Terrell v. Terrell

• Decision Date: 11 January 2001
• Citation: 719 N.Y.S.2d 41
• Parties: (A.D.1 Dept. 2001) Harry Terrell, etc., Plaintiff-Appellant, v. Felicia Terrell, Defendant-Respondent. 2045N : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 41

719 N.Y.S.2d 41 (A.D.1 Dept. 2001)

Harry Terrell, etc., Plaintiff-Appellant, v.Felicia Terrell, Defendant-Respondent.

2045N

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

January 11, 2001

Jack Stoller, for Plaintiff-Appellant.

Mel B. Ginsburg, for Defendant-Respondent.

Tom, J.P., Mazzarelli, Andrias, Ellerin and Lerner, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County(Gerald Esposito, J.), entered July 17, 2000, which, to the extent appealed, as limited by the briefs, denied plaintiff's motion for a preliminary injunction staying defendant from taking any action to enforce or execute upon the judgment or warrant of eviction arising out of certain Housing Court proceedings, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, and the preliminary injunction granted.

The parties, uncle and niece, dispute ownership of a house located at 3531 Grace Avenue, Bronx, N.Y. Zula Mae Terrell owned the house until her death on July 17, 1997.On September 9, 1995Zula Mae executed a will in which she devised the property to her son, plaintiffHarry Terrell.She also named him executor of her will.On April 15, 1997, Zula Mae executed a quitclaim deed conveying the same property to her granddaughter, defendantFelicia Terrell, plaintiff's niece.Both Harry and Felicia lived in the house with Zula Mae for various periods of time preceding her death.

In February 1999, Felicia commenced a licensee holdover proceeding against Harry in Housing Court which was settled.In the stipulation of settlement, Harry agreed to the entry of a warrant of eviction against him, which was stayed until September 9, 1999.The stipulation was without prejudice to Harry's claims of ownership, and permitted him to remain in the house during the stay without paying use and occupancy.It also provided that Harry would bring an action in Supreme Court within three months of the settlement to challenge the validity of the quitclaim deed.

The complaint in this action alleges that Zula Mae did not have the mental capacity to execute the quitclaim deed when she signed it.Harry also moved for a preliminary injunction staying Felicia from evicting him during the pendency of the action.In support of his motion, plaintiff cited Bridgeport Hospital records, where Zula Mae was treated from March 10, 1997 to April 3, 1997.These records contained numerous references to Zula Mae's periodic confusion as to person, place and time, and to her lack of understanding as to why she was in the hospital.The medical history portion of Zula Mae's hospital records also contains references to dementia, impaired memory, the onset of slurred speech and "mental status changes".Notes from the hospital discharge planning conferences also reveal that Zula Mae's family members, including Felicia, were explicitly made aware of her declining mental status.Harry, however, did not participate in these conferences.

In opposition to the motion for a preliminary injunction, Felicia submitted an affidavit in which she asserted that Zula Mae was fully competent when she deeded the house to her, and that Zula Mae did so because Harry was mistreating her¹ and stealing her money².The quitclaim deed to Felicia was signed before two witnesses and a notary public.Defendant also asserted that she has taken care of the house and paid taxes on it since April 1997, while Harry, who is disabled³, has allowed it to deteriorate and may not be able to afford to keep it.The IAS court denied plaintiff's motion, finding that Harry did not adequately demonstrate a likelihood of success on the merits of his claim that Zula Mae lacked the mental capacity to deed the house to her granddaughter.This was an improvident exercise of discretion.

To obtain a preliminary injunction, Harry was required to establish (1) a likelihood of success on the merits of his claim that his mother lacked the mental capacity to execute the quitclaim deed; (2) irreparable injury in the absence of the...