CARDOZO v. WLASIUK (2004)

Plaintiff Joyce Cardozo, as administrator of the estate of Patricia Wlasiuk, presently moves for summary judgment on her cause of action seeking to compel the determination of claims to certain real property pursuant to Article 15 of the Real Property Actions and Proceedings Law (hereinafter “RPAPL”).   Specifically, plaintiff seeks a judgment declaring that defendants Peter J. McBride, Esq. and Frederick J. Neroni, Esq., hold no valid interest in the former marital residence of defendant Peter Wlasiuk and decedent Patricia Wlasiuk.   Defendant Wlasiuk defaulted on the Complaint and offers no opposition to the present motion.   Defendant McBride also offers no opposition to the present motion, but rather offers by way of affirmation to discharge his mortgage in return for the payment of the mortgage recording fees by plaintiff.   Defendant Neroni opposes the present motion by his affirmation dated March 8, 2004, but did not appear before the Court for oral argument on April 2, 2004.

PROCEDURAL HISTORY/STATEMENT OF FACTS

The Complaint in this action was filed with the Chenango County Clerk on January 2, 2003.   Defendant McBride interposed an Answer dated January 7, 2003, and defendant Neroni filed an Answer and Counterclaims dated January 10, 2003.   Defendant Wlasiuk did not answer the Complaint and is in default.

Defendants McBride and Neroni moved separately to dismiss the causes of action in the Complaint which sought to declare invalid any interest they might claim in the Wlasiuk's former marital residence as a result of a mortgage and a deed, respectively, conveyed to them by defendant Wlasiuk in exchange for their legal services.   The Court denied those motions by its Reserved Decision dated June 24, 2003.   The full factual background of this case is set forth in that Reserved Decision, which is incorporated herein by reference.

RELEVANT LAW/ANALYSIS

 Analysis of the issue presented by this case what, if any, interest did defendant Wlasiuk hold in the marital residence following the death of his co-tenant by the entirety, decedent Patricia Wlasiuk begins with the well-settled concept that no person who kills his or her spouse may profit or gain an increased interest in property because of the wrongful act.  Riggs v. Palmer, 115 N.Y. 506, 22 N.E. 188 (1889), Matter of the Estates of Covert, 279 A.D.2d 48, 49, 717 N.Y.S.2d 392 (3d Dept.2000), affirmed 97 N.Y.2d 68, 735 N.Y.S.2d 879, 761 N.E.2d 571 (2001).   However, in the 115 years since Riggs was issued, New York law has not developed a clear answer to this natural question that arises when a spouse holding property as a tenant by the entirety kills the co-tenant spouse.

Plaintiff urges, using the Riggs rule as the cornerstone, that defendant Wlasiuk should be found to have forfeited any interest he may have held in the Wlasiuk's marital residence property held as tenants by the entirety because he cannot be allowed to obtain a benefit from his wrongful act of killing his wife, decedent Patricia Wlasiuk.   Several reported cases have stated the rule that a person who slays his or her spouse forfeits any interest that the spouses held in jointly-owned property.  Bierbrauer v. Moran, 244 App.Div. 87, 279 N.Y.S. 176 (4th Dept.1935), Matter of Estate of Pikul, 192 A.D.2d 259, 601 N.Y.S.2d 113 (1st Dept.1993), Citibank v. Goldberg, 178 Misc.2d 287, 679 N.Y.S.2d 237 (Sup.Ct. Nassau 1998).   Underlying these decisions is the theory that permitting the slayer to retain any interest in the property after commission of the wrongful act of slaying the co-tenant spouse allows the slayer to gain an accelerated ability to alienate the whole property, which is a right not available while both co-tenants survive.

 Defendant Neroni argues that, notwithstanding the above-cited decisions, such a result cannot be reached as a matter of law and maintains that defendant Wlasiuk held the commuted value of a life estate in one-half of the property.  Matter of Estate of Mathew, 270 A.D.2d 416, 706 N.Y.S.2d 432 (2d Dept.2000), Community Nat'l. Bank & Trust Co. of N.Y. v. Wisan, 185 A.D.2d 870, 586 N.Y.S.2d 1000 (2d Dept.1992), Matter of Estate of Nicpon, 102 Misc.2d 619, 424 N.Y.S.2d 100 (Erie Cty. Surr. Ct.1980), Matter of Estate of Busacca, 102 Misc.2d 567, 423 N.Y.S.2d 622 (Nassau Cty. Sur. Ct.1980).   This argument rests on the principle that the individual property interests held by spouses who own property as tenants by the entirety as having a life estate in the subject property, subject to the right of survivorship of the co-tenant spouse.  Reister v. Town Board of Fleming, 18 N.Y.2d 92, 96, 271 N.Y.S.2d 965, 218 N.E.2d 681 (1966) (Van Voorhis, J., dissenting).

Because this right was vested in Defendant Wlasiuk at the time he wrongfully killed decedent Patricia Wlasiuk, he cannot be made to forfeit this property interest solely on the basis of his wrongful act.  Civil Rights Law 79-b.   The essence of this argument is best summed up in dicta from the Court of Appeals in the Covert case stating “(t)he Riggs rule prevents wrongdoers from acquiring a property interest, or otherwise profiting from their wrongdoing.   However, we have never applied the doctrine to cause a wrongdoer's forfeiture of a vested property interest.”  Matter of the Estates of Covert, 97 N.Y.2d 68, 74, 735 N.Y.S.2d 879, 761 N.E.2d 571.¹

 Because of this prohibition against forfeitures, it would be improper to apply the legal fiction that defendant Wlasiuk pre-deceased decedent Patricia Wlasiuk as has been done in past cases where the Riggs principle has been applied.   The legal fiction would result in the entire fee interest passing to the estate of decedent Patricia Wlasiuk.   While this may appear to yield the most equitable result in light of defendant Wlasiuk's wrongful act, law supercedes equity here and compels that defendant Wlasiuk cannot be stripped of his vested interest in the property.   Thus, defendant Wlasiuk must be found to have possessed an interest in the marital residence equal to the commuted value of a life estate in one-half of the property at the time he conveyed mortgages to defendants McBride and Neroni.

Accordingly, for the reasons set forth, plaintiff's motion for summary judgment is denied insofar as the motion seeks to extinguish all of defendant Wlasiuk's interest in the former marital residence.   Pursuant to Real Property Actions and Proceedings Law § 1501, it is hereby determined that at the time of the conveyances to defendants McBride and Neroni, defendant Wlasiuk held an interest in the former marital residence equal to the commuted value of a life estate in one half of the subject property.   Upon the filing of a Note of Issue, an evidentiary hearing shall be held to determine the value of the interests conveyed to defendants McBride and Neroni by defendant Wlasiuk and the corresponding rights of defendants McBride and Neroni to share in the proceeds of an eventual sale of the subject property.

This decision shall also constitute the Order of this Court.

FOOTNOTES

1.   The Court further noted that Civil Rights Law 79-b prevents the application of the Riggs rule for the purpose of “effecting a proprietary forfeiture.”

WILLIAM F. O'BRIEN, III, J.