Opinion
No. 693–A2006/B.
2012-07-12
ESTATE OF Mary DAVIS, Deceased.
Maldonado & Cruz, PLLC, (Angel Cruz, Esq., of Counsel) for Katrena Patron, administrator d.b.n. and Washington Davis, son-petitioners-movants. Rogers, Wughalter, Kaufman, Corredine & Zinno, (Eric A. Wughalter, Esq., of Counsel) for Albert Davis, Jr., objectant-respondent.
Maldonado & Cruz, PLLC, (Angel Cruz, Esq., of Counsel) for Katrena Patron, administrator d.b.n. and Washington Davis, son-petitioners-movants. Rogers, Wughalter, Kaufman, Corredine & Zinno, (Eric A. Wughalter, Esq., of Counsel) for Albert Davis, Jr., objectant-respondent.
LEE L. HOLZMAN, J.
In this SCPA 2103 proceeding, the administrator d.b.n. who is a granddaughter of the decedent and a son of the decedent move, pursuant to CPLR 3212, for summary judgment dismissing the objections of the respondent son and the entry of a decree declaring that real property located at 1042 Woodycrest Avenue in the Bronx constitutes an asset of the estate. The motion is opposed by the objectant who contends that he is a one-half owner of the realty as tenant in common with the decedent. Although the petition also sought a declaration with respect to a separate parcel of realty, in their motion papers the movants expressly withdraw all claims with respect to any property other than the realty at issue. Resolution of the motion turns on the identity of “Albert Davis” who appears on a deed and mortgage of the realty, with the movants claiming that the decedent's predeceased husband is the “Albert Davis” on those documents, and the objectant claiming that he is the “Albert Davis” who is named as a grantee on the deed.
The decedent died intestate on May 18, 1992 at the age of 66. Her distributees are 13 children, five of whom post-deceased, including the original administrator of the estate.
In their petition the movants alleged that: (1) in 1977, the U.S. Department of Housing and Urban Development (HUD) deeded property consisting of a three-family home to the decedent and her husband Albert Davis for $1; (2) when the decedent's husband predeceased her intestate, the property vested in decedent alone, as the deed is silent as to the form of ownership so the property is presumed to have been held by them as tenants by the entirety, and the decedent lived at the property until her death; and, (3) when the decedent died, the objectant, who is also named Albert Davis, took possession of the realty and held himself out as owner and converted same. The documentary evidence annexed to the petition and submitted on the motion reveals that by bargain and sale deed dated June 24, 1977 and duly recorded, “Mary Davis and Albert Davis” obtained the property from HUD through the Federal Housing Commissioner. On April 18, 1985, “Mary Davis and Albert Davis” obtained a mortgage on the realty in the amount of $4,800 from Central Federal Savings Bank FSB, which was also duly recorded. The objectant originally claimed that he, as tenant in common, owned one-half of the realty outright and owned the other one-half of the realty by adverse possession; however, he now proceeds solely on the theory that he owns one-half of the realty as tenant in common based on the deed, and that he owns another one-thirteenth interest as a distributee of this estate.
During discovery proceedings, the petitioners served on the objectant a notice to admit to which the objectant did not respond, and that notice states, inter alia, that the decedent and her husband married in Georgia on February 24, 1944, the decedent's husband died on August 13, 1988, and he and the decedent were married at the time of his death. During his examination before trial the objectant stated, inter alia, that when he was a teenager, he worked with his father who was a plumber and became a member of the plumber's union until sometime in the early 1970s, when he served a ten-month prison term. He was released when he was 22 or 23 years old. Although his father's name was Albert, his father was known and went by the names “AC” or “Jim,” but his father did use “Al” when working in the union, and the objectant was also called “AC.” His father could barely write, and could not spell or read. The objectant fixed up the property in about 1977 in order to obtain it from HUD, and although he could not recall where the closing occurred or whether he signed the application to purchase the realty, he attended the closing in the Bronx with the decedent. Nonetheless, he conceded that he did not take out a mortgage or sign a mortgage application for the property in 1985, as the decedent always handled the paperwork in connection with the realty. Basically, the decedent handled the finances of the property and he did all maintenance since the property was acquired, but if the decedent needed money he gave it to her. When asked whether a certain social security number was his, he indicated it was not, and agreed that he would be “very surprised” to learn that his father's social security number was used in connection with the application to purchase the realty. The application to purchase the realty, referred to by counsel during the objectant's examination, was not submitted in connection with this motion.
Based on the submitted documents and the presumption of a tenancy by the entirety that arises under EPTL 6–2.2(b), the movants contend that they are entitled to summary judgment dismissing the objections that the decedent's predeceased spouse is not the “Albert Davis” on the deed, asserting that such statements violate CPLR 4519. In his opposing affidavit the objectant states, inter alia, that his father was never known as “Albert Davis,” that he is the Albert Davis in the deed, and that it is illogical to conclude that his father was one of the grantees named on the 1977 deed as he had “abandoned” the family two or three years prior thereto.
With respect to the opposing affidavit of the objectant who has a direct financial interest in the outcome of the litigation, CPLR 4519 bars him from testifying at a hearing on the merits about any personal transaction or communication with the decedent (see Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307 [1972];Durazinski v. Chandler, 41 AD3d 918, 920 [2007], citing Matter of Johnson, 7 AD3d 959, 961 [2004], lv. denied 3 NY3d 606 [2004] ). Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment; however, such evidence may be considered in determining whether a triable issue exists to defeat the motion for summary judgment (see Phillips v. Joseph Kantor & Co., 31 N.Y.2d at 314;Beyer v. Melgar, 16 AD3d 532 [2005];Salemo v. Geller, 278 A.D.2d 104 [2000] ). Nonetheless, evidence excludable at trial under CPLR 4519, standing alone, may be insufficient to defeat a motion for summary judgment where it is clear that the movant would object to such testimony at trial (see Phillips v. Joseph Kantor & Co., 31 N.Y.2d at 314;Marszal v. Anderson, 9 AD3d 711 [2004];Mantella v. Mantella, 268 A.D.2d 852 [2000];Matter of Barr, 252 A.D.2d 875 [1998];Matter of Lockwood, 234 A.D.2d 782 [1996];Matter of Recupero, 28 Misc.3d 1207[A], 2010 N.Y. Slip Op 51200[U] [2010] ).
Where property is held in a tenancy by the entirety, in which a husband and wife own real property as if they were one person, and one spouse dies, the surviving spouse takes the entire estate, not because of any right of survivorship, but because that spouse remains seized of the whole estate (see V.R.W. Inc. v. Klein, 68 N.Y.2d 560, 563 [1986];Matter of Violi, 65 N.Y.2d 392, 395 [1985];Matter of Que, 26 Misc.3d 1227[A], 2010 N.Y. Slip Op 50290[U] [2010] ). By statute, a disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common (see EPTL 6–2.2[b] ). In contrast, a disposition of property to two or more persons who are not married to each other creates in them a tenancy in common, unless expressly declared to be a joint tenancy (see EPTL 6–2.2[a]; see also Butler v. Rafferty, 100 N.Y.2d 265, 269 [2003] ).
Although CPLR 4519 may preclude the objectant from testifying at trial about transactions and communications with the decedent, it is not clear either that all of his testimony would be barred by 4519 or that the objectant will not be able to present circumstantial evidence from which it might be inferred that he, rather than his father, was the named grantee on the deed. Specifically, it appears that no member of the family complained about the objectant's operating the property as an owner in the 19–year period that elapsed from the date of the decedent's death to the commencement of this proceeding, nor have the movants presented any proof to rebut the objectant's allegations that he performed the repairs required to obtain the realty and that his father had abandoned the family prior to the acquisition of the realty. Here, the deed and mortgage themselves contain no descriptive reference to “husband” or “wife” or “spouse,” and it is undisputed that the objectant has the same name as the decedent's predeceased spouse and was a working adult at the time of the deed. Absent some tangible proof that the Albert Davis on the deed is the decedent's predeceased spouse, and not the objectant, the court finds that an issue of fact exists for trial as to the actual identity of the Albert Davis on the deed.
Accordingly, this decision constitutes the order of the court denying the motion for summary judgment. The Chief Clerk shall mail a copy of this decision and order to all counsel.
Proceed accordingly.