Opinion
28744/08.
Decided April 5, 2010.
The relief plaintiff seeks in this summary judgment are:
— a declaration that she and Defendant Cooney are joint tenants with rights of suvivorship in the premises at issue;
— partition and sale of the premises in question at the direction of the court
— an accounting between the parties to determine the amounts spent on mortgage payments, insurance and other expenses related to the upkeep and maintenance of the property with these amounts being paid from the proceeds of the sale.
— that any funds remaining from the proceeds be divided equally between the parties.
— if there is a sale, that any person or entity claiming through or under any of the parties herein be forever barred from seeking any right or title or interest in the property once the conveyance is made.
Plaintiff's request for relief stems from her relationship with Thomas Cooney, deceased, who was Defendant Cooney's brother. Plaintiff had been, for some time, including the time of this transaction, decedent's fiancé.
Decedent owned the premises, located at 53-04 197th Street, Fresh Meadows, Queens County. In a deed, dated July 8, 1985, he conveyed an interest in the property to plaintiff and Defendant Cooney "as joint tenants with right of survivorship and not as tenants in common."
In exchange for the conveyance, the parties mortgaged the premises to Citibank for $165,000.00. The funds were used by decedent to keep his construction business afloat. He continued to reside in the premises, paid the mortgage, taxes, insurance and other expenses. He continued to do so until shortly before his death in September 2008. However, from time to time, over the life of the loan, decedent was unable to make the loan payments and at such times plaintiff would pay the amount needed to bring the mortgage current. When decedent became ill in 2008, plaintiff paid the mortgage and insurance and continued to do so after his death. She also paid to have the premises maintained and repaired.
Defendant, in her motion, seeks the court's permission to have the Estate of Thomas Cooney, of which she is the Administrator, intervene in the action because the action involves title to property and, she, as movant/intervener, may be adversely affected by a judgment; that both claims involve the same questions of law and fact.
If the motion were granted, defendant asks that the Estate of Thomas Cooney be added as a defendant; that the Estate be added as Defendant Intervener and allowed to serve an answer with counterclaims.
Defendant maintains that neither she, nor plaintiff, had any interest in the premises, adding that the loan was merely a convenience to allow decedent to run his business. She asserts that no ownership interest was given or intended. She said the intent and understanding of the conveyance was that they (she and plaintiff) would hold the premises for decedent's benefit and in trust for him. Plaintiff and decedent, she states, lived on the premises as man and wife, from the time of the transaction until plaintiff left in 1987.
Although an agreement to convey an interest in real property or "to establish a trust of real property" must be evidenced in writing, as provided in New York's General Obligations Law 5-703, a constructive trust may be equitably imposed by the court as an exception to the Statute of Frauds. See NY Gen. Obligations L., 5-703(4) (providing an exception to the writing requirement); see also Williams v. Williams, 4 AD2d 793, 793 (2d Dept. 1957) (stating that a recognition of a constructive trust will not be affected by the Statute of Frauds). The party claiming constructive trust has the burden of proving, by clear and convincing evidence, (i) a transfer of property on an oral or written promise; (ii) based on a confidential of fiduciary relationship; (iii) to hold the property for the benefit of the party claiming the trust and that that promise was breached; (iv) and unjustly enriching the transferee or some other third person. Djamoos v. Djamoos, 153 AD2d 871, 871 (2d Dept. 1989).
The primary purpose of the Dead Man's Statute (NY CPLR 4519) is to protect the estate from fraudulent claims, which the dead person is no longer able to refute. See Estate of Essig v. 5670 58 Street Holding Corp., 2007 NY Slip Op 50170U, 4(NY Sup. Ct., Queens County) (citing In re Estate of Wood, 52 NY2d 139 (1981)). In a New York civil trial, involving the estate of a dead person, the Dead Man's Statute disqualifies an interested witness, who is prevented from testifying at the trial as to conversations or personal transactions involving the decedent. A person is "interested," if she would gain or lose by direct legal result of the judgment. Smith v. Kuhn, 221 Ad2d 620, 621 (2d Dept. 1995)
The Dead Man's Statute only applies to trial testimony. Phillips v. Joseph Kantor Co., 31 NY2d 307,313 (1972). Although a party moving for summary judgment cannot use evidence barred by the Dead Man's Statute in support of its motion, a party opposing such a motion can. Phillips, 31 NY2d 312-13. Nevertheless, the attorney who handled the deed transaction, Louis Viscomi, is a disinterested witness and would have witnessed the execution of the deed by decedent and the delivery of such deed to plaintiff, thereby obviating the need for plaintiff's testimony as to conversations or personal transactions of the decedent. Indeed, Louis Viscomi, by his Affidavit, never refutes the claim that the deed was delivered to plaintiff after its execution.
Despite the case law on when and how the Dead Man's Statute may be invoked, Defendant has not demonstrated, by clear and convincing evidence, that there was a verbal agreement between decedent, as transferor, and plaintiff and defendant, as transferees, indicating the deed was transferred on a promise to re-convey the property. The Affidavit of decedent's longtime attorney, Louis Viscomi, fails to make any mention of an oral understanding and agreement that the transfer of the deed to plaintiff and defendant was based on a promise to re-convey the same. Even if it were assumed that such an agreement or promise existed, in the time since plaintiff, Patricia Johnson, left the premises in 1987 to the time of his death in September 2008, decedent never made a demand upon plaintiff and defendant to re-convey the property to him.
Not only does an oral or written promise not exist, which is an element upon which a constructive trust claim is based, but plaintiff has shown that she would not be unjustly enriched as a result of the conveyance. Although the facts are undisputed that decedent agreed to make the mortgage payments, there were a number of occasions when Citibank filed foreclosure proceeding actions against plaintiff and defendant, as owners of the property, for failing to make mortgage payments. Plaintiff paid several thousands of dollars to prevent foreclosure on each of these occasions, when Defendant Cooney, paid nothing. Indeed, after decedent became severely ill, plaintiff began making mortgage payments to Citibank in July 2008, while Defendant Cooney paid nothing. Plaintiff also hired repairmen, painters, plumbers and landscapers to repair and maintain the premises, and paid the homeowner's insurance. All of these instances sufficiently demonstrate that plaintiff would not be unjustly enriched, especially, when she expended funds with only a 50% ownership interest in the property.
Upon review, defendant's motion to intervene is denied and her counterclaim dismissed. Defendant Cooney has not shown the essential elements for a constructive trust, i.e. a breach of an oral or written promise by clear and convincing evidence. Because Defendant Cooney has not shown that the transfer of the deed was a matter of convenience and accommodation for decedent and that there was promise that it would be held for him in trust to be re-conveyed upon demand, she has failed to sufficiently raise a triable issue of fact. Estate of Essig, 2007 NY Slip Op 50170U at 5 (opining that although hearsay evidence can be considered in opposition to a motion for summary judgment, it is not a bar to summary judgment, where it is the only evidence submitted). Therefore, plaintiff's motion is granted in its entirety.