Opinion
3443/A-2016
06-07-2017
Proceeding by Esther Mimes, as Administrator of the Estate of Annie Blango a/k/a Annie Melvin Blango, and Anna Blango to rescind/vacate two (2) FRAUDULENT DEEDS dated June 23, 2016 to certain real property known as 458 Quincy Street, Brooklyn, NY 11221 along with Four (4) Powers of Attorney, (1) one FRAUDULENT DEED dated October 11, 2016 in Order to Restore title to the decedent Annie Blango a/k/a Annie Melvin Blango and Anna Blango, and thus her Estate or Heirs -at -law except for the Estate of Melvin Blango and all reasonable attorney's fees. Deceased.
For Petitioner: Law office of Leslie M. Gales 30 Wall Street, 8th Floor New York, NY 10005 For Respondents: Korsinsky & Klein 2926 Avenue L Brooklyn N.Y. 11210 Martinez Law Group PC 25-01 94th Street East Elmhurst, New York 11369 Greenberg & Wilner LLP 232 Madison Avenue, Suite 909 New York N.Y. 10016
For Petitioner: Law office of Leslie M. Gales 30 Wall Street, 8th Floor New York, NY 10005 For Respondents: Korsinsky & Klein 2926 Avenue L Brooklyn N.Y. 11210 Martinez Law Group PC 25-01 94th Street East Elmhurst, New York 11369 Greenberg & Wilner LLP 232 Madison Avenue, Suite 909 New York N.Y. 10016 John G. Ingram, J.
The following papers numbered 1 to 9 were considered on these motions: Papers/Numbered Order to Show Cause, Verified Amended Petition and Exhibits 1 Notice of Motion, Affirmation with Exhibits 2 Verified Objections to Amended Petition 3 Affirmations in Opposition with Exhibits 4,5,6 Reply Affirmations 7,8,9
Esther Mimes ("Petitioner"), the Administrator of the Estate of Annie Blango, seeks by Order to Show Cause and verified amended petition to rescind the two deeds dated June 23, 2016; rescind the deed dated October 11, 2016; bar the Estate of Melvin Blango from being a distributee of the Estate of Annie Blango; and costs and attorney's fees resulting from frivolous conduct pursuant to 22 NYCRR §130-1.1.
J & O Builders, LLC moves to dismiss the amended petition based upon documentary evidence.
On December 1, 2016, Petitioner was appointed Administrator of the Estate of Annie Blango. Decedent Annie Blango had died intestate on October 2, 1996, owning 458 Quincy Street, Brooklyn New York. ("Premises"). She was survived by her three children, Petitioner, India Hazel Foy and Melvin Blango, and the six children of her predeceased son William Henderson.
Melvin Blango died on July 16, 2000, survived by his wifeCutie Blango who died on July 17, 2000. The alleged adopted and biological children of Melvin and Cutie Blango are: Lorri Blango aka Lorri DeJesus, Janice Humdy, Robert Blango, Frederick Blango, Charisse Blango, Shondel Blango, Tanika Blango and Robert Williams.
Whether these individuals are in fact the biological or adopted children of Melvin and Cutie Blango is controverted. For the purpose of this decision the Court will assume they are the distributees of Melvin and Cutie Blango. The Court, however, makes no determination regarding same.
India H. Foy died testate on May 1, 2012, without issue and with her husband having predeceased her. On November 21, 2016, Petitioner, the sole devisee of her will, was granted preliminary letters in her estate.
By deed dated June 23, 2016, " SHONDELL BLANGO, FREDERICK BLANGO, TANIKA JONELLE BLANGO and CHARISSE BLANGO, as surviving Heirs of MELVIN BLANGO deceased, CUTIE B. BLANGO deceased and ANNA BLANGO aka ANNIE BLANGO, deceased", executed a deed transferring the Premises to The Expense Group Corp.
Deed was executed by Frederick Blango, Charisse Blango and Shondell Blango individually and as power of attorney for Tanika Jonnelle Blango.
By deed dated June 23, 2016, "ROBERT BLANGO, LORRI BLANGO aka LORRI DEJESUS, as surviving Heirs of MELVIN BLANGO, deceased, CUTIE B. BLANGO, deceased and ANNA BLANGO aka ANNIE BLANGO, deceased and JANICE HUMDY and ROBERT WILLIAMS as surviving Heirs of CUTIE B. BLANGO, deceased and ANNA BLANGO aka ANNIE BLANGO, deceased", executed a deed transferring the Premises to The Expense Group Corp.
Deed was executed by Robert Williams and Julian White, Esq., as power of attorney for Janice Humdy, Robert Blango and Lorri Blango.
The two deeds were recorded on or about August 4, 2016. By deed dated October 11, 2016, The Expense Group Corp ("Expense") executed a deed transferring the Premises to J & O Builders, LLC ("J & O"). This deed was recorded on November 14, 2016. None of the deeds indicate that less than the entire interest in the Premises was being transferred. Indeed on their face the deeds appear to transfer the entire interest in the Premises.
Petitioner argues the two deeds dated June 23, 2016, are clearly fraudulent and false as the grantors were not the sole surviving heirs of the Estate of Annie Blango yet the deeds purport to transfer total ownership in the Premises.
J & O by Notice of Motion and by Affirmation in Opposition to the petition alleges it is the current owner of record of the interest of Shondel Blango, Frederick Blango, Tanika Jonelle Blango, Charisse Blango, Robert Blango, Lorri Blango aka Lorri DeJesus, Janice Humdy and Robert Williams who collectively held a 33% interest in the Premises which devolved to them as a matter of law upon the death of Melvin & Cutie Blango. They conveyed their interest to Expense via the two deeds dated June 23, 2016, which interest was conveyed to J & O by Expense in a deed dated October 11, 2016. Thus, J & O argues, it acquired a legitimate interest in the Premises.
Respondents Shondel Blango, Tanika Jonelle Blango, Frederick Blango, Charisse Blango and Expense, argue in opposition to the petition that Petitioner erroneously claims the entire interest in the Premises was fraudulently sold. They argue what was sold was their interest in the Premises. They claim to have never represented to own any interest beyond that which was held by the estate of their father, Melvin Blango. They allege the fact that there was no attempt to defraud is shown by Expense having attempted to acquire Petitioner's interest in the Premises before and after the subject transfer. In short it is argued all they transferred was "100% of their one-third share".
It is posited that if the Foy Will is deemed valid then what was transferred was a fourth of the Premises. If the Will is invalid then a one third interest in the Premises was transferred.
Respondents Robert Blango, Lorri DeJesus (aka Lorri Blango) and Janice Humdy argue that all grantees have always asserted a one-third ownership of the Premises. They point out that the deeds at issue state the grantors were the "surviving heirs of", not that they were the "sole surviving heirs". They posit that when an owner of real property dies intestate, title to their real property vests automatically to the distributees as tenants in common by operation of law. As such the grantors were authorized to transfer their interest in the Premises without the consent of the other co-tenants in common.
In reply Petitioner argues that while the grantors claim they only transferred their one third interest, this is not stated anywhere on the deeds. As such, these deeds did not protect the interest of the other distributees of the Estate of Annie Blango.
The issue to be decided herein is whether deeds should be found to be void ab initio, where grantors are described as "surviving heirs" when there are other distributees and the deed on its face appears to transfer the entire interest in the premises.
It is clear that where a grantor is described in a deed as the "sole surviving heir", when there are in fact other distributees the deed is void ab initio. This was demonstrated in the case of Cruz v Cruz, (37 AD3d 754 [2d Dept 2007]) involving an action to set aside a deed. The owner of the subject premises died intestate, survived by six adult children who then became co-owners of the premises. Subsequently one of the children executed a deed conveying the entire premises to himself as sole heir and obtained a loan secured by a mortgage thereon. The Appellate Division stated that a deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid. The Supreme Court's cancellation of the deed and mortgage which were obtained under false pretenses was upheld, along with the denial of the mortgage company's claim that its mortgage interest in one-sixth of the subject premises was valid and for an equitable lien on the premises.
Following Cruz v Cruz, subsequent reported cases (see In re Rattiner, 47 Misc 3d 1214[A] [2015]; In re Imhotep, 52 Misc 3d 1215[A][2016]) have found deeds void ab initio wherein the grantor is described in the deed as "sole surviving heir", when in fact there were other distributees. --------
The Court finds the factual differences between the two scenarios to be of no moment as they have the same effect. Both constitute misrepresentations that affect title to real property. In the first situation, the deed appears to transfer the entire interest and describes the grantor as "sole surviving heir" when there are other distributees, which is an outright misrepresentation. In the other, the deed appears to transfer the entire interest and describes the grantors as "surviving heirs" when there are other distributees, which is a misrepresentation by omission. The omission being the failure to state in the deed the actual interest being transferred.
Respondents' allegations that there was no attempt to defraud herein as the grantees knew what was being sold to them, and that the grantors never represented to own any interest beyond their one-third interest, does not end the inquiry. While the parties herein may have known the true percentage of ownership in the Premises being transferred, from an inspection of the deeds no one could determine that anything other than the entire interest was being transferred. If deed transfers of less than the entire interest in real property without indicating what is being transferred were allowed, purchasers and any third party would be made to rely at their peril on the bona fides of the grantor heir(s) as to what interest was being transferred. Real estate transactions need certainty as to what is being transferred which cannot depend upon the grantor heir(s) revealing what percentage interest is being transferred. Deeds to real property should not be allowed to be so easily subject to being obtained by false pretenses.
As such the Court finds the two deeds dated June 23, 2016, to be void ab initio. This being so the deed from Expense to J & O is also void. "If a document purportedly conveying a property interest is void, it conveys nothing, and a subsequent bona fide purchaser or bona fide encumbrancer for value receives nothing" (Matter of Marini, 119 AD3d 584 [2d Dept 2014], quoting ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801).
Petitioner's other requested relief that the Estate of Melvin Blango be barred as a distributee for the Estate of Annie Blango on the ground of having unclean hands is denied.
Petitioner's other requested relief of costs and fees pursuant to 22 NYCRR § 130-1.1, for the frivolous conduct by the grantors in executing the deeds dated June 23, 2016, and against Expense for recording the deeds and executing the deed dated October 11, 2016 to J & O is denied. Costs and sanctions pursuant to 22 NYCRR §130-1.1 pertains to conduct occurring in civil litigation, not for conduct that engenders litigation.
Accordingly, the deed from Shondell Blango, et al. to The Expense Group Corp., dated June 23, 2016, is ineffectual to vest in The Expense Group Corp., any title or interest in the real property located at 458 Quincy Street, Brooklyn, New York. Any claim that The Expense Group Corp, makes or may make to an estate or interest in the said premises by virtue of the aforementioned deed is void.
And the deed from Robert Blango, et al. to The Expense Group Corp., datedJune 23, 2016, is ineffectual to vest in The Expense Group Corp., any title or interest in the real property located at 458 Quincy Street, Brooklyn, New York. Any claim that The Expense Group Corp., makes or may make to an estate or interest in the said premises by virtue of the aforementioned deed is void.
And the deed from The Expense Group Corp., to J & O Builders, LLC dated October 11, 2016, is ineffectual to vest in J & O Builders, LLC, any title or interest in the real property located at 458 Quincy Street, Brooklyn, New York. Any claim that J & O Builders, LLC, makes or may make to an estate or interest in the said premises by virtue of the aforementioned deed is void.
The Expense Group Corp., and J & O Builders, LLC, and every person or entity claiming under them are forever barred from asserting a claim to any estate or interest in and to the subject property or any part thereof under the afore described deeds after the filing of this Decision and Order.
Upon the presentation of a certified copy of the Decree (to be issued herein) and payment of all applicable fees to the City Register where the aforementioned deeds are recorded, the Register's Office in whose office such deeds are recorded shall forthwith strike said deeds from the records and make a notation on the records of the Register's Office to the effect that said deeds are void.
Title to the afore described property is vested in the Estate of Annie Blango aka Annie Melvin Blango aka Anna Blango.
Upon the payment of any applicable fees, a certified copy of the decree (to be issued herein) shall be recorded in the City Register.
Submit decree. Dated: June 7, 2017 Brooklyn, New York HON. JOHN G. INGRAM Justice of the Supreme Court And Acting Surrogate