Nicholas Granitta v. Florence Banks a/k/a Elizabeth Banks et al. (2011)

MEMORANDUM OF DECISION

This is a summary process action based on right or privilege terminated.   The case was tried on February 22, 2011.   The Court has weighed all the evidence and assessed the credibility of the witnesses.   Based on the evidence presented, the Court makes the following findings regarding the respective claims and defenses.

The Court finds that the plaintiff had ownership of the subject property by virtue of the Committee Deed approved by the court on December 14, 2010.   A court's order of judgment can only be changed or abridged by another court order or judgment.   To find that said ownership is tempered or made defective by the Motion to Open filed by the defendant, Florence Banks, would put the plaintiff's ownership in limbo for possibly months or years to come.   Furthermore, the defendants have not provided any case law to support a finding by this court that said motion is enough to stay this court's proceeding.

The plaintiff took his actions in this matter with a deed signed and approved by a Superior Court Judge giving him right and title to the property.   In accordance with the statutes concerning summary process proceedings, he then served and filed the proper papers to commence this action.   The Court finds that the plaintiff has proved, by a fair preponderance of the evidence, all the elements of the case.

This Court finds that the defendants have not proved, by a fair preponderance of the evidence, their defense that the filing of the Motion to Open the Judgment in the partition by sale case causes the plaintiff to have a defective title to the property.   Although it does not impact the rationale for the court's decision in this matter, it should be noted that the defendants' Motion to Open was denied by the court, Mintz, J., on February 10, 2011, allowing the judgment of the court of July 16, 2010 and the Committee Deed of December 14, 2010 to stand.   Additionally, the Court is not persuaded by the defendants' defense of adverse possession.

Having considered the law and equity, the Court enters judgment for the plaintiff for immediate possession.

Moore, J.

Moore, Sheridan, J.