Opinion
XXXXX
11-16-2018
Casey Boersma, Plaintiff, v. Kathleen Frost, Defendant.
CASEY BOERSMA, pro se KATHLEEN FROST By: John J. Pisaturo, Esq. 380 South Union Street Spencerport, New York 14559
CASEY BOERSMA, pro se KATHLEEN FROST By: John J. Pisaturo, Esq. 380 South Union Street Spencerport, New York 14559 Michael A. Sciortino, J.
The plaintiff appeared and proceeded at this small claim pro se, without legal counsel. The defendant appeared and proceeded at this small claim by counsel of record, John J. Pisaturo, Esq.
I. PROCEDURAL HISTORY
The plaintiff, CASEY BOERSMA ("plaintiff") commenced this small claim against KATHLEEN FROST ("defendant") in the Justice Court for the Town of Parma, County of Monroe, in the amount of $1,500.00 for, according to the Small Claims Complaint Form, "Failure to comply [with] Court agreement and failed to pay 2017 Bolivar property taxes prior to sale, resulting in potential foreclosure of property." The Court Clerk properly served the Notice of Small Claim by mailing it by certified mail and by first class mail. See, 22 N.Y.C.R.R. §214.10(e). The parties participated in a fair and impartial hearing of this small claim on October 16, 2018, and each witness was properly sworn under oath prior to providing any testimony to the Court. The Court confirmed that the defendant either resides within, is employed within, or has an office for the transaction of business within the municipality-the Town of Parma, giving rise to this Court's jurisdiction. See, Uniform Justice Court Act §213(a) (McKinney's 2018).
At the hearing of the small claim, the parties presented evidence in their own behalf, including testimony of the plaintiff and the defendant. Plaintiff also called Karen Frost as a lay witness to testify in support of her claims. Plaintiff introduced, and this Court received, five (5) pieces of documentary evidence. Defendant introduced, and this Court received, three (3) pieces of documentary evidence. Lastly, the Court received three (3) Court Exhibits that consisted of a Warranty Deed (Court Exhibit 1), Transcript in the matter of Karen Frost v. Kathleen Frost and Jeff Frost a/k/a Jeffrey B. Frost, venued in the Supreme Court of the State of New York, County of Allegany, before Hon. Thomas Brown, and assigned Index No. 41956 ("Frost v. Frost") (Court Exhibit 2), and, correspondence from John J. Pisaturo, Esq. to Harvey S. Bunis, Esq., dated June 1, 2017 (Court Exhibit 3).
II. STATEMENT OF FACTS
The relevant facts in this matter demonstrate that the plaintiff and defendant entered into a real estate transaction whereby the defendant conveyed real property located at Bell Brook Evergray Road, Genesee, NY 14721 (Tax Map No.: 296.-1-6.112), in the Town of Genesee, County of Allegany, State of New York, to the plaintiff by way of a Warranty Deed recorded on June 13, 2017. See, Court Exhibit 1. The conveyed property consisted of approximately 2.5 acres, see id., and upon which was a small cabin with electricity but no running water (the "property"), as the plaintiff testified. The ultimate purchase price for the property was approximately $12,000.00 of which a credit was deducted for unpaid school taxes in the amount of $367.59 that have been added on to the subject property, resulting in the total of $11,632.41 to be paid by Karen Frost to defendant within 45 days of March 23, 2017. See, Court Exhibit 2. However, payment of $11,632.41 purchase price was paid by plaintiff in this case rather than by Karen Frost through a check directly to counsel for the defendant, Mr. Pisaturo. According to the testimony, Karen Frost is the plaintiff's sister and was present at the small claim to testify in support of the plaintiff's case and small claim. Karen Frost is also the former daughter-in-law of the defendant, having been married to defendant's son, Jeffrey Frost.
This Court learned that the plaintiff was involved in this conveyance of the property only by name only; plaintiff was the third-party designee of Karen Frost for conveyance of the property by defendant as set forth in the matter of Frost v. Frost. See id. The truly intended beneficiary of this conveyance was Karen Frost, which flowed from settlement of Frost v. Frost before trial by way of a stipulation on the record before Justice Brown. See id. Justice Brown 's own remarks directly to the parties in the settlement, "a stipulation on the record. . .will be a binding agreement between the two of you. . ." See id. Clearly, the transcript in Frost v. Frost demonstrates that an oral agreement and stipulation was entered into between counsel and their respective clients in open court and upon the record before Justice Brown on March 23, 2017. Mr. Pisaturo represented the defendant, Mr. Bunis represented Karen Frost, and Jeff Frost defaulted in the matter. See id. The plaintiff was not a named party in that matter, nor was she represented by her own counsel throughout the conveyance of the property from defendant to her and into her own name as a third-party designee.
Plaintiff introduced the 2017 County/Town Tax Bill that did demonstrate that taxes assessed by the County ($322.63), Town ($198.32), Bolivar School District ($380.20), and Genesee Fire District ($29.00) in the amount of $930.15 were due and owing by January 31, 2017. See, Plaintiff's Exhibit 1 and 2. If the full amount was not paid in full by then, then the owner of the property would be subject to interest, penalties, liens, and a potential loss of the property. See id.; see also, Real Property Tax Law §1112 (McKinney's 2018). This amount was due prior to the stipulation on the record in Frost v. Frost on March 23, 2017, see Court Exhibit 2, prior to the conveyance through the Warranty Deed that was executed by defendant on June 3, 2017, and certainly prior to the recording of the Warranty Deed in the Allegany County Clerk's Office on June 13, 2017. See, Court Exhibit 1. Accordingly, this amount of $930.15 was due while defendant still owned the property in her own name, and was then subsequently in delinquent status when defendant conveyed the property to plaintiff. See, Plaintiff's Exhibit 3; see also, Defendant's Exhibit A. Plaintiff testified that she paid the delinquent amount in full to keep the property from entering into a Tax Foreclosure proceeding as indicated in correspondence she received that was dated August 1, 2018, from Phillips Lytle, LLP, tax foreclosure counsel to the County of Allegany. See, Plaintiff's Exhibit 4. This Notice plaintiff received advised "YOU MUST PAY THE DELINQUENT TAXES BY OCTOBER 1, 2018. . .THE LAST DATE OF REDEMPTION WILL BE JANUARY 15, 2019." Id. Plaintiff introduced evidence in the form of a Parcel Status Report issued by Allegany County Treasurer, Terri L. Ross, demonstrating that on August 7, 2018, plaintiff paid the 2017 County/Town taxes, interest, and penalties, in the total amount of $1,494.23, which is just $5.77 less than her small claim of $1,500.00. See, Plaintiff's Exhibit 1. Plaintiff's payment in full was just six (6) days after the correspondence was dated.
Following the presentation of the plaintiff's case, the defendant testified that she did historically pay the taxes on the property up through January 1, 2017. Defendant also testified, and her counsel argued, that there was a credit to the plaintiff in the matter of Frost v. Frost that was deducted from the total purchase price for the unpaid school taxes in the amount of $367.59 that represented the full year of 2017 Bolivar School Taxes. See, Court Exhibit 2. However, exhibits introduced as Plaintiff's Exhibit 1, Plaintiff's Exhibit 3, and Defendant's Exhibit A, all demonstrate that Bolivar School District Taxes for the 2017 Fiscal Year are $380.20, and not $367.59. While the difference of $12.61 is nominal, there is a variance that this Court would like to note in its review of defendant's additional documentary evidence whereby she states "If you find in favor of [plaintiff] the tax amount is incorrect. School taxes are included." See, Defendant's Exhibit C. Defendant argues that she should receive a credit for the School Taxes that were deducted from the Purchase Price reflected as a credit which were due and owing when plaintiff was conveyed the property beyond either June 3, 2017, or June 13, 2017 when the Warranty Deed was officially recorded in the Allegany County Clerk's Office. Defendant submits that the monthly Bolivar School District Tax liability is $30.63. See id. Defendant argues that if she should receive a credit, then it is for the months after the conveyance in June 2017 when the tax would have been the responsibility of the plaintiff as the property's owner.
III. LEGAL ANALYSIS and CONCLUSIONS OF LAW
The purpose of a small claims procedure is to do substantial justice between the parties according to the rules and principles of substantive law. See, Uniform Justice Court Act §1804 (McKinney's 2018); see, Hampton v. Annal Management Co., Ltd., 164 Misc 2d 287 (City Civ. Ct. 1994), appeal dismissed, 168 Misc 2d 138 (App. Term 1996). Small Claims Court is designed to provide litigants with a simple, informal and inexpensive procedure for the prompt determination of claims. See, Uniform Justice Court Act §1802 (McKinney's 2018). Although procedural rules may be relaxed, cases must be decided according to the rules and principles of substantive law. See, Uniform Justice Court Act §1804. This Court is bound by this standard; a standard which has been supported throughout many terms of this Court and others similarly situated throughout New York State. Accordingly, the goal of this Court throughout this entire proceeding is to ensure that substantial justice is done between the parties relying on the sound principles of statutory and case law; in doing so, this Court is required to deliberate upon the facts and apply the law to those facts.
Under New York law, even in the relatively informal atmosphere of small claims court, plaintiff bears the burden of establishing her case by a preponderance of the evidence. See, Naclerio v. Adjunct Faculty, 1 Misc 3d 135 (Appellate Term 2003); see also, Rodriguez v Mitch's Transmission, 32 Misc 3d 126 (Appellate Term 2011). In other words, plaintiff must prove her case by the greater weight of the evidence. If the testimony is evenly balanced, judgment must be rendered against the plaintiff. Here, plaintiff did meet her burden of establishing a basis of liability on the part of defendant for a portion of her small claim. It is clear that plaintiff was a third-party designee for this conveyance that was entered into upon the settlement and stipulation on the record between the defendant and Karen Frost, her former mother-in-law. To use Justice Brown's own commentary directly to the parties in the courtroom settlement, "a stipulation on the record. . .will be a binding agreement between the two of you. . ." See, Court Exhibit 2. Section 2104 of the New York Civil Practice Law and Rules states in full,
An agreement between parties or their attorneys relating to any matter in an action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered. With respect to stipulations of settlement and notwithstanding the form of the stipulation of settlement, the terms of such stipulation shall be filed by the defendant with the county clerk.
CPLR §2104 (McKinney's 2018). Generally, CPLR §2104 provides that a stipulation between parties or their counsel is essentially a contract, will be interpreted with the parties' intent, and is binding if it takes one of three forms: (1) an oral agreement between counsel in open court; (2) a writing subscribed by the party or his or her attorney; or (3) an order entered by the court. See id.; see also, Kraker v. Roll, 100 AD2d 424, 2d Dep't. 1984). Clearly, the transcript from the proceedings in Frost v. Frost demonstrates that an oral agreement and stipulation was entered into between counsel and their respective clients in open court and upon the record before Justice Brown on March 23, 2017. Mr. Pisaturo represented the defendant, Mr. Bunis represented Karen Frost, and Jeff Frost defaulted in the matter. See id. The plaintiff was not a named party in that matter, nor was she represented by her own counsel throughout the conveyance of the property from defendant to her as a third-party designee.
As third-party designee, it was the plaintiff as the record owner of the property who was declared to be in default of the payment of the 2017 taxes and delinquent under the New York tax foreclosure rules. It was the plaintiff whose personal credit would have been smeared and tarnished as a result of any foreclosure action that was initiated and finalized by Allegany County. Had the plaintiff been represented by counsel in the conveyance, this Court suspects that able counsel would have immediately discovered that there were unpaid property taxes in this matter. Fortunate for the plaintiff, she made payment of the total amount of the 2017 County/Town Tax Bill that included all taxes assessed by the County ($322.63), Town ($198.32), Bolivar School District ($380.20), and Genesee Fire District ($29.00) in the amount of $930.15 prior to the taxes being foreclosed upon by Allegany County. However, it was not without interest and penalties that had accrued in addition to the 2017 fiscal year tax liability of $930.15, for a grand total of $1,494.23. This amount is just $5.77 less than plaintiff's total small claim of $1,500.00.
It is clear to this Court that defendant should have paid taxes for the months where she owned the property and was still responsible for the tax liability; she did not. If the 2017 total tax liability is $930.15, then the monthly obligation is $77.51. If defendant conveyed the property on June 3, 2017 by way of Warranty Deed, then her obligation would have ceased at that time for the tax payments. However, no payment was made by the defendant and the tax liability also incurred interest and penalties that was calculated on the delinquent amount while she was the record titleholder and property owner. However, there was a deduction and credit made to the total purchase price that factored in the agreed upon total 2017 fiscal school tax liability of $367.59, notwithstanding that the tax bill notes the amount to be $380.20. Accordingly, defendant is entitled to a requested offset calculated by the Court to be $214.41 for June 2017 through December 2017 at $30.63 per month, which reflects her share of the school taxes that were previously credited to her as third-party designee from the purchase price upon stipulation on the record in the matter of Frost v. Frost.
Based upon the credible testimony of the plaintiff and defendant, and the documentary evidence introduced, this Court concludes that the principles and rules of substantive law along with the purpose of substantial justice compel a determination that plaintiff has a cause of action in this Court that would entitle plaintiff to damages on this small claim against the defendant. In short, plaintiff met her burden of establishing by a preponderance of the evidence her entitlement to the requested relief under New York statutory and common law in the amount of $1,494.23, subject to a reduction of her damages as defendant requests in the amount of $214.41 as calculated by the Court. Accordingly,
IT IS HEREBY ORDERED THAT Plaintiff's small claim against Defendant is GRANTED for the total of $1,279.82; and,
IT IS HEREBY FURTHER ORDERED THAT Defendant is to hereby make payment of the small claim amount of $1,279.82 to the plaintiff at the above address within thirty (30) days of the receipt of this Decision, Order, and Final Judgment.
For the benefit of the parties to this small claim, review of this Court's Decision, Order, and Final Judgment may be taken consistent with Uniform Justice Court Act §1807. See, Uniform Justice Court Act §1807 (McKinney's 2018). Moreover, pursuant to Uniform Justice Court Act §1703(b), "An appeal as of right from a judgment entered in a small claim or a commercial claim must be taken within thirty days of the following, whichever first occurs:
1. service by the court of a copy of the judgment appealed from upon the appellant.
2. service by a party of a copy of the judgment appealed from upon the appellant.
3. service by the appellant of a copy of the judgment appealed from upon a party.
Where service as provided in paragraphs one through three of this subdivision is by mail, five days shall be added to the thirty day period prescribed in this section. See, Uniform Justice Court Act §1703(b) (McKinney's 2018).
This constitutes the Decision, Order, and Final Judgment of the Justice Court in the Town of Parma, County of Monroe, State of New York. DATED: November 16, 2018 Hilton, New York ________________________________ HON. MICHAEL A. SCIORTINO Town Justice, Town of Parma