Opinion
6094/2014
04-14-2015
Andrew Messina, Plaintiff(s) v. Kent Mayer, Defendant(s).
Karen Gunkel Esq Attorney for Plaintiff 9 Station Rd Bellport NY 11713 631-286-3500Irwin S. Izen, Esq. Attorney for Defendant 357 Veterans Memorial Hwy Commack NY 11725 631-543-3167
Karen Gunkel Esq
Attorney for Plaintiff
9 Station Rd
Bellport NY 11713
631-286-3500Irwin S. Izen, Esq.
Attorney for Defendant
357 Veterans Memorial Hwy
Commack NY 11725
631-543-3167
Andrew G. Tarantino Jr., J.
PROCEDURAL HISTORY
This action was commenced by Plaintiff ANDREW MESSINA [hereinafter MESSINA] sounding in an action for Partition. At the time this action appeared in this Court, neither MESSINA nor Defendant KENT MAYER [hereinafter MAYER] was residing at the subject premises. Prior to this action, both MESSINA and MAYER obtained Family Court Article 8 Orders of Protection directing that each was to stay away from the premises and each other. On April 29, 2014, after conferencing with counsel, it was agreed that MESSINA would be permitted back to the premises. Before modifying the Family Court Orders, this Court transferred the Family Court Article 8 proceedings to this Court. On May 8, 2014, this Court vacated the Family Court Orders of Protection, and re-issued temporary orders of protection from Supreme Court. On June 9, 2014, on consent of MESSINA and MAYER, with counsel present, the Orders of Protection were modified, made permanent (without admission of wrong-doing), and the parties were directed to stay away from each other, and directed to refrain from certain conduct. After permitting time for real estate appraisals, and completion of other discovery, a trial without jury was conducted over three days, beginning October 20, 2014, and concluding December 1, 2014. The Court reserved decision.
TESTIMONY
MESSINA testified first. With marriage plans in the future, he explained that he and MAYER purchased the property in May 2013. Prior to that date MESSINA and MAYER lived together for approximately three years equally sharing all expenses. The subject property was purchased with both names on the deed with rights of survivorship. Accordingly, the mortgage was taken under both names. However, because of MAYER's credit and finance issues, the note was only in MESSINA's name. According to MESSINA, the parties agreed to share expenses "down the center". MESSINA and MAYER each contribute $5,000.00 to the $10,000.00 down payment. For the purposes of trial, the parties stipulated that each paid $14,250.00 towards the down payment and closing costs of the subject property. The purchase price was $288,000.00, with a $270,000 mortgage. Based on the property appraisal obtained by MESSINA on June 1, 2014, the subject property was appraised at $280,000.00. After reviewing each other's real estate appraisals, the parties stipulated that the value of the premises, for the purposes of trial, was $291,500.00.
The subject premises included an accessory apartment which the parties agreed to renovate. The first tenant took possession on September 1, 2013, with a monthly rent of $1,400.00. The parties opened up a joint account to pay the mortgage and housing expenses. The first mortgage payment was due on June 1, 2013, in the amount of $2,500.00. MESSINA submitted into evidence statements reflecting that from June 2013, through May 2014, he personally paid the $2,500.00 mortgage payment with no contribution from MAYER. MESSINA also paid the oil, utilities, and landscaping costs. MESSINA compiled and maintained a binder of all of the purchases and housing expenses because he expected MEYER would eventually contribute his one-half share. According to MESSINA's tally, MAYER owes one half of approximately $15,200.00.
MESSINA described the deterioration of the relationship which accelerated with apparent physical altercations between September and October 2013. Up until that point the parties were residing together. MESSINA claimed that he never demanded that MAYER leave the premises, and that MAYER left voluntarily. When MAYER returned on October 31, 2013 to remove items from the premises, the police were called. MESSINA was at work and after he arrived at the house, an altercation occurred. MESSINA then obtained the temporary order of protection from the Family Court. MAYER was directed to stay away from the premises. In March 2014, MAYER obtained an order of protection against MESSINA, directing MESSINA to stay away from the premises. MESSINA then described this Court's modification of the Orders which permitted him access to the premises.
On cross-examination, MESSINA acknowledged that the agreement to equally share the expenses was not reduced to writing. According to MESSINA, he found the house although MAYER had access as a real estate agent. After closing of title, the apartment needed a lot of work before it could be rented for income. In April 2013, MESSINA was a full-time teacher and MAYER was a realtor collecting unemployment. MESSINA acknowledged that the apartment needed a new bathroom, and cosmetic work. From June through August, 2013, the parties remodeled the apartment. MESSINA stated that he worked on the apartment equally with MAYER. MESSINA explained that his parents and other family members assisted in the renovation, and donated materials and lent tools to the parties. In addition to the work that each party did, they used contractors in certain areas. MESSINA added that there were times when he came home that he found MAYER on the sofa, watching Netflix, or passed out from drinking. MESSINA said that every day he asked MAYER for money toward the house expenses, and MAYER kept saying that he would get it. MESSINA denied that he had an agreement with MAYER whereby MAYER would put time in on renovating the house as his contribution for the cash payments made by MESSINA. MESSINA said that MAYER never demanded such an arrangement until October 31, 2013. From the "incident" that September to October 31, 2013, MAYER went in and out of the house. On redirect, MESSINA confirmed that he paid the income taxes on the rental income.
MESSINA's next witness was KATHLEEN MESSINA, plaintiff's mother. Ms. Messina had known MAYER for about seven years and recognized the personal relationship that MESSINA and MAYER had which led them to an engagement and plans for marriage. She stated that at the time the parties discussed purchasing the subject property, MESSINA told her that he and MAYER agreed to split everything in half. At the time, MAYER worked with State Farm Insurance. Ms. Messina stated that from June through August 2013, she visited the subject premises 2 to 3 times a week to help clean the house. She acknowledged that MAYER would be working on the renovations, and stated that when MESSINA was not teaching he, too, would work on the premises. She added that there were about seven relatives that also contributed their time to help MESSINA and MAYER complete the renovations in the home. She described how MESSINA and MAYER both worked on re-designing the apartment bathroom, and as a result they had to add plumbing, tile and an additional wall. When the apartment was ready to rent, the rest of the house still needed work. Ms. Messina stated that she was not aware of any discussions between MESSINA and MAYER stating that anyone would be paid for their time in making the house repairs. Ms. Messina, herself, paid for an electrician, the sprinklers, and landscaping.
On cross-examination Ms. Messina reiterated that both parties told her, before purchasing the premises, that they were going to share the expenses on the house. She said that her brother-in-law helped tile the bathroom, and there were no complaints during the job. She explained that she also gave her son some money towards the house expenses, and paid some contractors directly. She acknowledged that any money that she gave MESSINA was a gift, and neither she nor her husband expected repayment. On the binder compiled by MESSINA she recognized the $124.00 she paid for a water boiler. According to Ms. Messina, during all the time she visited the premises that summer, she recalls meeting MAYER's mother only once. She stated that she noticed by September 2013, that the relationship between MESSINA and MAYER was becoming strained, but she never brought it up for discussion. Ms. Messina stated that during that summer, she did receive calls from her son that MAYER was always drunk. Although she personally did not see MAYER intoxicated she testified that when she visited she would see liquor bottles around the house. She stated that MESSINA never told her that he wanted MAYER to leave the property. She did recall that MESSINA spoke to MAYER about paying his share of expenses and MAYER said he was waiting for a paycheck to come in. She was aware that MESSINA was keeping a tabulation of the expenses MESSINA was paying.
MAYER's first witness was VICTORIA MAYER, defendant's mother. She described that MAYER was not employed at the time that the parties were talking about buying the house, but that he was a licensed realtor. She did not see the house until after it was purchased. The house needed work, but both MESSINA and MAYER told her they wanted this particular house because of the anticipated rental income generated by the accessory apartment. Ms. Mayer said she visited the house everyday. She frequently visited in the mornings before going to work. Ms. Mayer claimed that on only one of her visits did she see the plaintiff's family at the premises. Ms. Mayer stated that she purchased materials for the house which included all the drywall, the bathroom floor and wall tile, two by fours, paint, and truck rentals. She claims to have spent almost $3,200.00 on her Home Depot credit card with a total of $6,200.00 contributed to the house repairs. She also stated that during her many visits, she recalls seeing MESSINA there only once. She confirmed Ms. Messina's impression that by the end of Summer 2013, the relationship between the MESSINA and MAYER was strained. She described how MESSINA was very stressed about the money situation. Ms. Mayer was then questioned about the September incident when she picked up her son from the subject premises. During the next 30 days, she would return to the house to get MAYER's clothing and computer. On October 31, 2013, they went back to the property to remove additional belongings when the final incident occurred.
On cross-examination, Ms. Mayer confirmed that her son was not employed at the time of the contract. She better explained that he was employed as a real estate broker, but was not earning any money. She explained that she visited the subject premises 3-to-4 days a week and would leave about 12:30 PM to get to work. Ms. Mayer added that she took about two weeks of days off from her job so that she could help at the subject premises. During that time MESSINA was there only one or two times. Ms. Mayer denied any talk about her son drinking at any time, and denied that MAYER had anything to drink at the time of the September incident.
KENT MAYER, the defendant, testified next. Since leaving the premises on September 30, 2013, he has been residing in East Northport with his family. MAYER stated that as a licensed real estate broker he and MESSINA saw about half dozen houses before selecting the subject premises. The draw of the subject premises was that it had an accessory apartment which would generate income. He acknowledged that although he was a real estate broker, he had no income. He claimed that the agreement he made with MESSINA was that while MAYER was not earning the income his contribution towards expenses would be the value of the work he contributed towards repairing the house. He described how one of the jobs was to shift the apartment bathroom back to the main house which required moving of walls. MAYER also believed that because he was not paid a real estate commission on the purchase of the premises, that he should receive a credit for that amount in the distribution of the value of the premises. MAYER stated that during the Summer of 2013, MESSINA was at the house only 1-to-2 times weekly because he worked on Fire Island. On September 30, 2013, he claimed he vacated the premises because he was violently assaulted by MESSINA. He left his belongings behind.
When asked on cross examination about MESSINA's family helping at the premises, MAYER stated that MESSINA's mother helped paint two rooms, the father sat at a computer, and an uncle did only about two hours of tile work that had to be redone. MAYER clarified that in March 2012 he lost his job at Allstate Insurance, and moved into the real estate business.
The last witness was a rebuttal witness by the plaintiff, DAWN PHELPS. Ms. Phelps was the tenant that took possession of the accessory apartment at the end of August, 2013. Ms. Phelps stated that she saw MAYER more during the day than she saw MESSINA, but that it seemed that the parties' relationship was normal. She then described how in September 2013, MAYER's demeanor changed. He did not come out of the house as much and she would hear arguing between the parties. She described that MAYER also did not appear as well as he did during the earlier part of that summer. MAYER wasn't dressed as if he had a job. In mid September 2013, the arguments between the parties escalated. She only heard the arguments through the wall, she never personally observed one. Ms. Phelps described that frequently she heard yelling, screaming, and door slamming, through the walls of the apartment. MAYER, in her opinion, was the more aggressive voice. Then she described the incident on September 30, 2013. The noise and yelling was louder than usual. She stepped outside the apartment and saw MESSINA with his shirt ripped. She entered the house and saw what she described as a "disaster." MESSINA called MAYER's mother to come and pick MAYER up. On October 31, 2013, Ms. Phelps called MESSINA at work when a van arrived at the house to remove belongings. MESSINA arrived shortly thereafter.
On cross-examination, Ms. Phelps explained that she found the apartment on Craig's List. She walked through the September incident again. She added that she heard MESSINA say "get off me'" and "stop." She heard MAYER say "I hope you die."
EVIDENCE
Deed, dated April 2, 2013, to ANDREW MESSINA and KENT MAYER as joint tenants with rights of survivorship.
Note, dated April 2, 2013, by ANDREW MESSINA, for $270,000.00
HUD-1 Settlement Statement, dated April 2, 2013, reflecting contract sales price of $288,000.00, a realtor's commission of $5,600.00 paid by seller, and $19,579.44 in costs paid by purchasers.
MESSINA's bank statements (July 2013, through September 2013, reflecting monthly automatic withdrawals of $2,500.00 for the mortgage payment.
MESSINA's spreadsheet reflecting $21,037.98 in housing expenses (before any adjustments made at trial)
MESSINA's binder containing all the receipts for the items in the spreadsheet.
A copy of the monthly mortgage statement.
Accessory Apartment permit
MESSINA's real estate appraisal, reflecting an appraised value of $280,000.00
MAYER's real estate appraisal, reflecting an appraised value of $303,000.00.
Additionally, the Court takes judicial notice of the Family Court Article 8 petitions filed by the parties as follows:
October 31, 2013
March 10, 2014
March 10, 2014
March 11, 2014
June 9, 2014Petition
Temp OP
Withdrawn
Petition
Temp OP
Petition
Temp OP
Permanent OPMESSINA v MAYER
Direct Mayer to stay away
MAYER v MESSINA
Direct Messina to stay away
MESSINA v MAYER
Direct Mayer to stay away
Allowing MESSINA into premises, on consent
ANALYSIS
Although this was brought as a Partition Action, the Court does not believe that the parties intend for the premises to be sold at auction. Instead, the Court is charged with determining the balancing of the financial equities between the parties. Accordingly, the Court is presented with two issues:
1) What is the date on which MAYER's financial obligations for the premises terminate?
2) What is the financial equity between the parties for the care and maintenance of the premises?
Regarding the first question, MESSINA claims that MAYER voluntarily left the premises on September 30, 2013. MAYER contends that he was forced out by MESSINA. The Court needs to determine if MAYER is relieved from financial responsibility for the premises from September 30, 2013, until March 10, 2014, as he contends. First, unlike the case referred to by MAYER, there is no evidence that MESSINA changed the locks on the doors, or took any other action to prevent MAYER from entering the premises. MAYER testified that for the month of October 2013, he freely entered the premises, albeit, in MESSINA's absence. It was not MESSINA who prevented MAYER from entering the premises, it was the Family Court through the temporary Order of Protection. Decisional law is replete with cases, especially in matrimonial actions, wherein the party "ousted" by an order of protection remains liable for rent or mortgage payments. To do otherwise would permit persons a doorway to escape financial responsibilities by engaging in conduct sufficient to warrant an order of protection against themselves. Lastly, there was no court finding of wrongdoing against either MESSINA or MAYER, nor an admission of wrongdoing by either, from which this Court can conclude that MEYER was wrongfully "ousted" as he claims. Accordingly, the period of accounting will be from the purchase of the premises until the date the action was commenced, April 1, 2014, uninterrupted by any periods during which temporary orders of protection existed.
Regarding the financial equities between the parties, New York Real Actions and Proceedings Law (RPAPL) § 901 provides that:
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, 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.RPAPL §913 states:
Before an interlocutory judgment for the sale of real property is rendered the court shall ascertain, by reference or otherwise, whether there is any creditor not a party who has a lien on the undivided share or interest of any party. A search certified by the clerk or by the clerk and register of the county where the property is situated that there is no such outstanding lien is sufficient proof of the absence of such creditor.RPAPL §915 describes the drastic result of a partition in that:
[...] Where the property or any part thereof is so circumstanced that a partition thereof
cannot be made without great prejudice to the owners, the interlocutory judgment, except as otherwise expressly prescribed in this article, shall direct that the property or the part so circumstanced be sold at public auction.
Accordingly, the only relief available in action for partition is the actual physical partition of the property, or, if that be inequitable, sale of the entire parcel and division of the proceeds. Vlcek v. Vlcek, 42 AD2d 308, 346 N.Y.S.2d 893 (3 Dep't 1973). However, absent showing of great prejudice or any inequity, sale of entire property was an improper alternative since this section permits such a sale only where property cannot be partitioned without great prejudice to owners. Prizzia v. Prizzia, 58 AD2d 722, 396 N.Y.S.2d 290 (3 Dep't 1977). Although partition is a statutory creation, it is nevertheless equitable in nature and the court can compel parties in a partition action to do equity as between themselves. Loveless v Koening, 2013 NY Slip Op 861565(U); aff'd, 124 AD3d 1348, 997 N.Y.S.2d 655 (4th Dep't 2015).
In performing the accounting, a tenant in common may be allowed reimbursement for money expended in repairing and improving the property if the repairs and improvements were made in good faith and were necessary to protect or preserve the property; however, mere fact that a tenant has made improvements or repairs upon the property does not in itself necessarily give a right to an equitable allowance since there must be proof of the circumstances and need for the restoration work. Worthing v. Cossar, 93 AD2d 515, 462 N.Y.S.2d 920 (4 Dep't 1983). Even when the rights of the parties are not controverted in an action for partition, sale, and accounting, the trial court is still obligated to ensure that there is an accurate accounting of income and expenses of subject properties before entry of an interlocutory judgment directing their sale. Colley v. Romas, 50 AD3d 1338, 857 N.Y.S.2d 260 (3 Dep't 2008).
In considering various equities of the co-tenants in partition suit, the court should allow the reasonable value of improvements and repairs to the property, if they were made in good faith and were of substantial benefit to the premises. Vlcek v. Vlcek, supra, 346 N.Y.S.2d 893. Where a tenant in common in possession has made valuable improvements, he is entitled to compensation therefor, where the property is partitioned, as follows: First, the value of the land without the improvements should be ascertained; second, the value of the improvements; and third, the value of the use and occupation of the property, and after each tenant has received the value of his portion of the land exclusive of the improvements, and his part of its rental value during the period of occupancy, the balance, if any, should be paid to the tenant in possession, for his improvements. Eakin v. Knabe, 31 Misc. 221, 64 N.Y.S. 103 (1900). There is a presumption that mortgage payments and other payments for upkeep and maintenance of marital home made by a spouse prior to divorce are for benefit of the other spouse, but the presumption is rebutted by proof that one spouse abandoned the other and left that spouse with sole responsibility of maintaining the marital residence. Worthing v. Cossar, supra, 462 N.Y.S.2d 920. Generally, expenditures made by a tenant in excess of his obligations may be a charge against the interests of a cotenant in a partition action. Worthing v. Cossar, supra, 462 N.Y.S.2d 920. In a partition action between divorced parties, the wife was entitled to reimbursement for payments of principal on mortgage covering the property, made by wife, since decree of divorce became final, thus terminating tenancy by the entirety, including those payments made by wife after date of trial of partition suit, since such payments were for benefit of both parties, as tenants in common. Middleton v. Middleton, 123 N.Y.S.2d 231 (1953).
The Court is not persuaded that MAYER is entitled to a credit for "sweat equity", that is, value for the work he put into the premises to make it livable and rentable. The major factor is that MAYER failed to produce any evidence, documentary or otherwise, as to the value of his work from which the Court could draw a conclusion. Under [our] system of adversary litigation, the task of furnishing evidence rest solely upon the parties, neither the judge nor the jury having any obligation or duty in this regard. Fisch on New York Evidence, Second Edition, §1087, Lond Publications 1977/2008. The only document introduced into evidence by MAYER was his real estate appraisal. The Court also finds that MAYER did not rebut the presumption that the payments made by MESSINA for mortgage and other payments for the upkeep and maintenance of the home was also for the benefit of MAYER especially because MAYER is seeking one half of the equity of the premises not on the date he alleges to have been "ousted," but on the date the action was commenced. Based upon the documents submitted into evidence, and the testimony of the parties, the Court concludes as follows:
The additional expenses for which MESSINA sought adjustments in his favor were for food, and other household expenses, which are not properly before the Court in a partition action. Absent a cause of action based on contract, or other viable claim, the court cannot make adjustments for the amounts he paid in the relationship and for which he expected to be reimbursed by MAYER.
Accordingly, it is
ORDERED and ADJUDGED that ANDREW MESSINA and KENT MAYER each have a one-half undivided interest in the subject premises; and it is further
ORDERED and ADJUDGED that an actual partition of the property cannot be made without great prejudice to the owners; and it is further
ORDERED and ADJUDGED that in light of the facts and circumstances it would not be equitable to sell the premises at auction if the equity due to KENT MAYER can be paid to him without undue delay; and it is further
ORDERED and ADJUDGED that KENT MAYER is due the sum of $7,792.53, plus $116.88 as and for interest at the rate of 2% from April 1, 2014, until December 1, 2014; and it is further
ORDERED that the parties are directed to schedule a closing date no later than sixty (60) days from the date of this Order at which ANDREW MESSINA shall pay to KENT MAYER the sum of $7,909.41 in full satisfaction of the equity in the premises due and owing KENT MAYER, and KENT MAYER shall execute a BARGAIN & SALE DEED WITH COVENANTS in favor of ANDREW MESSINA for all right, title and interest KENT MAYER may have in the premises.
This constitutes the decision and order of the Court.
ENTER
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A.J.S.C.