Opinion
No. 346715/C.
2013-03-27
Proceeding by Kenneth Eiseman as Temporary Administrator of the ESTATE OF Joseph C. EISEMAN, Deceased, To Discovery Property Withheld.
Jaspan Schlesinger LLP, Garden City, for Petitioner. Jerome A. Scharoff P.C., Garden City, for Maria Pedigo.
Jaspan Schlesinger LLP, Garden City, for Petitioner. Jerome A. Scharoff P.C., Garden City, for Maria Pedigo.
David Pedigo, Jr., Oceanside, Pro Se Respondent.
EDWARD W. McCARTY III, J.
In this proceeding pursuant to SCPA 2103 to invalidate a deed to real property, petitioner moves for an order granting summary judgment.
The subject of this proceeding is a deed dated October 11, 2006 for the transfer of title to 2418 Columbus Avenue, Oceanside, New York, from the decedent to David Pedigo, Jr. (decedent's grandson) and his wife, Maria Pedigo, as tenants by the entirety.
A petition for discovery was filed on January 21, 2011 requesting an order to attend. An order to attend was signed on January 21, 2011 and a supplemental order on February 15, 2011. An examination was held on December 8, 2011. The instant motion for summary judgment was filed on December 6, 2012. An affidavit in opposition was filed by Maria Pedigo and a reply by petitioner. No answer has been filed by either of the respondents.
CPLR 3212 provides that a motion for summary judgment can be made after joinder of issue. However, the court can address a motion for summary judgment in the absence of an answer where the parties chart a course for summary judgment (Finn v. Church for Art of Living, Inc., 90 A.D.3d 826, 935 N.Y.S.2d 93 [2d Dept 2011]; Rhodes v. Liberty Mut. Ins. Co., 67 A.D.3d 881, 892 N.Y.S.2d 403 [2d Dept 2009] ).
The petition seeks a decree invalidating the deed on the grounds that the decedent was not competent and that the transfer was the result of fraud and undue influence. On the motion for summary judgment, petitioner further argues that language at the foot of the certificate of acknowledgment rendered the deed invalid as a matter of law.
The following language appears at the bottom of the page which contains the certificate acknowledgment:
“PREMISES: 55 Columbus Ave., Oceanside, NY
NASSAU COUNTY
SECTION 54
BLOCK 140
LOT 14 & 15
RECORD AND RETURN TO:
Louis DeVito, Esq.
2463 Long Beach Road
Oceanside, New York 11572”
The real property which the decedent owned and the property which is described by metes and bounds in the deed is 2418 Columbus Avenue. The deed also recites that this is the decedent's residence.
Petitioner argues that there is a defect in the deed based upon the addition to the certificate of acknowledgment. The addition is not part of the deed nor is it part of the certificate of acknowledgment. The purpose of a certificate of acknowledgment is to provide proof of due execution (CPLR 4538). There are two parts to an acknowledgment: 1) the oral declaration of the person who signed the instrument and 2) the certificate attesting to the description (2 Carmody–Wait § 5:16 [2013] ). The notation at the foot of the certificate is superfluous as to the purpose of the certificate.
Even allowing that the incorrect address is part of the conveyance, there are insufficient grounds for invalidating the deed. A deed is inoperative where the description fails to identify a parcel of real property with sufficient certainty (Patton and Palomar on Land Titles, § 81 [3d ed 2012] ) so that all persons interested in the property can trace the movement of title (Thurlow v. Dunwell, 100 A.D.2d 511, 472 N.Y.S.2d 872 [2d Dept 1984] ). However, a conveyance will not be declared void for insufficiency in its description of property if it is possible by any reasonable rule of construction, aided by extrinsic evidence, to identify the property intended (4 Tiffany Real Prop., § 997 [2012] ).
The extrinsic evidence is not in dispute. The decedent did not own 55 Columbus Avenue. In the deed, the description of the real property by metes and bounds is correct as to 2418 Columbus Avenue. Where part of a description of real property is incorrect, the false part can be rejected and if the remainder is sufficient, title will pass (Gallagher v. Quinlan, 10 App.Div. 402, 41 N.Y.S. 874 [2d Dept 1896]; 4 Warren's Weed on New York Real Property § 38.51 [5th ed] ). Specifically, an error in designating the wrong number in an address should be disregarded where it refers to real property which the grantor did not own ( see Jeduthan v. Loomis Jackson, 19 Johns 449 [Supreme Court, New York Cty 1822]; see also Matter of Goldstein, 46 A.D.2d 449, 363 N.Y.S.2d 147 [4th Dept 1975, affd38 N.Y.2d 876 [1976];Gallagher v. Quinlan, 10 App.Div. 402, 41 N.Y.S. 874 [2d Dept 1896]; Govin v. Metz, 29 N.Y.S. 988, 79 Hun 461 [1st Dept 1894] [cases involving testamentary dispositions] ).
The accuracy of the description by metes and bounds of the real property which the decedent owned would be sufficient to pass title even if an incorrect address had been recited in the deed. As to that part of the petition which alleges that the deed is void due to an incorrect recital of the address, summary judgment is granted to respondents (CPLR 3212[b] ).
Petitioner argues that the incorrect address at the foot of the certificate of acknowledgment misled the grantor and, therefore, the deed is invalid. To set aside a deed for lack of understanding it must be established that the grantor lacked mental capacity. That is, he was unable to understand that the purpose of the deed was to convey title to real property ( DeMarco–McCluskey v. DeMarco, 11 Misc.3d 1058[A] [Sup Ct, Queens County 2006] ). A deed cannot be set aside based upon the alleged failure of a competent person to understand particular terms (Aldrich v. Bailey, 132 N.Y. 85 [1892] ). Moreover, the description in the deed is correct.
Petitioner alleges that the deed was executed as a result of fraud and undue influence upon the decedent. Petitioner contends that respondents took advantage of decedent's dependence upon them. Respondents allege that the decedent was grateful for the care respondents had provided. The affidavits raise triable issues of fact as to undue influence (Preshaz v. Przyiazniuk, 51 A.D.3d 752, 858 N.Y.S.2d 290 [2d Dept 2008] ). Petitioner has not alleged facts which would support a finding of fraud. Presumably, however, there has been no pre-trial discovery, as no answer has been filed.
Petitioner's motion for an order granting summary judgment is denied. Petitioner failed to make out a prima facie case regarding decedent's mental capacity ( Matter of Delagatto, 27 Misc.3d 1201[A] [Sur Ct, Kings County 2010], affd 82 A.D.2d 1230 [2d Dept 2011] ). Summary judgment is granted to respondents on the allegation that the deed is void for uncertainty. An answer to the petition must be served and filed (SCPA 2104[l] ) within 60 days of service of a copy of the order following this decision.
This matter will appear on the court's calendar for conference on May 15, 2013 at 9:30 a.m. to enter a discovery order.
Settle order.