Opinion
22876/07.
March 19, 2009.
The following papers numbered 1 to 13 read on this motion by plaintiff for an order, renewing plaintiff's prior motion seeking summary judgment, pursuant to CPLR § 3212, in favor of plaintiff, in that there is no genuine dispute as to the rights, shares and interests of the parties, and appointing a referee or some suitable person to determine the respective credits debits due to the parties, pursuant to RPAPL § 911.
NUMBERED
PAPERS Notice of Motion-Affidavits-Exhibits......................... 1 — 5 Affirmation in Opposition-Exhibits-Memorandum of Law......... 6 — 11 Reply........................................................ 12 — 13Upon the foregoing papers, it is hereby ordered that the motion is disposed of as follows:
This is an action commenced by plaintiff Nadine Weaver ("plaintiff"), the alleged daughter of decedent Nathaniel Weaver ("decedent"), against defendant Sadie Latimore ("defendant"), the daughter of decedent's purportedly surviving wife, Georgia Weaver a/k/a Georgia M. Antney ("Antney"), who is also now deceased, for the partition and sale of property located at 116-24 171st Street, Jamaica, New York, a residential one family dwelling, which plaintiff claims an undivided one-half part interest, and which defendant claims full ownership. By order of this Court dated March 3, 2008, plaintiff's motion for summary judgment and an order of reference for a partition and sale was denied "without prejudice to renew upon presentment of the requisite proof needed at the time of decedent's death." In making its determination, the Court stated the following, in relevant part:
On or about December 18, 1961, the property at issue was conveyed by Edward and Beatrice Longo to "NATHANIEL WEAVER and GEORGIA WEAVER, his wife." The death certificate, the contents of which were reported by decedent's sister Lizzie Bell, filed upon decedent's death on December 22, 1980, set forth that he was never married. On September 18, 1981, Georgia Weaver, claiming to be the surviving tenant by the entirety and surviving joint tenant with the right of survivorship, executed a deed conveying unto herself a 100% interest in the premises; and thereafter, on October 22, 1984, she executed a deed conveying her interest in the premises to herself and defendant, her daughter. On March 18, 2005, Georgia Weaver and defendant reconveyed the property to themselves under the names Georgia M. Antney and Sadie Latimore. Contending that decedent and Georgia Weaver were never married and that she thus was the decedent's sole surviving legatee and heir at law, plaintiff contends that as she holds a 50% ownership interest in property, she is entitled to summary judgment.
It is well-established that "[a] person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners (citations omitted)." Graffeo v. Paciello, 46 A.D.3d 613 (2nd Dept. 2007); Donlon v. Diamico, 33 A.D.3d 841 (2d Dept. 2006); Dalmacy v. Joseph, 297 A.D.2d 329 (2d Dept. 2002); Wilbur v. Wilbur, 266 A.D.2d 535, 536 (2d Dept. 1999); DeRisi v. Santoro, 262 A.D.2d 270 (2d Dept. 1999). There, however, is an triable issue of material fact as to plaintiff's status or standing to seek the partition of the property. Whether plaintiff is "[a] person holding and in possession of real property as joint tenant or tenant in common" within the meaning of RPAPL 901 [1] is yet to be determined.
Section § 4-1.2 of the EPTL, entitled "Inheritance by non-marital children," in pertinent part provides:
(2) A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:
(C) paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own[.]
Subdivision C would be the section that would be applicable to plaintiff, who proffers her birth certificate showing that decedent was her father, as proof of her right to one half interest in the property at issue. However, her father died on December 22, 1980, prior to the effective date of that provision. That provision, as held in Matter of Malavase, 133 A.D.2d 759 (2nd Dept. 1987), has no applicability. There, the Appellate Division, Second Department stated:
We agree with the Surrogate that the terms of EPTL 4-1.2(a)(2)(C) should not be applied in this case. That subparagraph was added to EPTL 4-1.2 by virtue of an amendment which was approved on April 21, 1981, and which became effective on September 1, 1981 (L1981, ch. 75, § 1). The decedent died on October 2, 1979.
Prior to the enactment of that amendment, a child born out of wedlock could share in the distribution of his intestate father's estate only if (1) a court of competent jurisdiction had made an order of filiation during the father's lifetime, or (2) the father had signed an instrument acknowledging paternity (see, EPTL 4-1.2[a][2][A], [B]). Neither of these conditions was met in this case. Thus, as of the date of the decedent's death in 1979, the appellant, who is concededly the son of the decedent born out of wedlock, had no right to share in the distribution of the decedent's assets.
See, Matter of Will of Gibbons, 149 Misc.2d 516 (Surrogate's Court, Nassau Co. 1991). Here, plaintiff has not submitted any documentation to meet either of these conditions on this motion. Accordingly, her motion for summary judgment must be denied, without prejudice to renew upon presentment of the requisite proof needed at the time of decedent's death.
It is upon the foregoing that plaintiff moves for an order, renewing her prior motion seeking summary judgment, pursuant to CPLR § 3212, in favor of plaintiff, in that there is no genuine dispute as to the rights, shares and interests of the parties, and appointing a referee or some suitable person to determine the respective credits debits due to the parties, pursuant to RPAPL § 911.
It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2d Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position.See, Zuckerman v. City of New York, supra.
It is well-established that "[a] person holding and in possession of real property as joint tenant or tenant in common, in which he [or she] has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners (citations omitted)." Graffeo v. Paciello, 46 A.D.3d 613 (2nd Dept. 2007); Donlon v. Diamico, 33 A.D.3d 841 (2d Dept. 2006); Dalmacy v. Joseph, 297 A.D.2d 329 (2d Dept. 2002); Wilbur v. Wilbur, 266 A.D.2d 535, 536 (2d Dept. 1999); DeRisi v. Santoro, 262 A.D.2d 270 (2d Dept. 1999). From the outset, it is determined by this Court that although decedent and Atney purchased the subject property together in 1961, and the deed conveyed the property to "Nathaniel Weaver and Georgia Weaver, his wife," it is undisputed that the parties were not married at the time of such conveyance. Indeed, defendant concedes that although the parties held themselves out to be a married couple, "unbeknownst to anyone in the family or community, the parties were never officially married[]." As such, despite any contentions to the contrary, the ownership interest between decedent and Antney cannot be defined as a tenancy by the entirety.
"A tenancy by the entirety is a form of real property ownership available only to parties married at the time of the conveyance (citation omitted). As tenants by the entirety, both spouses enjoy an equal right to possession of and profits yielded by the property (citation omitted). Additionally, 'each tenant may sell, mortgage or otherwise encumber his or her rights in the property, subject to the continuing rights of the other' (citation omitted). Once the legal relationship between husband and wife is judicially altered through divorce, annulment or legal separation, the tenancy by the entirety converts to a tenancy in common (citation omitted)." Goldman v. Goldman, 95 N.Y.2d 120, 122 (2000); see,Ehrgott v. Buzerak, 49 A.D.3d 681 (2nd Dept. 2008); Brevilus v. Brevilus, 41 A.D.3d 630 (2nd Dept. 2007). "While these features of tenancies by the entirety are also characteristic of tenancies in common, the tenancy by the entirety is further distinguished by the fact that it confers on the surviving spouse a right to absolute ownership of the property upon the other spouse's death (citation omitted)." V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 564 (1986); see, generally, Thomas v. Samuel, 40 A.D.3d 744 (2nd Dept. 2007).
Although Antney, claiming to be the surviving tenant by the entirety, executed a deed conveying unto herself a fee simple absolute interest in the premises, and assumed possession and ownership of the entire property upon decedent's death, "at the time this property was purchased by decedent and [Antney], a conveyance to two persons who were not legally married 'as tenants by the entirety,' was deemed to create only a tenancy in common, unless expressly declared to be a joint tenancy." Bucci v. Bucci, 125 A.D.2d 286, 287 (2nd Dept. 1986). It is well settled that "'[i]n a tenancy-in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner.'"O'Brien v. Ginter, 296 A.D.2d 387 (2nd Dept. 2002); see, McIntosh v. McIntosh, 58 A.D.3d 814 (2nd Dept. 2009); Caprer v. Nussbaum, 36 A.D.3d 176 (2nd Dept. 2006). Nevertheless, upon the death of decedent, Antney remained a tenant in common with decedent's distributees. See, Bucci v. Bucci, 125 at 287 (2nd Dept. 1986). Thus, as Antney could not convey more than the ownership interest to which she was entitled under the subject conveyance, it follows that upon Antney's death, her distributees remained tenants in common with decedent's distributees, if any. Thus, the only question remaining is whether plaintiff is a distributee of decedent's estate, thereby entitling her to a proprietary interest in the subject property as a tenant in common with defendant.
Plaintiff, in support of her motion, contends that she is the owner of an undivided one-half interest in the subject property, by virtue of the fact that she is the daughter of decedent, and he and Antney were never married. Plaintiff proffers, inter alia, the death certificate of decedent indicating that he was never married; her birth certificate whereby decedent is named as the father; and a 113H form subpoenaed by court order dated August 27, 2008 [Ritholtz, J.], from the City of New York Department of Health, Bureau of Vital records. The form, which sought to change the surname on plaintiff's birth certificate from "Stroman" to "Weaver," was certified to be a true copy of the record on file in the Department of Health by the assistant Chief Clerk, and signed and notarized by decedent and plaintiff's mother on January 8, 1973. The form states, in pertinent part, the following:
Deponent (father) Nathaniel Weaver states that he is the natural father of the above-named child and that he desires and consents to the filing of a new birth certificate for the child, giving the deponent's name as the father and giving deponent's surname as that of the child, so that the child will be known as Nadine Cherise Weaver.
Thus, plaintiff contends that based upon the foregoing evidence, she is entitled to maintain this action as the owner of an undivided one-half interest in the subject property, and asserts that the motion should be granted.
Here, this Court previously stated in its underlying order that plaintiff proffered her birth certificate as proof of her inheritance under EPTL § 4-1.2(C), entitled "Inheritance by non-marital children," which states that non-marital children may inherit from their paternal lineage where "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own[]." However, as this Court determined that the aforementioned provision is inapplicable as her father died on December 22, 1980, prior to the effective date of that specific provision which became effective on September 1, 1981, "a child born out of wedlock could share in the distribution of his [or her] intestate father's estate only if (1) a court of competent jurisdiction had made an order of filiation during the father's lifetime, or (2) the father had signed an instrument acknowledging paternity (see, EPTL 4-1.2[a][2][A], [B])."Matter of Malavase, 133 A.D.2d 759, 760 (2nd Dept. 1987). Upon renewal of this application, plaintiff proffers, inter alia, form 113H, to meet the requirements of EPTL § 4-1.2 (a) and (b), which currently state, in relevant part, the following:
(2) A non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:
(A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity or the mother and father of the child have executed an acknowledgment of paternity pursuant to section four thousand one hundred thirty-five-b of the
public health law, which has been filed with the registrar of the district in which the birth certificate has been filed; or
(B) the father of the child has signed an instrument acknowledging paternity, provided that:
(i) such instrument is acknowledged or executed or proved in the form required to entitle a deed to be recorded in the presence of one or more witnesses and acknowledged by such witness or witnesses, in either case, before a notary public or other officer authorized to take proof of deeds and
(ii) such instrument is filed within sixty days from the making thereof with the putative father registry established by the state department of social services pursuant to section three hundred seventy-two-c of the social services law, as added by chapter six hundred sixty-five of the laws of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the filing of the instrument, send written notice by registered mail to the mother and other legal guardian of such child, notifying them that an acknowledgment of paternity instrument acknowledged or executed by such father has been duly filed[].
Nevertheless, the current statute is likewise inapplicable to the case at bar, as decedent died on December 20, 1980, and the law in well settled that this statute has no retroactive application. See, Matter of Malavase, 133 A.D.2d 759, 760 (2nd Dept. 1987). The relevant statute, as amended on May 29, 1979, and which took effect immediately, stated the following:
(2) An illegitimate child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:
(A) a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within ten years from the birth of the child, or:
(B) the father of the child has signed an instrument acknowledging paternity, provided that
(i) such instrument is acknowledged or executed or proved in the form required to entitle a deed to be recorded within ten years from the birth of the child in the presence of one or more witnesses and acknowledged by such witness or witnesses, in either case, before a notary public or other officer authorized to take proof of deeds and
(ii) such instrument is filed within sixty days from the making thereof with the putative father registry established by the state department of social services pursuant to section three hundred seventy-two-c of the social services law, as added by chapter six hundred sixty-five of the laws of nineteen hundred seventy-six and
(iii) the department of social services shall, within seven days of the filing of the instrument, send written notice by registered mail to the mother and other legal guardian of such child, notifying them that an acknowledgment of paternity instrument acknowledged or executed by such father has been duly filed.
The statute was thereafter amended on April 21, 1981 to add provision (C), stating "paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own," which became effective on September 1, 1981. The statute has been amended several times throughout the years.
The record before this Court is clear that plaintiff is a nonmarital child who was not the subject of an order of filiation declaring paternity during the lifetime of decedent. Thus, plaintiff can only seek to establish that form 114H represents decedent's acknowledged paternity in writing before his death on December 20, 1980. Notwithstanding this documentary evidence proffered by plaintiff, this acknowledgment of paternity is insufficient to establish plaintiff's right to inherit as the nonmarital child of decedent as it fails to comply with the aforementioned statutory mandates. The "instrument which decedent executed relating to the corrected birth certificate was neither executed with the formalities required by this statute nor was it filed with the Putative Father Registry []. The amendment enacted by the Legislature has somewhat liberalized the statutory basis under which a nonmarital child can qualify to inherit from a father who dies intestate but it has not altered the necessity to strictly comply with the statute." Estate of Rodriguez, 100 Misc.2d 983, 986 (Surrogate's Court, Bronx Co. 1979); see,Matter of Estate of Sandler, 160 Misc. 2d 955 (Surrogate's Court, New York Co. 1994)["Along with her own testimony of her intimate relationship with the decedent, Ms. East offers an affidavit in which Mr. Sandler acknowledged his paternity of Steven in order to be identified on Steven's birth certificate as his father. It is noted, however, that such acknowledgment, standing alone, would be insufficient, under the law, to establish Steven's status"]; Matter of Crist's Estate, 116 Misc.2d 1078 (Surrogate's Court, Orange Co. 1982)["It is not disputed that there is absent, in this case, the other procedural modes prescribed by such statute to establish the right of an out of wedlock child to inherit from the putative father or his kindred. An affidavit sworn to before a notary by the decedent herein stating that he was the natural father of the subject child, without more, does not comply with the other procedural modes mandated by the statute."] Consequently, as the proof submitted by plaintiff is insufficient to establish that she holds a proprietary interest as a joint tenant or tenant in common, in possession of the subject real property in which she has an estate of inheritance, plaintiff has failed to demonstrate that she had standing to maintain an action for the partition of the property. Accordingly, the motion by plaintiff for an order, renewing plaintiff's prior motion seeking summary judgment, pursuant to CPLR § 3212, in her favor, in that there is no genuine dispute as to the rights, shares and interests of the parties, and appointing a referee or some suitable person to determine the respective credits debits due to the parties, pursuant to RPAPL § 911, is denied.
Moreover, upon a motion for summary judgment, the court has the inherent power to search the record where appropriate (see CPLR 3212[b]). It is well-settled that "a court may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of the motions before the court."Dunham v. Hilco Const. Co., Inc., 89 N.Y.2d 425, 429-430 (1996); Marrache v. Akron Taxi Corp., 50 A.D.3d 973 (2nd Dept. 2008); Morris v. Edmond, 48 A.D.3d 432 (2nd Dept. 2008); see, also, Micciche v. Homes by the Timbers, Inc., 1 A.D.3d 326 (2nd Dept. 2003); Shelter v. MCM Distributors, Inc., 299 A.D.2d 332 (2nd Dept. 2002); Image Clothing v. State Natl. Ins. Co., 291 A.D.2d 377 (2nd Dept. 2002). Here, as the Court finds that plaintiff does not have the requisite standing to maintain this action as she has failed to meet the requirements to demonstrate that she is a legitimate child of the decedent father entitled to share in the inheritance thereof, it is determined that there are no triable issues of fact presented in this matter. In light of these determinations, this Court, in its inherent authority, hereby searches the record and grants summary judgment in favor of defendant Sadie Latimore. Accordingly, the instant action is hereby dismissed.