Manicchio v Classic Summit, LLC

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[*1] Manicchio v Classic Summit, LLC 2014 NY Slip Op 51745(U) Decided on December 5, 2014 Supreme Court, Westchester County Wood, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 5, 2014
Supreme Court, Westchester County

Tracy Manicchio, Plaintiff,

against

Classic Summit, LLC, a New York Limited Liability Company, Defendant.



70261/2013



Frank A. Catalina, Esq.

Attorney for Plaintiff

1013 Brown Street

Peekskill, New York 10566

Mark I. Reisman, Esq.

Reisman, Rubeo & McClure, LLP

Attorneys for Defendant

151 Broadway

Hawthorne, New York 10532
Charles D. Wood, J.

Plaintiff requests that the court grant a declaratory judgment declaring that plaintiff is the sole owner of real property located at 2572 State Route 10, Town of Summit, Schoharie County, New York ("the premises"). By way of background, plaintiff and her deceased husband, Antonio Manicchio ("decedent") were married in 1988. It is undisputed that the property was acquired by plaintiff and decedent as tenants by the entirety pursuant to the deed of conveyance during their marriage on July 17, 1999. Plaintiff lived with decedent as his wife continuously from the date of their marriage until his date of death on November 13, 2013. At the time of decedent's death, plaintiff and decedent were lawfully married, notwithstanding that she had filed an Action for Divorce in this court on May 29, 2013.

Plaintiff claims that prior to decedent's death, she became aware of his transferring assets and property from his name and into the name of family members or into a limited liability company. Shortly before decedent's death, she became aware of a conveyance he made on April 30, 2013, wherein he converted his interest in the premises to defendant, a limited liability company. Angelo Manicchio, a nephew of decedent (hereinafter "nephew"), is the managing member and holds a 99% [*2]membership interest in defendant. Notwithstanding this transfer to defendant, plaintiff asserts that upon decedent's death, she became the sole owner of the premises, and that the conveyance to defendant is void as a matter of law.

In opposition, defendant prays that plaintiff's motion for a declaratory judgment should be denied, and cross moves pursuant to CPLR 3025(b) granting defendant's motion for leave to amend its answer to assert a counterclaim to impose a constructive trust.

It is well settled that "a proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 AD3d 684, 686-687 [2d Dept 2007]; see also Rea v Gallagher, 31 AD3d 731 [2d Dept 2007]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (see Zuckerman v New York, 49 NY2d 557, 562 [1980]; see also Khan v Nelson, 68 AD3d 1062 [2d Dept 2009]). Conclusory, unsubstantiated assertions will not suffice to defeat a motion for summary judgment (Barclays Bank of New York, N.A. v. Sokol, 128 AD2d 492 [2d Dept 1987]). A party opposing a motion for summary judgment may do so on the basis of deposition testimony as well as other admissible forms of evidence, including an expert's affidavit, and eyewitness testimony (Marconi v. Reilly, 254 AD2d 463 [2d Dept 1998]). In deciding a motion for summary judgment, the court is required to view the evidence presented "in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" (Yelder v Walters, 64 AD3d 762, 767 [2d Dept 2009]; see Nicklas v Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept 2003]). The court must accept as true the evidence presented by the nonmoving party and must deny the motion if there is "even arguably any doubt as to the existence of a triable issue" (Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005]); Baker v. Briarcliff School Dist., 205 AD2d 652,661-662 [2d Dept 1994]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to existence of a triable issue (Alvarez v. Prospect Hospital, 68 NY2d 320,324 [1986]).

Pursuant to CPLR 3001 "the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. To constitute a "justiciable controversy," there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration o f rights will have some practical effect (Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 [2d Dept 2010] ). A defendant who has not interposed an answer or made any other pleading for affirmative relief may not be granted a declaratory judgment (Astoria Fed. Sav. and Loan Ass'n v Lawson, 44 Misc 3d 1210(A) [Sup Ct 2014]). "The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations" (James v Alderton Dock Yards, 256 NY 298, 305 [1931]). In a declaratory action, however, the rights of the parties must be affirmatively declared either way; a "mere dismissal of the complaint is not an affirmative declaration of the parties rights" (Raffone v. Town of Islip, 85 AD2d 597 [2d Dept 1981]).

Further, Estates Powers and Trusts Law (EPTL) § 6-2.2 (b) states that: disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common. It is also well settled that tenancy by the entirety [*3]confers on the surviving spouse a right to absolute ownership of the property upon the other spouse's death so long as the marriage remains legally intact, both parties continue to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse's coextensive interest in the property (V.R.W., Inc. v. Klein, 68 NY2d 560, [1986] ). "Where a tenancy by the entirety is created, there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy ... subject to the continuing rights of the other' " (Deutsche Bank Nat'l Trust Co. v. Feliciano, 105 AD3d 889, 890, [2d Dept 2013]; Butt v Malik, 114 AD3d 716 [2d Dept 2014])

Here, plaintiff demonstrated a prima facie case for summary judgment, inter alia, while plaintiff and decedent were married a tenancy by the entirety was created for the premises as evidenced by the deed dated July 17, 1999 (Plaintiff's. Ex E). When decedent died, they were married, and decedent could not terminate a tenancy by the entirety by conveying the premises to defendant LLC. As the surviving spouse, plaintiff assumes full control over the premises.

In opposition and in the cross-motion, nephews's argument that a constructive trust exists does not defeat plaintiff's prima facie case for summary judgment.

The four factors necessary to impose a constructive trust are: (1) a confidential or fiduciary relationship; (2) a promise, express or implied; (3) a transfer in reliance on that promise; and (4) unjust enrichment (Sharp v Kosmalski, 40 NY2d 119, 121 [1976]). A constructive trust is an equitable remedy (Simonds v Simonds, 45 NY2d 233, 241 [1978]). "However, as these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established" (Rowe v Kingston, 94 AD3d 852,853. Rather, "[a] constructive trust will be erected whenever necessary to satisfy the demands of justice" (Latham v Divine, 299 NY 22, 26-27; Byrd v Brown, 208 AD2d 582, 582-83 [2d Dept 1994]). An action for a constructive trust may be maintained to remedy a situation where property has been acquired under such circumstances that the record owner should not, in good conscience, retain the beneficial interest in such property (Quodrozzi v. Estate of Quodrozzi, 99 AD3d 688 [2d Dept 2012]).

Here, there has not been a sufficient showing that plaintiff, who is the holder of legal title of the premises may not in good conscience retain the beneficial interest. Nephew alleges that even though plaintiff's name is on the deed to the premises, the house really belonged to decedent, as plaintiff had little to do with the premises, and it was decedent that cared for the premises. Nephew claims that plaintiff's involvement in the premises began and ended with placing her name on the deed in 1999. Since then, she never participated in paying for maintaining or improving the premises. She had no involvement with the building of the log home on the premises, nor did she contribute financially to that project.

In addition, he claims that plaintiff and decedent's relationship deteriorated during the marriage, and that decedent would confide in nephew that plaintiff treated him horribly, alienating his children, and mistreating him during his cancer treatments. Commencing in 2004 and continuing until decedent's death in November 2013, plaintiff engaged in persistent and pervasive course of abusive and neglectful behavior towards decedent. Nephew continues that plaintiff was only concerned with decedent husband's money. On May 11, 2012, for estate planning purposes (and that plaintiff would not agree to decedent's plan to transfer ownership of the premises), decedent formed the limited liability company. According to nephew, at the time of formation of the LLC, decedent was the holder of 1%, and nephew was 99% holder of the membership certificates in the LLC. On [*4]April 30, 2013, decedent executed a deed for the premises from himself to the LLC. Thereafter, decedent then resigned as the managing member of the LLC and requested that nephew become the managing member of the company. Defendant argues that if this court were to grant sole title to the premises to plaintiff, it would be perpetrating a wrong that offends all notions of fairness and justice inasmuch as she will have been unjustly enriched. That simply is not the law. Even assuming, arguendo, that the plaintiff was the most miserable, horrible, inhuman wife on the face of the Earth, the equities sought by the defendant are only available against her after she follows her late husband into the next world, and from a higher authority than this court.

Based upon the foregoing, and the equities involved in this matter, the court finds that upon his death, decedent's interest in the marital residence was extinguished. Under these circumstances, there is no basis to impose a constructive trust on the property, inasmuch as the premises was marital property, and the unkind accusations mounted by nephew against plaintiff, are just that. Even assuming defendant can establish a legal basis for the imposition of a lien or constructive trust on the premises, such claim attached to decedent's interest only and terminated upon decedent's death. While there may have been a close relationship between decedent and nephew, the other requirements for the imposition of a constructive trust have not been demonstrated by the credible proof in the record. As such, the court finds that the elements of a constructive trust are lacking, and equity does not dictate to impose a constructive trust.

In conclusion, plaintiff demonstrated, prima facie, that upon the death of decedent, she became the sole owner of the premises by right of survivorship. In opposition, defendant failed to raise a triable issue of fact. The deed establishes that the subject property was held by plaintiff and decedent, as husband and wife, as tenants by the entirety and, therefore, upon the death of one spouse, the surviving spouse remained seized of the whole, i.e., the entire estate (Matter of Violi, 65 NY2d 392, 395 [1985]). Thus, upon decedent's death, plaintiff was the surviving 100% owner of the premises. Moreover, since the deed dated April 30, 2013, purporting to transfer the property held by decedent and his wife as tenants by the entirety, was signed only by decedent, it was ineffective to transfer title to the premises to defendant LLC. There is no evidence that plaintiff surrendered her survivorship rights.

NOW, based on the stated reasons, it is hereby

ORDERED, that plaintiff's application for a declaratory judgment (Seq 1) is granted in favor of plaintiff and against defendant for the relief demanded in the complaint as herein described; and it is further

ORDERED, that it is declared that plaintiff, Tracy Manicchio is the rightful, lawful, and legal owner of the real property located and known as Section 123, Block 3, Lot 21.2, said property also being known as 2572 State Route 10, Town of Summit, County of Scholharie and State of New York. The deed of conveyance dated April 30, 2013 is deemed void and without legal force and or/effect. This court, by its declaration declares plaintiff Tracy Manicchio to be the sole owner of said premises; and it is further

ORDERED, that defendant's proposed cause of action to impose a constructive trust lacks merit, and leave to add this claim is denied, thus also denying defendant's cross motion in its entirety (Seq 2); and it is further

ORDERED, that plaintiff shall serve a copy of this order with notice of entry upon



defendant within ten (10) days of entry, and file proof of service on NYSCEF within five (5) days

of service; and it is further

ORDERED, that plaintiff shall serve the Clerk of the court with a copy of this order, within ten (10) days of entry, and the Clerk shall mark his records accordingly.

The court has considered the remainder of the factual and legal contentions of the parties and to the extent not specifically addressed herein, finds them to be either without merit or rendered moot by other aspects of this decision. This constitutes the decision and order of the court.



Dated:December 5, 2014



hite Plains, New York

______________________________

HON. CHARLES D. WOOD Justice of the Supreme Court



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