Opinion
10911/10.
May 6, 2011.
The following papers have been read on this motion:
Papers Numbered Notice of Motion, Affidavit, Affirmation and Exhibits 1 Affirmation and Affidavit in Opposition and Exhibits 2 Reply Affirmation 3Upon the foregoing papers, it is ordered that the motion is decided as follows:
Defendant Isabel Vera ("Vera") moves, pursuant to CPLR § 3212, for an order granting her summary judgment and dismissing plaintiff's complaint. Plaintiff opposes the motion.
This is a partition action that is related to a prior matrimonial matter. Plaintiff commenced the action by filing a Summons and Verified Complaint on or about June 7, 2010. Issue was joined on or about July 8, 2010.
Defendant Vera states that, on June 14, 2007, she and plaintiff commenced divorce proceedings and entered into a Stipulation of Settlement. Said Stipulation provided that plaintiff was to reside in the marital premises, 105 Plymouth Drive N., Glen Head, New York, 11545, and be responsible for all mortgage payments, utilities and repairs of the home. On August 21, 2007, plaintiff and defendant's brother conveyed their entire interest in said marital residence to defendant Vera by a Quitclaim Deed, which was recorded on September 4, 2007. On October 10, 2007, the Court entered a final Judgment of Divorce between plaintiff and defendant Vera. Defendant Vera argues that, once the divorce was made final, all issues of the distribution of marital assets was settled. Defendant Vera states, "[s]ince the plaintiff conveyed his interest to me in 2007, I have been responsible for all mortgage payments and carrying costs of the subject property and the plaintiff has made no contribution or claim otherwise on the premises. It is only now, 3 years after our divorce, that the plaintiff is requesting a partition of property that he has no interest in." Defendant Vera contends that plaintiff has no standing to bring the instant lawsuit because he does not own, nor has any ownership interest in, the subject property. Defendant Vera submits that "[t]o maintain an action for partition, the plaintiff must be a 'person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years . . . 'RPAPL § 901. Partition actions cannot be maintained except by one holding title to and in possession of realty. (citation omitted)." Defendant Vera argues that plaintiff gave up all rights to the premises when he conveyed his interest to her and that plaintiff is neither joint tenants nor tenants in common with defendant Vera, the owner of the real property, and thus he lacks standing to seek partition of said property. Defendant Vera contends that, in filing the instant action, plaintiff is essentially asking the Court to renegotiate his divorce settlement which was finalized three years ago.
In opposition to defendant Vera's motion, plaintiff argues that his "request for distribution of marital assets was timely, since the settlement stipulation which was not incorporated or merged into the divorce decree, did not contain any disposition of the plaintiff's interest in the marital residence." Plaintiff contends that he has standing to sue and petition the Court to ensure a distribution of assets that were jointly acquired during their marriage. Plaintiff claims that defendant Vera has failed to present any proof that the Stipulation of Settlement granted defendant Vera sole ownership of the former marital residence or any proof that plaintiff's name and liability have been removed from their jointly acquired and presently existing mortgage on the subject property. Plaintiff claims that the Stipulation of Settlement, Findings of Fact and Judgment of Divorce did not address the issue of plaintiff s interest in the marital residence and, therefore, plaintiff's interest in said property was not extinguished by such a transfer and there has been no judicial determination that defendant Vera is the sole owner of the subject property.
In reply, defendant Vera submits that, pursuant to Article 15 of the RPAPL, if plaintiff wishes to set aside the deed he must plead that the deed was the result of undue influence, fraud in the execution, unjust enrichment, forgery or breach of contract. Plaintiff has not made any of these allegations, either in his complaint or in his opposition to the instant motion. Defendant Vera adds that "[b]ecause the plaintiff is not attempting to attack or set aside the deed, he is bound by the deed in which he conveyed his interest to the defendant. As a result of his conveyance, Mr. Vera does not have standing to bring this action for partition. In his reply, the plaintiff does not offer any explanations at all as to the conveyance of his interest. The plaintiff simply ignores this fact. . . . The plaintiff simply disregards that he knowingly and willing ( sic) conveyed his interest in the premises to the defendant."
Defendant Vera also argues that "Mr. Vera attempts to argue that because the divorce decree did not discuss the ownership of the former marital property, then the issues of property distribution can be brought in a separate action on a later date. The plaintiff is incorrect in this assumption. Once the divorce decree has been issued and entered, the court is asserting that all issues of the former marriage, including equitable distribution and property disbursement, have been resolved. The Court of Appeals has more specifically ruled that 'a party to a concluded matrimonial action, who had a full and fair opportunity to contest title to the former marital home, is barred by res judicata principles from subsequently and separately reopening that issue.' Boronow v. Boronow, 71 N.Y.2d 284, 286 (1988)."
Defendant Vera adds that "plaintiff incorrectly states, in the complaint, that the stipulation of settlement (in the divorce action) reserved the parties rights for future action to settle unresolved issues of property distribution. The stipulation of settlement does not in fact reserve these rights and this proposition, in itself, contravenes the purpose of a final decree of divorce. All outstanding issues of disagreement between former spouses need to be resolved before a divorce decree can be issued, otherwise the parties are barred from litigating the issues in another action."
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 N. Y.2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988).
Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989).
In the instant motion, the Court finds that defendant Vera has made a prima facie showing of entitlement to judgment as a matter of law.
As previously stated, if a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, supra. The Court concludes that plaintiff failed to raise a triable issue of fact.
The Court finds no merit to plaintiff's claim that he has standing to bring the instant partition action, nor any merit to the other arguments he asserts in his opposition papers. Defendant transferred any interest he had in the marital residence to defendant Vera in the September 4, 2007 Quitclaim Deed. Additionally, given the fact that plaintiff had a full and fair opportunity to contest title to the former marital home in the prior matrimonial action, he is barred by res judicata principles from subsequently and separately reopening that issue. See Boronow v. Boronow, supra; Ayers v. Ayers, 37 A.D.3d 629, 828 N.Y.S.2d 915 (2d Dept. 2007) (dismissing the plenary action commenced pursuant to RPAPL based upon the doctrines of res judicata); Silvers v. Silvers, 267 A.D.2d 298, 702 N.Y.S.2d 82 (2d Dept. 1999).
Accordingly, defendant Vera's motion is hereby granted and plaintiff's complaint dismissed.
This constitutes the Decision and Order of this Court.