Opinion
2012–305 W C
01-18-2018
James FIZZINOGLIA, Respondent, v. Louis CAPOZZOLI and Maritza Capozzoli, Appellants.
Jeffrey I. Klein, Esq., for appellants. James Fizzinoglia, respondent pro se.
Jeffrey I. Klein, Esq., for appellants.
James Fizzinoglia, respondent pro se.
PRESENT: ANTHONY MARANO, P.J., BRUCE E. TOLBERT, JERRY GARGUILO, JJ.
ORDERED that the final judgment and judgment are reversed, without costs, and the petition is dismissed.
Alleging that occupants (husband and wife) resided on the subject property as licensees and that petitioner terminated their license following the service of a 10–day notice to quit, the petition in this summary proceeding brought pursuant to RPAPL 713 (7) seeks possession of the property and use and occupancy. At a nonjury trial, it was uncontroverted that occupants had purchased the property in 2004, but had fallen behind on their mortgage payments and had faced foreclosure. Therefore, occupant Louis Capozzoli asked petitioner, his first cousin, to help him retain the property by purchasing it from occupants and allowing occupants to remain on the property. The parties also agreed that occupants would pay the mortgage, property taxes, insurance and other property-related expenses until they were able to obtain financing to repurchase the property from petitioner. In April 2007, petitioner purchased the property from occupants for $600,000, which he financed by a first and second mortgage, and the outstanding mortgages in occupants' names, totaling $523,294.80, were satisfied. After the payment of concessions, taxes and fees from the mortgage proceeds, occupants received, at the closing, the remaining $46,123.71, from which they gave petitioner $10,000, and, they claim, they used the rest to maintain the property. It is also uncontroverted that occupants stopped making the mortgage payments eight or nine months later.
The parties gave conflicting testimony as to how long a period of time occupants had to obtain financing to repurchase the property.
Occupants were evicted in March 2012 and the property was sold at a foreclosure auction in September 2016.
In the City Court, occupants argued, among other things, that petitioner did not have standing to commence the proceeding and that the City Court did not have subject matter jurisdiction. The City Court found that petitioner had standing since no constructive trust had been created, and that occupants had been properly served with a 10–day notice to quit. After trial, petitioner was awarded a final judgment of possession, and the City Court ordered that a hearing be held to determine the amount of use and occupancy owed to petitioner (op 34 Misc 3d 1221[A], 2012 NY Slip Op 50196[U] [2012] ). Following the hearing, petitioner was awarded the principal sum of $256,535.37, upon a finding that a landlord-tenant relationship had existed between the parties (op 36 Misc 3d 1230[A], 2012 NY Slip Op 51562[U] [2012] ).
It is well settled that while, in a summary proceeding, the court does not have jurisdiction to adjudicate an affirmative claim of title, it can address any interposed legal or equitable defense (see RPAPL 743 ["any legal or equitable defense, or counterclaim" may be raised in a summary proceeding]; Nissequogue Boat Club v. State of New York, 14 AD3d 542 [2005] ; Freire v. Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U] [App Term, 2d Dept, 2d, 11th, and 13th Jud Dists 2010] [constructive-trust defense]; Muzio v. Rogers , 20 Misc 3d 143[A], 2008 NY Slip Op 51763[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2008] ). "Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" ( Sharp v. Kosmalski, 40 NY2d 119, 121 [1976] [internal quotation marks omitted] ). To establish a constructive trust, there must be (1) a confidential or fiduciary relationship, (2) a promise, (3) a transfer in reliance thereon, and (4) unjust enrichment (see Sharp v. Kosmalski, 40 NY2d at 121 ).
Based on the aforementioned facts adduced at trial, the City Court properly determined that occupants did not establish a constructive-trust defense, since occupants failed to show that petitioner had been unjustly enriched from their transaction. Occupants remained in possession of the property for years after they had stopped making mortgage payments for a debt that petitioner had assumed for the benefit of occupants, and for which petitioner had the legal obligation to pay. Consequently, the City Court properly determined that petitioner was the owner and had standing to commence this proceeding.
As the record shows, however, that occupants have been in exclusive possession of the property since petitioner purchased it in 2007 and, as the City Court expressly found in its determination regarding use and occupancy, there was a landlord-tenant relationship between the parties, occupants were tenants, not licensees (see Carbonella v. Carbonella, 52 Misc 3d 141[A], 2016 NY Slip Op 51176[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Hok Kwan Chu v. Lee , 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Rodriguez v. Greco , 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; Vitarelle v. Vitarelle , 21 Misc 3d 130[A], 2008 NY Slip Op 52045[U] [App Term, 2d Dept, 9th & 10th Jud Dits 2008] ). Consequently, petitioner failed to establish a prima facie case, since the tenancy needed to be terminated by service of a 30–day notice of termination, and the 10–day notice to quit that was served was an inadequate predicate to this proceeding (see Real Property Law § 228 ; Hok Kwan Chu v. Lee , 39 Misc 3d 147[A], 2013 NY Slip Op 50859[U], *2; Rodriguez v. Greco , 31 Misc 3d 136[A], 2011 NY Slip Op 50696[U], *2; Vitarelle v. Vitarelle , 21 Misc 3d 130[A], 2008 NY Slip Op 52045[U], *2).
Accordingly, the final judgment and judgment are reversed and the petition is dismissed.
MARANO, P.J., TOLBERT and GARGUILO, JJ., concur.