Clogher v. Modeste (In re Raccioppi)

• Citation: 128 A.D.3d 838,2015 N.Y. Slip Op. 04135,10 N.Y.S.3d 131
• Decision Date: 13 May 2015
• Docket Number: 2013-07222
• Parties: In the Matter of William RACCIOPPI, deceased. Irene Clogher, etc., respondent-appellant, v. Laverne Modeste, et al., appellants-respondents.
• Court: New York Supreme Court Appellate Division

128 A.D.3d 838

10 N.Y.S.3d 131

2015 N.Y. Slip Op. 04135

In the Matter of William RACCIOPPI, deceased.Irene Clogher, etc., respondent-appellant

v.Laverne Modeste, et al., appellants-respondents.

2013-07222

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

May 13, 2015.

Edward M. Tobin and Richard J. Pelliccio, New York, N.Y., for appellants-respondents.

Stanley Leon Gilbert, P.C. (Robert Jay Gumenick, P.C., New York, N.Y., of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and BETSY BARROS, JJ.

Opinion

In a proceeding for the administration of the estate of William Raccioppi, in which the administrator petitioned pursuant to SCPA 2103 for, inter alia, the turnover of certain real property, Laverne Modeste and Christopher Modeste appeal, as limited by their brief, from so much of an order of the Surrogate's Court, Kings County (Lopez Torres, S.), dated April 12, 2013, as denied their motion, inter alia, for summary judgment dismissing the petition, and the petitioner cross-appeals, as limited by her brief, from so much of the same order as denied her cross motion for summary judgment on the petition and dismissing the affirmative defenses and counterclaims of Laverne Modeste and Christopher Modeste.

ORDERED that the order is affirmed, without costs or disbursements.

The petitioner, Irene Clogher, is the daughter of the decedent, William Raccioppi, who died on December 8, 2003, and Annabelle Raccioppi (hereinafter Annabelle), who died on September 20, 1970. On April 12, 2010, the Surrogate's Court granted the petitioner's uncontested petition for letters of administration. Thereafter, on September 1, 2010, the petitioner filed the instant petition seeking the turnover of, among other things, certain real property in Brooklyn (hereinafter the property). According to a deed dated July 8, 1953, the decedent held title to the property jointly with Annabelle. The petition alleged that, on March 17, 2006, Elizabeth Raccioppi, who was the decedent's wife at the time the decedent died, executed a deed (hereinafter the deed), by and through her attorney-in-fact, Robert Cicale, transferring the property to the respondents, Laverne Modeste and Christopher Modeste, for the sum of $380,070. The petition further alleged that the property was an asset of the decedent's estate and that the deed was forged. It is undisputed that the signature affixed to the deed was signed in the name of “Annabelle Raccioppi also known as Elizabeth Raccioppi.” It is also undisputed that Cicale filed several other ancillary documents naming Annabelle as the grantor and seller of the property.

After the petitioner filed the instant petition, a document purporting to be the last will and testament of the decedent, dated March 11, 1994 (hereinafter the will), was discovered by the guardian ad litem for Elizabeth and filed with the Surrogate's Court on September 28, 2011. The will purported to devise the property to Elizabeth upon the decedent's death.

The respondents moved for, inter alia, summary judgment dismissing the petition on the grounds that Elizabeth was vested with title to the property upon the decedent's death and, therefore, the transfer of the property to them in 2006 was valid. The respondents also asserted that they were bona fide purchasers of the property and that they had no notice of any fraud concerning the transfer of the property. The petitioner cross-moved for summary judgment on the petition and dismissing the respondents' affirmative defenses and counterclaims on the grounds that the deed was forged and, therefore, void, and that the will was fraudulent and/or forged. The Surrogate's Court denied both the motion and cross motion. We affirm.

Pursuant to Real Property Law § 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller (see Anderson v. Blood, 152 N.Y. 285, 46 N.E. 493 ; Karan v. Hoskins, 22 A.D.3d 638, 639, 803 N.Y.S.2d 666 ). However, a person cannot be a bona fide purchaser or encumbrancer for value through a forged deed, as it is void and conveys no title (see Marden v. Dorthy, 160 N.Y. 39, 54 N.E. 726 ; Public Adm'r of Kings County v. Samerson, 298 A.D.2d 512, 514, 750 N.Y.S.2d 301 ). Although the respondents made a prima facie showing that they were bona fide purchasers, the petitioner raised a triable issue of fact as to whether the deed conveying the property to them was forged and, therefore, void (see Karan v. Hoskins, 22 A.D.3d at 639, 803 N.Y.S.2d 666 ; Public Adm'r of Kings County v. Samerson, 298 A.D.2d at 514, 750 N.Y.S.2d 301 ). Accordingly, the Surrogate's Court properly denied that branch of the respondents' motion which was for summary judgment dismissing the petition.

In addition, the Surrogate's Court properly denied that branch of the respondents' motion which was pursuant to CPLR 3211(a) to dismiss the petition, made on the ground that the will devised the property to Elizabeth upon the decedent's death and, therefore, established that Elizabeth held valid title to the property when she transferred the property to them in 2006. Generally, “title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator's death and not at the time of probate” (CitiMortgage, Inc. v. McNeil, 30 Misc.3d 1216[A], 2011 N.Y. Slip Op. 50096[U], *3, 2011 WL 285083 [Sup.Ct., Kings County 2011] ; see Waxson Realty Corp. v. Rothschild, 255 N.Y. 332, 336, 174 N.E. 700 ; Corley v. McElmeel, 149 N.Y. 228, 235, 43 N.E. 628 ; Matter of Ballesteros, 20 A.D.3d 414, 415, 798 N.Y.S.2d 131 ; DiSanto v. Wellcraft Mar. Corp., 149 A.D.2d 560, 562, 540 N.Y.S.2d 260 ). Here, however, since the validity of the will is being challenged by the petitioner, it was incumbent upon the respondents, as the proponents of the will, to prove due execution of the will and testamentary capacity (see Matter of Estate of Kumstar, 66 N.Y.2d 691, 692, 496 N.Y.S.2d 414, 487 N.E.2d 271 ; Matter of Buchting, 111 A.D.3d 1114, 1116, 975 N.Y.S.2d 794 ; Matter of Billet, 187 App.Div. 309, 311, 175 N.Y.S. 482 ; Matter of Cameron, 47 App.Div. 120, 123, 62 N.Y.S. 187, affd. 166 N.Y. 610, 59 N.E. 1120 ; Matter of Ginsburg, 115 Misc.2d 122, 123, 453 N.Y.S.2d 587 [Sur.Ct., Nassau County 1982] ). In support of their motion, the respondents submitted the will, which contained an attestation clause, and an affidavit of one of the attesting witnesses, Paula Rago, who stated that although she did not recall the execution ceremony, she...