Paladino v. Sotille

• Decision Date: 06 April 2007
• Docket Number: 2005-1622 S C.
• Citation: 2007 NY Slip Op 27140,835 N.Y.S.2d 799,15 Misc.3d 60
• Parties: DINO PALADINO et al., Respondents, v. JAMES SOTILLE, Appellant.
• Court: New York Supreme Court — Appellate Term

15 Misc.3d 60

835 N.Y.S.2d 799

2007 NY Slip Op 27140

DINO PALADINO et al., Respondents, v. JAMES SOTILLE, Appellant.

2005-1622 S C.

Supreme Court, Appellate Term, Second Department.

April 6, 2007.

Bracken & Margolin, LLP, Islandia (Linda U. Margolin of counsel), for appellant.

Thomas Persichilli, Deer Park, for respondents.

OPINION OF THE COURT MEMORANDUM.

Final judgment reversed without costs and a new trial ordered.

In this holdover proceeding, petitioners assert that occupant James Sotille is in possession of the second-floor apartment in their home as a tenant at will and that they served him with a 30-day notice terminating his tenancy (see Real Property Law § 228). In his answer, occupant asserted as follows: He and his wife wanted to assist petitioners, who are their daughter and son-in-law, to purchase a house. They therefore agreed to provide petitioners with funds to be used toward the purchase. In return, petitioners agreed that occupant and his wife would be permitted to reside, for the rest of their lives, in an apartment that would be constructed in the house. Occupant's wife passed away before the agreement came to fruition. In furtherance of the agreement and in reliance on petitioners' promises, occupant gave petitioners approximately $70,000, provided labor and materials for the construction of the apartment, and furnished it with appliances, carpeting, and furniture at his own expense. Occupant moved into the apartment in September 2000 and remained in residence therein until December 1, 2004. He was neither required to, nor did he, pay any rent during this period. In November 2004, in order to force occupant from the apartment, petitioners obtained an order of protection requiring him to stay away from the apartment for one year. The answer sought a declaration that occupant is the holder of a life estate in the apartment.

On the return date of the petition, the matter was adjourned, at occupant's counsel's request, for two weeks, and marked final. On the adjourned date, occupant's attorney submitted the aforementioned answer and requested a further adjournment so that occupant, who was living in North Carolina, could travel to New York. Counsel claimed that she did not realize that the matter was marked final. The court, asserting that, under RPAPL 745 (1), it lacked the authority to grant a further adjournment (see Cotignola v Lieber, 34 AD2d 700 [1970]; but see Matter of Carlton Assoc. v Bayne, 191 Misc 2d 54 [2002]; 90 NY Jur 2d, Real Property—Possessory Actions § 233), denied counsel's application.

At the trial that followed, petitioner Dino Paladino admitted that occupant had provided funds to assist him and his wife in purchasing the house, but he claimed that occupant had only provided $50,000, not $70,000, and that the $50,000 was a gift. Paladino claimed that the understanding between the parties was only that his in-laws could live in the house until they found another place to live. He also denied that occupant had provided any furniture or appliances other than a dishwasher.

After trial, the court awarded possession to petitioners. While stating that it was making no findings with respect to occupant's allegations of an oral life tenancy "or the ancillary [c]onstructive [t]rust arguments that could be raised," the court nevertheless ruled that any such interest would have to be created by a writing. Accordingly, the court rejected occupant's affirmative defense but, inconsistently, left occupant's claim to a life estate "to be resolved in another forum." Finally, the court stated that "the requisite notice was given to terminate what the court determines to be a tenancy-at-will."

We reverse and order a new trial.

Notwithstanding the provisions of RPAPL 743 and 745 (1), the court retained the inherent authority to grant a continuance of the trial so that occupant could travel to New York (see e.g. Eugene v Bryant, NYLJ, Feb. 16, 1988, at 23, col 4 [App Term, 2d & 11th Jud Dists]; Cohen v O'Neill, NYLJ, May 28, 1985, at 7, col 3 [App Term, 1st Dept]; see also Tuscan Realty Corp. v O'Neill, 189 Misc 2d 349 [App Term, 2d Dept 2001]). In the circumstances presented, the court improvidently exercised its discretion in failing to grant occupant a continuance.

Contrary to the lower court's ruling, the statute of frauds is not an absolute bar to a determination that occupant is entitled to a life estate. Although the statute of frauds generally prohibits the creation of "[a]n estate or interest in real property . . . or any trust or power, over or concerning real property . . . unless . . . by a deed or conveyance in writing" (General Obligations Law § 5-703 [1]), there is an exception to the writing requirement "where there is part performance that is `unequivocally referable' to an oral agreement" (Spirt v Spirt, 209 AD2d 688, 689 [1994]; see General Obligations Law § 5-703 [4] ["Nothing contained in this section abridges the powers of courts of equity to compel the...