Antioco v. Antioco
| Decision Date | 27 December 2022 |
| Docket Number | Index No. 511585/21 |
| Citation | 2022 NY Slip Op 34420 (U) |
| Parties | PETER ANTIOCO, Plaintiff, v. PAUL ANTIOCO, WILLIAM ANTIOCO and PETER SEAN ANTIOCO, Defendants. |
| Court | New York Supreme Court |
Unpublished Opinion
At an IAS Part Term, Part 83 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 27th day of December, 2022.
The following e-filed papers read herein: NYSCEF Doc Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) 7-11, 29-40
Upon the foregoing papers, plaintiff, Peter Antioco ("plaintiff'), moves by Notice of Motion (Motion Seq. 1) for an order granting summary judgment pursuant to CPLR § 3212 on his cause of action for partition and sale of the parties' single-family home located at 26 86th Street in Brooklyn, New York (Block 6040, Lot 31) ("Property"). Plaintiff further requests an accounting of the parties' respective interest in such Property pursuant to RPAPL §901.
Defendant Peter Sean Antioco (PSA) cross-moves (Motion Seq. 2) for an order (1) finding that the Property and two other properties located at 7716 3rd Avenue, Brooklyn New York (Block 5959, Lot 46) ("7716 Property") and 7712 3rd Avenue, Brooklyn, New York (Block 5959, Lot 45) ("7712 Property'), are "heirs property," pursuant to RPAPL § 993 (3) (b); (2) the issuance of a notice to all parties, pursuant to RPAPL § 993 (7) (a) stating that plaintiff, as owner of an undivided one-half (50%) interest in the Property, has sought a partition by sale of the Property, and that PSA, as co-tenant, has the right to avert the partition by purchasing all interest held by plaintiff; and further stating that PSA, as owner of undivided 16.6% interest in both the 7716 Property and the 7712 Property (collectively, 7716 and 7712 Properties or the Properties), has sought partition by sale of those properties, and that Cross-Defendants 7716-3rd Ave, LLC (7716 LLC) and 77123rd Ave, LLC (7712 LLC), as co-tenants of the 7716 and 7712 Properties, respectively, have the right to avert the partition by purchasing all interest held by PSA and (3) scheduling a settlement conference as mandated by RPAPL § 993 (5).
By deed dated August 16, 2006, Ellen Antioco (EA), plaintiffs wife and the mother of defendants Paul Antioco (PA), William Antioco (WA) and PSA (collectively, defendants), conveyed an undivided one-half (50%) interest in the Property to herself and plaintiff, as tenants by the entirety, and the other undivided one-half (50%) interest in the Property to defendants, their three sons, such that the defendants each own an undivided one sixth (16.6%) interest, as joint tenants. Upon EA's death in 2007, plaintiff solely became one-half (50%) owner of the Property, as EA's interest in the Property passed to him by operation of law. Thereupon plaintiff owned the Property as a tenant in common with the joint tenancy of the defendants.
On May 17, 2021, plaintiff commenced this action by the filing of a summons and complaint.[1] In his complaint, plaintiff alleges that he and defendants own the Property as tenants in common; that PSA is the only party who continues to reside at the Property; that PSA "committed ouster" by changing the locks to the Property and preventing plaintiff from entering and retrieving his personal property; and that PSA has failed to pay real estate taxes and other Property expenses. As such, plaintiff seeks partition and sale of the Property and distribution of the proceeds to the parties according to their respective rights and interests, as he alleges that the Property is so situated that a partition thereof among the parties according to their respective rights and interests (partition in kind) cannot be had without great prejudice to the parties.
On September 21, 2021, PSA interposed a Verified Answer with affirmative defenses and a counterclaim, as well as a summons with cross claims against 7716 LLC and 7712 LLC. In his answer, PSA admits that he owns an undivided 16.6% interest in the Property; that he continues to reside at the Property and that the Property is so situated that partition in kind cannot be had without great prejudice to the parties. However, PSA denies that he ousted plaintiff from the Property and that he failed to pay real estate taxes or other Property expenses. As a counterclaim, PSA admits that plaintiff and defendants own the Property as tenants in common but asserts that the Property is "heirs property," pursuant to RPAPL § 993, and seeks partition under that statute.
In his cross claims, PSA seeks partitions and accountings of the 7716 Property, where WA resides, and the 7712 Property, where PA resides, pursuant to RPAPL § 993 on the basis that said properties are also "heirs property." According to PSA, similar to the Property, EA also conveyed an undivided one-half (50%) interest in the 7716 and 7712 Properties, by separate deeds dated August 16, 2006, to herself and plaintiff, as tenants by the entirety, and the other undivided one-half (50%) interest to defendants, as joint tenants. Thereafter, title was transferred as follows:
By deed dated December 10, 2012, plaintiff conveyed his interest in the 7716 Property to WA. Thereafter, PA conveyed his interest in the 7716 Property to WA by deed dated July 16, 2018. WA then conveyed his 83.4% interest in the 7716 Property to 7716 LLC, of which WA is the sole member, by deed dated August 31, 2020. However, PSA retained his 16.6% interest and, thus, currently owns the 7716 Property with 7716 LLC, as tenants in common.
Similarly, plaintiff conveyed his interest in the 7712 Property to PA by deed dated December 10, 2012. Thereafter, WA conveyed his interest in the 7712 Property to PA by deed dated July 16, 2020. PA then conveyed his 83.4% interest in the 7712 Property to 7712 LLC, of which PA is the sole member, by deed dated August 31, 2020. However, PSA retained his 16.6% interest and, thus, currently owns the 7712 Property with 7712 LLC as tenants in common.
Neither WA, PA, 7716 LLC nor 7712 LLC have filed an answer or otherwise appeared in this action.[2] On October 27, 2021, plaintiff filed the instant motion for summary judgment for partition by sale of the Property and an accounting, pursuant to RPAPL § 901. In support of his motion plaintiff submitted his attorney affirmation, the pleadings and the Property deed. Plaintiff argues that he is entitled to a judgment as a matter of right that grants a partition by sale pursuant to RPAPL § 901, since it is undisputed that he and defendants own the Property as tenants in common and that the Property is so situated that partition in kind cannot be had without great prejudice to them. Plaintiff further argues that, as he and PSA do not own any other properties in common, the 7716 and 7712 Properties are improperly included in this action and, thus, have no bearing on his motion.
PSA opposes the motion and cross-moves for an order finding that the Property and the 7716 and 7712 Properties are "heirs property," pursuant to RPAPL § 993 (3) (b); issuing a notice to all parties, pursuant to RPAPL § 993 (7) (a); and scheduling a settlement conference, pursuant to RPAPL § 993 (5). In opposing plaintiff s motion, PSA argues that the complaint is not properly verified by a person with personal knowledge or by an attorney based upon CPLR § 3020 (d), as required by RPAPL § 1605. Thus, the complaint should be dismissed. Alternatively, PSA argues that the Uniform Partition of Heirs Property Act (RPAPL § 993 or the Act), not RPAPL § 901, is controlling herein, since the Property is "heirs property," as defined by RPAPL § 993 (2) (e). PSA contends that plaintiff s motion is premature pursuant to RPAPL § 993 (5) (g), based upon his contention that the 7716 and 7712 Properties are "heirs property."[3] PSA also makes the point that the settlement conference process set forth in RPAPL § 993 (5) must be concluded before summary judgment can be granted. PSA requests that the court determine that the Property and the 7716 and 7712 Properties are "heirs property" under RPAPL § 993, send a notice to all parties that specifies their respective ownership interests, advise the parties of their respective right to avert partition by purchasing the interests of the parties seeking partition, and schedule a settlement conference as mandated by RPAPL § 993 (5).
In opposition, plaintiff argues that PSA's cross motion should be denied based upon his contention that the 7716 and 7712 Properties are not within the ambit of RPAPL § 993. Plaintiff claims that the Properties are currently owned by business entities and PSA has not submitted proof of any fraud with regard to WA or PA's transfer of their respective interests in the Properties. Plaintiff also contends that no proof was submitted to substantiate piercing the veils of 7716 LLC or 7712 LLC to impute liability on WA or PA. Therefore, plaintiff argues that the branch of PSA's cross motion seeking relief as to 7716 LLC and 7712 LLC should be denied.
PSA argues that plaintiffs motion should be denied and the complaint dismissed because it was not properly verified. However, plaintiff contends that s argument is unavailing since verification of a complaint is optional under CPLR § 3020. Plaintiff also maintains that he is entitled to summary judgment since PSA failed to raise a triable issue of fact. The court notes that plaintiff did not address PSA's argument that the Property qualifies as "heirs property" under RPAPL § 993.
In reply, PSA contends that plaintiff has conceded that the Property is "heirs property" under RPAPL §...
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