Butt v. Malik

• Decision Date: 13 February 2014
• Citation: 114 A.D.3d 716,2014 N.Y. Slip Op. 00957,980 N.Y.S.2d 516
• Parties: Mian Karamat Ullah BUTT, respondent, v. Mohammad Aslam MALIK, et al., appellants.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 716

980 N.Y.S.2d 516

2014 N.Y. Slip Op. 00957

Mian Karamat Ullah BUTT, respondent,

v.Mohammad Aslam MALIK, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 13, 2014.

Andrew Moulinos, Astoria, N.Y., for appellants.

Wenig Saltiel LLP, Brooklyn, N.Y. (Meryl L. Wenig and Leslie Perez–Bennie of counsel), for respondent.

PETER B. SKELOS, J.P., MARK C. DILLON, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ.

In an action, inter alia, for a judgment declaring that a certain deed is void and that the plaintiff is the sole owner of certain real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Baynes, J.), dated January 30, 2013, as, in effect, granted those branches of the plaintiff's motion which were for summary judgment declaring that the subject deed is void and that the plaintiff is the sole owner of the subject property, and pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, the counterclaim to impose a constructive trust on the subject property.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff and Aziz Begum Butt (hereinafter Aziz) purchased certain property in January 1996 “as husband and wife.” In September 2008, Aziz transferred her interest in the subject property to her brother, the defendant Mohammad Aslam Malik (hereinafter Mohammad). Aziz died on October 29, 2010. In December 2011, the plaintiff commenced this action, seeking, inter alia, a declaration that the deed to Mohammad is void and that the plaintiff is the sole owner of the subject property. In an order dated January 30, 2013, the Supreme Court, inter alia, in effect, granted those branches of the plaintiff's motion which were for summary judgment declaring that the deed to Mohammad is void and the plaintiff is the sole owner of the subject property, and pursuant to CPLR 3211(a)(5) to dismiss, as time-barred, a counterclaim to impose a constructive trust on the subject property. The court determined, inter alia, that Aziz did not have the authority to transfer the subject property without the consent of the plaintiff.

“[W]here a tenancy by the entirety is created, ‘there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy ... subject to the continuing rights of the other’ ” ( Deutsche Bank Nat'l Trust Co. v. Feliciano, 105 A.D.3d 889, 890, 963 N.Y.S.2d 362, quoting V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 565, 510 N.Y.S.2d 848, 503 N.E.2d 496;see Rose v. Levine, 107 A.D.3d 967, 970, 969 N.Y.S.2d 72). “ ‘[T]he interest acquired by a grantee or mortgagee of such a unilateral conveyance is not denominated a tenancy by the entirety, but rather is labeled a tenancy in common’; however, ‘the grantee's or mortgagee's rights in the property are essentially the same as those possessed by the grantor or mortgagor: a right to shared possession and ownership subject to the original cotenants' reciprocal rights of survivorship’ ” ( Deutsche Bank Nat'l Trust Co. v. Feliciano, 105 A.D.3d at 890, 963 N.Y.S.2d 362, quoting V.R.W., Inc. v. Klein, 68 N.Y.2d at 565, 510 N.Y.S.2d 848, 503 N.E.2d 496).

Here, we agree with the Supreme Court's determination, in effect, granting that branch of the plaintiff's motion which was for summary judgment declaring that the plaintiff is the sole owner of the subject property, albeit on different grounds. Contrary to the Supreme Court's conclusion, Aziz was permitted to convey her interest in the subject property, held by the entirety, to Mohammad via the deed to Mohammad, subject to the continuing rights of the...