Bielawa v Bielawa

[*1] Bielawa v Bielawa 2018 NY Slip Op 51972(U) Decided on October 31, 2018 Supreme Court, Albany County Weinstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 31, 2018
Supreme Court, Albany County

Frank J. Bielawa, Plaintiff,

against

Frank W. Bielawa, Stephen a Bielawa, Katherine B. Jurczyk, Defendants.



903725-18



Richland & Falkowski, PLLC

Attorneys for Plaintiff

By: Daniel H. Richland, Esq.

5 Fairlawn Drive, Suite 204

Washingtonville, New York 10992

Herzog Law Firm, PC

Attorneys for Defendants Katherine Jurczyk and

Frank W. Bielawa

By: James M. Reilly, Esq.

7 Southwoods Boulevard

Albany, New York 12211
David A. Weinstein, J.

Plaintiff Frank J. Bielawa brought this real property action by summons and complaint dated June 1, 2018 and filed on June 6, 2018, seeking to vacate a deed that he recorded with the Albany County Clerk on March 14, 2012 (Complaint ¶ 5, Ex A).[FN1]

The property in question is located at 84 Cohoes Road, Watervliet, New York. According to the complaint, plaintiff has resided there since 1965, when he and his wife [*2]purchased the home as tenants by the entirety (id. ¶¶ 3-4). Plaintiff's wife died on January 6, 2012, leaving plaintiff as the sole owner of the property (id. ¶¶ 4). On March 12, 2012, plaintiff signed the deed in question, granting himself a life estate and providing the defendants, his adult children, with the remainderman interest [FN2] (id. ¶ 5, Ex A).

Plaintiff now contends that he did not intend to reserve a life estate to himself, nor was it his intention to grant his children any interest in the property or convey the property to anyone else (Complaint ¶ 6). Instead, plaintiff claims that his only intention in signing a new deed was to confirm his sole ownership in the property following his wife's death (id. ¶ 7). However, based on plaintiff's review of the "public records", he maintains that defendants "may claim an estate or interest in the real property, adverse to the Plaintiff," and each of the defendants "purports to have a remainder interest in the Premises" (id. ¶¶ 8-11).

Plaintiff asserts that he requested that defendants convey their interest in the property back to him, but they refused (id. ¶¶ 12-13). He now seeks: (1) vacature of the May 12, 2012 deed; and (2) a declaration that he is the sole owner of the property, and that his children, and their heirs and assigns, may no longer assert any claim to the property based on the March 12, 2018 deed.

Defendants Frank W. Bielawa and Katherine Jurczyk have each appeared and served mirroring verified answers that deny that there was any error in the deed at the time of its execution (Answers ¶ 5). Defendant Stephen A. Bielawa has not appeared.[FN3] According to defendants, the deed that "plaintiff had prepared, executed and acknowledged and then recorded" grants each defendant a remainderman interest in the property, and such deed cannot be described as "erroneous" in any manner (id. ¶ 11). As for affirmative defenses, defendants assert that (1) plaintiff's claims are barred by the statute of limitations, and (2) such claims fail to state a cause of action.

Defendants now each move for summary judgment on the ground that the complaint is barred by the six-year statute of limitations set forth in CPLR 213(6). In support of their respective motions, defendant Jurczyk submits an affidavit in which she avers that the intent of Plaintiff in executing and recording the deed is evident from its face — it was "intended to create a life estate in the plaintiff with the remainder to [her] and [her] brothers" (Jurczyk Aff ¶ 5).

As further evidence of plaintiff's intent in executing the deed, Jurczyk provides a letter that she received from plaintiff's counsel, Stephen Monthie, Esq., dated November 30, 2012. In that letter, Mr. Monthie wrote: "[plaintiff] earlier this year, conveyed the remainder interest in his property to you and your brother Stephen by way of a deed in which he retained a life estate" (Jurczyk Aff ¶ 5, Ex 4). The letter also advises that, due to Stephen's failing health, a Medicaid trust would be better than the existing life estate, because such a trust would protect Stephen's portion of the property should he eventually be in need of long term care (id.). Enclosed with the letter were the documents necessary for defendants to transfer their remainderman interests back to plaintiff so that the property could be placed in an irrevocable trust with plaintiff being the beneficiary and defendants serving as trustees (id). As noted above, neither of the defendants executed the documents they were provided.

In opposition to defendants' motion, plaintiff submits his own affidavit ("Pl Aff") claiming that his attorney, Mr. Monthie, misunderstood plaintiff's alleged request for a deed to confirm his sole ownership in the property, and instead presented plaintiff with a deed for a life estate, which plaintiff claims he read but did not understand (Pl Aff ¶¶ 7-8). Plaintiff admits that he nevertheless signed the deed on March 12, 2012 (id. ¶ 9). He states that he did not discover his alleged mistake until November 2012, when Mr. Monthie advised him that a trust would be better than a life estate (id. ¶ 10). According to plaintiff, it was at that time that he first realized that he had given his children a remainderman interest in the property (id.). As a result, he asked Attorney Monthie to contact his children and request that they convey their interest back to plaintiff, but they refused to do so (id.).

Plaintiff's counsel also submitted an affirmation in which he contends that plaintiff is asserting a cause of action for reformation of the deed based on mistake, and concedes that such a claim is governed by a six-year statute of limitations, which commences to run at the time the alleged mistake occurred (Richland Aff ¶ 4). However, counsel argues that plaintiff's action for reformation falls into an exception to the six-year statute of limitation, and therefore has been timely commenced (id.).

Discussion

To obtain summary judgment, a movant must establish its position "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (Friends of Animals, Inc. v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979], quoting CPLR 3212[b]). The proponent of a summary judgment motion must initially make a prima facie showing of entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any genuine material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The failure to make such a showing mandates denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). If a prima facie showing is made, the burden shifts to the party opposing the motion for summary judgment to come forward with evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

A defendant moving for summary judgment premised on a statute of limitations defense is required to support the motion with competent proof to establish the defense as a matter of law (see State of NY Higher Educ. Services Corp. v Starr, 158 AD2d 771, 771 [3d Dept 1990]). Once defendant makes this showing, the burden shifts to plaintiff to set forth evidentiary facts demonstrating that the cause of action falls within an exception to the statute of limitations, or raising a question of fact as to whether the exception applies (id. [noting that the statute of limitation burdens under CPLR 3212, are the same under CPLR 3211]; see also Texeria v BAB Nuclear Radiology, P.C., 43 AD3d 403, 405 [3d Dept 2007] [discussing CPLR 3211 dismissal of complaint based on statute of limitations defense]).

Here, defendants have met their prima facie burden to show their entitlement to summary judgment on statute of limitations grounds. Plaintiff, as explained in his attorney's affirmation, brought the instant action for reformation of a deed based on mistake (Richland Aff ¶ 4). Such a cause of action is governed by the six-year statute of limitations set forth in CPLR 213(6), which begins to run at the time the alleged mistake occurred (see Matter of Wallace v 600 Partners Co., 86 NY2d 543, 547 [1995] [six-year statute of limitation began when "scrivener's error" was committed]; see also Mastropietro v Lecce,100 AD3d 1064, 1065 [3d Dept 2012] [six-year [*3]limitations period in action to reform deed runs from date mistake committed]).

As set forth in defendants' moving papers, plaintiff's alleged mistake—signing a deed that, on its face, created a life lease and remainderman interests—occurred on March 12, 2012 (Jurczyk Aff, Ex 2). Plaintiff, however, commenced his action for reformation of the deed on June 6, 2018—approximately 3 months beyond the end of the limitations period (id. at Ex. 1). Thus, defendants have established a prima facie showing that the complaint should be dismissed as a matter of law (see Matter of Wallace, 86 NY2d at 547).

In an effort to overcome this showing, plaintiff argues that his purported cause of action for reformation of the deed falls within a well established exception for "one who is in possession of real property under an instrument of title, whereby the statute of limitations never begins to run against his right to reform that instrument until he has notice of a claim adverse to his under the instrument, or until his possession is otherwise disturbed" (Pulver v Dougherty, 58 AD3d 978, 979 [3d Dept 2009] [internal citations and quotations omitted]; see also Mastropietro, 100 AD3d at 1064 [same]).

This exception to the statute of limitations is available to a party who has set forth evidence to support a cause of action for reformation, and who otherwise meets certain specific criteria (see Vollbrecht v Jacobson, 40 AD3d 1243, 1243-46 [3d Dept 2007] [denying use of exception where six years passed after party had notice of the adverse claim to deed]). Thus, the exception is limited to those parties with a "right to reform" the instrument in question, meaning the party that has an otherwise valid cause of action for reformation, but for the statute of limitations defense (see Pulver 58 AD3d at 979; see also Green Harbour Homeowners' Assoc., Inc. v Ermiger, 50 AD3d 1199, 1200 [3d Dept 2008] [exception to statute of limitations may be available to party seeking deed reformation]).

A party that seeks reformation, however, "must establish, by clear and convincing evidence, that the writing in question was executed under mutual mistake or unilateral mistake coupled with fraud" (Vollbrecht, 40 AD3d at 1245 [emphasis supplied]; see also Greater New York Mut. Ins. Co. v United States Underwriters Ins. Co., 36 AD3d 441, 443 [1st Dept 2007] [reformation must be based on either mutual mistake or fraud and unilateral mistake]; Fresh Del Monte Produce N.V. v Eastbrook Caribe A.V.V., 44 AD3d 551, 553 [1st Dept 2007] citing Chimart Assoc. v Paul, 66 NY2d 570, 573-75 [1986] [same]).

Given that Plaintiff has not pled that any fraud or intentional wrongdoing occurred in his signing the deed on March 12, 2012, we are left with his claimed "mistake" for analysis. The party asserting "mutual mistake" must show that "'the parties have reached an oral agreement and, unknown to either, the signed writing does not express that agreement'" (Greater New York Mut. Ins. Co., 36 AD3d at 443, quoting Chimart Assoc., 66 NY2d at 573]; see also Slutzky v Gallati, 97 AD2d 561, 561 [3d Dept 1983], lv denied 61 NY2d 602 [1983] [mutual mistake involves omission of an agreed upon provision or insertion of one not agreed upon]).

Furthermore, reformation premised on mutual mistake, "may not be granted upon probability or even upon a mere preponderance of evidence, but only upon certainty" that the alleged mistake occurred (Slutzky, 97 AD2d at 561). Indeed, there is a "'heavy presumption that a deliberately prepared and executed written instrument manifest[s] the true intention of the parties'" (Chimart Assoc., 66 NY2d at 574, quoting Baker Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219 [1978]; see also Matter of Wallace, 86 NY2d at 548 [noting that this rule "has even greater force in the context of real property transactions"]; Wilshire Credit Corp. v Ghostlaw, 300 AD2d 971, 972 [3d Dept 2002] [intent of the parties to a deed is to be gleaned [*4]from the precise language of the deed without resort to extrinsic evidence]; see also RPL § 240[3] ["Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law"]). To overcome this presumption a "high order of evidence is required" such that "the proponent of reformation must 'show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties'" (Chimart Assoc., 66 NY2d at 574 [internal citations omitted]).

The upshot of this standard in the present context is that, for plaintiff to seek reformation, and to survive summary judgment on the limitations defense, he must submit a "high level" of proof in evidentiary form (id.). Plaintiff's conclusory assertion that a mistake existed is insufficient to serve as the required "unequivocal evidence of mutual mistake" (id. at 574-575). Moreover, even were plaintiff to come forward with sufficient evidence to demonstrate that there was an undisputed mistake in the drafting of an instrument, either by the draftsman or by either party, the relief available under reformation would not be recision of the instrument, but rather to correct the instrument to reflect the parol agreement that the instrument was originally to embody (see Hart v Blabey, 287 NY 257, 262 [1942] [explaining the equitable relief available under reformation]; see also Lopez v Lopez, 133 AD3d 722, 723 [2d Dept 2015] [party seeking reformation where scrivener's error changed intended title transfer]; Schrieber v Goldsmith, 39 Misc. 381, 383 [Sup Ct New York County 1902] [reform of deed by adding intended life lease where undisputed evidence demonstrated scrivener's error]).

In any case, plaintiff has not offered undisputed evidence of mutual mistake so as to justify a cause of action for reformation. To the contrary, plaintiff's only evidence of mistake is his affidavit, in which he claims that he alone made the mistake of signing a deed, and that he read but allegedly did not understand to be creating a life estate for himself and granting a remainderman interest to his children. This assertion is difficult to square with the fact that his attorney drafted the deed and it lists his children's names on the first page (Pl Aff ¶¶ 7-8; Comp at Ex A). But even if I were to presume the truth of such claim for present purposes, it still would only show his own misunderstanding, and not a mutual mistake between the contracting parties.

Such unilateral claims of mistake are insufficient to support a cause of action for reformation (see Baker Mgt. Corp., 46 NY at 219; see also Town of Fowler v Parow, 144 AD3d 1444, 1447 [3d Dept 2016] [absent ambiguity, deeds must be construed solely by their precise language]). Given that plaintiff has not set forth sufficient factual evidence to trigger a right to reformation of the deed, he cannot avail himself of the exception to the statute of limitations for this cause of action. Thus, plaintiff's claim, which was commenced more than six years after the alleged mistake occurred, must be dismissed.

Accordingly, it is hereby ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed.

This constitutes the Decision & Order of the Court. This Decision & Order is being transmitted to the County Clerk for filing. The signing of this Decision and Order and transmittal to the County Clerk shall not constitute notice of entry under CPLR Rule 2220, and counsel is not relieved from the applicable provisions of that Rule respecting to filing and service of Notice of Entry.

ENTER.

Dated: October 31, 2018

Albany, New York

David A. Weinstein

Acting Supreme Court Justice

Papers Considered:

1. Notice of Motion for Summary Judgment by Defendant Katherine Jurczyk, dated July 16, 2018; Affidavit of Katherine Jurczyk in Support of Summary Judgment, sworn to on July 11, 2018, with Exhibits annexed thereto; and Memorandum of Law.

2. Notice of Motion for Summary Judgment by Frank W. Bielawa, dated August 23, 2018; and Attorney Affirmation of James M. Reilly, Esq., dated August 23, 2018.

3. Attorney Affirmation of Daniel H. Richland, Esq., dated September 11, 2018; and Affidavit of Fact from Frank J. Bielawa, sworn to on September 11, 2018.

4. Reply Memorandum of Law from James M. Reilly, Esq. Footnotes

Footnote 1:Although the complaint states that the deed is attached at "Exhibit A", it is not attached to the copy of the pleading contained in the Court's file. However, a copy of the deed was provided with defendant Jurczyk's affidavit submitted in support of her motion for summary judgment.

Footnote 2:Plaintiff's signature was notarized by his then attorney, who also drafted the deed (Pl Aff ¶ 7).

Footnote 3:All subsequent references to "defendants" refer only to the defendants appearing in the action.