Karron v Karron

[*1] Karron v Karron 2013 NY Slip Op 51698(U) Decided on October 18, 2013 District Court Of Nassau County, First District Fairgrieve, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2013
District Court of Nassau County, First District

Abraham Karron, Petitioner(s)

against

Daniel Karron, a/k/a DIANE KARRON, "JOHN DOE" and "JANE DOE", Respondent(s).



LT-003537-13



Jules M. Mencher, Esq., Attorney for Petitioner, 666 Old Country Road, Suite 509, Garden City, New York, 11530, 516-227-2221; Leslie Martin Shamis, Esq., Attorney for Respondent,

64 West Park Avenue, P.O. Box 570, Long Beach, New York 11561-0570, 516-889-9200.

Scott Fairgrieve, J.

The following named papers numbered 1 to 4

submitted on this Motion on September 13, 2013

papers numbered

Notice of Motion and Supporting Documents1Order to Show Cause and Supporting Documents

Opposition to Motion2,3

Reply Papers to Motion4

The Petitioner, Abraham Karron, commenced this summary holdover proceeding on or [*2]about July 1, 2013 against Respondents, Daniel Karron, a/k/a Diane Karron, and John Doe and Jane Doe.

Respondent moves for an order dismissing the proceeding upon the grounds that: (1) the 30-day notice claim is invalid because Petitioner failed to sign it and no proof was submitted to authenticate the attorney's signature; (2) the one-month notice for the termination of tenancy is an invalid predicate notice because it violated the Fair Debt Collection Practices Act; (3) the petitioner lacks standing to bring the petition; (4) the petition is defective for failure to state petitioner's interest as required by RPAPL §741(1); (4) Respondent has a life estate in the premises and Petitioner is prohibited from evicting Respondent; (5) Respondent has commenced an action in Supreme Court to determine the title to the subject premises.

Respondent argues that the 30-day notice claim is invalid. Respondent cites Siegel v. Kentucky Fried Chicken of Long Island, Inc. to support his argument that Petitioner's claim is legally insufficient because the notice of termination was signed by an attorney not named in the lease, and it was not authenticated or accompanied by proof of authority to bind the landlord in the giving of such notice. (See Siegel v. Kentucky Fried Chicken of Long Island, 109 AD2d 218, 488 N.T.S.2d 711 [2d Dep't 1985], order aff'd 67 NY2d 792, 501 N.Y.S.2d 317, 492 N.E.2d 390 [1986].

The case of Siegel, supra does not apply in the instant case because the attorneys are not completely unknown to each other, and Respondent had fair notice that Petitioner's attorney was and is authorized to act on behalf of Petitioner because they have had prior dealings. Only when the party issuing the notice is a "total stranger" to the lease and is a person with whom the party receiving the notice has never previously interacted, the notice will be found legally insufficient to terminate the tenancy. (Landlord and Tenant Practice, Finklestein and Ferrara §13:10). In Owego, it was held that if the tenant has received prior written notification from the landlord that the agent was authorized to act on its behalf, then the notice to cure is effective. (Compare Owego Properties v. Campfield, 182 AD2d 1058, 583 N.Y.S.2d 38 [3d Dep't 1992] with Smith v. Country Service, Inc., 13 Misc 3d 134(A), 831 N.Y.S.2d 350 [App. Term 2006] (holding that the termination notice was ineffective because it was issued by an attorney not named in the lease, and there was no proof of the attorney's authority to issue the notice or that tenant had reason to know of the attorney's authority to act).

The instant case is analogous to that of Owego and dissimilar to Smith and Siegel. Here, Respondent had ample reason to know that the attorney was authorized to act because there have been two previous Landlord Tenant proceedings brought with the same parties in this case, and both Notices of Terminations listed the attorney's name and contact information. Since Petitioner's attorney and Respondent are not total strangers and have had previous dealings, the 30-day notice claim is valid.

Respondent also argues that the one-month notice of termination of tenancy served upon respondent is an invalid predicate notice because Petitioner's attorney is a "debt-collector" and is [*3]therefore governed by the Fair Debt Collection Practices Act ("FDCPA").

Even if Petitioner's attorney violated the FDCPA (which this court is not making any finding), dismissal of the summary proceeding is not warranted. In Wilson Han Association, the court stated,"the FDCPA does not provide for or compel dismissal of state court special proceedings commenced by landlords because of alleged unauthorized "debt collection" practices by their agents or attorneys." (See Wilson Han Association, Inc. v. Arthur, N.Y.L.J., 7/6/99, p. 29, col. 4 [App. Term, 2d and 11th Jud. Dists 1999]; see also Dearie v. Hunter, 183 Misc 2d 336, 705 N.Y.S.2d 519 [App Term 2000], which adopts a similar ruling).

Respondent argues that the petition is defective pursuant to §741(1) because Petitioner failed to state his interests in the premises. Respondent cites Portnow as support where the petition was defective because it named the Petitioner as "owner in fee," instead of "co-owner." (See Portnow v. La Rosa, 190 Misc. 695 [App. Term 1948]. However, other cases have allowed amendments to inaccurate statements, and it has been described that courts have adopted a "flexible" approach when it comes allowing amendments on Petitions governed by §741(1). (See also Century Realty v. Peter Grass et al., 117 Misc 2d 224, 457 N.Y.S.2d 731 [NY City Civ Ct 1982], holding that the petition could be amended from stating the landlord was "fee owner" to "net lessee.") In Carmody-Wait 2d, New York Practice with Forms, it also states that "it is not necessary to recite the derivation of the petitioner's right or title to the property in the petition." (See 14 Carmody-Wait 2d § 90:123 [database updated 2013]; see also West's McKinney's Forms§10.71 [database updated 2013]).

The instant case is distinguishable from Portnow because there, the Petition reflected a fatal error by stating that Petitioner was a complete "owner in fee" when in fact the Petitioner was a co-owner. In the instant case, Petitioner does not falsely allege he is an owner in fee when he is actually a co-owner because the petition states Petitioner is only "one of the owners." Since it is not necessary to recite how the petitioner's right is derived, it is not necessary to state every co-owners' interest or describe the complicated background in how Petitioner came to have ownership.

Respondent also argues that he has a life estate to live at the premises pursuant to an oral agreement. Petitioner states that no such agreement took place. Assuming arguendo that there even was an oral agreement issuing Respondent a life estate, this argument is void under the Statute of Frauds.

It is well-settled that "an alleged oral contract for the creation of a life estate will likely be found unenforceable." NYPRAC-LT §2:100. A life estate is valid only if it is executed through a written agreement because a life estate granted by oral agreement violates the Statute of Frauds. (See McKinney's General Obligations Law §5-703; Finklestein and Ferrara NYPRAC-LT§2:100).

In Re Douglas' Estate, the issue was whether an oral agreement made granting an estate [*4]"for the remainder of his life," fell within the statute of frauds. (In Re Douglas' Estate, 8 N.Y.S.2d 717 [New York County Sur Ct 1938], affirmed 12 N.Y.S.2d 359[1st Dep't 1939]). The Plaintiff argued that the agreement could be performed within a lifetime because death and the termination of the contract coincided, so the statute of frauds was not applicable. Id. at 718. The court held, and the Appellate Division later affirmed that the contract terminating at the instant of death is not completed before death and therefore the oral agreement for the life estate was within the bar of the statute of frauds. Id. (See also Archer v. Hamilton Wright Organization, Inc., 4 Misc 2d 787, 162 N.Y.S.2d 463 [Nassau County Sup Ct 1956]) (holding that that the words "during the plaintiff's lifetime" or "for the duration of her life" rendered the statute of frauds applicable and deemed the grant unenforceable); (Evangelista v. Longo, 203 N.Y.S.2d 341 [Queens County Ct 1960]) (holding that an oral agreement granting the plaintiff and defendant stock interests and positions within a company "during the life of each of them" was void under the Statute of Frauds because it could not be fully performed short of their lifetime).

Since a life estate cannot be performed within a lifetime because it terminates at the instant of death and is therefore not "before death," life estates are covered by the Statute of Frauds and require a writing. Therefore, Respondent's argument that he has a life estate pursuant to an alleged oral agreement is void under the Statute of Frauds.

Respondent contends that Petitioner lacks standing to maintain this summary proceeding. It is contended that Petitioner created a Revocable Trust for his mother, Marian B. Karron by the instrument dated January 28, 2009. The Revocable Trust was established by Petitioner using a Durable General Power of Attorney executed by Marian B. Karron, dated July 27, 2001. The said property was transferred into the Revocable Trust. Thereafter, Petitioner acting as trustee transferred the said property as follows: Petitioner received a 50% interest, Amiee Karron received a 25% interest and Nathaniel Karron received a 25% interest. Respondent states that the last Will and Testament of Marian H. Karron, dated March 31, 2007 gives a 25% interest to each of the four children, including Respondent.

Respondent attacks the foregoing actions of Petitioner as invalid and not valid to transfer title from the mother, Marian H. Karron to the Revocable Trust and then to the individuals.

Petitioner counters that the transfer of the said property were valid.

Petitioner states that Respondent served a Federal jail term from January 11, 2009 to August 16, 2009. Respondent was sentenced to a period of 6-month home confinement with an ankle bracelet, which was contingent upon Respondent having a permanent address to reside in during the home confinement period. Thus, Petitioner allowed Respondent to move into the home as a month-to-month tenant; no life estate was ever agreed upon or implied. Petitioner contends that the Federal government has a federal lien against Respondent because of the criminal prosecution and seized Respondent's Manhattan apartment. The Federal lien amount is in the millions of dollars but no documentary proof is offered on the point, including the exact amount of the lien. However, Respondent does admit to the Federal lien. [*5]

Petitioner also contends that Respondent filed for Bankruptcy under Chapter 11 which was converted to a Chapter 7. Respondent was granted a Chapter 7 discharge on the order dated January 25, 2012, but no documentary proof of the Chapter 7 has been offered. This issue is critically important because the failure to list an asset in the Chapter 7 Bankruptcy constitutes a waiver to assert this claim subsequent to the discharge. Petitioner claims that Respondent failed to list his alleged interest on the property in the Chapter 7 Bankruptcy petition. If the foregoing is accurate, then Respondent may be estopped from claiming any interest in the property. (See Goldman v. Rio and Law Offices or Richard R. Rio, PLLC, 19 Misc 3d 384, 853 N.Y.S.2d 837 [2d Dep't 2009]).

Petitioner also claims that shortly before Respondent's incarceration and before the creation of the Revocable Trust, Respondent provided a note wherein Respondent hand-wrote: Dear AbeI agree with your plan to put Marian (Mom)'s house into a 3d party trust. I understand I have no financial or other interest in said trust.Sincerely,DB Karron

Also, Petitioner claims that Respondent sent an email on September 14, 2009, wherein he stated, in relevant part: Abe, I'm going to probation and filling out lots of disclosure forms. I'm saying I renting ¼ of the house, and if you have a lease form, i need it soon. I have just moved in, and the officer will call you about this.I propose to pay (or SDR will pay) about some 500-1000 month. I will need a lease for 2 of which 7.5 months, while I'm unable to leave the house. dB"Dr D B Karron"

Petitioner further claims that Respondent applied for funds after Superstorm Sandy from FEMA, as a tenant. However, no documentary evidence is provided for this.

Also, Petitioner submits the alleged Arrangement and Settlement Agreement ("Agreement"), dated January 6, 2009, wherein Respondent assigned his interest in his mother's estate to the Law Firm of Rubinstein & Corozzo, LLP to pay the debt of $235,000. The Agreement is signed and notarized, and reads as follows: I, D.B. Karron of 348 E Fulton St, Long Beach, NY 11561 certified that I owe the [*6]law firm of Rubinstein & Corozzo, LLP, a balance of $235,000 ("two-hundred thirty-five thousand") for legal services rendered on my behalf in United States v. Daniel B. Karron, Ind. No. 07-cr-00541 (RPP). In consideration of this debt, I agree to assign all right, title and interest, which I have or may acquire in the estate of my beloved mother, Marian Karron, to the law firm of Rubinstein & Corozzo, whether such interest shall vest by will or intestacy.

There are issues of fact which require a trial on whether Petitioner has standing to bring this proceeding and the rights of Respondent to assert any interest other than as a tenant of the premises.

As in Beyer, it was held that the District Court has jurisdiction to determine possession even if title is asserted as a defense. (Beyer v. Hippolite, 2003 WL 1873745, 2003 NY Slip Op. 50611(C) [NY Dist Ct 2003]). Quoting from the decision in Beyer at *3-*4: This court has the authority to resolve this unique set of facts to determine possession in the context of this summary proceeding. David D. Siegel writes, in the practices commentaries to UDCA §204 that:The summary proceeding tries only the immediate right to possession, not title, and yet a title question will sometimes crop up in the context of a summary proceeding. The judge should proceed to adjudicate possession, making that adjudication with whatever incidental disposition of the title issue seems necessary. Whether the title determination is binding must then be resolved as a question of res judicata. Refusing to entertain the summary proceeding at all merely because a party has interposes a title issue can readily frustrate the "summary" nature of the summary proceeding. There are other remedies to meet the problem (See Siegel, New York Practice [2d Ed., §469]).

Hon. Robert F. Dolan in Rasch's Landlord & Tenant (4th ed), vol. 3, Section 43:20 entitled "Effect on Jurisdiction", notes that the District Court is not ousted of jurisdiction because the tenant denies landlord's title: It is well settled, however, that these inferior courts are not ousted of jurisdiction of summary proceedings because the question of title may be raised therein by a tenant's denial of his landlord's title; for a summary proceeding is not an action but a special proceeding. Moreover, the real issue in the proceeding is the present right to possession; the question of title is only collaterally involved.

In Van Deventer v. Foster, 87 AD2d 62, 82 N.Y.S. 1067 (N.Y.App.Div.1903), petitioner sought to remove appellant as a squatter upon property located in Queens. The appellant denied [*7]petitioner's ownership of the land and alleged in the answer that he had rightful possession of the property as lessee under an arrangement with other individuals who were the true owners of the property.

In light of the foregoing, this matter is set down for trial on Wednesday, November 6, 2013 at 11:00 AM. This is a firm date and no adjournments will be granted.

So Ordered:

/s/ Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:October 18, 2013