Maurice v Maurice

[*1] Maurice v Maurice 2013 NY Slip Op 50496(U) Decided on March 18, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2013
Supreme Court, Kings County

George T. Maurice, Plaintiff,

against

Ann C. Maurice, Defendant.



34172/07



Plaintiff Attorney: Greenberg Freeman, LLP, 110 East 59th Street, 22nd Floor, New York, NY 10022

Defendant Attorney: Elliott S. Martin, Esq., 16 Court Street, Brooklyn, NY 11241

David I. Schmidt, J.

The following papers numbered 1 to 14 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-4 6-7 8-9

Opposing Affidavits (Affirmations)53, 10-11

Reply Affidavits (Affirmations)12-13

Affidavit (Affirmation)

Other Papers Transcript dated September 6, 201214

Upon the foregoing papers, George T. Maurice (plaintiff) moves for summary judgment, pursuant to CPLR 3212, in this action to quiet title to real property located at 2218 East 17th Street in Brooklyn (the Property). Ann C. Maurice (defendant) cross-moves for an order in limine precluding William A. Colavito from offering expert testimony on behalf of plaintiff and also moves for summary judgment dismissing this action.

Background

(1) [*2]

Anita Maurice (Mrs. Maurice) and her husband, Paul Maurice, acquired the Property in 1938, then denominated as lot 467 and half of lot 466, block 7377 in Kings County. Mrs. Maurice became sole owner of the Property when Paul Maurice died in 1980.

Mrs. Maurice and her son, the plaintiff, visited the office of Santoriella, Peters and Gertsman, P.C. (SPG) on December 29, 1999, where she executed a quitclaim deed purportedly transferring the Property to herself and plaintiff as joint tenants with rights of survivorship (the 1999 Deed). No one has produced the original 1999 Deed in this action, but the record contains two copies of it: one from the Kings County Clerk's Office, and one from SPG's archives. A completely blank space exists on both copies in the place for describing the property being conveyed, but "SECTION 22[/] BLOCK 7377[/] LOT 467[/] COUNTY OR TOWN Kings" appears at the bottom of the back page. The recorded copy of the 1999 Deed contains only a cover sheet and the two pages (front and back) of the completed deed form. The SPG archive copy, however, includes a separate page bearing the Property's metes and bounds as well as other forms, which each designate the Property by address and as lot 467 in block 7377.

Mrs. Maurice later executed a bargain and sale deed on August 26, 2005 (the 2005 Deed), which purported to transfer the Property in its entirety to her daughter, the defendant. The 2005 Deed describes the Property by metes and bounds language and denominates it as lot 13 in block 7377, which the parties recognize as the correct, current lot number for the Property.

Mrs. Maurice died on July 27, 2007, and plaintiff commenced this action on August 27, 2007 against defendant individually and as administrator of Mrs. Maurice's estate. The original complaint sought a judgment declaring plaintiff and defendant as joint tenants of the Property with rights of survivorship. The Honorable Francois A. Rivera's March 27, 2009 order granted defendant default judgment on her counterclaims, but the Appellate Division, Second Department's November 9, 2010 decision and order vacated that ruling (see Maurice v Maurice, 78 AD3d 792 [2010]).

Plaintiff's ensuing amended complaint named defendant in only her individual capacity, and demanded a judgment declaring plaintiff the sole and rightful owner of the Property. The amended complaint alleged (in paragraphs 18 and 26) (1) that a separate page containing the Property's metes and bounds description accompanied the 1999 Deed when executed and delivered to a title agency for recording, but (2) that the separate page thereafter got detached and never got filed. Plaintiff claimed that, upon learning of the 2005 Deed, SPG sent letters to defendant and Mrs. Maurice demanding that they cancel or rescind the 2005 Deed, but that neither of them took any such action.

(2)

Plaintiff's summary judgment motion now seeks an order (1) declaring that he owns the Property under the 1999 Deed and that defendant and every person claiming under her be barred from claiming an estate or interest in his ownership interest in the [*3]Property, (2) declaring that defendant holds no more than a one-half, undivided interest in the Property under the 2005 Deed and (3) directing the parties to create and record an amended deed. Plaintiff supports his motion by asserting that plaintiff, defendant and Mrs. Maurice agreed in a 1999 telephone conversation that plaintiff would receive the Property upon Mrs. Maurice's death. Plaintiff states that Mrs. Maurice, shortly thereafter, retained SPG to prepare a new deed for this purpose. Plaintiff has presented a September 1, 1999 letter from Radley Baine (Baine), an SPG attorney, to Mrs. Maurice regarding a delay in returning the Property's original 1938 deed. Plaintiff has also presented a copy of a "written phone message" indicating that plaintiff had called Baine to schedule a meeting to put his name on the Property's deed. Plaintiff claims no recollection of contacting SPG, but adds that such contact would have been at Mrs. Maurice's request.

Plaintiff further mentions that he took Mrs. Maurice to the SPG office on December 29, 1999, and that Baine spoke to Mrs. Maurice alone before she signed the 1999 Deed and associated forms.[FN1] Plaintiff, as recounted, alleges that a separate page reciting the metes and bounds description accompanied the 1999 Deed upon execution, but also contends that the lot number and extrinsic evidence adequately identified the Property and made the metes and bounds unnecessary for a valid conveyance.

Plaintiff has additionally presented the deposition transcripts of both Baine and Robert Santoriella, an SPG partner, but neither individual has any specific recollection regarding plaintiff, Mrs. Maurice or the 1999 Deed execution. Baine did generally state that he would have attempted to ensure that any elderly person signed a deed with requisite capacity and intent, and that he always followed the proper notarization procedures to ensure a signer's identity.

Plaintiff also has submitted the affidavit of William A. Colavito, Esq. (Colavito), a purported expert in real estate law. Colavito, upon reviewing the pleadings and evidence, opines (in paragraphs 7, 17 and 25) "to a reasonable degree of legal certainty" that the 1999 Deed "contained the required elements of a deed" when Mrs. Maurice executed it on December 29, 1999, that "[t]he absence of a metes and bounds property description on the copy of the 1999 Deed recorded with the Kings County Registrar is immaterial to . . . whether there was a valid conveyance from [Mrs. Maurice] to [plaintiff] in 1999" and that "there was a valid conveyance of an interest in the Property from [Mrs. Maurice] to [plaintiff] on December 29, 1999." Colavito further claims (in paragraphs 21-23) that extrinsic evidence confirms Mrs. Maurice's intent to convey the Property to herself and plaintiff via the 1999 Deed, and separately opines (in paragraph 31) that "any interest in the Property conveyed from [Mrs. Maurice] to [defendant] under the 2005 Deed was subject to [plaintiff's] interest in the Property under the 1999 Deed."

Defendant argues, in opposition, to preclude plaintiff's testimony regarding transactions with Mrs. Maurice under CPLR 4519 (the Dead Man's Statute) as plaintiff [*4]holds a pecuniary interest in the action's outcome. Defendant argues that numerous triable factual issues exist regarding whether Mrs. Maurice intended to transfer the Property to plaintiff via the 1999 Deed and whether Mrs. Maurice validly executed that purported conveyance. Defendant additionally cross-moves for an order in limine precluding Colavito from testifying as an expert witness about the 1999 Deed's legal sufficiency. Defendant argues that Colavito's proffered testimony constitutes a legal conclusion, which would impermissibly impinge on the court's role of interpreting the law.

Plaintiff replies that defendant lacks standing to challenge Mrs. Maurice's signing of the 1999 Deed. Plaintiff also argues that one should presume Mrs. Maurice's notarized signature on the 1999 Deed genuine and not apply the Dead Man's Statute against plaintiff's statements regarding Mrs. Maurice's acts because her estate is not a party herein. Plaintiff concurrently defends Colavito's testimony as an admissible opinion about the validity of the 1999 Deed, the ultimate issue of fact in this action, and thus distinguishable from an impermissible legal conclusion.

(3)

Defendant separately seeks summary judgment dismissing the action. She argues that the 1999 Deed's failure, upon its face, to describe the Property invalidates such deed. In addition, she stresses that no evidence shows the lot number was printed on the back of the 1999 Deed when executed. Defendant submits that the writing on a deed reveals a grantor's intent, and thus contends that a court cannot utilize extrinsic evidence to clarify a grantor's intent if no writing reveals intent in the first place.

Plaintiff claims in opposition that law of the case bars summary judgment for defendant as the Appellate Division, in vacating the default judgment on defendant's counterclaims herein, found plaintiff had met his burden of demonstrating a potentially meritorious defense. Plaintiff argues that, at minimum, questions of fact exist regarding whether the 1999 Deed sufficiently described the Property and whether an attachment reciting the metes and bounds description accompanied the 1999 Deed when executed.

Defendant rejects applying law of the case to preclude summary judgment in her favor, as the quantum of proof required to vacate a default is lower than that needed to oppose a summary judgment motion. Defendant argues that no evidence shows that the 1999 Deed clearly denominated the Property or that Mrs. Maurice actually intended to convey the Property. Defendant contends that Mrs. Maurice had no intent to convey the Property to plaintiff, and that she believed the documents she signed primarily pertained to installing a driveway on the Property. Defendant further alleges that Mrs. Maurice became "distressed and alarmed" when she learned that plaintiff had been listed on a recorded document as an owner of the Property.

Discussion

[*5](1)

A summary judgment movant must show prima facie entitlement to judgment as a matter of law by offering sufficient admissible evidence demonstrating the absence of any material factual issue (CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Failure to make such a showing requires denial of the motion regardless of the sufficiency of any opposing papers (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). The opposing party overcomes the movant's showing only by introducing "evidentiary proof in admissible form sufficient to require a trial of material questions" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a summary judgment motion (id.). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal citation and quotation marks omitted]).

(2)

Defendant argues that the Dead Man's Statute bars plaintiff from testifying about Mrs. Maurice's actions regarding the 1999 Deed, but CPLR 4519 precludes only testimony "against the executor, administrator or survivor" of the deceased (CPLR 4519; Matter of Zalk, 10 NY3d 669, 678-79 [2008]). Defendant serves as administrator of Mrs. Maurice's estate, but this action names defendant only in her personal capacity, and the parties agree that the Property was never part of Mrs. Maurice's estate. Thus, invoking the Dead Man's Statute fails to bar plaintiff's testimony about his transactions with Mrs. Maurice.

(3)

Expert testimony is admissible "when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror" (People v Rivers, 18 NY3d 222, 228 [2011], quoting De Long v County of Erie, 60 NY2d 296, 307 [1983]). Expert witnesses may opine on ultimate questions (Rivers, 18 NY3d at 228), but not upon questions of law, as this intrudes upon the court's function (see Colon v Rent-A-Center, 276 AD2d 58, 61-62 [2000] ["(e)xpert opinion as to a legal conclusion is impermissible"]; Marquart v Yeshiva Machezikel Torah D'Chasidel Belz of NY, 53 AD2d 688, 689 [1976]). Hence, the Colavito affidavit will be considered to the extent useful and relevant concerning matters not categorized as legal conclusions.

(4)

A deed validly conveys real property only by including "a specific grantor, a specific grantee, a proper designation of the property, a recital of the consideration, and . . . technical operative words" (Cohen v Cohen, 188 App Div 933, 933 [1919]; see also Romanoff v Village of Scarsdale, 50 AD3d 763, 765 [2008]; Bistrian v Bistrian, 172 AD2d 577, 578-79 [1991]). A deed's description of the property being conveyed is legally defective only if so inaccurate that the identity of the property remains wholly [*6]uncertain, but a court may admit parol evidence to identify the property and its boundaries (see Town of Brookhaven v Dinos, 76 AD2d 555, 561-62 [1980], affd 54 NY2d 911 [1981]).

Nevertheless, a deed totally lacking a property description when executed constitutes a nullity, even if someone subsequently inserts a description (Rekis v Lake Minnewaska Mountain Houses, 170 AD2d 124, 127 [1991], lv dismissed 79 NY2d 851 [1992], rearg denied 79 NY2d 978 [1992]; see also Hulburt v Walker, 258 NY 8, 13-14 [1931] [holding deed with blank property description invalid where separate paper bearing description later affixed to deed]). A written instrument may incorporate external documents by reference, but incorporation succeeds only if the reference is sufficient to identify the external documents beyond a reasonable doubt (see Matter of Board of Commrs. of Washington Park of City of Albany, 52 NY 131, 134 [1873] ["(i)t is the reference to the paper by proper description and identification, in a manner and by words indicating an intent to make it a part of the instrument, that affects the incorporation of it for all purposes"]; Chiacchia v National Westminster Bank, 124 AD2d 626, 628 [1986]).

Furthermore, General Obligations Law § 5-703 (the Statute of Frauds) requires conveyance of property occur via written instrument, subscribed by the grantor (General Obligations Law § 5-703 [1]). Subscription, in accordance with the Statute of Frauds, means a signature at the end of the instrument (Steinberg v Universal Machinenfabrik GMBH, 24 AD2d 886, 887 [1965], affd 18 NY2d 943 [1966]; see also James v Patten, 6 NY 9, 11-17 [1851]). The subscription requirement, in turn, voids terms after or below the signature (see Matter of Field, 204 NY 448, 455-57 [1912]).

Here, plaintiff has offered no evidence toward establishing that the metes and bounds description of the Property actually accompanied the 1999 Deed at the time Mrs. Maurice executed it. Instead, he merely speculates (at page 17 of his Memorandum of Law supporting his summary judgment motion) that "a metes and bounds description must have been a part of the original 1999 Deed when it was signed." Similarly, plaintiff has introduced no evidence to show that the outdated lot number and block number appeared on the back of the 1999 Deed when executed. Even an assumption that the metes and bounds description had been attached and the outdated lot number had been printed when Mrs. Maurice executed the 1999 Deed leaves such deed a nullity because it lacked a description of the property conveyed. Indeed, the 1999 Deed bears no description, no reference to an extrinsic description, nor any other identifier of the property conveyed above Mrs. Maurice's signature. Accordingly, the 1999 Deed is void and conveyed no interest.

Defendant's notice of the 1999 Deed before executing the 2005 Deed and the 2005 conveyance's gratuitous nature do not impact the validity of the 2005 Deed. Plaintiff's arguments assume that defendant seeks protection as a bona fide purchaser for value (see Lucas v J & W Realty & Constr. Mgt., Inc., 97 AD3d 642, 643 [2012]; 89 Pine Hollow Rd. Realty Corp. v American Tax Fund, 96 AD3d 995, 998 [2012]), but defendant does [*7]not seek such protection. Hence, the void 1999 Deed conveys no interest in the Property to plaintiff (see Solar Line, Universal Great Bhd., Inc. v Prado, 100 AD3d 862, 863-64 [2012]), and defendant's failure to qualify as a bona fide purchaser is irrelevant in finding the 2005 Deed valid.

(5)

The Appellate Division's reference to a "potentially meritorious defense" in vacating default judgment against plaintiff on defendant's counterclaims creates no law of the case bar against ruling in defendant's favor. The level of proof required to vacate a default judgment is less than that required for opposing summary judgment (Bilodeau-Redeye v Preferred Mut. Ins. Co., 38 AD3d 1277, 1277 [2007]; Dodge v Commander, 18 AD3d 943, 945 [2005]; Bergen v 791 Park Ave. Corp., 162 AD2d 330, 331 [1990]).

(6)

Prevailing law bars resolving a summary judgment motion by dismissing a cause of action seeking declaratory relief (see Lanza v Wagner, 11 NY2d 317, 334 [1962], cert denied 371 US 901 [1962]; see also Sweeney v Cannon, 30 NY2d 633, 634 [1972]). Instead, proper procedure requires issuing an appropriate declaration (see Sweeney, 30 NY2d at 634). Accordingly, it is

ORDERED that plaintiff's summary judgment motion is denied and the court, pursuant to CPLR 3001, hereby declares that (1) the 1999 Deed herein is a nullity and plaintiff is not the owner of real property located at 2218 East 17th Street in Brooklyn, now denominated as lot 13 of block 7377, (2) defendant and every person claiming under her are not barred from claiming an estate or interest affecting plaintiff's ownership and (3) the 2005 Deed herein is not invalid to the extent it sought to convey to defendant more than a one-half undivided interest in such property; and it is further

ORDERED that defendant's cross motion in limine to preclude the expert testimony of William Colavito is denied; and it is further

ORDERED that defendant's summary judgment motion is denied to the extent that it seeks to dismiss the action and the court, pursuant to CPLR 3001, hereby declares that defendant is the sole lawful owner of real property located at 2218 East 17th Street in Brooklyn, now denominated as lot 13 of block 7377.

This constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Baine's notary stamp and signature appear on the back page of all copies of the 1999 Deed.