Estate of Menon v. Menon

• Decision Date: 24 March 2003
• Citation: 756 N.Y.S.2d 639,303 A.D.2d 622
• Parties: ESTATE OF ASHOK MENON, Deceased, Respondent,<BR>v.<BR>CHANDRIKA MENON, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

303 A.D.2d 622

756 N.Y.S.2d 639

ESTATE OF ASHOK MENON, Deceased, Respondent,

v.CHANDRIKA MENON, Appellant, et al., Defendant.

Decided March 24, 2003.

Florio, J.P., S. Miller, Adams and Crane, JJ., concur.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that Chandrika Menon is the sole owner of the cooperative shares at issue as a surviving joint tenant, and directing the codefendant, 1717 East 18th Street Owners Corp., to issue a new stock certificate and proprietary lease to Chandrika Menon.

The defendant Chandrika Menon and the decedent purchased a cooperative apartment in 1989 during their marriage. The stock certificate does not indicate the form of ownership of the shares in the cooperative. Six years later, during their divorce proceeding, the parties entered into a separation agreement which recited that they owned the shares in the cooperative apartment as joint tenants with the right of survivorship. The separation agreement was incorporated but not merged into the parties' judgment of divorce. The plaintiff, the decedent's second wife, commenced this action, inter alia, for partition and division of the shares in the cooperative apartment and the contents of the apartment on the theory that it was owned by the decedent and Chandrika Menon as tenants in common.

To succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim (see Leon v Martinez, 84 NY2d 83, 88 [1994]; Roth v Goldman, 254 AD2d 405, 406 [1998]).

At the time the shares in the cooperative apartment were issued to the decedent and Chandrika Menon, EPTL 6-2.2 (a) provided that a disposition of property to two or more persons created a tenancy in common, unless expressly declared to be a joint tenancy. To overcome this strong presumption, a party must establish by clear and convincing evidence that a joint tenancy was intended to be created rather than a tenancy in common (see Matter of Vadney, 83 NY2d 885, 886 [1994]). The parties' separation agreement could not be a clearer declaration of their intent that the shares in the cooperative apartment were owned by them as joint tenants. Indeed, the agreement went so far as to stipulate "[u]nder no circumstances, shall the joint tenancy become a tenancy in common." This conclusively disposes of the plaintiff's claim for partition and division of the shares in the cooperative apartment and overcomes the presumption of a tenancy in common under EPTL 6-2.2 (a) (see Matter of Vadney, supra at 887; Matter of Levinsky, 23 AD2d 25, 30 [196...