Estate of Charles Everett Whipple v Lopez
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Estate of Charles Everett Whipple v Lopez 2010 NY Slip Op 34111(U) April 22, 2010 Supreme Court, New York County Docket Number: 14852/09 Judge: Eileen A. Rakower Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YOIU<: PART 15 ---------------------------. --------------------------------------X THE ESTATE OF CHARLES EVERETT WHIPPLE, By RICHARD A. FENN AS EXECUTOR, Index No. J.14852/09 Plaintiff, AMENDED DECISION rind ORDER - against- WILFREDO LOPEZ, Mot Seq. Defendant. 101 --------------------------. --------------- ~--·--- ------·· ----------x HON. EILEEN A. RAt:OWER, J.S.C. This Amended Order supersedes this Court's Interim 0 :der dated March 1, 2010, and its Decision and Order dated April 1, 2010. Plaintiff, the Es~ate of Charles Everett Whipple C'Estate:'·, brings this action against Defendant Wilfi edo· Lopez ("Lopez'') seeking ajudgment l warding the Estate possession of all room!: and areas of the second floor ("the Pre mises") of 8 Perry Street ("the Building"): in New York, New York; and an order dir€:cting that a warrant · issue to remove Lopez from possession of the Premises. The Estate alleges in its complaint that, untii his death on 'ebruary 20, 2009, Charles Everett Whipple ("Decedent") was the cwner of th~ Building, and an occupant therein. The compiaint further a!leges -rhat Lope:. entml into occupancy ot: the Premises prior to Decedent's death pursuant to a Jicens':' gn nted by Decedent. Taking the position tlmt Lopez's license to rem'1in in the pre;i jses expired upon Decedent's death, or aiternatively, was terminated by the I~state: :be Estate served a Ten [10] Day Notice t•;: Quit the Premises on October 1, 2009, · 'he ·Notice to Quit directed Lopez to quit the Premises by October 19, 2Cb9. The t::tate subsequently commenced this action. 1 Lopez moves tc· dismiss the action pursuant to CPLR. ! 321 l(a)(3) on the grounds that the Estat: lacks standing to bring the action. Ac~ .)rding to Lopez's affirmation in support, ·•a reasonable question ofstanding exists ,\-.trranting dismissal [* 2] of this action should Plaintiff fail to tender a copy of the deed in an admissible form in opposition to this mo ti on.,, Lopez asserts that this is the case because he was unable to ascertain whether Decedent owned the Building, or any part thereof, by way of a search on New York City's ACRlS system. Lopez annexes printouts of his ACRIS search as an exhibit. The Estate cross-moves for an order converting Lopez's motion to dismiss to a motion for summary judgment pursuant to CPLR §3211(c), and awarding summary judgment to the Estate; granting ajudgment of possession of the Premises in favor of the Estate and against Lopez, and issuing a warrant of eviction; and awarding costs and sanctions to the Estate pursuant to 22 NYCRR §130-1.I based upon Lopez's motion to dismiss, which the Estate claims is frivolous. The Estate submits an attorney's affirmation, as well as the affidavit of Executor Richard A. F~nn. As evidenced by certified deed submitted by the Estate, Decedent purchased the Building in 1960. He remained owner of the building until his death, as evidenced by a August 11, 2009 letter from First American Title Insurance Company of New York confirming Decedent's continued ownership of the Building after conducting a title search. The Estate also submits the Last Will and Testament of Charles Everett Whipple dated February 5,2008 and a Codicil datedJuly8, 2008 ("Will,,). Decedent's Will names Richard A. Fenn Executor of the Estate. The Estate also annexes Letters Testamentary issued to Fenn by the Surrogate's Court on August 4, 2009. Paragraph 44 of the Will provides that the Executor shall, without regard to any statutory or judicial restrictions otherwise applying to Executors, have the following powers and discretions in addition to any conferred by law: C. To sell, at public or private sale, mortgage, lease for any period, alter, improve or otherwise dispose ofany real property or interest · in real property at any time forming part of my estate or any trust fund hereunder.... While both the extent of the relationship between Decedent and Lopez and the 2 [* 3] amount of time Lopez spent in the Premises is disputed 1, it is uncontested that Lopez stayed at the Premises with Decedent and provided care for Decedent prior to his death. It is also undisputed that Lopez paid no rent or use and occupancy to Decedent or the Estate for use of the Premises. As noted above, the Estate served Lopez with a Notice to Quit on October 1, 2009. Lopez, through counsel, responded to the Notice to Quit by letter dated October 6, 2009. In the letter, counsel directed the Estate's attention to a handwritten letter dated August 13, 2007 from Decedent to Fenn (who would be named Executor in the 2008 Will) which read as follows: Dear Richard, Life is so uncertain, Thank you for your friendship and so many helpful things. Bless you. I want especially to ask you to be kind to Wilfredo [Lopez]. He has been a special sort of friend and very helpful in many ways.' For me, help him, please. Who knows the season. But if he should need help with the expenses of the cottage, taxes, etc., please advance him the necessary · funds and they can be returned to the estate when it is settled. Thank you. Be kind. Also. I would consider it a great favor if you \uould allow him to continue to have the use of the flat at 8 Perry until the house is sold. It has been one ofhis homes and important to both oft.s. With appreciation, affection and all best wishes. Gratefo lly, Charles Whipple 1 The Estate refers to Lopez as a "friend and caretaker of the Decedent/' while Lopez maintains that the two were "life partners.,, Further, the Estate claims that L•)pez "began at times staying at the premises ... approximately five years before the Decedent died in order to help care for the Decedent." Lopez, on the other hand, states that he has "continuously resided at 8 Perry Street since 1987.... " 3 [* 4] The Notice to Quit and Lopez's response with the attached handwritten letter are annexed as exhibits to the Estate's cross-motion. On December 9, 2009, in response to Lopez,s motion to dismiss, counsel for the Estate sent a letter to Lopez,s counsel demanding that Lopez's motion to dismiss be witlidrawn or it would seek sanctions for a frivolous motion. Counsel for the Estate provided Lopez's attorney with the deed to the Building and FA.Qs to the ACRIS system (which indicates that documents filed before January 1, 19:56 are not available online). The Estate's cross-motion followed. Lopez submits an affidavit and a memorandum of law in opposition to the Estate, s cross-motion. Plaintifffirst contends that summary judgment is inappropriate on the ground, inter alia, that issue has not yet been joined. St;bstantively, Lopez claims that the Estate lacks the authority to tenninate his li<.;cnse to stay in the · Premises prior to the sale of the building, based upon the pu1po11t;1d 2007 letter from Decedent to Fenn. CPLR §321 l(a)(3) provides that a partymaymovefordismissal on the ground that "the party asserting the cause of action has not legal capacit'J to sue." The Estate has.supplied sufficient evidence of Decedent's ownership of the Premises prior to his death, and of Fenn 's authority, as Executor of the Estate, to bring the instant action. Accordingly, Lopez's pre-answer motion to dismiss is denied. With respect to the Estate's cross-motion, the Court decline~ to convert Lopez's pre-answer motion into a motion for summary judgment pursuant ~o CPLR §3211 (c), as that section cannot be utilized by a plaintiff to obtain summar. 'judgment against a party prior to that party> sjoinder ofissue (see Rochester v. Chiarella, 65 N. Y.2d 92, IO 1-102 [1985]). Wherefore it is hereby ORDERED tha1 Lopez's pre-answer motion to dismiss i:; denied; and it is further 0 RDERED that the Estate, s cross-motion for summary judgment is denied; and it is further ORDERED thatLopezshall file and serve his Answer withiJJ 20 days ofreceipt 4 [* 5] of a copy of this Amended Order with Notice of Entry thereof. This constitutes the Amended Decision and Order of the Court. All other relief requested is denied. ~wm;,J.S.C. DATED: April 22, 2010 .. 5
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