Manicchio v. Classic Summit, LLC
| Decision Date | 05 December 2014 |
| Docket Number | No. 70261/2013.,70261/2013. |
| Citation | 5 N.Y.S.3d 328 (Table) |
| Court | New York Supreme Court |
| Parties | Tracy MANICCHIO, Plaintiff, v. CLASSIC SUMMIT, LLC, a New York Limited Liability Company, Defendant. |
Frank A. Catalina, Esq., Peekskill, for Plaintiff.
Mark I. Reisman, Esq., Reisman, Rubeo & McClure, LLP, Hawthorne, for Defendant.
Plaintiff requests that the court grant a declaratory judgment declaring that plaintiff is the sole owner of real property located at 2572 State Route 10, Town of Summit, Schoharie County, New York (“the premises”). By way of background, plaintiff and her deceased husband, Antonio Manicchio (“decedent”) were married in 1988. It is undisputed that the property was acquired by plaintiff and decedent as tenants by the entirety pursuant to the deed of conveyance during their marriage on July 17, 1999. Plaintiff lived with decedent as his wife continuously from the date of their marriage until his date of death on November 13, 2013. At the time of decedent's death, plaintiff and decedent were lawfully married, notwithstanding that she had filed an Action for Divorce in this court on May 29, 2013.
Plaintiff claims that prior to decedent's death, she became aware of his transferring assets and property from his name and into the name of family members or into a limited liability company. Shortly before decedent's death, she became aware of a conveyance he made on April 30, 2013, wherein he converted his interest in the premises to defendant, a limited liability company. Angelo Manicchio, a nephew of decedent (hereinafter “nephew”), is the managing member and holds a 99% membership interest in defendant. Notwithstanding this transfer to defendant, plaintiff asserts that upon decedent's death, she became the sole owner of the premises, and that the conveyance to defendant is void as a matter of law.
In opposition, defendant prays that plaintiff's motion for a declaratory judgment should be denied, and cross moves pursuant to CPLR 3025(b) granting defendant's motion for leave to amend its answer to assert a counterclaim to impose a constructive trust.
It is well settled that “a proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp ., 68 N.Y.2d 320, 324 [1986] ; see Orange County–Poughkeepsie Ltd. Partnership v. Bonte, 37 AD3d 684, 686–687 [2d Dept 2007] ; see also Rea v. Gallagher, 31 AD3d 731 [2d Dept 2007] ). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (see Zuckerman v. New York, 49 N.Y.2d 557, 562 [1980] ; see also Khan v. Nelson, 68 AD3d 1062 [2d Dept 2009] ). Conclusory, unsubstantiated assertions will not suffice to defeat a motion for summary judgment (Barclays Bank of New York, N.A. v. Sokol, 128 A.D.2d 492 [2d Dept 1987] ). A party opposing a motion for summary judgment may do so on the basis of deposition testimony as well as other admissible forms of evidence, including an expert's affidavit, and eyewitness testimony (Marconi v. Reilly, 254 A.D.2d 463 [2d Dept 1998] ). In deciding a motion for summary judgment, the court is required to view the evidence presented “in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion” (Yelder v. Walters, 64 AD3d 762, 767 [2d Dept 2009] ; see Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385, 386 [2d Dept 2003] ). The court must accept as true the evidence presented by the nonmoving party and must deny the motion if there is “even arguably any doubt as to the existence of a triable issue” (Kolivas v. Kirchoff, 14 AD3d 493 [2d Dept 2005] ); Baker v. Briarcliff School Dist., 205 A.D.2d 652,661–662 [2d Dept 1994] ). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to existence of a triable issue (Alvarez v. Prospect Hospital, 68 N.Y.2d 320,324 [1986] ).
Pursuant to CPLR 3001 “the Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. To constitute a “justiciable controversy,” there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect (Chanos v. MADAC, LLC, 74 AD3d 1007, 1008 [2d Dept 2010] ). A defendant who has not interposed an answer or made any other pleading for affirmative relief may not be granted a declaratory judgment (Astoria Fed. Sav. and Loan Ass'n v. Lawson, 44 Misc.3d 1210(A) [Sup Ct 2014] ). “The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations” (James v. Alderton Dock Yards, 256 N.Y. 298, 305 [1931] ). In a declaratory action, however, the rights of the parties must be affirmatively declared either way; a “mere dismissal of the complaint is not an affirmative declaration of the parties rights” (Raffone v. Town of Islip, 85 A.D.2d 597 [2d Dept 1981] ).
Further, Estates Powers and Trusts Law (EPTL) § 6–2.2(b) states that: disposition of real property to a husband and wife creates in them a tenancy by the entirety, unless expressly declared to be a joint tenancy or a tenancy in common. It is also well settled that tenancy by the entirety confers on the surviving spouse a right to absolute ownership of the property upon the other spouse's death so long as the marriage remains legally intact, both parties continue to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse's coextensive interest in the property (V.R.W., Inc. v. Klein, 68 N.Y.2d 560, [1986] ). “Where a tenancy by the entirety is created, there is nothing in New York law that prevents one of the co-owners from mortgaging or making an effective conveyance of his or her own interest in the tenancy ... subject to the continuing rights of the other' “ (Deutsche Bank Nat'l Trust Co. v. Feliciano, 105 AD3d 889, 890, [2d Dept 2013] ; Butt v. Malik, 114 AD3d 716 [2d Dept 2014] )
Here, plaintiff demonstrated a prima facie case for summary judgment, inter alia, while plaintiff and decedent were married a tenancy by the entirety was created for the premises as evidenced by the deed dated July 17, 1999 (Plaintiff's. Ex E ). When decedent died, they were married, and decedent could not terminate a tenancy by the entirety by conveying the premises to defendant LLC. As the surviving spouse, plaintiff assumes full control over the premises.
In opposition and in the cross-motion, nephews's argument that a constructive trust exists does not defeat plaintiff's prima facie case for summary judgment.
The four factors necessary to impose a constructive trust are: (1) a confidential or fiduciary relationship; (2) a promise, express or implied; (3) a transfer in reliance on that promise; and (4) unjust enrichment (Sharp v. Kosmalski, 40 N.Y.2d 119, 121 [1976] ). A constructive trust is an equitable remedy (Simonds v. Simonds, 45 N.Y.2d 233, 241 [1978] ). “However, as these elements serve only as a guideline, a constructive trust may still be imposed even if all of the elements are not established” (Rowe v. Kingston, 94 AD3d 852,853. Rather, “[a] constructive trust will be erected whenever necessary to satisfy the demands of justice” (Latham v. Divine, 299 N.Y. 22, 26–27 ; Byrd v. Brown, 208 A.D.2d 582, 582–83 [2d Dept 1994] ). An action for a constructive trust may be maintained to remedy a situation where property has been acquired under such circumstances that the...
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