Topilow v. Peltz
| Decision Date | 11 June 1964 |
| Citation | 43 Misc.2d 947,252 N.Y.S.2d 530 |
| Parties | Irving A. TOPILOW, Plaintiff, v. Ellen C. PELTZ and Philip Peltz, Defendants. |
| Court | New York Supreme Court |
Scaduto, Baratta & Solleder, Mineola, for defendants.
Garrell & Garrell, New York City, for plaintiff.
In this action for the partition of realty (first cause of action) and partition of personalty (second cause of action) we have to do with only the first cause, in which both parties move for summary judgment.
It appears that plaintiff who was formerly married to defendant, Ellen C. Peltz, procured a Nevada decree of divorce without personal service or appearance by her and thereafter remarried.
It further appears from the amended verified answer of the defendants for which leave to serve is hereby granted, that Ellen Peltz has herself remarried.
The subject of the first cause of action is the former home of the parties to which they took title as tenants by the entirety.
To support his thesis that a tenancy by the entirety cannot continue to exist in New York real estate after a foreign divorce decree whether the court had jurisdiction of the defendant or not, plaintiff relies on Ninth Federal Savings & Loan Ass'n of New York City v. Thuna, 36 Misc.2d 742, 233 N.Y.S.2d 753. That case involved a surplus money proceeding and could have been decided solely on the basis that the tenancy by the entirety does not continue in 'surplus money'. (Hawthorne v. Hawthorne, 13 N.Y.2d 82, 242 N.Y.S.2d 50, 192 N.E.2d 20.)
Insofar as it fails to recognize the point made in Huber v. Huber, 26 Misc.2d 539, 209 N.Y.S.2d 637, that you cannot constitutionally cut off the property right of survivorship, which is a personal right, by an in rem decree, it seems unsound.
It is an oversimplification to say that since you need a husband/wife relationship to support a tenancy by the entirety, it lapses with divorce. This fails to recognize the entrenched concept of divisible divorce and the now universally accepted law that parties can be divorced for one purpose and not for another. (Vanderbilt v. Vanderbilt, 1 N.Y.2d 342, 153 N.Y.S.2d 1, 135 N.E.2d 553, affd. 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456).
However, it seems to me that while defendant might have rested on her rights as long as she remained single, her remarriage and voluntary recognition of the Nevada decree precludes her from doing so now. The same party cannot simultaneously claim that a decree is both valid and invalid.
For one thing a tenancy by the entirety can be brought to an end by the voluntary act of both tenants at any time and when they both remarry on the strength of a foreign decree of divorce, it can fairly be said that they are doing just that.
Secondly the remarriage creates a species of estoppel which disables the defendant from...
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...not apply (Albin v. Albin, 26 Misc.2d 383, 208 N.Y.S.2d 252, aff'd, 12 A.D.2d 933, 212 N.Y.S.2d 725 (2nd Dep't 1961); Topilow v. Peltz, 43 Misc.2d 947, 252 N.Y.S.2d 530, aff'd 25 A.D.2d 874, 270 N.Y.S.2d 116 (2nd Dep't 1966)). The court here holds that plaintiff's instituting the proceeding......
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...ordinary rights of survivorship changed as they mutually agree. Sterns v. Stevans, 20 Misc.2d 417, 194 N.Y.S.2d 367; Topilow v. Peltz, 43 Misc.2d 947, 252 N.Y.S.2d 530; aff'd 25 A.D.2d 874, 270 N.Y.S.2d 116. See also, Azzara v. Azzara, 1 App.Div.2d 1012, 151 N.Y.S.2d 458, leave to appeal de......
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