Block 865 Lot 300 LLC v Baione

[*1] Block 865 Lot 300 LLC v Baione 2018 NY Slip Op 51246(U) Decided on August 22, 2018 Supreme Court, Richmond County Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2018
Supreme Court, Richmond County

Block 865 Lot 300 LLC, Petitioner,

against

Juliet F. Baione, DOMINICK I. BAIONE and MARY A. BAOINE and "JOHN DOE 1 to 10", said names being fictitious, it being intended to describe any persons claiming to have an interest in the real property described, herein, Respondents.



101809/2014



Attorneys for Petitioner:

Avery Gross, LLC

By: Avery Gross

Votto & Albee, PLLC

By: Christopher Albee

Attorney for Respondents Vincent Piccone, Colleen Piccone and Chris Agoliati:

Louis A. Piccone, Esq.

By: Louis A. Piccone

Attorneys for Respondents Juliet F. Baione, Dominick I. Baione and Mary A. Baione:

Herrick Feinstein LLP

By: Rebecca L. Newman
Alan C. Marin, J.

This is the decision following a framed-issue hearing to determine who has title to Block 865, Lot 300, a tenancy in common created for a piece of property with an outdoor swimming pool and pool house to be shared by a group of neighbors in the Todt Hill section of Staten Island.

O'Brien v Town of Huntington, 66 AD3d 160 (2d Dept), lv dismissed 14 NY3d 935, [*2]involved nine individuals who brought an action against the Town to compel determination of the claims to nine parcels. The Town's "original title to the property, which was derived from royal patents during colonial times, was the starting point for the plaintiffs and never disputed by them" (66 AD3d at 164). There is a considerably later starting point here: it is undisputed that Timothy Costello [FN1] owned 100% of Block 865, Lot 300 from 1958 to 1966 and that in 1966, he divided it into four equal shares.

The basic template is that a recorded deed with an accepted original provenance is presumed valid. Plaintiff's exhibit 1 is comprised of 24 deeds; exhibit 2 is a chart summarizing the conveyances with respect to Block 865, Lot 300, and exhibit 3 is a May 11, 2018 letter from Stephen Thompson of Thompson Land Services.

What will be set out is presumptive, subject to section 291 of the Real Property Law. Exhibits 1 and 2 have the date of the deed, the recording date and the liber and reel (book and page) numbers. Such can be presented in tabular form:

In 1966, Costello divides his 100% interest, with this result:

Costello(2/8)

Lavori(2/8)

Dolgin(2/8)

Silberstein(2/8)

In 1969, Costello deeds his 2/8 share to Lavori, with this result:

Lavori

(4/8)

Dolgin

(2/8)

Silberstein

(2/8)

In 1970, Lavori deeds (of his 4/8), 1/8 to Mandel and 1/8 to Miller; Dolgin deeds 1/8 to Rothman and 1/8 to Ribaudo; and Silberstein deeds (of his 2/8), 1/8 to Blackman, with this result:

Lavori

(2/8)

Rothman

(1/8)

Silberstein

(1/8)

Ribaudo

(1/8)

Mandel

(1/8)

Blackman

(1/8)

Miller

(1/8)

In 1984, Ribaudo deeds his 1/8 to DuSold, with this result:

[*3]Lavori

(2/8)

Rothman

(1/8)

Silberstein

(1/8)

DuSold

(1/8)

Mandel

(1/8)

Blackman

(1/8)

Miller

(1/8)

In 1986, Blackman deeds his 1/8 to Baione, with this result:

Lavori

(2/8)

Rothman

(1/8)

Silberstein

(1/8)

DuSold

(1/8)

Mandel

(1/8)

Baione

(1/8)

Miller

(1/8)

In 1988, Mandel deeds 1/8 to McCarthy, who deeds the 1/8 to DiForte, with this result:

Lavori

(2/8)

Rothman

(1/8)

Silberstein

(1/8)

DuSold

(1/8)

DiForte

(1/8)

Baione

(1/8)

Miller

(1/8)

In 1990, Lavori deeds his 2/8 (in two separate 1/8 transfers) to McCarthy, with this result:

McCarthy

(2/8)

Rothman

(1/8)

Silberstein

(1/8)

DuSold

(1/8)

DiForte

(1/8)

Baione

(1/8)

Miller

(1/8)

In 1996, Silberstein deeds his 1/8 to McCarthy, with this result:

McCarthy

(3/8)

Rothman

(1/8)

DiForte

(1/8)

DuSold

(1/8)

Miller

(1/8)

Baione

(1/8)

In 2013 and 2014, McCarthy, DiForte, Miller, Rothman and DuSold deed their interest to Block 865, Lot 300, LLC, with this result:

Block 865, Lot 300

(7/8)

Baione

(1/8)

The above reflects the recorded deeds, essentially the petitioner LLC's view of matters.

There are challenges thereto on three fronts, namely by: Chris Agoliati, Gerry Grigoli, and Vincent and Colleen Piccone. Counsel for respondents asserted that "whenever you have a property that's sold twice by the same owner to different buyers, there is an inference of fraud because those owners knew" - - exemplified by the DuSold conveyances in 1992 to Agoliati and to the LLC in 2014. As per the correspondence dated December 19, 2011 and March 1, 2012, and referenced below, there was ambiguity as to ownership.

Chris Agoliati

Chris Agoliati testified on May 15, 2018. His records became exhibit F, which are lettered A-1 through A-128, and will be so referenced in this section.

Agoliati submitted excerpts from the deposition of Leonard DuSold taken August 18, 2016, in which he stated that he sold his interest in 1992 because his daughter was grown and his family was no longer using the pool. Mr. DuSold could not remember the buyer, but when Richard Makarski was mentioned, said the name sounded "vaguely familiar." (A-2 to 5).

The deed from Leonard T. and Barbara Dusold to Richard P. Makarski was dated August 19, 1992 and notarized; all signatures are clear and the typeface is crisp (A-61 to 65). In evidence are copies of an $8,000 cashier's check, dated August 18, 1992, and a $1,000 money order, dated August 17, 1992, both made out to the DuSolds (A-58). Mr. Makarski was Mr. Agoliati's agent, and the two had a written agreement to that effect (A-67 to 68). This deed was not recorded, and no one contended that it was.

As noted above, for the period from the 1996 Silberstein-to-McCarthy deed until the 2013-2014 grants to the LLC, McCarthy owned a 3/8 interest and DiForte 1/8. On December 19, 2011 and March 1, 2012, Carmel McCarthy, John DiForte and Marla DiForte were the signators on letters sent to the deed owners of record of the remaining 4/8 interest offering to sell their shares.[FN2] At the end of each letter was a footnote stating that three parties have stated at various times that they are owners-in-common, but have no recorded deeds: Chris Agoliati, Richard Makarski and Jerome Grigoli. (A-29 to 33).

Pages A-83 through A-109 contain various statements, bills, letters and cancelled checks for pool expenses from 1992 through 2003. Page A-73 is a June 7, 2004 check in the amount of $350 to Carmel McCarthy with the note that it is for pool maintenance covering the period May 1, 2004 to April 30, 2005. Mr. Agoliati wrote comparable checks to Carmel McCarthy from [*4]2005 through 2008 (A-116). As for maintenance from May 1, 2010 to April 30, 2011, Agolati responded to a typed statement from Ms. McCarthy (initialed "CMC") with a handwritten note that he paid the $500 by check No. 4064, dated October 29, 2010 (A-117).

A letter to Agoliati signed by Carmel McCarthy and John DiForte (the date is unclear) stated that for Pool Property Annual Expenses 2012, he owed $1,169, broken down into $275 arrears for 2011, $500 current expense and $394 hurricane expense (A-116). Agoliati submitted his check number 555, dated September 27, 2012 for the $1,169 (A-117; the exhibit is misnumbered, there is an extra set of pages A-117 through A-119 inserted after the initial page A-119. Agoliati's check for $1,169 is on the second page A-119).

Under Real Property Law §291, a subsequent purchaser must be without notice of a prior unrecorded deed to avail him or herself of the statute (7 Vestry LLC v NYC Dept of Finance, 22 AD3d 174, 1st Dept; In re Rodriquez, 261 BR 92 [ED NY 2001]). The other tenants in common had sufficient notice of Agoliati's interest. Chris Agoliati's purchase via Richard Makarski as his agent does not affect the validity of Agoliati's interest.

The Court concludes that the DuSolds' 1/8 interest was deeded to Chris Agoliati in August of 1992, albeit unrecorded, but with sufficient notice of his interest to subsequent transferees. The DuSolds could not deed what they did not own in September of 2014, a 1/8 interest to the LLC.[FN3]

Jerome Grigoli

Jerome (Gerry) Grigoli testified on May 14, 2018. His records became exhibit A, which are lettered G-1 through G-57, and will be so referenced in this section. Mr. Grigoli described the packet as follows:

"This is approximately thirty years of correspondence between Carmel McCarthy, LaForte [for DiForte] and myself showing me to be a property owner and participant, showing the amount of yearly dues I paid of assessments and various things like that."

For example, page G-12 is a list of pool members for the 1988-89 season, including Gerry Grigoli; it is signed by Carmel McCarthy. Page G-2 is headed: "Grigoli: Pool property accounting of payments." It has 20 annual entries from 1987-88 to 2006-07, three of which are marked as not having been paid.

Carmel McCarthy sent Mr. Grigoli a letter (dated Aug 15, 2010) that he owed $1,775. Ms. McCarthy wrote, ". . . your lack of responsibility in the payment over the years . . . has become burdensome and intolerable" (G-33). John DiForte sent a letter to Grigoli, dated October 16, 2012, that his outstanding balance was $3,331. On the stand, Mr. Grigoli maintained that he had paid his bills, had proof, but it was included in exhibit A.

As indicated above, Gerry Grigoli, like Chris Agoliati, is listed at the close of the McCarthy-DiForte letters (dated December 19, 2011 and March 1, 2012) as parties that have [*5]stated at various times they are owners-in-common, but have no recorded deeds.

Mr. Agolati has a deed, but it was not recorded. Mr. Grigoli, for his part, does not have a valid deed. Grigoli offers an illegible document, which he testified was conveyed to him by the Mandels in January of 1988, that cannot be adequately explained or clarified (G- 49 to 51). Grigoli testified - - unpersuasively - - that he compared his submission to the 1988 Blackman to Baione deed:

"When this proceeding was brought to my attention a year ago, or however long ago, I produced my deed and at that time, looking at these side by side, it's completely evident my deed was a whited out version of this deed."

Dr. and Mrs. Vincent and Colleen Piccone

Dr. and Mrs. Vincent and Colleen Piccone took the stand on the third and final day of testimony in this hearing, June 11, 2018. Dr. Piccone's records became exhibit I, which are numbered 4-1 through 4-102, and will be so referenced in this section.

The Piccones wanted access to a pool for their children. Dr. Piccone recalled: "We bought the pool, I believe it was around May 1988 and we couldn't use it that summer because we didn't have title . . . until September."

The Piccones were involved with the pool property. Page 4-19 are the June 15, 1992 "Minutes of Pool Property Owners." The Piccones and a son were listed as present. On a motion to re-open the pool, the minutes record that: "The Piccones voted to re-open, all others opposed. The pool will remain closed." In fact, the Piccones are among the addressees in the letters of December 19, 2011 and March 1, 2012 that mentioned Agoliati and Grigoli in a footnote.

By deed dated August 6, 1982, Dr. Richard Pearlman deeded a one-eighth interest to Michael and Therese Goldman (exh 1, reel 7, page 2115). By deed dated May 25, 1988, the Goldmans deeded a one-eighth interest to Vincent Piccone and Colleen Piccone (exh 1, reel 1601 page 0174).

There is no prior conveyance recorded or testified to which granted Richard Pearlman a valid interest.[FN4] Without a recorded conveyance to Dr. Pearlman, or any evidence of valid title, this is an invalid deed which may not avail itself of the recording statute. See generally, Maicus [*6]v Maicus, 156 AD3d 1019 (3d Dept). With the subject matter originating with Costello's 1958- 1966 ownership, the Piccones cannot rely on the so-called ancient deed doctrine, which can allow for a break in title: "It is also true that an ancient deed in a chain of title is admissible in evidence . . .without proof of contemporaneous possession in the grantor, when the deed is of so remote a period in the past that living persons cannot be found who can testify as to actual possession" (In re Marsh, 152 Misc 454, 460 [Supreme Court, Kings Co.]).

*

**

NOW therefore, in view of the foregoing,

IT IS ORDERED, that title by a tenancy-in-common to Block 865, Lot 300 is determined as follows: Block 865 Lot 300 LLC, six-eighths; Luke Baione, one-eighth; and Chris Agoliati, one-eighth.

IT IS FURTHER ORDERED, that Motion No. 019 by respondents is granted in part: the partition action brought by the LLC for Block 865, Lot 300 is dismissed with leave to bring such action within 90 days to afford time for the 30- and 15-day offer periods in the covenant for such parcel. The part of Motion 019 that sought to depose counsel was denied in Court on June 11, 2018.

ENTER

August 22, 2018

________________________________

Alan C. Marin

J.S.C. Footnotes

Footnote 1:For ease of reference, unless otherwise noted, the singular form is used herein, although in most cases the ownership interest involves a couple.

Footnote 2:John and Marla DiForte testified on June 11, 2018.

Footnote 3:Thus, there was no material transaction in this case that occurred subsequent to 1996, if not 1992. The DuSold conveyance in 2014 was a nullity, and the McCarthy, DiForte, Miller and Rothman deeds to the LLC at about that time are not at issue.

Footnote 4:Dr. Piccone, on cross-examination, was asked about the chain of the deed transfers: Q . . . I am asking you, do you have any documentary evidence to show who gave the deed to the Pearlmans? A. Yes. Q. Okay. What is that? A. Mary Lavori gave them the deed. Q. You have a deed transferring from Mary Lavori to the Pearlmans? A. Pearlman had a deed . . . Rothman sold his deed to Mary Lavori. Mary Lavoro sold the deed to Pearlman. Q. Do you have a deed showing that transfer? A. The deed was lost . . . Pearlman lost the deed when he moved, is what he told me."