Bogoni v Gomez

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Bogoni v Gomez 2014 NY Slip Op 31818(U) July 9, 2014 Supreme Court, New York County Docket Number: 113493/2010 Judge: Louis B. York Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: L* .\J.od P PART Justice INDEX NO.. [,a.jQ+ MOTION DATE -V- MOTION SEQ NO. The following papers, nurnbehd 1 to Notice of MotionlOrderto Show Cause Answering Amdavits Replying Affidavits - Exhibits , were read on this motion M o r - Affidavits - ExMbits IN O W IN O W . IN O W FILED JUL 1 4 2014 COUNTY CLERK'S OFFICE NEW YORK Dated: W ,J.S.C. ...................................................................... 0CASE DISPOSED 2. CHECKAS APPROPRIATE:........................... MOTION IS: &RANTED UDENiED 0GRANTED IN PART 0OTHER 0SUBMIT ORDER 3. CHECK IF APPROPRIATE: .......................................... r l.... 0 SETTLE ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT Cl REFERENCE 1. CHECK ONE: [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 2 Index No. 113493/2010 againstVicdania Gomez, York, J: COUNTY CLERKS OFFICE NEW YORK According to both parties, plaintiff and defendant began a romntic relationshp in 2004 and ended it in 2010. In 2005 the parties together acquired an apartment at 135 W. 74 Street, ( 79t11 Street Apartment ). Plaintiff and defendant paid $650,000 for the 79 Street Apartment. Plaintiff contributed $510,000, and defendant contributed $140,000. The relationshp also produced a clvld in 2008. f i t long after the birth of the cMd, the parties acquired a second, larger apartmnt at 755 West End i4venue ( 755 West End ). The property is deeded to both parties as tenants in c o n r o n and the cooperztive shares lists themas joint owners. The parties purchased the apartmnt October 17, 2008, w h c h sold for $1,450,000. Plaintiff paid the purchase price of $1,450,000. Plaintiff asserts that defendant was to sell the 79 Street apartment in order to repay lum her half of the purchase [* 3] price. In support he submits two documents: one, an October 13,2008 letter from defendant s lawyer stating that if defendant did not repay plaintiff he would remove her from the sales contract; and two,a Dcember 9,2010 communication, w h c h both plaintiff and defendant signed and w h c h states that the parties reached an agreemnt regarding all unresolved disputes relating to the 79 Street apartment, 755 West End Avenue, and another property. Plaintiff does identify the documnts that, according to the letter, were to effectuate the parties agreemnt; however, the stipulation as to child support is dated 10 days after t h s colrmunication. The Court cannot locate anythng that shows plaintiff removed defendant s n a m from the sales contract or other pertinent documents. After the parties breakup, disputes ensued regarding plaintiffs obligation to pay chdd support and the parties relative interests in 755 West End. Ultimately the parties resolved s o m of their disagreements through a stipulation. As it relates to 755 West End Avenue, the agreemnt states: For so long as: (i) the Father is alive, (ii) the Motber resides at 755 West E n d . . . and (iii) the hlotber and Father arejoint owners ofTbe Apartment; the Father d pay the Mother s fifty (5O0/o) percent of the maintenance cost and any assessments on that residence . . . and she agrees to allow h m t o deduct sarne from the ir;onth!y Basic Chdd Support Obligation. . . So-Ordered Stip. of Dec. 9,2013 (emphasis supplied). Other than the above and the statements that defendant currently resides in the apartmmt and that 2 [* 4] defendant is to receive all notices at the West End address, there is no other mention of 755 West E n d in the 20-page stipulation. Plaintiff claims co-ownershp of 755 West End, and in this lawsuit he seeks a partition of the 755 West End apartrrent and sale of the unit. As proof of damages and of plaintiffs interest in the property, plaintiff subnits email documents d e t a h g the agreement with defendant; the deed to 755 West End, w h c h lists the parties as co-owners; and a stock certificate in the co-op building, which lists the parties as co-owners. Plaintiff further claim that defendant changed the locks to the aparmnt, effectively dispossessing himof 755 West End. At present, there has been no accounting and valuation of the property. In her answer, defendant states that she is the sole owner of 755 West End. She bases this assertion on plaintiffs alleged pronise to her, whch she states he repeated on numrous occasions. Moreover, she states, because of plaintiffs representation regarding her ownershp status she spent over $200,000 on improvements, supeivlsing the work in her capacity as general contractor. Defendant further states that after their relationslup ended, plaintiff promised her ownership of 755 West End in exchznge for f;lvorable child support pajmeiits; Currently, plaintiff brings a motion for partial summary judgment in which he seeks an interlocutory judgment directing the sale of the 755 West 3 [* 5] End apartment and a division of the proceeds. In addition, plaintiff asks for dismissal of defendant s counterclaims for constructive tixst and damages. The Court denied plaintiffs 2012 motion for interlocutory judgment as premature and stated that there may be an issue of fact as to whether a constructive trust exists. Now, discovery has been completed and the Note of Issue has been filed, and plaintiff contends interlocutoiy jud,ment is now appropriate. Plaintiff does not seek summary judgment on the issue of the percentage of the proceeds that each party will receive from the sale, as this is not amenable to resolution prior to a determination of the equities. See Lanev v. Siewert, 26 X.D.3d 194, 194-95, 810 N.Y.S.2d 436,437 (Y Dept. 2006). Defendant opposes thts motion, claiming that a constructive trust exists because plaintiff promised her sole ownershp of 755 West End and she relied on hls promise when the parties negotiated the cMd support agreement. She notes that plaintiffs earlier motion was denied and thts one is virtually identical, and that it contains no additional evidence that refutes her constructive trust defense. Among other thmgs, she argues that the December 2013 stipulation determining child support does not waive her counterclaims w h c h assert, in part, that she reduced the chtld support payments becmse of defendant s promise that 755 West End was solely hers. She also reiterates that, also due to defendant s prornise she undertook a great deal of work and spent an enormous amount of money on improvements to the apartment. At the least, 4 [* 6] she argues, these assertions create an issue of fact regarding her counterclaim for the imposition of a constructive trust, and therefore plaintiffs motion should be denied. Analysis Someone who possesses real property as a tenant in common may bring an action for partition, o r division, of the property. Gabav v. Bender, 24 A.D.3d 133, 804 N.Y.S.2d 680 (1" Dept. 2005). A complaint for partition of real property exists under the Section 9 of the Real Property Actions and Proceedings Law (RPAPL), applies to cooperative apartments, and can be litigated in the Supreme Court. See Chiang v. Chang, 137 A.D.3d 371, 529 N.Y.S.2d 294 (1" Dept. 1988). When a physical division of the property would cause undue hardshtp, then a party may seek a partition by sale and division of proceeds. hlanpaniello v. Lipman, 74 A.D.3d 667, 668, 905 N.Y.S.2d 153, 155 (1" Dept. 2010). A party can establish the right to partition by establishing his or her interest in the property, but the Court considers the equities before it reaches a decision as to whether a partition and sale of the property is appropriate. Id. However, the argument that a defendant would suffer adverse consequences as the result of a sale is insufficient to warrant denial. Id.at 669, 905 N.Y.S.2d at 155. Here, a physical partition of the apartment is not possible without undue hardship. Moreover, neither party seeks a physical division of the apartment. 5 [* 7] On the contrary, defendant argues that she is entitled to full ownership of the apartment - or, in the alternative, the exclusive right to reside there until her daughter reaches majority. Thus, plaintiff is entitled to partition and sale unless defendant is able to raise equitable considerations that show the apartment should not be sold. Defendant argues that entered into a less favorable cldd support agreement because plaintiff ceded sole ownershp of the apartment to her. However, the parties child support agreement, which also resolves matters relating to the West End apartment, lists them as tenants-in-common. A tenancy in common exists when two or more persons each own and possess an undivided interest in property, real or personal. Chang: v. Chang, 137 A.D.2d 371, 373 n l , 529 N.Y.S.2d 294, 295 n l (l t Dept. 1988). Therefore, defendant s contention fails.* Her statement that she spent over $200,000 on renovations and repairs because she believed she was the sole owner of the apartment is belied by the bllls plaintiff submitted in response, which show that he paid most of the bills for this work. It is not clear whether defendant oversaw and/or performed the work. She may raise t h s argument, as well as any relating to her costs relating to the apartment, at the hearing that shall take The agreement also apparently resolves the parties dispute over ownership in that i t treats the parties as co-owners. As the Court already noted, plaintiff disputed defendant s status as co-owner when she failed to pay half of the purchase price. However, the agreement post-dates the stipulztiofi which states the parties resolved this dispute. 6 [* 8] place after the sale, in order to determine an equitable distribution of the proceeds. Plaintiff also has failed to show that a constructive trust is warranted on these bases. Before a Court imposes a constructive trust, it must find (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment. TomDkms v. Tackson, Index No. 1022552006,20 Misc. 3d 1108(A), 866 N.Y.S.2d 96 (table) (Sup. Ct. N.Y. County May 14, 2008)(avail at 2008 WL 51285, at *5). For reasons s i d a r to those above, the Court concludes that defendant has not demonstrated her right to a constructive trust. Compare with Massev v. Bvrne, 112 A.D.3d 532, 532, 977 N.Y.S.2d 242 (l tDept. 2013)(credible evidence that plaintiff moved across the country, sacrificed work opportunities and spent time o n business in question raised issues of fact on issue of constructive trust). Defendant alternatively points out that the parties c h l d also resides in the apartment and she argues that t h s alone justifies barring sale of the apartment. However, defendant sets forth the consideration without further analysis, as if the fact that her daughter resides there - by itself she cannot move until the daughter reaches majority. - means that For a persuasive argument, defendant must show that any sale would have an unduly harsh impact on her daughter. Plaintiff notes that defendant owns the three-room apartment located at West 7Y Street so has an alternative residence. 7 [* 9] Defendant argues that the second apartment is smaller and would be more crowded, but this inconvenience does not tip the balance of equities in her favor where, as here, she and her daughter have another place to live. Moreover, pursuant to the chdd support agreement the parties daughter shall attend private or parochal school untd she enters college, all at plaintiffs expense; thus, a move d not cause the chdd to change schools or undergo related disruptions. As the chld s support payments wdl increase by over $2000 a month following the sale, and so defendant d have more money for the chdd s necessities, including maintenance. Plaintiff also notes that defendant can sell the West 7Yh Street apartment and find an alternative residence - either through rent or purchase - that would obviate her objections. The Court has sympathy for the cluld, who remains in the middle of her parents dispute and whose true equitable concerns have not been addressed by either party. However, as a matter of law defendant has not raised a triable issue. The Court notes that it has considered all the parties arguments whether discussed here or not - at length, particularly in light of its concern for the child s best interest. Accordingly, the Court grants the motion for partition and sale and directs plaintiff to settle order on notice. Following the sale, there shall be a full accounting - upon formal application - at which point the fair distribution of the proceeds wiU be evaluated, in accordance with this decision 8 [* 10] and with all evidence the parties submt. ENTER: JUL P 4 2014 \ ! COUNTY CLERKS OFFICE NEW YORK q Hon. Louis B. York, J.S.C. 9

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