Opinion
9529/04.
Decided March 17, 2008.
By order to show cause dated January 19, 2007, defendant moves under sequence number eight for an order striking plaintiffs' claims as time barred and for summary judgment dismissing the complaint. Plaintiff opposes the order to show cause.
On March 24, 2004, plaintiffs commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. Issue was joined by defendant's answer, dated April 12, 2004. The complaint contains twenty-one allegations of fact in support of two causes of action, namely that a deed dated June 12 1962, purporting to convey fee ownership to the defendant of the premises located at 552 Evergreen Avenue, Brooklyn, New York, is illegal, unlawful, and unauthorized; and that the defendant used undue influence and duress to induce the plaintiffs to sign said deed.
Defendant asserts seven affirmative defenses in her answer, namely, that the plaintiffs transferred title to the defendant for good and adequate consideration; that the transfer was voluntary, that the action is barred by the statute of limitations; that the plaintiffs had actual knowledge of defendant's claim of absolute ownership since 1962; by reason of laches, the plaintiff's are precluded from commencing an action; that the plaintiffs are tenants of the defendant and can claim no right of ownership; and the sole relationship between plaintiffs and defendant is that of owner-landlord and tenant.
Facts
Defendant Mariana Gomez Huertas and plaintiff Maria Miranda were sisters. Plaintiff Maria Miranda passed away after the instant action was commenced. Her interest in the action passed by operation of law to plaintiff Pedro Miranda, her surviving spouse (see CPLR § 1015[b]). Pedro Miranda is the brother-in-law of defendant Mariana Gomez Huertas. In 1961, the plaintiffs and defendant purchased the premises located at 552 Evergreen Avenue, Kings County (hereinafter the subject property). The plaintiffs acquired a one half interest and the defendant acquired a one half interest in the subject property. The deed dated May 26, 1961 was recorded in the Office of the City Register for the County of Kings on June 1, 1961.
Defendant's Motion Papers
Defendant's motion papers consist of her affidavit, her attorney's affirmation, a memorandum of law and numerous annexed exhibits. Exhibit A is a letter dated July 17, 1962 signed by attorney Raymond G. Lawlor and addressed to Mariana Gomez. The letter references an enclosed deed dated June 12, 1962. The deed shows a transfer of real property known as 552 Evergreen Avenue, Brooklyn, New York 11221 (hereinafter the subject property) from Mariana Gomez, Pedro Miranda and his wife, Maria Miranda to Mariana Gomez. Exhibit B is a letter from Keyspan dated August 25, 2006 addressed to Marielnita Rivers at the subject property. Also included is an unsigned handwritten letter dated August 28, 2006. Exhibit C is a letter dated February 8, 2004 from the New York City Department of Housing Preservation and Development pertaining to a complaint by Maria Miranda about the lack of heat and hot water in the subject property. The complaint identifies Mariana Gomez Huertas as the owner or agent of the property. Exhibit D is a receipt reflecting payment of $264.65 to the Department of Finance on December 29, 2003. Also included are three bills from Keyspan. The first is dated January 6, 2004 for service to Luis Huertas Vega at 139 Tomkin Avenue, Brooklyn, New York 11206. The other two are for services to Mariana Gomez for April 23, 2003 and April 22, 2004 to the subject property. Exhibit E is a letter dated February 9, 2004 from the New York City Department of Housing Preservation and Development pertaining to a complaint by Peter Miranda about the lack of heat and hot water in the subject property. The complaint identifies Mariana Gomez Huertas as the owner or agent of the property. Exhibit F is a Notice of Petition for Kings County Civil Court Landlord Tenant part brought by Mariana Huertas against Pedro Miranda for the subject property. Exhibit G is the summons and complaint of the instant action. Exhibit H is a copy of the 2002 and 2003 federal and New York State tax returns for Luis and Mariana Huertas. Exhibit I is a signed personal check of Maria G. Miranda dated January 12, 2003 payable to Mariana Huertas. Exhibit J is the defendant's verified answer in the instant action. Exhibit K is defendant's response to discovery and inspection and a list of forty itemized exhibits.
Defendant did not set forth the procedural vehicle or statute used to support the motion. The court gave defendant leave to submit a supplement affirmation of counsel to address this deficiency. Plaintiff was also offered an opportunity to respond by a superseding affirmation in opposition.
Plaintiffs' Superseding Opposition Papers
Plaintiffs' superseding opposition papers consist of an affirmation of counsel, an affidavit of Pedro Miranda, affidavits from Peter and Marcos Miranda, the sons of Maria Miranda; and two annexed exhibits. The first is the summons and complaint of the instant action. The second plaintiff Pedro Miranda's verification of the instant complaint.
Defendant submitted an affidavit in reply and a further affidavit of support of the motion and in reply to plaintiffs' opposition.
The Dispute
A deed dated June 12, 1962 was recorded in the same office which purported to transfer the plaintiffs' interest in the subject property to the defendant. Plaintiffs claim their purported signatures on the later deed are forged and that they did not transfer their interest to the defendant. Plaintiffs complaint alleges in the alternative, that the signatures obtained on the later deed were obtained by undue influence or duress.
Defendant alleges that in order to obtain financing, plaintiffs were added to the original contract of sale for the subject property to assist defendant when applying for the mortgage. Defendant alleges that she alone supplied the funds for the purchase of the property. Defendant further alleges that in or about 1962, plaintiffs transferred the deed solely to the defendant and that the plaintiffs then became tenants to the defendant, paying defendant rent to live in the premises. The plaintiffs claim that they never transferred their ownership to the defendant and that their payments to the defendant were their contribution towards ownership expenses for the property.
LAW AND APPLICATION CPLR § 213, states in pertinent part,
The following actions must be commenced within six years:
an action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.
CPLR § 4522 Ancient filed maps, surveys and records affecting real property. All maps, surveys and official records affecting real property, which have been on file in the state in the office of the register of any county, any county clerk, any court of record or any department of the city of New York for more than ten years, are prima facie evidence of their contents.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to eliminate any material issues of fact from the case ( Alvarez v. Prospect Hospital, 68 NY2d 320, 324). A failure to make a showing requires the denial of the motion, regardless of the adequacy of the opposing papers ( Ayotte v. Gervasio, 81 NY2d 1062). Furthermore, the allegation contained within plaintiff's complaint must be deemed true and must receive every favorable inference that can be reasonably drawn therefrom ( Leon v. Martinez, 84 NY2d 83, 87 (1994).
In order to meet this burden, defendant submitted proof of a deed transferring the plaintiffs' interest in the subject property to the defendant in 1962, as well as other documents. Defendant relies on the ancient document rule to support her claim of exclusive ownership of the property for over forty years. Defendant's verified answer to the complaint alleges that plaintiffs transferred there interest in 1962 for valuable consideration. Defendant, however, does not explain what was the consideration, if any. Defendant offers exhibits which she argues demonstrate her complete ownership and control over the subject property. While these documents may demonstrate her intent to act as exclusive owner, they do not conclusively establish notice to the plaintiff of this claim. At best these documents lend support to defendant's assertion of the defenses of statute of limitations and laches.
Nonetheless, with only the defendant's name on the deed, a prima facie showing has been made that plaintiffs transferred their interest in the subject property to her in 1962, shifting the burden to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact ( Alvarez v. Prospect Hospital, supra, at 324).
The plaintiffs have raised an issue of fact that the conveyance may have been fraudulent. It is undisputed that plaintiffs have contributed funds to the defendant. The defendant claims that the funds were for rent while the plaintiffs claim it was their contribution towards the ownership of the property. No explanation was proffered why the plaintiffs would give up ownership of the property for no consideration. Plaintiffs allege that since they purchased the property with defendant, they contributed towards the payments for the house. In the middle of 2003, plaintiffs allege in their affidavit, that they discovered the alleged fraudulent conveyance of the property to the defendant.
Plaintiffs commenced the action on March 24, 2004. "When the cause of action is premised upon actual fraud, the Statute of Limitations is six years from the commission of the fraud or two years from the time the plaintiff discovered or should have discovered the fraud, whichever is later." ( Bernstein v La Rue, 120 AD2d 476 [2nd Dept 1986]). The court is not persuaded that plaintiffs could have discovered the alleged fraud with reasonable diligence without having reason to believe that their name was removed from the deed. The question of whether the plaintiffs should have known about the transfer and if so, when they should have known, is unclear. It certainly would depend on the particular facts and surrounding circumstances. Therefore, the court finds a genuine issue of fact as to whether the complaint was timely brought which would preclude summary judgment.
The court will turn to defendant's assertion that the doctrine of laches bar plaintiffs' complaint. Laches and limitations are not the same. Limitations involve the fixed statutory periods within which actions must be brought, while laches signifies a delay independent of statute ( Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801 at 816). Laches is an equitable bar, based on the lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party ( Saratoga County Chamber of Commerce v. Pataki, supra., 100 NY2d 801 at 816). The mere lapse of time, without a showing of prejudice, is insufficient to sustain a claim of laches ( Saratoga County Chamber of Commerce v. Pataki, supra. .). Prejudice may be demonstrated "by a showing of injury, change of position, loss of evidence, or some disadvantage resulting from the delay ( Skrodelllis v. Norbergs, 272 AD2d 316, 317). Because laches is a purely equitable defense, it will not serve to bar recovery in an action at law commenced within the limitations period ( Brown v. Lockwood, 76 AD2d 721, 729 [2nd Dept. 1980]). As such, unless the legal right is barred by the Statute of Limitations, the equitable remedy is not barred by the doctrine of laches ( Ecumenical Task Force of Niagra Frontier, Inc. v. Love Canal, 179 AD2d 261 at 265 [4th Dept 1992]). Inasmuch as their exist a material issue of fact as to whether the complaint was timely brought, the defendant cannot demonstrate entitlement to dismissal on the equitable principle of laches.
There being issues of fact raised, the defendant's motion for summary judgment is denied.
The foregoing constitutes the decision and order of the court.