Flores v D'Errico

[*1] Flores v D'Errico 2013 NY Slip Op 50355(U) Decided on March 12, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2013
Supreme Court, Dutchess County

Geronimo Flores, Plaintiff,

against

Robert D'Errico, Defendant.



0429/12



SHARON M. FAULKNER, ESQ.

OSTERTAG, O'LEARY, BARRETT

& FAULKNER, ESQS.

Attorneys for Plaintiff

17 Collegeview Avenue

Poughkeepsie, New York 12603

PAUL J. GOLDSTEIN, ESQ.

GOLDSTEIN & GOLDSTEIN, ESQS.

Attorneys for Defendant

40 Garden Street

Poughkeepsie, New York 12601

James D. Pagones, J.

Plaintiff Geronimo Flores moves for an order: (1) granting the plaintiff summary judgment partitioning the subject property; (2) dividing the net proceeds from the partition equally between the parties in accordance with their respective rights; and (3) staying all discovery pending the court's determination on the plaintiff's instant application. The defendant opposes the plaintiff's application and cross-moves for an order: (1) pursuant to CPLR §3211 dismissing the plaintiff's complaint; and (2) pursuant to CPLR §3124 compelling the plaintiff to comply with the defendant's outstanding discovery demands. The plaintiff opposes the defendant's cross-motion.

This is an action to partition real property located at 49 Beadart Place, Hyde Park, New York 12538 (originally numbered as 27 Beadart Place prior to 911 being instituted in Hyde Park). The relevant facts are not in dispute. The subject property was previously owned by the defendant and Patricia M. D'Errico as tenants by the entirety. On or about April 8, 1982, the [*2]defendant and Patricia M. D'Errico entered into a stipulation and agreement in relation to their divorce. The stipulation was incorporated, but not merged, into a judgment of divorce signed on September 1, 1982. The stipulation provides in relevant part as follows:

That the defendant (Mr. D'Errico) shall have exclusive possession of the one-family residence at 27 Beadart Place, Hyde Park, New York, which is owned jointly by the parties. The defendant agrees to assume the mortgage now outstanding against said premises and to pay all expenses, taxes and assessments incurred in maintaining said premises. Upon the sale of the property, the plaintiff (Mrs. D'Errico) shall be entitled to a one-half share of the proceeds hereof, after deducting therefrom all expenses incidental to the sale, including, but not limited to, attorney fees, broker's commissions, abstract fees and the mortgage. The mortgage shall be the balance which was due as of June 1, 1978, and shall be paid to [sic] the defendant. The defendant agrees to be responsible for payment of the entire mortgage obligation to the mortgagee.

The defendant was also awarded primary custody of his and Patricia M. D'Errico's son. Both the defendant and his son resided at the subject property after the finalization of the divorce. The D'Errico's son is now approximately 36 years old and is emancipated.

After the finalization of their divorce, Patricia M. D'Errico relocated to Kentucky and married the plaintiff, Geronimo Flores. Patricia M. D'Errico thereafter changed her name to Patricia Flores.

In 2002 Patricia Flores died. Mrs. Flores' Will was admitted to probate in Kentucky in August 2002. According to the terms of her Will, she left her entire estate, including her interest in the subject property, to the plaintiff. An ancillary probate proceeding was commenced in New York in 2004 and Mrs. Flores' Will was admitted to ancillary probate and ancillary letters testamentary were issued to the plaintiff on or about July 21, 2004.

The defendant has resided at the subject property for approximately thirty years since the judgment of divorce awarded him exclusive occupancy. The plaintiff, through his attorneys, notified the defendant in 2002 that Mrs. Flores' estate was seeking to recover her one-half share in the property. Demands for a voluntary buyout were subsequently sent by plaintiff's attorneys to the defendant in 2004 and 2011. The plaintiff now seeks, as a tenant in common, to partition the subject property.

In order "to obtain summary judgment, it is necessary that the movant establish his or her cause of action or defense sufficiently to warrant the court as a matter of law in [*3]directing judgment' in his or her favor (CPLR 3212[b]), and he or she must do so by tender of evidentiary proof in admissible form." (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 NY2d 1065, 1067 [1979].) Parties opposing a motion for summary judgment are obliged to lay bare their evidentiary proof in admissible form in order to show that their allegations are capable of being established at a trial. (Albouyeh v. County of Suffolk, 96 AD2d 543 [2d Dept. 1983] aff'd 62 NY2d 681 [1984].) Bare conclusory allegations, expressions of hope or unsubstantiated assertions are insufficient. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].)

Pursuant to Real Property Actions and Proceedings Law §901(1), a tenant in common may maintain an action for the partition of real property and for a sale if a partition cannot be made without great prejudice to the owners. Where one of the tenants in common was previously awarded exclusive possession pursuant to a judgment of divorce, "the right of exclusive occupancy...and the restriction on partition which results therefrom, must be deemed limited to a reasonable duration absent an express or implied agreement to the contrary." (Pando v. Tapia, 79 AD3d 993 [2nd Dept. 2010], quoting Surlak v Fulfree, 145 AD2d 79, 81 [2nd Dept. 1989].)

The plaintiff has submitted evidence sufficient to establish his prima facie entitlement to judgment as a matter of law. The plaintiff has demonstrated, and the defendant does not dispute, the validity of his ownership and right to possession of the subject property as a tenant in common with the defendant. The defendant has also established the passage of a reasonable period of time regarding the defendant's right to exclusive occupancy. The stipulation and judgment of divorce between the defendant and his ex-wife contain no express or implied agreement as to the duration of the defendant's term of exclusive occupancy. However, there is no dispute between the parties that the defendant has enjoyed exclusive occupancy of the subject property for approximately thirty (30) years, including approximately eighteen (18) years from the emancipation of his child for whom he had custody. Additionally, the stipulation and agreement clearly contemplate that the subject property will eventually be sold and allocates the proceeds between the defendant and his ex-wife, suggesting that the parties to the agreement did not intend to grant the defendant a life estate in the subject property. As such, the court finds that the plaintiff has established that the defendant's right to exclusive possession under the stipulation and agreement and judgment of divorce has expired with the passage of a reasonable period of time. (Pando, 79 AD3d at 995).

In opposition, the defendant has failed to raise a triable issue of fact rebutting the plaintiff's prima facie showing. Specifically, the defendant failed to raise a triable issue of fact as to whether partition was barred by the express or implied agreement or as to whether his right to exclusive possession, which had no stated duration in the separation agreement or judgment of divorce, had not expired after the passage of approximately thirty (30) years. The case of [*4]McNally v. McNally, 129 AD2d 686 [2nd Dept. 1987], relied on by the defendant in opposition to the plaintiff's motion and in support of his cross-motion to dismiss, does not mandate an alternative finding by the court. While the court in McNally granted the defendant's motion for summary judgment and found that "the plaintiff's decedent in effect agreed to refrain from exercising his right to partition for the duration of the defendant's life (provided, of course, that she remain in occupancy of the premises and paid the mortgage, insurance premiums and taxes)", the Second Department has specifically limited the holding in McNally to the facts presented in that case. The Second Department in Surlak v. Fulfree, supra, which was decided approximately two years after McNally, found that McNally "was limited to the situation presented therein and does nothing to undermine the legal presumption that an unconditional grant of exclusive occupancy must be deemed limited to a reasonable duration absent proof of an agreement to the contrary." (145 AD2d at 851). The Surlak court further stated that McNally "does not...set forth the broad legal proposition that a life tenancy is created in favor of an occupying spouse whenever a separation agreement or a judgment of divorce contains both an unlimited grant of exclusive occupancy and a provision requiring the occupying spouse to pay all carrying costs on the premises." (Id. at 851).

Additionally, the defendant's assertion of the defense of laches is unavailing. A claim will not be precluded on the ground of laches unless there is a showing not only of a delay, but also an injury, change of position, or other disadvantage resulting from such delay. (Haberman v. Haberman, 216 AD2d 525 [2nd Dept. 1995].) Here, the defendant has failed to raise any triable issue of fact as to how he was injured due to the plaintiff's alleged delay in bringing this action. (See, Pando supra at 996).

Therefore, it is ordered that the plaintiff's motion is granted and the defendant's cross-motion is denied. The plaintiff is directed submit a proposed order for the appointment of a referee on notice within twenty (20) days of the date of this decision and order.

The Court read and considered the following documents upon these applications:

PAGES NUMBERED

1.Notice of Motion...................................1-2

Affirmation-Faulkner..........................1-8

Exhibits......................................A-G

Memorandum of Law.............................1-4

2.Notice of Cross-Motion.............................1-2

Affidavit in Opposition-Robert D'Errico.......1-3

Affidavit in Opposition-Anthony D'Errico......1-2

Affirmation-Walsh.............................1-2

Affirmation in Opposition-Goldstein...........1-4

Exhibits......................................1-8

3.Affirmation in Opposition-Faulkner.................1-4

Memorandum of Law in Opposition...............1-2 [*5]

4.Reply Affirmation-Faulkner.........................1-5

Reply Affidavit-Geronimo Flores...............1-2

The foregoing constitutes the decision and order of the

Court.

Dated:Poughkeepsie, New York

March 12, 2013

ENTER

HON. JAMES D. PAGONES, A.J.S.C.