DiSanto v. Wellcraft Marine Corp.

• Decision Date: 17 April 1989
• Citation: 540 N.Y.S.2d 260,149 A.D.2d 560
• Parties: Michael DiSANTO, et al., Appellants, v. WELLCRAFT MARINE CORPORATION, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 260

540 N.Y.S.2d 260

149 A.D.2d 560

Michael DiSANTO, et al., Appellants, v. WELLCRAFT MARINE CORPORATION, Respondent, et al., Defendants.

Supreme Court, Appellate Division Second Department.

April 17, 1989.

Kleinman & Saltzman, P.C., New City (Carol Ann Geronimo, of counsel), for appellants.

Campbell, McMillan, Bosco, Penzel, Danzig & Maker, New Rochelle (William Maker, Jr., of counsel), for respondent.

Before MOLLEN, P.J., and THOMPSON, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action brought pursuant to RPAPL article 15, inter alia, for a judgment declaring that the plaintiffs have unencumbered title to certain real property, the plaintiffs appeal, as limited by their brief, from so much of a judgment of the Supreme Court, Westchester County (Coppola, J.), entered October 30, 1987, as held that their title was subject to a judicial lien in favor of Wellcraft Marine Corporation in the principal sum of $137,795.62.

ORDERED that the judgment is modified, on the law, by adding a provision thereto that the lien is only enforceable against the one-quarter interest in the subject property formerly held by Edward J. Milano; as so modified, the judgment is affirmed insofar as appealed from, with costs to the respondent Wellcraft Marine Corporation.

The plaintiffs commenced the instant action pursuant to RPAPL article 15 for a judgment declaring that they hold unencumbered title to a parcel of real property located in the Town of Eastchester, County of Westchester, New York. The property in question was formerly owned by Harry Milano. On February 26, 1982, Harry Milano died leaving a will which, inter alia, bequeathed his estate to his wife, Anne Milano, with the following proviso:

"THIRD:

"Should my beloved wife survive me but die (1) prior to the payment, delivery or distribution to her of all my personal property bequeathed to her herein or the sale of the real property devised to her herein, and (2) within six months subsequent to my death, then all such personal property not theretofore paid, delivered or distributed to her, or all of the real property devised to her herein that has not been sold within the six months subsequent to my death, shall be disposed of pursuant to the provision of this my Will, as if my said wife had not survived me.

"FOURTH:

"If my beloved wife shall predecease me, I give devise and bequeath the amount of five thousand ($5,000.00) DOLLARS to my beloved niece, VIENNA BIANCO. If my beloved wife shall predecease me, I give, devise and bequeath all the rest, residue and remainder of the real property and estate, real, personal and mixed, of whatsoever kind or nature, and wheresoever located or situated, of which I shall die seized or possessed, or to which at the time of my death I shall be in any manner entitled or over which I shall then have a power of appointment, or to which after my death my estate shall in any manner become entitled, to my issue surviving me, in equal shares, per stirpes and not per capita " (emphasis supplied).

On July 10, 1982, Anne Milano died and shortly thereafter the Surrogate's Court, Westchester County, appointed Harry Milano's son Robert A. Milano the executor of Harry Milano's will. The surviving issue of Harry Milano were his three sons, Robert A. Milano, Edward J. Milano, and Harry A. Milano, Jr. and a daughter, Adrienne J. Milano. The will provided the following instructions to the executor regarding the distribution of the estate assets:

"EIGHTH:

"I give my said executor (and substitute or successor executor), the fullest power and authority in all matters in question to do all acts which I might or could do if living, including, without limitation because of specification, complete power and authority to invest (without restrictions to investments permitted by law ), sell at public or private sale for cash or credit with or without security, mortgage, lease and dispose of, or retain or distribute in kind any and all property real and personal, at such times and upon such terms and conditions as she or he may deem advisable" (emphasis supplied).

Among the estate assets was the subject real property.

On August 16, 1982, Wellcraft Marine Corporation (hereinafter Wellcraft) obtained a judgment in the Supreme Court, Westchester County, in the amount of $137,745.62 against Edward J. Milano upon his default in appearing in an action brought by them.

On January 20, 1983, Wellcraft filed a notice of pendency with the County Clerk of Westchester County on the four parcels of real property held by the estate of Harry Milano. The notice stated that an action would be commenced by Wellcraft against Robert A. Milano, as executor of the estate of Harry Milano, and against Edward J. Milano. This notice was filed under the last name "Milano" and stated the liber and page of each of the parcels. Wellcraft's action, which was brought against Robert A. Milano, as executor of the estate of Harry Milano, and Edward J. Milano, was for a judgment declaring that Edward J. Milano had a one-quarter interest in the properties held by the estate of Harry Milano and that Wellcraft had a judicial lien on the interest of Edward J. Milano in those properties.

During the pendency of that action by...