Feeney v Feeney

[*1] Feeney v Feeney 2016 NY Slip Op 50286(U) Decided on March 3, 2016 Supreme Court, Kings County King, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 3, 2016
Supreme Court, Kings County

Patricia Feeney, Plaintiff,

against

John J. Feeney, Defendant.



29527/2003



Atty for plaintiff: Patricia Feeney — Pro se

Atty for defendant: Marianne E. Bertuna Esq.
Kathy J. King, J.

The following papers numbered 1 read on this motion:

PapersNumbered

Order to Show Cause................................................................................1-2

Affirmation in Opposition........................................................................ 3

Reply......................................................................................................... 4-5

In this action to impose a constructive trust on real property known as 1703 Glenwood Road, Brooklyn, New York ("the Subject Property"), plaintiff, Patricia Feeney, moves for an order, granting a hearing to determine whether the proceeds of sale of 1703 Glenwood Road were equitably distributed, and whether Martin Wolf, Esq. the Court Appointed Referee should make a decision and recommendation to the Court regarding said distribution. Defendant, John J. Feeney, opposes and cross-moves for dismissal of plaintiff's complaint pursuant to CPLR §3212.

Plaintiff commenced the within action by summons and complaint on September 4, 2003, wherein she asserts a cause of action for constructive trust against the defendant, her brother. Defendant interposed an answer and a counter-claim for partition on December 4, 2003. The record indicate that a foreclosure action was commenced in 2011 to foreclose on a tax lien attached to the Subject Property. Thereafter, defendant moved for summary judgment on its cross-claim for partition. The court granted defendant's motion on default on September 11, 2012, and appointed Martin Wolf, Esq. as referee to determine the rights of the parties pursuant to CPLR Article 43 and RPAPL Article 9.

Prior to the referee conducting a hearing and issuing a report, plaintiff and defendant agreed to [*2]sell the Subject Property to plaintiff's son, Sean Claffey for $990,000.00, and on September 15, 2014, the parties executed a contract of sale. The rider to the contract of sale set forth the division of proceeds of sale to be received by defendant and specified expenses to be deducted from defendant's share of the proceeds. However, outside the promissory note that plaintiff received from her son regarding her share of the proceeds, there is no documentary evidence delineating plaintiff's share of the expenses and any amount due for reimbursement. On October 29, 2014, plaintiff and defendant signed the deed transferring the property to Sean Claffey. At the closing, defendant received $550,000.00 less 50% of his share of real estate taxes and filing fees.[FN1] Defendant's share of the tax lien was capped as of September 30, 2014. Plaintiff, on the other hand, received a promissory note from her son for $510,000.00. Both parties were represented by counsel at the closing.

The Court finds that the parties have chartered their own course by agreeing to sell the Subject Property and determining the distribution of the proceeds of sale (see Stevenson v News Syndicate Co., 302 NY 81 [1950]). Defendant in his cross-motion contends that a voluntary partition of the Subject Property was made when the plaintiff and defendant, as sole joint owners of the Subject Property, executed a contract of sale and transferred title to the Subject Property by bargain and sale deed.

The Court agrees.

A voluntary partition of a joint tenancy or a tenancy in common may be made upon the consent of all the owners (Cahill v Cahill, 131 Misc. 99 [Sup Ct. Oneida County 1927]). While the sale of the Subject Property resolved the underlying claim for partition, plaintiff's contention that Martin Wolf, as referee, has a continuing obligation to decide and make recommendations regarding distribution issues is simply misplaced. Prior to the instant motion, plaintiff never filed a claim for reimbursement of expenses, her only claim was for constructive trust, and as a result of her consent to the sale, that claim is no longer valid. Further, it should be noted that notwithstanding the appointment of Referee Wolf, plaintiff together with defendant, agreed to the distribution of proceeds and payment of expenses when the Subject Property was sold to Sean Claffey. As a result, the Court finds plaintiff's reliance on representations made by Mr. Wolf which pre-date the contract of sale to be disingenuous.

Based on the foregoing, it is hereby,

ORDERED, that plaintiff's motion is denied; and it is further,

ORDERED, that defendant's cross-motion is granted and the complaint is dismissed; and it is further,

ORDERED, that Referee Martin Wolf, Esq. is sua sponte discharged as referee in the within action

This constitutes the Decision and Order of the Court.

ENTER

__________________________________

HON. KATHY J. KING

J.S.C. Footnotes

Footnote 1:The Court notes that there is a discrepancy of $30,000.00, between the purchase price of $990,000.00 and the amount of the proceeds distributed to plaintiff and defendant.