Opinion
485 CA 19-01410
10-09-2020
NATIONSTAR MORTGAGE, LLC, Plaintiff-Respondent, v. Marie L. GOODMAN, et al., Defendants. Gregory Goodman, Intervenor-Appellant.
MUSCATO DIMILLO & VONA, LLP, LOCKPORT (BRIAN J. HUTCHISON OF COUNSEL), FOR INTERVENOR-APPELLANT. GOLDBERG SEGALLA LLP, BUFFALO (MARC W. BROWN OF COUNSEL), AND PINCUS LAW GROUP, PLLC, UNIONDALE, FOR PLAINTIFF-RESPONDENT.
MUSCATO DIMILLO & VONA, LLP, LOCKPORT (BRIAN J. HUTCHISON OF COUNSEL), FOR INTERVENOR-APPELLANT.
GOLDBERG SEGALLA LLP, BUFFALO (MARC W. BROWN OF COUNSEL), AND PINCUS LAW GROUP, PLLC, UNIONDALE, FOR PLAINTIFF-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, TROUTMAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to foreclose on a reverse mortgage. Gregory Goodman, who alleged that he had a life estate in the subject property, moved for, inter alia, permission to intervene, which was granted by Supreme Court. Plaintiff thereafter moved for leave to reargue and renew its opposition to Goodman's motion. The court granted the motion and, upon reargument and renewal, rescinded, inter alia, Goodman's intervenor status, struck Goodman's answer with counterclaim, and ordered that Goodman's claimed life estate in the property was invalid and void. Goodman now appeals, and we affirm.
Contrary to Goodman's contention, the court did not abuse its discretion in granting plaintiff's motion seeking leave to reargue and renew (see Smith v. Cassidy , 93 A.D.3d 1306, 1307, 941 N.Y.S.2d 413 [4th Dept. 2012] ). With respect to that part of the motion seeking leave to renew, plaintiff submitted new facts—i.e., the affidavit of an attorney with the local county attorney's office, who explained the confusion that would result in title searches in the county clerk's office because of the irregularities in the deed at issue—and showed that those new facts would change the prior determination (see CPLR 2221[e][2] ). Additionally, the court properly granted that part of the motion seeking leave to reargue on the ground that it had mistakenly arrived at its earlier decision (see Davis v. Firman , 53 A.D.3d 1101, 1102, 862 N.Y.S.2d 877 [4th Dept. 2008] ; see also CPLR 2221[d][2] ; South Towns Surgical Assoc., P.C. v. Steinig , 165 A.D.3d 1630, 1631, 83 N.Y.S.3d 926 [4th Dept. 2018] ). Moreover, and in any event, we agree with plaintiff that the court "retain[ed] continuing jurisdiction to reconsider its prior interlocutory order[ ] during the pendency of the action" ( Liss v. Trans Auto Sys. , 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986] ; see Carrington Mtge. Servs., LLC v. Sudano , 173 A.D.3d 1814, 1815, 105 N.Y.S.3d 650 [4th Dept. 2019] ). Thus, even if plaintiff failed to present a reasonable justification for not presenting the new facts in opposition to Goodman's prior motion (see CPLR 2221[e][3] ) and failed to raise an issue that was allegedly overlooked or misapprehended by the court (see CPLR 2221[d][2] ), the court had the authority to sua sponte vacate its prior interlocutory order and issue a new order upon reconsideration. That discretion was properly exercised here (see Kleinser v. Astarita , 61 A.D.3d 597, 598, 878 N.Y.S.2d 28 [1st Dept. 2009] ).
Contrary to Goodman's further contention, the court properly in effect denied his motion seeking permission to intervene on the ground that Goodman has no interest in the property. The deed at issue showed that the grantors conveyed the property to the grantee, the Marie L. Goodman Trust (trust). The deed then stated that "GRANTEE hereby grants life use of the premises herein conveyed to Marie L. Goodman Trust to Marie L. Goodman, individually, and Greg Goodman during their natural lifetime." The trustee of the trust signed the deed on March 14, 2003, but the grantors did not sign the deed until six days later, on March 20, 2003. Thus, at the time the trust purported to grant the life estates, the trust did not have title to the property and could not convey any interest in it. "[A] grantor cannot convey what the grantor does not own," and "a deed from an entity that does not possess title or other conveyable interest is inoperative as a conveyance" ( Gilliland v. Acquafredda Enters., LLC , 92 A.D.3d 19, 25, 936 N.Y.S.2d 125 [1st Dept. 2011] ).
We reject Goodman's contention that the deed was not delivered by the trust until March 20, 2003. Real Property Law § 244 provides that "[a] grant takes effect, so as to vest the estate or interest intended to be conveyed only from its delivery; and all the rules of law, now in force, in respect to the delivery of deeds, apply to grants hereafter executed." There is a presumption that a deed was delivered and accepted as of its date, although that presumption "must yield to opposing evidence" ( Ten Eyck v. Whitbeck , 156 N.Y. 341, 352, 50 N.E. 963 [1898] ; see Manhattan Life Ins. Co. v. Continental Ins. Cos. , 33 N.Y.2d 370, 372, 353 N.Y.S.2d 161, 308 N.E.2d 682 [1974] ; Lennar Northeast Partners Ltd. Partnership v. Gifaldi , 258 A.D.2d 240, 242-243, 695 N.Y.S.2d 448 [4th Dept. 1999], lv denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [1999] ). Here, the court properly determined that the testimony at the fact-finding hearing did not rebut the presumption that the deed was delivered by the trust on March 14, the day it was signed by the trustee. After the trustee signed the deed, she mailed it back to the attorney who had prepared the deed; that attorney had been hired by Goodman but was, the court found, acting as the attorney for all the parties. Regardless of who the attorney was representing in the transaction, nothing was done or said by the trustee that would indicate that there was no delivery of the deed at the time she sent it to the attorney (see Crossland Sav. v. Patton , 182 A.D.2d 496, 496, 582 N.Y.S.2d 21 [1st Dept. 1992], lv denied 80 N.Y.2d 755, 588 N.Y.S.2d 823, 602 N.E.2d 231 [1992] ; Radecki v. Radecki , 279 App Div 1137, 1137-1138, 112 N.Y.S.2d 764 [4th Dept. 1952] ; cf. Manhattan Life Ins. Co. , 33 N.Y.2d at 372, 353 N.Y.S.2d 161, 308 N.E.2d 682 ; see generally National Bank of Sussex County v. Betar , 207 A.D.2d 610, 611-612, 615 N.Y.S.2d 523 [3d Dept. 1994] ). There were no instructions given to the attorney to hold the deed in escrow (see Lennar Northeast Partners Ltd. Partnership , 258 A.D.2d at 243, 695 N.Y.S.2d 448 ; cf. Brackett v. Barney , 28 N.Y. 333, 341 [1863] ). A delivery of a deed cannot be made to the grantee conditionally (see Hamlin v. Hamlin , 192 N.Y. 164, 168, 84 N.E. 805 [1908] ; Blewitt v. Boorum , 142 N.Y. 357, 363, 37 N.E. 119 [1894] ; TDNI Props., LLC v. Saratoga Glen Bldrs., LLC , 80 A.D.3d 852, 854-855, 914 N.Y.S.2d 746 [3d Dept. 2011] ), and this is not a case where the deed was not to pass out of the possession of the trust until certain conditions were fulfilled (see Hamlin , 192 N.Y. at 169, 84 N.E. 805 ; cf. Coventry v. McCreery , 144 App. Div. 68, 70, 128 N.Y.S. 765 [1st Dept. 1911] ).
As an alternative ground for affirmance (see Parochial Bus Sys. v. Board of Educ. of City of N.Y. , 60 N.Y.2d 539, 545-546, 470 N.Y.S.2d 564, 458 N.E.2d 1241 [1983] ), plaintiff contends that the life estate is void because there cannot be more than one conveyance of property in a single deed. In light of our determination, we do not consider that contention.