Prario v. Novo

• Decision Date: 23 May 1996
• Citation: 168 Misc.2d 610,645 N.Y.S.2d 269
• Parties: Rinaldo PRARIO, Plaintiff, v. Guy P. NOVO et al., Defendants.
• Court: New York Supreme Court

Page 269

645 N.Y.S.2d 269

168 Misc.2d 610

Rinaldo PRARIO, Plaintiff, v. Guy P. NOVO et al., Defendants.

Supreme Court, Westchester County.

May 23, 1996.

Anthony J. Grazioli, Tuckahoe, for plaintiff.

Helene M. Greenberg, Hartsdale, for defendants.

JOAN B. LEFKOWITZ, Justice.

Plaintiff sues for a declaration of rights that he is a joint tenant of certain real property, entitled to fifty (50) percent of the proceeds of any sale and for partition and sale. Plaintiff and his wife, Ines, who died January 10, 1995, are grantees of the subject real property along with defendants, who are the daughter of plaintiff and son-in-law, respectively. The deed into the grantees, dated October 15, 1981, from one Claire Nichols, states in the granting clause to "Rinaldo Prario and Ines Prario, His wife ... and Guy P. Novo and Celia P. Novo, His wife ... the Prarios and the Novos to take as joint tenants with right of survivorship, among all four of said individuals."

Plaintiff urges that the grant into himself and wife constituted a tenancy by the entirety and that he is now seized of a one-half interest in the property. Defendants argue that the intent of the parties was that the survivor would succeed to the interests of those who predeceased him or her, that plaintiff presently owns a one-third interest and that an oral agreement not to partition during the lifetimes of the grantees was made. Plaintiff moves for summary judgment. Defendants cross-move for sanctions.

While it is true that an agreement not to partition is a valid defense to a partition action (McNally v. McNally, 129 A.D.2d 686, 514 N.Y.S.2d 449 (2d Dep't 1987)), if, as here, the agreement is not in writing, its enforcement is barred by the statute of frauds. General Obligations Law § 5-703(1); Smith v. Smith, 214 App.Div. 383, 212 N.Y.S. 196 (3rd Dep't 1925); Steinberg v. Singer, 5 Misc.2d 278, 163 N.Y.S.2d 774 (Supreme Ct. Kings 1957); Casolo v. Nardella, 193 Misc. 378, 84 N.Y.S.2d 178 (Supreme Ct. Saratoga 1948), aff'd, 275 App.Div. 502, 90 N.Y.S.2d 420 (3rd Dep't 1949), app. dism. 300 N.Y. 549, 89 N.E.2d 518 (1949); 14 Carmody-Wait 2d, Partition, § 91:91; Ann. 37 ALR 3rd 962, 973-74 (1971), Right To Judicial Partition-Contract; 3A Warren's Weed, New York Real Property, Partition, § 2.04.

A grant of real property to a husband and wife creates a tenancy by the entirety "unless expressly declared to be a joint tenancy or tenancy in common." Estates, Powers & Trusts Law § 6-2.2(b). A joint tenancy is subject to partition during the lifetimes of the joint tenants (24 N.Y.Jur.2d, Cotenancy & Partition, § 33; 3A Warren's Weed, New York Real Property, Partition, § 3.03; id., vol. 2A, Joint Tenants, § 4.01) whereas a tenancy by the entirety cannot be divided absent consent of both spouses or upon a divorce (24 N.Y.Jur.2d, Cotenancy & Partition, §§ 38, 56; 3A Warren's Weed, supra, Partition, § 3.12).

A tenancy by the entirety can only be created in real property by grant to husband and wife and means that the married couple take title as one person and the right of survivorship inheres from the original grant. Matter of Klatzl, 216 N.Y. 83, 86-87, 110 N.E. 181 (1915); Bertles v. Nunan, 92 N.Y. 152 (1883); 5A Warren's Weed, New York Real Property, Tenancy By Entirety, §§ 1.01, 1.02, 1.05, 2.02. The tenancy by the entirety can be changed by voluntary act of the couple, divorce or death. A joint tenancy creates a right of survivorship. 2A Warren's Weed, New York Real Property, Joint Tenants, § 1.03. It, however, can be changed by conveyance or partition without the assent of other joint tenants.

A grant to grantees as husband and wife and also to a third or additional persons, creates a tenancy by the entirety as to the husband and wife and a tenancy in common as to the other grantees. Bartholomew v. Marshall, 257 App.Div. 1060, 13 N.Y.S.2d 568 (3rd Dept.1939); Price v. Pestka, 54 App.Div. 59, 66 N.Y.S. 297 (2d Dep't 1900); 24 N.Y.Jur.2d, Cotenancy & Partition, § 46. A grant to a husband and wife that says as joint tenants and not as tenants in common creates a joint tenancy and not a tenancy by the entirety. Jooss v. Fey, 129 N.Y. 17, 29 N.E. 136 (1891). A grant to two married couples as tenants by the entirety results in two tenancies by the entirety, with each couple owning one-half. Price v. Pestka, supra, 54 App.Div. 59, 66 N.Y.S. 297. A grant to a married couple and third-person jointly and not as tenants in common creates a joint tenancy with each person having a one-third interest. Kurpiel v. Kurpiel, 50 Misc.2d 604, 271 N.Y.S.2d 114 (Supreme Ct.Nassau 1966). But a grant to a married couple and third-person jointly has been held to create a tenancy by the entirety with a one-half interest and joint tenant with a one-half interest. Matter of Buttonow, 49 Misc.2d 445, 267 N.Y.S.2d 740 (Supreme Ct.Queens 1966). In Schwab v. Schwab, 280 App.Div. 139, 112 N.Y.S.2d 354 (4th Dep't 1952) a grant to four persons, two sets of married individuals, as joint tenants was held to create a joint tenancy in an action by the heir of one of the three deceased joint tenants against the survivor (Record on Appeal No. 899, 4th Dep't as maintained by the Supreme Court Library in White Plains). The court declared the survivor to be the owner of the full interest. However, the Court did not have to answer whether each set of married persons took as tenants by the entirety as that determination was not necessary to the decision (280 App.Div. at 141, 112 N.Y.S.2d 354).

The "language in a deed must be so interpreted and applied as to be meaningful and valid." Lipton v. Bruce, 1 N.Y.2d 631, 636, 154 N.Y.S.2d 951, 136 N.E.2d 900 (1956); Real Property Law § 240(3). Generally, the interests obtained from the deed are construed in accordance with the language contained in the instrument and parol proof is inadmissible to vary or contradict its terms. 43 N.Y.Jur.2d, Deeds, § 241.

Plaintiff urges that any factual issues can be dealt with after the sale of the property with adjustments made in an accounting. Goldberg v. Goldberg, 173 A.D.2d 679, 570 N.Y.S.2d 333 (2d Dep't 1991); 24 N.Y.Jur.2d, Cotenancy & Partition, §§ 242-47. This result, of course, begs the issue of what interest the plaintiff actually holds and does not take into account the fact that the defendants and their teenage son reside at the premises. Plaintiff and his deceased wife, while alive, also resided at the premises from the date of purchase. Plaintiff no longer resides at the subject property. The parties sharply dispute the monetary amount of their contributions over the years.

While the language in the deed under review is subject to differing interpretations as to whether two tenancy by the entireties were created or four joint tenancies, the Court concludes that what was created by the terms of the deed was a joint tenancy among all four persons. This is clearly demonstrated by use of the...