 73 [2d ed.]). The life tenancy of defendants therefore terminated on June 14, 2008, upon the death of Jennie B. Dance, whose life measured the estate (see, 1 Rasch, New York Law and Practice of Real Property § 6:8, at 69 [2d ed]). At that time, plaintiff's remainder interest went into effect (EPTL 6-4.2; see, 11-119 Warren's Weed, New York Real Property § 119.01 [2010]; 5-47 Warren's Weed, New York Real Property § 47.01 [2010]).

Accordingly, the motion is granted to the extent that plaintiff is awarded partial summary judgment on the first cause of action declaring the validity of her claim to be the owner in fee of the subject property and the invalidity of any claim by defendants Bruce Dance and/or Paige [*4]Johnston-Charles to an estate or interest in the property.

In all other respects, the motion is denied. The conflicting affidavits submitted by plaintiff and defendants raise issues of fact as to whether defendants have resided in the premises at any time on or after November 9, 2006. Thus, summary judgment on the second cause of action for ejectment and the third cause of action for money damages for use and occupancy is precluded (CPLR 3212[b]).

In addition, in view of the conflicting affidavits and the plaintiff's failure to submit any other evidence regarding defendants' alleged occupancy of the property, the plaintiff has failed to demonstrate the likelihood of success on the merits necessary to entitle her to an injunction directing defendants to pay the carrying charges for the property or fair market use and occupancy, or provide an undertaking therefor, during the pendency of this action (see generally, Aetna Ins. Co. v Capasso, 75 NY2d 860 [1990]; Copart of Conn., Inc. v Long Is. Auto Realty, LLC, 42 AD3d 420 [2nd Dept. 2007]). Moreover, preliminary injunctive relief is not available in connection with a cause of action for money damages (see, Credit Agricole Indosuez v Rossiyskiy Kredit Bank, 94 NY2d 541, 544-546, 548 [2000]). Since plaintiff can be adequately compensated by money damages should she prevail on her claim for use and occupancy, she is unable to demonstrate the requisite irreparable injury in the absence of the requested preliminary injunctive relief (see, Stangel v Zhi Dan Chen, 74 AD3d 1050, 1053-1054 [2nd Dept. 2010]; 39 College Point Corp. v Transpac Capital Corp., 12 AD3d 664 [2nd Dept. 2004]; Leo v Levi, 304 AD2d 621 [2nd Dept. 2003]).

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: December 13, 2010

J.S.C.