Opinion
No. 25746/2010.
06-03-2015
Oswald JEFFERS, Plaintiff, v. Bruce L. STEIN Public Administrator of Kings Temporary Administrator of the Estate of Alice Parker Gordon, a/k/a, Ales Parker Gordon, Cecil D. Worrell Administrator Of the Estate of James Gordon and Rayvonna Mcadoo-simms, Executor of The Estate of Charles Matthew Storey, a/k/a Charles Storey a/k/a Charlie Matthew Storey, Defendants.
O. Benjamin Okeke, Esq., Brooklyn, Attorney for Plaintiff. Domenick Napoleto, Esq., Brooklyn, N.Y. Attorney for Defendant.
O. Benjamin Okeke, Esq., Brooklyn, Attorney for Plaintiff.
Domenick Napoleto, Esq., Brooklyn, N.Y. Attorney for Defendant.
Opinion
FRANCOIS A. RIVERA, J.
The following is the decision, order and judgment after non-jury trial in the above captioned matter on the plaintiff's claims against all of the defendants.
The Parties
Plaintiff, Oswald Jeffers (hereinafter plaintiff or Jeffers) is a tenant under a lease dated May 13, 1997 (hereinafter the subject lease), for the occupancy of a commercial building at 1355 Fulton Street in Brooklyn, New York, (hereinafter “the subject premises”). Charles Matthew Storey, a/k/a Charles Storey a/k/a Charlie Matthew Storey (hereinafter Storey) was Jeffers landlord pursuant to the subject lease. Storey died on November 6, 2006, and Rayvonna Mcadoo–Simms is the executor of the Estate of Storey. Alice Parker Gordon a/k/a, Ales Parker Gordon (hereinafter A. Gordon) and James Gordon (hereinafter J. Gordon) were married and the co-owners of the subject premises at one time. A. Gordon died on August 31, 1987 and her husband J. Gordon died on November 5, 1995. The defendant Bruce L. Stein is the Public Administrator of Kings County and the temporary administrator of the estate of A. Gordon. The defendant Cecil D. Worrell is the administrator of the estate of J. Gordon.
The executors are sued solely in their representative capacity. For ease of discussion the representatives will be referred to herein in the name of the decedents that they represent.
BACKGROUND
Plaintiff's amended verified complaint, dated October 19, 2010, alleges one hundred and one allegations of fact in support of six causes of action. The first cause of action is for adverse possession. The second is for a permanent injunction to restrain the defendants from evicting the plaintiff and the other tenants.The third cause of action sounds in unjust enrichment. The fourth cause of action seeks a permanent injunction to restrain the defendants from transferring, selling or conveying the property. The fifth cause of action is against the defendant Storey for intentional misrepresentation. The sixth cause of action is against Storey for breach of contract.
The defendants A. Gordon and J. Gordon joined issue by answer filed May 12, 2011. Storey did not answer or otherwise appear in the action and a default judgment was entered against him on October 14, 2011.
THE TRIAL
The issues in this action were tried before Part 52 of this Court without a jury on December 11, 15, 17, 18 and 23 of 2014. The plaintiff testified and called the following witnesses to testify; Clyde Evans Jr. and Desmond Lewis. The defendant did not call any witnesses.
Pursuant to CPLR 4213 the parties were afforded an opportunity to submit findings of fact and did so. The Court makes the following findings of fact.
FINDINGS OF FACT
A. Gordon and J. Gordon were the deed title owners of the subject premises. A. Gordon predeceased J. Gordon and both Gordons predeceased the commencement date of the lease agreement. Storey was an occupant of the subject premises. The exact date of the Storey's occupancy is unknown, however, it is believed to have been in the late 1970's or early 1980's. The circumstances of Storey taking possession or whether there was a written instrument as to his possession is unknown.
Jeffers came into possession of the subject premises as a tenant pursuant to the subject lease made by and between Jeffers and Storey. The subject lease between Jeffers and Storey was for a period of ten years commencing in May 1997 and ending in May 2007. That subject lease provided the following: Jeffers occupied only the commercial store situated on the ground floor of the premises. Jeffers was permitted to collect rents from the residential apartment tenants. Jeffers did not have the right to rent or re-rent the residential apartments. That said, the written lease agreement, likewise, obligated Jeffers for the payment of all repairs, water and electric charges. The written lease agreement further provided therein:
Tenant has been advised and is aware that legal title to the demised premises herein involved is not presently in the name of “Charlie Storey ”. However, at such time as legal title can be acquired by Landlord, the parties do hereby covenant and agree that said premises shall be conveyed to Tenant herein for the total sum of Two Hundred Thousand ($200,000.00) Dollars”
Additionally, the lease provided: “The Landlord shall convey title to the demised premises to the Tenant within six months of landlord's receipt of title if and when title is received (see plaintiff's exhibit 1)(emphasis added)
Storey never acquired legal title to the premises. By notice dated February 22, 2005, Storey sought to terminate the tenancy by serving Jeffers a thirty (30) day notice of termination. Thereafter, Storey commenced a holdover proceeding seeking Jeffers eviction in the Civil Court Kings County.
On April 14, 2005, Jeffers brought suit for specific performance against Storey by filing a summons and complaint bearing Index number 11286/05 with the Kings County Clerk's Office. The action was to enforce the terms of the written lease agreement (hereinafter “the 2005 action”). Specifically, Jeffers sought to enforce the terms of the lease which provided for Storey to convey the subject premises to Jeffers. Storey died on November 6, 2006, during the pendency of the action. The 2005 action was marked stayed due to the death of Storey (see CPLR 1015 ). The instant action for adverse possession and other relief was commenced by Jeffers on October 19, 2010, after an administrator was appointed for Storey's estate.
LAW AND APPLICATION
The plaintiff's claim of adverse possession will be analyzed first as the claim sounding in unjust enrichment is plead as alternative relief.
General Adverse Possession
To acquire title to real property by adverse possession, common law requires the possessor to establish that the character of the possession is hostile and under a claim of right, actual, open and notorious, exclusive and continuous for the statutory period (Berry v. Southard, 15 AD3d 516 [2nd Dept 2005] ). Since the acquisition of title to land by adverse possession is not favored under the law (Gallea v. Hess Realty Corp., 128 A.D.2d 274–275 [4th Dept 1997] ), these elements must be proven by clear and convincing evidence (Gore v. Cambareri, 303 A.D.2d 551–552 [2nd Dept 2003] ).
The requirements of actual, exclusive, open and notorious possession for a continued period are the easiest requirements to meet because either the claimant lived or used the property for the statutory period or she did not (Brand v. Prince, 35 N.Y.2d 634 [1974]see also Stroem v. Plackis, 96 AD3d 1040 [2nd Dept 2012] ). In other words, exclusive and continuous means possession of a type which would give the owner a cause of action in ejectment against the occupier (Brand, 35 N.Y.2d 634 [1974] ).
The element of hostility is the most common element that defeats a claim for adverse possession. The element of hostility is an objective standard and leaves absolutely no room for equivocation. The initial entry on the property must be under a claim of absolute right without recognition or deference to the interest or rights of any other (MAG Assoc. Inc. v. SDR Realty, Inc., 669 N.Y.S.2d 314, 316 [2nd Dept 1998] ). An admission by the party in possession prior to the vesting of title that title belongs to another will destroy the element of hostile possession (MAG Assoc.Inc. v. SDR Realty, Inc., 669 N.Y.S.2d 314, 316 [2nd Dept 1998] ).
If the initial entry onto land is permissive than the possessor cannot claim hostility (Vitale ex rel. Callaghan v. Witts, 93 AD3d 714 [2nd Dept 2012] ). Furthermore, the permissive use will be presumed to continue until permission or authority has been repudiated and renounced and the claimant thereafter has assumed the attitude of hostility to any right in the real owner (Id. ).
Adverse Possession arising from a Landlord Tenant Relationship
Moreover in a landlord tenant relationship adverse possession is governed by RPAPL 531 and provides as follows:
Where the relation of landlord and tenant has existed between any persons the possession of the tenant is deemed the possession of the landlord until the expiration of ten years after the termination of the tenancy ... notwithstanding that the tenant has acquired another title or has claimed to hold adversely to his landlord. But this presumption shall cease after the periods prescribed in this section and such tenant may then commence to hold adversely to his landlord.
Accordingly, the period of presumed permission is limited to 10 years after termination of the lease (Gallea v. Hess Realty Corp., 128 A.D.2d 274–277 [4th Dept 1997] ). Thus, under RPAPL 531, a minimum period of twenty years must elapse from the last payment of rent or from the expiration of the lease before occupancy of a tenant may ripen into title by adverse possession. This twenty years includes ten years during which the tenant's occupancy is deemed that of the landlord and therefore not adverse (Gallea v. Hess Realty Corp., 128 A.D.2d 274–277 [4th Dept 1997] ).
Adverse Possession by Tacking
Where the individual claiming adverse possession has not possessed the property for the statutory period, the owner may “tack his adverse possession to that of his predecessor to satisfy the applicable statutory period” (Stroem v. Plackis 96 AD3d 1040 [2nd Dept 2012]relying on Brand v. Prince, 35 N.Y.2d at 637 ; see also Ram v. Dann, 84 AD3d 1204, 1205 ). It has been equally held that a party is not entitled to tack possession where it is not established that the party's predecessors in title ever asserted an adverse claim to the disputed property (Garrett v. Holcomb, 215 A.D.2d 884 [3rd Dept 1995] ; Meerhoff v. Rouse, 4 A.D.2d 740 [4th Dept 1957] ).
Discussion
In the instant matter, Jeffers asserts that Storey possessed the subject premises through adverse possession prior to entering into the subject lease. He also asserts that he relied on Storey's assertions of ownership through adverse possession in entering into the subject lease. Accordingly, it is Jeffers contention that he is entitled to tack the time period which he possessed the subject premises onto Storey's time period of adverse possession
As discussed above, the time line of the instant action is as follows: In 1987, A. Gordon died. Sometime in the late 1970's or early 1980's Storey took possession of the premises. In 995, J. Gordon died. On May 13, 1997, the subject lease was entered into by Jeffers and Storey for a ten year period. In 2005, Jeffers commenced a specific performance action. In 2010, the instant action was commenced for, among other things, to vest Jeffers with title via adverse possession.
Even if it is assumed that Storey possessed the property adversely, Jeffers cannot tack onto Storey's ownership due to the landlord tenant relationship. Jeffers asserts that as Storey possessed the subject premises adversely then Jeffers possession should tack onto Storey's possession. RPAPL 531 requires that ten years elapse from the end point of the lease before a tenant can claim ownership through adverse possession. Jeffers possessed the property between May 13, 1997 through May 13, 2007 through the lease. Applying RPAPL 531, the next ten years, through May of 2017, are presumed to be permissible use. Only after May of 2017, can Jeffers' possession of the subject premises even be considered hostile. For Jeffers to assert adverse possession without tacking onto Storey he would have had to adversely possess the subject premises for ten years which would run into May of 2027, twenty years after the end of the lease in 2007.
It should also be noted that Jeffers cannot tack onto Storey's possession because he has failed to establish that Storey possessed the subject premises hostile to the owners. The subject lease states that Storey is not the owner. Storey admitted that title belonged to another and accordingly destroyed the element of hostile possession (see MAG Assoc.Inc. v. SDR Realty, Inc., 669 N.Y.S.2d 314, 316 [2nd Dept 1998). Furthermore, Jeffers admitted at least three letters dated November 25, 1997, May 13, 1998, and January 14, 1999 at trial. The letters were addressed to Storey's counsel and inquired what, if any, efforts were taken to vest Storey with title to the subject premises. The letters are further evidence that Storey did not hold himself out as the true owner and actually affirmatively asserted that he was not the owner. Lastly, there was no evidence presented as to the method that Storey took possession of the premises from the Gordons. As adverse possession requires a showing of the elements by clear and convincing evidence, the Court can not find that Storey adversely possessed the premises. Accordingly, Jeffers has failed to make the required showing establishing adverse possession.
Unjust Enrichment
Unjust enrichment is a “quasi-contract theory of recovery, and is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties concerned (Georgia Malone & Co., Inc. v. Ralph Rieder, 86 AD3d 406 [1st Dept 2011]citing IDT Corp. v. Morgan Stanley Dean Witter & Co., 12 NY3d 132, 142 [2009] ). A plaintiff must show “that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered' “ (Mandarin v. Wildenstein, 16 NY3d 173 [2011]citing Citibank, N.A. v. Walker, 12 AD3d 480, 481 [2nd Dept 2004] ). “The essential inquiry in any action for unjust enrichment ... is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered” (Mandarin v. Wildenstein, 16 NY3d 173 [2011]citing Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415, 421 [1972] ). A plaintiff, however, cannot maintain an unjust enrichment claim while simultaneously alleging the existence of an express contract covering the same subject matter (Universal/MMEC, Ltd. v. Dormitory Auth. of State of NY, 50 AD3d 352 [1st Dept 2008] ).
Furthermore, the voluntary payment doctrine bars recovery of payments made with full knowledge of the facts and in the absence of fraud (Pike v. New York Life Ins. Co., 72 AD3d 1043 [2nd Dept 2010] ).
In the instant matter, Jeffers asserts that he is entitled to a money judgment in the amount of $378,152.00, representing payments he made for taxes, repairs, electricity bill, heating and fuel on the property. Essentially, he claims that if the Court does not vest tittle with him, the defendants would be unjustly enriched by his payments.
Jeffers admits that the lease obligated him to pay for repairs, water and electric charges. Accordingly, there is no claim in unjust enrichment for those expenses specifically contracted for in the subject lease (see Universal/MMEC, Ltd. v. SDR Realty, Inc., 50 AD3d 352 [1st Dept 2008] ).
The only other claim is for taxes paid by Jeffers. Exhibit 6 is a contract dated June 11, 2003, between NYCTL 1999–1 (N.Y.CTL) and Jeffers that relates to the settlement of a tax lien on the subject property. The agreement reflects that Jeffers paid $12,460.00 on June 9, 2003. He was to pay a monthly amount of $1250.00 beginning July 15, 2003 through October 15, 2004. According to Jeffers he made the payments in order to stop NYCTL from foreclosing on the tax lien and ultimately selling the subject property at auction. Jeffers testimony and evidence establish that he was aware of the tax lien, he was also aware of the cloud on the title of the property yet chose to contract with NYCTL for payments and in fact pay the tax lien. In the absence of any allegations or causes of action sounding in fraud and Jeffers voluntary payment of the lien, he is prohibited from recovering those payments.
Permanent Injunction
To establish entitlement to an injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) a balance of the equities in favor of granting the injunction (see CPLR 6301 ; Doe v. Axelrod, 73 N.Y.2d 748, 750 ; W.T. Grant Co. v. Srogi, 52 N.Y.2d 496, 517 ). As discussed above, Jeffers has failed to establish the likelihood of his success on the merits, he is not entitled to a permanent injunction.
Intentional Misrepresentation and Breach of Contract
The fifth and sixth causes of action are against Storey only. The fifth cause of action alleges intentional misrepresentation and the sixth cause of action for breach of contract. As Storey has defaulted and a judgment has previously been entered against him, the Court need not reach those causes of action.
CONCLUSION
Plaintiff has failed to establish that he is the owner of the property through adverse possession.
Plaintiff has failed to establish his entitlement to reimbursement of amounts expended in connection with the premises under a theory of unjust enrichment.
Plaintiff has failed to establish entitlement to a permanent injunction.
The complaint is dismissed.
The foregoing constitutes the decision, order and judgment of this court.