Kurpiel v. Kurpiel

• Decision Date: 21 March 1966
• Citation: 271 N.Y.S.2d 114,50 Misc.2d 604
• Parties: Joseph KURPIEL, Plaintiff, v. Jenny KURPIEL and Edward Kurpiel, Defendants.
• Court: New York Supreme Court

Page 114

271 N.Y.S.2d 114

50 Misc.2d 604

Joseph KURPIEL, Plaintiff, v. Jenny KURPIEL and Edward Kurpiel, Defendants.

Supreme Court, Special Term, Nassau County, Part I.

March 21, 1966.

Halpern, Halpern & Axelrod, Mineola, for plaintiff.

Wood & Marshall, Jamaica, for defendants.

MEMORANDUM

MARIO PITTONI, Justice.

Motion by plaintiff pursuant to C.P.L.R. 3211(b) and C.P.L.R. 3212. Cross-motion by defendants pursuant to C.P.L.R. 3212.

The action is for the partition of real property in the Town of Huntington, Suffolk County. Plaintiff and defendant Jenny Kurpiel are husband and wife. Defendant Edward Kurpiel is their son. Prior to June 1, 1955, plaintiff was the sole owner of the property involved. On June 1, 1955, plaintiff conveyed the parcel by deed to 'Joseph Kurpiel, Jenny Kurpiel and Edward Kurpiel all residing at 1481 Seamans Neck Road, Seaford, Nassau County, New York, jointly and not as tenants in common.'

In addition to denying that the parties by this conveyance were joint tenants, defendants plead two defenses. The first is that plaintiff may not maintain the action because plaintiff has neither actual nor constructive possession of the property--defendant Jenny Kurpiel allegedly having been awarded exclusive possession of the premises by an order of the Family Court of the County of Suffolk on November 17, 1965. The second is that plaintiff and defendant Jenny Kurpiel are tenants by the entirety of an undivided one-half of the premises and as a tenant by the entirety, plaintiff may not maintain the action.

As to the first defense, the order of the Family Court dated November 17, 1965 merely directed plaintiff to 'stay away from the petitioner (Jennie Kurpiel) and the family home at all times until further order of the court.' The Family Court did not have jurisdiction to determine (Family Court Act § 842) nor have before it the question of ownership or the right of possession and it made no attempt to pass upon that issue in its order. Second, even though defendants as co-tenants are in actual possession plaintiff, by reason of his record title, has a right to possession which entitles him to maintain a partition action (Willis v. Sterling, 224 App.Div. 647, 650, 232 N.Y.S. 143, 146).

The second defense is also without merit. The deed was prepared by an attorney. It expressly states that the named grantees were to take jointly. The authorities upon which the defendants rely (Overheiser v. Lackey, 207 N.Y. 229, 100 N.E. 738, Matter of Snell's Estate, 173 Misc. 282, 17 N.Y.S.2d 510, In re Traynor's Will, 34 Misc.2d 399, 226 N.Y.S.2d 304) are not applicable. In Overheiser a testator gave and devised "to my daughters Eliza Jane Marsh and Hester Marsh, jointly, the lot of ground" etc. and the Court noted that as the Will was not prepared by a lawyer familiar with the technical distinctions between different kinds of estates the word 'jointly' was not used in a technical sense to express the intent of creating 'a joint tenancy to negative the presumption established by our statute that a tenancy in common was intended' (207 N.Y. p. 237, 100 N.E. p. 740). Again in Snell, supra, it was noted that the Will was prepared by a layman and therefore the use of the word 'jointly' was insufficient to overcome the presumption that a tenancy in common was intended. Likewise, in Traynor, supra, the Will was prepared by a layman. Here, as stated at the outset, the deed was prepared by an attorney. In addition, defendants do not contend that the tenancy in common...