Marie Roucco Family Trust v Roucco

[*1] Marie Roucco Family Trust v Roucco 2013 NY Slip Op 50998(U) Decided on June 19, 2013 Civil Court Of The City Of New York, Bronx County Lehrer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2013
Civil Court of the City of New York, Bronx County

Marie Roucco Family Trust, Petitioner,

against

Linda Roucco, "JOHN DOE" and "JANE DOE", Respondent(s)-Occupant(s).



64416/12

Andrew Lehrer, J.

Petitioner Marie Roucco[FN1] Family Trust commenced this licensee holdover proceeding against respondent-occupants Linda Roucco,[FN2] "John Doe" and "Jane Doe" in November 2012.

The petition, as amplified by the predicate notice to quit dated October 12, 2012, alleges, among other things, that the subject premises is neither Rent Controlled nor Rent Stabilized because it is a single family home and not a multiple dwelling; that Linda Roucco entered into possession of the subject premises with the permission of her mother, Marie Roucco; that "John Doe" and "Jane Doe" entered into possession of the premises with the permission of Linda Roucco; and that Linda Roucco's license to occupy the premises expired due to the death of Marie Roucco in or about October 2008.

In her answer, Linda Ruocco denies, among other things, that petitioner is the owner of the premises, and asserts that petitioner waived its right to maintain this proceeding by waiting more than four years to commence this proceeding "after being aware of the facts herein"; that petitioner lacks standing to serve the notice to quit and petition in that the Trust Agreement self-terminated over four years ago; and that she is "not a tenant but a one quarter owner with an undivided interest which gives her the right to continued occupancy of the subject premises."

The Trial

The trial of this case took place on March 12, 2013. Several of the pertinent facts are not in dispute. The Marie Ruocco Family Trust (the "Trust") was created pursuant to a Trust Agreement dated December 27, 1996. The Trust Agreement (the "Trust Agreement" or [*2]"Agreement") names Thomas M. Ruocco and Robert Ruocco as trustees. At the time the Trust was created, and as of the date of trial, its sole asset was the subject premises.

The Trust Agreement provides, among other things, that upon Marie Ruocco's death, "this trust shall terminate, and the Trustees shall distribute the remaining principal and undistributed income to [Marie Ruocco's] then living children, per capita;" that the trustees "shall have full power and authority to administer this trust (except as may be expressly provided herein)," including "those powers conferred by § 11-1.1 of the New York Estates Powers and Trust Law or other law"; and that, with respect to realty, the trustees may "buy, sell, borrow upon and enter into leases or contracts concerning real property, with such contracts to be made on any terms and for any period, including a period beyond the duration or termination of this trust."

At trial, Robert Ruocco testified that the Trust owned the subject premises, a three-story, single-family home; that Linda Ruocco, his sister, occupies the premises; that no one else lives there; and that the Trust sought to gain possession of the premises by serving a notice to quit and commencing this proceeding. He supported his testimony with an original copy of the Trust Agreement and a certified copy of the last deed, which was dated December 27, 1996, the same day as the Trust Agreement. The grantees are Robert Ruocco and Thomas Ruocco, as trustees of the Marie Ruocco Family Trust.

On cross-examination, Mr. Ruocco testified that Marie Ruocco had four children (Linda, Theresa, Thomas, and himself); that he moved into the subject premises along with his mother, father, brother, and sisters in 1974; that eventually everyone but Linda moved out; that Marie Ruocco passed away in October 2008; and that the principal of the trust, the house, has not been distributed and needs to be sold. He further testified that Marie Ruocco had a will, which was probated about two years ago, and that he did not have a copy of it with him.

Petitioner also called Linda Ruocco as a witness. She testified that she lived at the subject premises; that no one else lived there; that she had no lease and did not pay rent; and that she and her siblings each own one-fourth of the premises, which was their inheritance.

On cross-examination, Ms. Ruocco testified that she previously paid rent to her mother and father, and helped them maintain the building.

After petitioner rested, Ms. Ruocco called no witnesses and instead, moved to dismiss the petition. As detailed in her post-trial memorandum of law, she argues that she is not a licensee, but a co-owner of the premises, along with her brothers and sister; that the Housing Court lacks jurisdiction to interpret the terms of the Trust Agreement; that the predicate notice to quit is defective because it is signed by only one of the two trustees; that the Trust lacks standing to maintain this proceeding because it terminated in October 2008 upon the death of Marie Ruocco; and that the Trust waived its right to maintain this proceeding by waiting over four years after it was terminated to commence this case.

Petitioner, in its post-trial memorandum, opposes Ms. Ruocco's motion, arguing, among other things, that the Trust Agreement requires the trustees to "distribute the remaining principal and undistributed income to [Marie Ruocco's] then living children, per capita"; that in order to do so, the subject premises must be sold; and that the Agreement does not provide that title to the premises should be transferred to Ms. Ruocco's children.

Discussion

"When the purpose for which an express trust is created ceases, the estate of the trustee also ceases." (ETPL § 7-2.2). "The effect of the statute is to vest title to real property at once [*3]and automatically in the trust remaindermen, without the necessity for any act or intervention by the trustee, and to render it unnecessary for the trustee to make a formal conveyance of the trust realty." (106 NY Jur 2d Trusts § 618 [2d ed][citations omitted]; see Matter of Jones, 306 NY 197, 206 [1954]; Matter of Miller, 257 NY 349, 356 [1931]; Watkins v. Reynolds, 123 NY 211, 216-217 [1890]; Olivieri v. Olivieri, 24 Misc 3d 1201[A], 2009 NY Slip Op 51224[U] * 3 [Sup Ct, Kings County 2009]); Matter of McLaughlin, 193 Misc 192, 193-194 [Sur Ct, New York County 1948], affd 275 App Div 652 [1st Dept 1949]).

As stated in the Trust Agreement itself, the purpose of the Trust was "avoiding probate, avoiding estate administration and providing a vehicle for asset management in the event of [Marie Ruocco's] incapacity." By the Agreement's own terms, the Trust was to terminate upon Marie Ruocco's death, at which time the trustees were to "distribute the remaining principal and undistributed income to [her] then living children, per capita." Thus, when Ms. Ruocco passed away in October 2008, title to the subject premises, which was the Trust's sole asset, automatically vested in the remaindermen, her four children.[FN3] Consequently, as of October 2008, Linda Ruocco and her siblings became co-owners of the premises[FN4] as tenants in common.[FN5]

As a tenant in common, Linda Ruocco has "an equal right to possess and enjoy all or any portion of the property as if [she were] the sole owner" (Myers v. Bartholomew, 91 NY2d 630, 632-633 [1998]), provided "she does not interfere with the right of a cotenant to also occupy the premises" (Jemzura v. Jemzura, 36 NY2d 496, 503 [1975]). Clearly then, she is not a licensee and may not be evicted in this proceeding.[FN6] Accordingly, the petition is dismissed and the Clerk [*4]of the Court is directed to enter a judgment of possession in favor of Ms. Ruocco and against petitioner.

Having held that the petition should be dismissed because Linda Ruocco is a co-owner and not a licensee, the Court need not, and does not, address her other arguments for dismissal.

This constitutes the decision and order of the Court.

Petitioner is requested to pick up its exhibits from Part T by July 18, 2013.

Dated:Bronx, New York

June 19, 2013

Hon. Andrew Lehrer

Judge, Housing Court Footnotes

Footnote 1:The correct spelling is "Ruocco."

Footnote 2:The correct spelling is "Ruocco."

Footnote 3:Contrary to petitioner's claim, compliance with the Trust Agreement's directive to "distribute the remaining principal" (i.e., the subject premises) to Marie Ruocco's children does not require that the building be sold, nor is the requirement to "distribute" the property to her children inconsistent with having title to the premises automatically vest with them upon her death. (See Olivieri v. Olivieri, supra, 24 Misc 3d 1201[A], 2009 NY Slip Op 51224[U][title to a four-family house, the trust's sole asset, immediately vested in the remaindermen upon termination of the trust, which directed that upon the grantor's death, the trustee "shall distribute the remaining assets" 50% to one son and 50% to the other; cf. Matter of McLaughlin, supra, 193 Misc 192 [title to three real estate parcels immediately vested in the remaindermen upon termination of a testamentary trust where the will provided that upon the death of the income beneficiary "the principal is payable to his lawful issue, if any, or if he leave none — to the survivors among the other trust beneficiaries . . ."]).

Footnote 4:Although Linda Ruocco and her siblings have title to the subject premises, their ownership may be encumbered by the trustees' power of sale, if that power survived the expiration of the trust term. (See Matter of Jones, supra, 306 NY 197; 106 NY Jur 2d Trusts §§ 620, 622 [2d ed]). The Court need not, and does not, determine if it did.

Footnote 5:Section 6-2.2(a) of the ETPL provides that "[a] disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy." (See Olivieri v. Olivieri, supra, 24 Misc 3d 1201[A], 2009 NY Slip Op 51224[U] *3).

Footnote 6:While a lower court, such as the Housing Court, does not have jurisdiction to adjudicate an affirmative claim for title in a summary proceeding, it does have jurisdiction to entertain a party's defense that it owns the subject property or that the petitioner does not. (See Nissequogue Boat Club v. State of New York, 14 AD3d 542 [2d Dept 2005], citing RPAPL § 743 ["any legal or equitable defense, or counterclaim" may be raised in a summary proceeding]). Thus, for example, a party may raise as a defense that it has title by virtue of adverse possession (see City of New York v. Akbar's Self Help, Inc., 25 Misc 3d 129[A], 2009 NY Slip Op 52112[U][App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2009]; that he continues to be the owner because the deed purporting to transfer title from him was forged (see Chopra v. Prusik, 9 Misc 3d 42 [App Term, 2d Dept, 2d and 11th Jud Dists 2005]); or that because title was placed in the petitioner's name only because his own credit was bad, he (the respondent) had constructive ownership (see Freire v. Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U][App Term, 2d Dept, 2d, 11th, and 13th Jud Dists 2010]). Consequently, the Court has jurisdiction to determine whether Linda Ruocco is a co-owner of the subject premises for the purpose of deciding whether she is entitled to maintain possession thereof.