Opinion
2002-20419.
Decided on December 8, 2006.
Scott A. Brody, Esq., Brody, O'Connor O'Connor, Attorneys For William Rudge, 7 Bayview Avenue, Northport NY 11768.
Vincent M. Amicizia, Esq., Seth Muraskin, Esq., Greshin Ziegler Amicizia LLP, Attorneys for Adeline Latapolski, Smithtown NY 11787.
Law Office of Seth Muraskin, Attorneys for Robert Rudge, 1776 East Jericho Turnpike, Huntington NY 11743.
The two actions which are before the Court represent what is, for all intents and purposes, the final chapter in the woeful saga of a family that has been rent asunder in a decidedly unseemly squabble over claims to four parcels of real property. In order to understand the current conflict and these proceedings, a brief recitation of the undisputed facts in order.
The Plaintiff in Action No. 1 (and the Defendant in Action No. 2), WILLIAM JOHN RUDGE IV resides in Martin County, Florida and is the son of the late WILLIAM JOHN RUDGE III and the nephew of ADELINE LATAPOLSKI (a resident of Citrus County, Florida) and ROBERT RUDGE SR. and the cousin of ROBERT RUDGE JR., the Defendants in Action No. 1. Solely for the purposes of clarity in this decision, the Court will refer to WILLIAM JOHN RUDGE IV as the Plaintiff and to ADELINE LATAPOLSKI, ROBERT RUDGE SR. and ROBERT RUDGE JR. as the Defendants.
This action in equity has its beginnings in certain actions undertaken by one Adeline Rudge, who died a resident of Martin County, Florida on November 23, 1998. She left three children as her immediate survivors and heirs at law, to wit; William John Rudge III, Robert Rudge Sr. and Adeline Latapolski. Several years prior to her demise and on January 1, 1993, Adeline Rudge executed a Quitclaim Deed (the "Deed") whereby she conveyed five parcels of real property (the "real property") to William John Rudge. All of the parcels are situated in Suffolk County (four lie at Lake Ronkonkoma in the Town of Brookhaven while one lies within the Town of Southampton). The Deed was recorded over seven years later with the Clerk of Suffolk County on September 6, 2000 in Liber 12068 of Conveyances at Page 553. Although Adeline Rudge did not acknowledge the Deed before a notary public or some other officer, the instrument was witnessed by the Grantee William John Rudge III along with three disinterested witnesses, viz., Pierce Jensen, Roger Howells and Louis Falcinetti. Recorded together with and as part of the Deed was an Affidavit dated June 11, 2000 made by Roger H. Howells, one of the aforesaid subscribing witnesses, which attested to the due execution and delivery of the Deed.
The Plaintiff in Action No. 1 commenced his suit on August 2, 2002 claiming money damages from the Defendants, alleging that they have trespassed upon the real property located at 108 Webster Avenue in Ronkonkoma and have removed and converted certain specified items of his personalty. The Plaintiff also seeks an order permanently enjoining the Defendants from entering upon the premises at issue. The Defendants timely appeared through counsel and interposed an Answer consisting of denials together with affirmative defenses sounding in lack of jurisdiction, lack of capacity to sue, mistake, trespass and forgery as well as counterclaims asserting that the Quitclaim Deed was a forgery together with a prayer for a writ of ejectment and money damages.
The Plaintiff in Action No. 2 commenced her suit on December 3, 2002 claiming money damages along with a writ of ejectment for trespass coupled with allegations of fraud regarding the Quitclaim Deed. The Defendant (Plaintiff in Action No. 1) timely appeared through counsel and interposed an Answer consisting of denials together with Affirmative Defenses sounding in laches, statute of limitations, equitable estoppel, unclean hands and the existence of a prior pending action, that being Action No. 1.
Following discovery and motion practice, the Court (Hon. Mary M. Werner, J.) entered an Order dated January 6, 2005 which granted the application of WILLIAM JOHN RUDGE for summary judgment pursuant to CPLR 3212 dismissing ADELINE LATAPOLSKI'S claims of forgery with respect to the Quitclaim Deed. Counsel has informed the Court that Justice Werner's Order of January 6, 2005 has been appealed to and is presently sub judice before the Appellate Division, Second Department but that no stay of proceedings has been issued. Previously, on August 22, 2002 Justice Werner had issued an Order restraining the Defendants from entering upon the Webster Avenue property, the terms of which still remain in full force and effect.
Trial of these causes was conducted before the Court on March 21, 2006, following which counsel requested that the Court reserve decision in order to allow the filing of post-trial memoranda. The last post-trial submission was received by Chambers on or about November 16, 2006. The Court was led to understand that counsel was engaged on a complex jury trial which consumed a period of several months to the exclusion of most other matters, hence the hiatus between the completion of the trial and the final submission herein.
The Plaintiff WILLIAM JOHN RUDGE IV testified that he was the son and sole heir of WILLIAM JOHN RUDGE III who died on December 24, 2000. He stated that his father cared for ADELINE RUDGE during her lifetime, particularly in the years preceding her death. He was her caretaker and she relied upon him to manage all of her personal affairs. He assisted her in obtaining a driver's license, purchased an automobile for her use, cleaned her house, did her laundry, cut her grass, took her shopping and to doctor's appointments when she became too aged to drive safely. In his words, his father and grandmother ". . . had a close personal relationship; he did everything for her." He stated that he was acquainted with the witnesses to the execution of the Deed who were close personal friends of both his father and his grandmother. He did not actually become aware of the Deed or his succession to his father's interest in the property until after his father's death, when he discovered the recorded Deed amongst his father's records.
The Defendant ROBERT RUDGE JR., a grandson of ADELINE RUDGE and cousin of the Plaintiff, testified that he had occupied the Webster Avenue property for a number of years after his grandmother told him "You can do what you want with it." He submitted proof that he had been making monthly payments to her on account of a loan he owed to her, claiming that the payments were toward purchase of the property and, that in reliance thereon, he had completely renovated the property. On cross-examination, he conceded that the Plaintiff had done the electrical wiring on the property and that following the death of his grandmother, he did not pay any further money on account of the property, stating that he did not know who owned the property.
The Defendant ADELINE LATAPOLSKI, the daughter of ADELINE RUDGE, testified that she moved to Florida sometime between 1980 and 1983 to be with her mother. She admitted that she became irretrievably estranged from her mother ". . . in 1982 or 1983, a couple of years after I moved there." She conceded that she had no contact with her mother in the fifteen years preceding her death, that she made no effort to see or communicate with her mother and that she had no knowledge at all of her mother's personal affairs, save for surmise and conjecture. Nonetheless, when she found out about the real property having been conveyed to her brother, she filed her action herein, claiming that the Deed was procured by her brother through undue influence.
In addition to the trial testimony, various exhibits were received into evidence including the Deed, tax bills, the sworn depositions of both Pierce Jensen and Rogers Howell, two of the witnesses to the Deed and the Record on Appeal which included inter alia copies of the Deed, pleadings depositions of DEELINE LATAPOLSKI and WILLIAM JOHN RUDGE III. The depositions of both Pierce Jensen and Rogers Howell were taken pursuant to a commission and were found by this Court to be persuasive.
Counsel for the Plaintiff argues that Justice Werner's Order of January 6, 2005 constitutes the law of the case and that the same effectively disposes of any claims of undue influence by the Defendant. He also argues that the Deed is proper and regular in all respects including execution, delivery and recording. Counsel for the Defendants contend that the execution of the Deed was procured through undue influence and that it should be deemed to be void ab initio and therefore set aside.
It is axiomatic that a deed of conveyance, when properly witnessed (Real Property Law §§ 243 304) or acknowledged, is presumed to be due and proper. In order to rebut the presumption of due execution, evidence that is clear and convincing is required, Sun Fong Lum vs. Antonelli, 102 AD2d 258 (2nd Dept. 1984) aff'd 64 NY2d 1158 (Court of Appeals, 1985). The presumption of due execution may not be overcome by a mere preponderance, Spilky vs. Bernard H. LaLone Jr. P.C., 227 AD2d 741 (3rd Dept. 1996). An Affidavit by an attesting witness such as the one appended to the Deed is likewise presumptive evidence of due execution and will not be lightly set aside, Albany Savings Bank vs. McCarty, 149 NY 71 (Court of Appeals, 1896). Additionally, the fact that the Deed was not recorded for some seven years following its execution is of no moment because, pursuant to Real Property Law § 244, the grant of an estate takes effect upon the delivery of the same, Ten Eyck vs. Whitbeck, 156 NY 341 (Court of Appeals, 1898), James vs. Lewis, 135 AD2d 785 (2nd Dept. 1987). In the matter presently before the Court, the Defendants have failed to adduce clear and convincing evidence sufficient to rebut the presumption of due execution of the Deed.
As to Plaintiff's claim that Justice Werner's Order of January 6, 2005 constitutes the law of the case, this Court agrees with that assertion. In order for an interlocutory judicial determination to have a preclusive effect, the parties must have been afforded a complete opportunity to litigate the issue giving rise to that determination, Marcus Dairy Inc. vs. Jacene Realty Corp. 27 AD3d 427 (2nd Dept. 2006), appeal dismissed 7 NY3d 783 (Court of Appeals, 2006). It is clear from the record that the parties were afforded a fair and complete opportunity to litigate the issue of undue influence. Indeed, the issue was raised by one of the Defendants herein.
The evidence adduced is sufficient to grant the Plaintiff's claim for relief as set forth in the First and Fourth Causes of Action in the Verified Complaint, thereby entitling him to money damages for trespass as well as a permanent injunction against the Defendants. The Plaintiff has failed to meet his burden of proof as to the claims in the Second and Third Causes of Action and the same shall be dismissed. The Defendants have failed to establish their claims against the Plaintiff in the manner prescribed by law and their claims must be dismissed.
For all of the reasons hereinabove set forth and after consideration by the Court of the relative credibility of each of the witnesses who offered testimony herein, the application of the Plaintiff should be granted.
It is, therefore,
ORDERED that the Plaintiff WILLIAM JOHN RUDGE a/k/a WILLIAM JOHN RUDGE IV recover judgment against the Defendants ADELINE LATAPOLSKI, ROBERT RUDGE and ROBERT RUDGE JR., jointly and severally, as follows: (1) On the First Cause of Action, money damages in the amount of
$ 25,000.00 as and for damages occasioned by the trespass of the Defendants; (2) On the Fourth Cause of Action, an Order permanently enjoining, restraining and prohibiting the Defendants or any person or entity on their behalf from entering upon, using or interfering with the use, occupancy and quiet enjoyment of any portion of the premises known as 105 Webster Avenue, Lake Ronkonkoma, New York, all together with the costs of this action; and it is further
ORDERED that the Answers and Counterclaims interposed in Action No. 1 under Suffolk County index number 2002-20419 shall be and the same are hereby stricken and dismissed; and it is further
ORDERED that the complaint filed in Action No. 2 under Suffolk County index number 2002-31370 shall be and the same is hereby dismissed; and it is further
ORDERED that the validity and legal efficacy of the Deed recorded with the Clerk of Suffolk County on September 6, 2000 in Liber 12068 of Conveyances at Page 553 is hereby ratified and confirmed.
Counsel for the Plaintiff is to submit a judgment on notice.
This shall constitute the decision, judgment and order of this Court.