Kraker v. Roll

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before LAZER; GIBBONS; LAZER, J.P., and THOMPSON and WEINSTEIN, JJ., concur in the opinion of GIBBONS
• Citation: Kraker v. Roll, 100 A.D.2d 424, 474 N.Y.S.2d 527 (N.Y. App. Div. 1984)
• Decision Date: 02 April 1984
• Parties: Lydia Roll KRAKER, Plaintiff-Appellant, v. Frederick ROLL, et al., Respondents; Anna Roll, Defendant-Appellant; State of New York, et al., Defendants.

Page 527

474 N.Y.S.2d 527

100 A.D.2d 424

Lydia Roll KRAKER, Plaintiff-Appellant, v. Frederick ROLL, et al., Respondents Anna Roll, Defendant-Appellant State of New York, et al., Defendants.

Supreme Court, Appellate Division Second Department.

April 2, 1984.

Thomas T. Kilhenny and Mellor A. Gill, Northport, for plaintiff-appellant Lydia Roll Kraker.

Richard S. Zummo, East Setauket, for defendant-appellant Anna Roll (relying on the brief of plaintiff-appellant Lydia Roll Kraker).

Cruser, Hills, Hills & Besunder, Riverhead (Edgar Hills, Riverhead, of counsel), for respondent Squirrel Hill Homes, Inc.

Before LAZER, J.P., and GIBBONS, THOMPSON and WEINSTEIN, JJ.

GIBBONS, Justice.

Frederick Roll, Sr., was born in 1879. In 1929, he purchased an unimproved parcel of real property in Brentwood, Suffolk County. Subsequently, in 1933, he purchased a continguous parcel of the same size. Each parcel was made up of two lots. Mr. Roll died, intestate, on April 4, 1963, leaving three children: a son, Frederick Roll, Jr., born August 20, 1911, and two daughters, Lydia Kraker, formerly Lydia Roll, and Anna Roll. His wife had predeceased him. The trial record does not reveal whether an administrator was appointed. In any event, Frederick Roll, Sr. remained the record owner of the two parcels after his death.

During the 1930's a house was built on the parcel which had been purchased in 1929 (hereinafter the 1929 property). Mr. Roll and two of his children, Anna and Frederick Roll, Jr., moved into the house in or about 1945. The other daughter, Lydia, who had married Leopold Kraker in 1937, did not live in the house, although she and her husband frequently visited. Frederick Roll, Jr. (hereinafter Fred) and Anna remained in the house after their father died and, at least to the date of trial, continued to live there.

On May 26, 1976, Fred conveyed the parcel which had been purchased in 1933 (hereinafter the 1933 parcel) to Squirrel Hill Homes, Inc. (hereinafter Squirrel Hill) for $19,000. Thereafter, by summons and complaint dated June 14, 1977, plaintiff Lydia Roll Kraker commenced this suit against her siblings and against Squirrel Hill. Also named as defendants are the State of New York and the United States of America. According to the complaint, the action was "brought pursuant to Article 15 of the Real Property Actions and Proceedings Law * * * to compel the determination of claims" to the 1929 and 1933 parcels. No request was made for damages.

In his answer, Fred claimed that he, and not his father, was the "Frederick Roll" who purchased the two parcels in 1929 and 1933. In its amended answer, Squirrel Hill made the same claim. In addition, Fred and Squirrel Hill set forth the following affirmative defenses: (1) that Fred's ownership of the property or properties in question was acquired by adverse possession; (2) that the action was barred by the applicable Statute of Limitations; and (3) that the plaintiff was barred by laches from bringing the action. Fred also made two counterclaims. The first asked that if it be determined that Fred "was not in actual title" to the properties, then he be granted an "Equitable Trust * * * respecting both parcels of real estate". The second counterclaim stated that if it be determined that Fred "was neither in actual or equitable title to the real estate", then he was entitled to be reimbursed with $20,000, constituting one third of the moneys spent by him on the properties for improvements, taxes and the like. Defendant Squirrel Hill counterclaimed for a determination that it was the owner of the 1933 property. Squirrel Hill also alleged a cross claim against Fred "for any amount found to be due and owing by SQUIRREL HILL HOMES, INC. to the plaintiff".

Defendant Anna Roll appeared through a duly appointed guardian ad litem. She became, in effect, a coplaintiff with the service of a cross claim against defendants Fred and Squirrel Hill, requesting a determination that she "is vested with an absolute and unemcumbered, undivided one-third ( 1/3) interest in and to [both] said premises". The record does not reveal any appearances on behalf of the United States or the State of New York; apparently, neither had an interest in the properties at issue.

The case came on to be tried without a jury. At the conclusion of plaintiff's case, defendants Fred and Squirrel Hill moved to dismiss the complaint. In an order dated January 31, 1980, the trial court denied the motion and, instead, struck from Fred and Squirrel Hill's answers the affirmative defenses of adverse possession and the Statute of Limitations. In its decision, the court explained that the date of Frederick Roll, Sr.'s death on April 4, 1963 was the commencement date for plaintiff's claimed ownership and the alleged adverse possession by Fred. Since that date was prior to September 1, 1963, the effective date of the CPLR (see L.1962, ch. 308), the court concluded that the 15-year period prescribed by section 34 of the former Civil Practice Act was applicable, rather than the 10 year period of CPLR 212 (subd. [a] ) and RPAPL article 5. Therefore, since the suit was commenced on or about June 14, 1977, the court held that it was timely.

On May 15, 1980, prior to the presentation of witnesses for defendants Fred and Squirrel Hill, the attorney for Fred put the following stipulation on the record:

"Your Honor, the parties are prepared to stipulate that $46,000 has been expended by a party--let me withdraw that--by someone who, buy [sic ] this property in question, to pay the taxes upon the property in question, to heat it, to provide electricity, to provide necessary insurance, to provide necessary gas and oil, to make improvements, and to build the premises, a total, your Honor, of $46,000. It is the position of my client, and we will offer proof to that effect, that he paid every penny of that.

"THE COURT: And is that $46,000 from 1929 to date or--

"MR. MANDELBAUM [Fred's attorney]: It is, your Honor".

In its decision after trial, dated September 15, 1980, the trial court found that the "Frederick Roll" named on the 1929 and 1933 deeds for the property in question was the father, not the son. The court, exercising its discretion under CPLR 103 (subd. [c] ), deemed the action as one to recover real property, brought under RPAPL article 6 as well as under RPAPL article 15. The court opined that whereas the action, being grounded on a statutory right, was properly an action at law, the requested relief sounded in equity. Therefore, the doctrine of laches was applicable. However, that defense was not available to Fred because, as to the 1929 property, "there has been no detrimental change in the son's [Fred's] position", and "[w]ith respect to the parcel sold to Squirrel, the son, having wrongfully disposed of property not fully owned by him may not assert the equitable defense of laches". On the other hand, the trial court held that laches provided a viable defense for Squirrel Hill, for the following reasons:

"Squirrel was a good faith bona fide purchaser who paid fair and reasonable value for the parcel it purchased and relied on what appeared to be good title. Thus, with respect to Squirrel, plaintiff's delay in bringing this lawsuit or otherwise protesting her brother's claim to the property must be weighed against the intervening rights and interests of Squirrel * * * To disturb Squirrel's title in favor of plaintiff who sat silent for fourteen years would be manifestly unjust and inequitable".

The trial court, in its decision, interpreted the stipulation recited into the record as meaning that "the parties agreed that the son expended $46,000.00, on the premises and received no contributions from his sisters". The court went on to conclude that, among other things: (1) when the father died, title to the two parcels devolved to his three children; (2) because of plaintiff's laches, Squirrel Hill received a valid and unencumbered title to the 1933 parcel; (3) in the event a partition action were to be instituted for the 1929 property, $19,000 should be added to the value of that parcel, representing the sale price of the 1933 parcel to Squirrel Hill; and (4) also in the event of a partition of the 1929 property, Fred would be "entitled to $46,000.00, (the stipulated value of his improvements) from the total value of the unsold parcel prior to its partition into three equal parts".

After the decision, a controversy emerged between the parties as to the respective proposed judgments submitted to the court. In particular, there was disagreement about the meaning of the stipulation. Plaintiff's attorney, in an affirmation dated December 2, 1980, argued that the sum of $46,000 included within it expenditures for such items as gas, insurance and improvements. He stated that only $15,000, and not $46,000 had been spent on improvements. He further maintained that "[t]he intent of the parties at that time was not to give credit of $46,000 to the defendant Frederick Roll, but to stipulate that he had expended that sum in connection with the property since 1963".

The trial court disagreed with plaintiff's view of the stipulation. It held that the only amounts that could be deducted from the $46,000 were the 1929 and 1933 purchase prices of the two parcels (which Trial Term found to be $570 per parcel). Therefore, it was concluded by the court that Fred was entitled to a credit of $44,860. The judgment appealed from gives Fred a credit in that amount, to be utilized in the event of a partition of the 1929 property.

All three siblings filed notices of appeal. Plaintiff has perfected her appeal, and Anna, whose notice of appeal essentially duplicated that of plaintiff's, has indicated, through her guardian ad litem, that she accepts plaintiff's arguments on appeal as her own. Fred has not perfected his cross appeal. Plaintiff's contentions on appeal are that (1) laches has no application and even if it does, plain...