Zarbis v Triades

[*1] Zarbis v Triades 2015 NY Slip Op 50283(U) Decided on February 23, 2015 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2015
Supreme Court, Suffolk County

Catherine Zarbis and EMMANUEL ZARBIS, Plaintiffs,

against

Terry S. Triades and FRANCES TRIADES, Defendants.



11-34964



LEWIS C. EDELSTEIN, ESQ.

Attorney for Plaintiffs

300 Garden City Plaza, Suite 450

Garden City, New York 11530

ROSENBERG CALICA & BIRNEY LLP

Attorney for Defendants

100 Garden City Plaza, Suite 408

Garden City, New York 11530
Thomas F. Whelan, J.

Upon the following papers numbered 1 to 70 read on this motion for summary judgment; Notice of Motion/ [*2]Order to Show Cause and supporting papers 1-36; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 37-59 ; Replying Affidavits and supporting papers 59-68 ; Other sur-reply 69-70; defendants' reply memorandum of law; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion by defendants for an order pursuant to CPLR 3212 granting summary judgment in their favor directing a partition and sale of certain real property in which the parties claim interests and for reimbursement of repair and maintenance expenditures related to the property is considered under RPAPL §901 and is denied.

The plaintiffs commenced this action for a judgment directing the actual partition of real property located at 2505 Soundview Avenue, Mattituck, Town of Southold, New York pursuant to Real Property Actions and Proceedings Law (RPAPL) Article 9, or for the partition and sale of the premises at public auction. The complaint contains a singular cause of action for partition and an alternate demand for partition and sale. Following service of the summons and complaint, the defendants appeared herein by way of answer and therein asserted various affirmative defenses and two counterclaims, both of which sound in the recovery of monies expended under theories of unjust enrichment.

The property that is the subject of this action is improved with a single-family dwelling that sits a top of a large bluff contiguous to the shoreline of the Long Island Sound which the parties and other members of their family have used as a vacation home. According to the complaint, defendant Terry S. Triades is alleged to have purchased the premises on April 13, 1973, at which time, the premises were unimproved. In April of 1973, defendant Triades conveyed the premises to himself and his co-defendant wife and to the plaintiffs and to Nicholas and Olga Fourniotis, the parents of plaintiff, Catherine Zarbis and defendant Frances Triades. By deed dated July 19, 1973, title to the premises was conveyed by these three sets of owners to defendants, Terry S. Triades and Frances Triades "his wife". The deed reflecting this conveyance was recorded in the office of the Suffolk County Clerk on September 17, 1993 (see Exhibit F of the moving papers). To date, title to the premises remains in the names of the defendants, alone, under the terms July 19, 1973 deed, which created a tenancy by the entirety between them.

Following the conveyance of title to the defendants in July of 1973, the parties to this action, along with Nicholas and Olga Fourniotis, entered into an written agreement dated October 2, 1974. The terms thereof provide that, notwithstanding the conveyance of title to the defendants, each of three married couples would "own", as tenants by the entirety, an undivided one-third share of the property. The plaintiffs thus claim a one-third ownership interest as tenants by the entirety in the premises under this agreement and an interest in common with the other owners of their respective one third interests. The agreement, which purports to bind the heirs, legal representatives successors and assigns of the signatories, also provides that expenses and costs pertaining to the maintenance of and improvements to the property, including but not limited to, real estate taxes, mortgages, insurance premiums and utilities "are to be shared equally" by the three couples. In a separate provision, the defendants agreed to convey title to the premises to all three couples if the Fourniotis' and the plaintiffs so demanded.

The agreement contains an acknowledgment that there was an outstanding mortgage encumbering the premises which gave the mortgagee the right to require payment in full if the premises were conveyed by the defendant owners, one or both of whom encumbered the property with the lien of the mortgage. An intention to avoid this contractual remedy which the defendants as owners, obligors and/or mortgagors conferred upon the mortgagee, is apparent from a reading of this provision of the agreement.

While it is undisputed that Nicholas Fourniotis passed away on June 29, 1986 and his wife, Olga passed away on August 26, 2006, the record is devoid of proof regarding the nature of their respective estates, their distributees, legatees, devisees or the appointment of personal representatives. The plaintiffs' nevertheless claim that the undivided one-third interest which the Fourniotis's allegedly had in the property under the terms of the Agreement "devolved to their children" namely, Catherine Zarbis and Frances Triades, in equal half shares. The plaintiffs further allege that they and the defendants, as tenants by the entirety, each have an undivided one-third interest in the premises and that Catherine Zarbis and Frances Triades, being the daughters of the Fourniotis' each have an additional undivided one-sixth interest in the property. Proof of the devolution of the interests of Nicholas and Olga Fourniotis upon their deaths is not found in the record adduced on this motion.

The defendants now move for "reverse" summary judgment awarding them a judgment of partition and sale of the property at public auction and an order directing payment to them, out of the proceeds of the sale, monies allegedly owing to them for repair and maintenance expenditures with the balance of the sale proceeds to be equally distributed between the parties. Defendants further contend that distribution of plaintiffs' portion of the net proceeds should be conditioned upon plaintiffs filing a federal tax lien release. According to the certified title report, dated March 4, 2014, the lien was marked released in Queens County but not Suffolk County (see Defendants' Exhibit F). In support of the motion, defendants submit, among other things, the affidavit of Terry S. Triades, the deed conveying the subject property to defendants, the agreement, the title report, correspondence between the parties, the pleadings and numerous documents related to repair work performed and expenses paid.

While the plaintiffs agree to the partition and sale of the property as prayed for in their complaint, they contest all other relief demanded by the defendants on this motion and go on to demand affirmative relief not pleaded by them in their complaint. In their opposing papers, the plaintiffs claim that the defendants' breached their obligations under the terms of the October 2, 1974 agreement and have ousted the plaintiffs' from their right to possession of the premises. The plaintiffs submit, among other things, the affidavit of Catherine Zarbis wherein she disputes both the reasonableness and necessity of defendants' repairs and improvements and affirmatively asserts that plaintiffs are entitled to (1) a credit from the sale proceeds in the amount of $127,072.98 for insurance, real estate taxes, repairs, maintenance and improvements since 2005 and (2) an additional $425,749.37 for defendants' use and occupancy of the property following plaintiffs' ouster. Plaintiffs further request that the Court direct an upset price for the sale of the property in an amount not less than $1,650,000 (equivalent to 2013 appraisal report obtained by defendants) due to concerns that Terry Triades may enlist surrogates to drive down the sales price at auction. Although the plaintiffs' [*3]submissions repeatedly refer to the existence of a cross-motion for this affirmative relief, a review of the Court's electronic records reveals that no cross motion was filed nor fee paid by the plaintiffs. By way of reply papers, which also make mention of a cross motion, the defendants dispute the plaintiffs' opposition and their entitlement to any affirmative relief.

For the reasons stated, the motion is denied.

The ancient remedies of actual partition and of partition and sale are premised in equity and are now codified in Article 9 of the Real Property Actions and Proceedings Law (see Chang v Chang, 137 AD2d 371, 529 NYS2d 294 [1st Dept 1988]; Worthing v Cossar,93 AD2d 515, 462 NYS2d 920 [4th Dept 1983]; Grody v Silverman, 222 AD 526, 226 NY 468 [1928]). Under RPAPL § 901, "a person holding and in possession of real property as a joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners" (RPAPL § 901[1]; Tsoukas v Tsoukas, 107 AD3d 879, 968 NYS2d 109 [2d Dept 2013]). Accordingly, one owning an interest in real property with a right of possession such as a tenant, joint tenant or a tenant in common may seek physical partition of the property, or, a partition and sale thereof, if it appears that physical partition alone would greatly prejudice the owners of the premises (see Cadle Co. v Calcador, 85 AD3d 700, 926 NYS2d 106 [2d Dept 2011]; Bufogle v Greek, 152 AD2d 527, 528, 543 NYS2d 152 [2d Dept 1989]; see also Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008]; Wilbur v Wilbur, 266 AD2d 535, 699 NYS2d 103 [2d Dept 1999]). While an accounting is a necessary incident of a partition action and should be had as a matter of right before entry of an interlocutory or final judgment and before any division of money between the parties is adjudicated (see Sampson v Delane, 34 AD3d 349, 824 NYS2d 277 [1st Dept]; Donlon v. Diamico, 33 AD3d 841, 823 NYS2d 483 [2d Dept 2006]; McVicker v Sarma, 163 AD2d 721, 558 NYS2d 997 [2d Dept 1990]; Worthing v Cossar, 93 AD2d 515, 462 NYS2d 920 [2d Dept [1983]), a sale without an accounting is permissible in cases wherein no accounting is demanded nor any claims for an adjustment of the rights of any party due to receipt by one party of more than his or her proper proportion of the rents, profits or share interest in the premises are asserted (see Robert McCormick v Pickert, 51 AD3d 1109, 856 NYS2d 306 [2d Dept 2008]).

In the absence of an agreement against partition, a partition of real property owned by joint tenants or tenants in common is a matter of right whenever one or more of them do not wish to hold and use the property under their tenancies (see Smith v Smith, 116 AD2d 810, 497 NYS2d 19 [3d Dept 1986]; Gasko v Del Ventura,96 AD2d 896, 466 NYS2d 64 [2d Dept 1983]; Chew v Sheldon, 214 NY 344, 108 NY 522 [1915]). This right to the remedy of partition has been long recognized as a "valuable part of such interest in that it affords the owner a means of disposing of his interest which cannot be defeated by his co-owners" (Rosen v Rosen, 78 AD2d 911, 912, 432 NYS2d 921 [3d Dept 1989]). The right to partition is not absolute, however, and while a tenant in common or joint tenant has the right to maintain an action for partition pursuant to RPAPL 901, the remedy is always subject to the equities between the parties (see Tsoukas v Tsoukas, 107 AD3d 879, supra; Pando v Tapia, 79 AD3d 993, 995, 914 NYS2d 226 [2d Dept 2010]; Arata v Behling, 57 AD3d 925, 926, 870 NYS2d 450 [2d Dept 2008]; Graffeo v Paciello, 46 AD3d 613, 614, 848 NYS2d 264 [*4][2d Dept 2007]).

Before a partition or sale may be directed, a determination must be made as to the rights, shares, or interests of the parties and, in those cases wherein a sale is demanded rather than an actual physical partition, whether the property or any part thereof is so circumstanced that a partition thereof cannot be made without great prejudice to the owners (see RPAPL § 915). Such determinations must be included in the interlocutory judgment contemplated by RPAPL § 915 along with either a direction to sell at public auction or a direction to physically partition the premises (see RPAPL § 911; § 915; Hales Ross, 89 AD3d 1261, 932 NYS2d 263 [2d Dept 2011]; see also Lauriello v Gallotta, 70 AD3d 1009, 895 NYS2d 495 [2d Dept 2010]; Wolfe v Wolfe, 187 AD2d 628, 590 NYS2d 504 [2d Dept 1992]). Determinations of the rights and shares of the parties must be made by declaration of the court directly or after a reference to take proof and report (see RPAPL § 911; § 907; Mary George, D.M.D. & Ralph Epstein, D.D.S., P.C. v J. William, 113 AD2d 869, 493 NYS2d 794 [2d Dept 1985]; see also Colley v Romas, 50 AD3d 1338, supra). Inquiry and ascertainment by the court or by reference into the existence of creditors having liens or other interest in the premises is also required and, if there be any such creditors, proceedings thereon must be held as required by RPAPL § 913. While the court may accept proof of the absence of the existence of any such creditor and dispense with this reference and the proceedings required thereon, a finding to that effect should issue.

The law is clear that in order to maintain an action for partition the plaintiff or other claimant must be the owner of an interest in real property and have legal title thereto or to a part thereof (see Sealy v Clifton, LLC, 68 AD3d 846, 890 NYS2d 598 [2d Dept 2009]; Mohamed v Defrin, 45 AD3d 252, 844 NYS2d 265 [1st Dept 2007]; Garland v Raunheim, 29 AD2d 383, 288 NYS2d 417 [1st Dept 1968]; Gifford v Whittemore, 4 AD2d 379, 165 NYS2d 201 [3d Dept 1957]; Harvey v Metz, 271 AD 788, 65 NYS2d 85 [2d Dept 1946]; O'Connor v O'Connor, 249 AD 515, 293 NYS 64 [2d Dept 1937]; McGillivray v Brundage, 36 Misc 2d 106, 231 NYS2d 870 [Sup. Ct. Monroe Cty. 1962]; Fraser v Bowerman, 104 Misc. 260, 171 NYS 835 [Sup Ct. Niagra Cty. 1918), aff'd. 187 AD 926, 174 NYS 903 [4th Dept 1919]). It is equally clear that a person who is possessed of an enforceable right to a conveyance of an interest in real property, but who is without legal title to such property, has no cognizable claim for partition (see Side v Brenneman, 7 AD 273, 40 NYS 3 [1st Dep't 1896]).

Viable claims for partition and sale must thus rest upon allegations of a joint or common ownership in real property with attendant rights to possession and that the equities favor the claimant and, where a sale rather than an actual partition is demanded, proof that a physical partition of the premises cannot be made without great prejudice to the parties is also required (see Galitskaya v Presman, 92 AD3d 637, 937 NYS2d 878 [2d Dept 2012]; Cadle Co. v Calcador, 85 AD3d 700, supra; James v James, 52 AD3d 474, 859 NYS2d 479 [2d Dept 2008]). An award of summary judgment on a claim for partition is established only where the movant demonstrates its ownership interest and a right to possession under a deed or other instrument of conveyance, favorable equities and that a physical partition cannot be made without great prejudice in cases wherein a sale is demanded (see Tsoukas v Tsoukas, 107 AD3d 879, supra, Arata v Behling, 57 AD3d 925, 870 NYS2d 450 [2d Dept 2008]).

Here, the defendants have no pleaded claims for partition and appear to be without cognizable claims for such relief as they, alone, have legal title to the subject premises as tenants by the entirety. Nor have the defendants asserted pleaded claims for an adjustment of the rights of the parties in accordance with their ownership interests or for an accounting, as both of their pleaded counterclaims sound in direct claims for recovery of sums from the plaintiff under theories of unjust enrichment. Indeed, the answer served by the defendants includes a multitude of affirmative defenses by which the defendants disavow any entitlement on the part of the plaintiffs to the remedy of partition or partition and sale and to the incidental relief available under the statutory framework governing the remedy. An award of summary judgment under these circumstances is thus interdicted by controlling appellate case authorities which provide that summary judgment is not available to one asserting an unpleaded cause of action, although an unpleaded cause of action may be used by a plaintiff to defeat a defendants' motion for summary judgment dismissing the complaint (see Balashanskaya v Polymed Community Care Center, P.C., 122 AD3d 558, 996 NYS2d 127 [2d Dept 2014]; Difabio v Jordan, 113 AD3d 1109, 979 NYS2d 214 [4th Dept 2014]).

In apparent recognition of the foregoing principles, the defendants characterize their motion as one for "reverse" summary judgment on the plaintiff's complaint and for monetary relief under the equitable principles mentioned above which provide relief in the form of adjustments of monies available for distribution following a public sale of the premises to participating parties in some partition actions. However, the court rejects the defendants' attempt to secure an accelerated judgment of partition and sale in their favor under the guise of a motion denominated as one for "reverse" summary judgment on the plaintiff's complaint.

It is well established that the remedy of "reverse" summary judgment, which is contemplated by the provisions of CPLR 3212(b), is available only where a motion for summary judgment is made by the pleader of the claim and the court finds, that as a matter of law, an adverse, nonmoving party is entitled to summary judgment in his or her favor with respect to the claim that was the subject of the pleader's motion (see CPLR 3212(b); Dunham v Hilco Constr. Co., 89 NY2d 425, 429—430, 654 NYS2d 335 [1996]; Rodriguez v Sol Goldman Investments, LLC, 115 AD3d 659, 981 NYS2d 761 [2d Dept 2014]; New Hampshire Ins. Co. v MF Global, Inc., 108 AD3d 463, 970 NYS2d 16 [1st Dept 2013]; cf., Pope v Safety and Quality Plus, Inc., 74 AD3d 1040, 903 NYS2d 124 [2d Dept 2010]). Here, the plaintiffs made no motion for summary judgment on their complaint and their lack of legal title to the premises likely negates the success of any such application, as such title appears to be an element of their pleaded claim for the statutory remedy of partition or partition and sale.

In view of the foregoing, the court denies the instant motion by the defendants for summary judgment, as they failed to demonstrate their entitlement to such an award by the tender of proof in admissible form sufficient to eliminate all factual issues joined by the pleadings served in this action. This motion (#003) is thus denied.

Dated: February 23, 2015______________________________[*5]____

THOMAS F. WHELAN, J.S.C.