DECKOFF v. MANNING FAMILY LIMITED PARTNERSHIP (2018)

In an action for specific performance of a contract for the sale of real property, the defendant and intervenor/defendants move for summary judgment dismissing the complaint, pursuant to CPLR 3212:

Papers Considered

Notice of Motion/Affidavit of Ghylaine Manning/Exhibit A/Affirmation of James E. Schwartz, Esq./Exhibits A–Y;

Affirmation of Joseph Aronauer, Esq. in Opposition/Exhibits A–K;

Amended reply memorandum of law.

Factual and Procedural Background

This action for specific performance of a contract for the sale of real property located at 326 Bedford Center Road, Bedford, New York, has a protracted litigation history.

The property was originally purchased in 1967 by Wilbur Manning and his first wife, Colette Manning, as tenants by the entirety. Wilbur and Colette had five children, the intervenors in this action: Chantal Baltzar; Scarlett Manning, Ghylaine Manning; Gregory Manning; and Gentiane Manning.

Subsequently, Wilbur and Colette entered into a separation agreement in the State of New York on July 26, 1968, and were divorced by a judgment rendered in Mexico on August 6, 1968.¹ The separation agreement was incorporated by reference but not merged into the divorce decree. As a result of the divorce, ownership of the property automatically converted to tenancy-in-common with Wilbur and Colette each owning an undivided 50% interest in the property. Colette remained living at the property.

Wilbur remarried and he and his second wife, Ruth Manning, had a child Curtis Manning. Wilbur Manning is the general partner of the W. Manning Family Limited Partnership (“Partnership”).

Over twenty-nine years later, on September 18, 1997, Colette executed a quitclaim deed which reads as follows: Colette “does, hereby, remise, release and quitclaim unto Wilbur C. Manning, and assigns forever, [a]ll of my undivided 50% interest in and to the undivided 50% interest of Wilbur C. Manning, in and to the following [property description] together with the appurtenances and all the estate and rights of the party of the First Part in and to said premises.” Colette and Wilbur acted pro se.

Colette Manning died on June 11, 2009.

Wilbur, again acting pro se, executed a quitclaim deed, dated August 3, 2010, which provides that Wilbur “does, hereby, remise, release and quitclaim unto W. Manning Family Limited Partnership, and assigns forever, [a]ll of my undivided interest in and to W. Manning Family Limited Partnership in and to the following [property description] together with the appurtenances and all the estate and rights of the party of the First Part in and to said premises.”

In August 2014, plaintiff, who lives next door to the property in question, entered into a contract of sale with the Partnership for the purchase of the property. The contract was executed by plaintiff and Wilbur Manning as the general partner of the Partnership. Wilbur Manning lost consciousness on September 22, 2014, and died on September 30, 2014.² On October 17, 2014, Wilbur's attorney returned to plaintiff's attorney an uncashed check in the amount of $47,000, representing the down payment.

Plaintiff commenced this action for specific performance against the Partnership with the filing of a summons and complaint on February 6, 2015. The Manning children previously moved to intervene and the defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(1) for failure to state a cause of action. In an order dated April 7, 2016, the Supreme Court, Westchester County (DiBella, J.), granted the Manning children's motion to intervene. As to the to the CPLR 3211 motion, the Court held:

With regard to the remainder of defendant's motion which seeks to dismiss the complaint contending that the contract was not fully executed and that the defendant does not have full and complete title to the property, it is denied. Defendant has not conclusively established based on documentary evidence that plaintiff's complaint lacks merit on the grounds asserted by defendant.

Motion for Summary Judgment

Defendants now move for summary judgment dismissing the complaint, pursuant to CPLR 3212. They argue that, as a matter of law, the Partnership has no ownership interest in the property. Defendants argue that Colette's 1997 quitclaim deed to Wilbur did not convey any of her interest in the property as it purports to convey Colette's undivided fifty-percent interest in Wilbur's undivided fifty-percent interest and Colette lacked any interest in Wilbur's undivided interest. Further, even if the quitclaim deed is rendered ambiguous, defendants argue that Colette and Wilbur's post-deed conduct demonstrates that the deed conveyed no property interest to Wilbur. Defendants also argue that Wilbur's 2010 quitclaim deed to the Partnership conveyed no interest in the Property.

Based upon the above arguments, defendants contend that the Partnership had either no ownership interest in the property, or at most, a 50% undivided interest in the property at the time it entered into the contract of sale with plaintiff, and therefore specific performance is not available.

In opposition, plaintiff argues that both the 1997 and 2010 quitclaim deeds demonstrate that the Partnership fully owns the property and that any parol evidence further confirms that the Partnership owns the property. Plaintiff also argues that the defendants have previously moved on the same issue which was denied by Justice DiBella.

Plaintiff and defendants agree that these are issues of law and not of fact.

Discussion

“The construction of deeds is a matter of law” (Blangiardo v. Horstmann, 32 AD3d 876, 879 [2d Dept 2006]; Hartmann v. Harris, 136 AD3d 977 [2d Dept 2016]). Real Property Law § 240 (3) provides that “[e]very instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law”. Parol evidence is inadmissible to explain, vary or contradict a deed which is clear and unambiguous (see Coleman v. Head of Harbor, 163 AD2d 456, 458 [2d Dept 1990]).

Where the language used in a deed is ambiguous such that it is susceptible to more than one interpretation, the courts will look beyond the written instrument to the surrounding circumstances (see Matter of New Cr. Bluebelt, Phase 4, 79 AD3d 888, 891 [2d Dept 2010]; De Paulis Holding Corp. v. Vitale, 66 AD3d 816, 818 [2d Dept 2009]).

As a result of the 1968 divorce, Wilbur and Colette owned the subject property as tenants in common, since their ownership as tenants by the entirety was extinguished as a matter of law (see Holley v. Hinson–Holley, 101 AD3d 1084 [2d Dept 2012]; Pando v. Tapia, 79 AD3d 993 [2d Dept 2010]; Goldman v. Goldman, 95 NY2d 120, 122 [2000]). However, possession of the premises remained with Colette.

By the 1997 quitclaim deed, Colette remised, released, and quitclaimed to Wilbur C. Manning all of her “undivided 50% interest in and to the undivided 50% interest of Wilbur C. Manning, in and to the following [property description] together with the appurtenances and all the estate and rights of the party of the First Part in and to said premises.”

The Court finds that the 1997 quitclaim deed is not ambiguous and that the intent of the parties can be discerned from the quitclaim deed itself. This is not a case where a deed contains different descriptions of property. Here, by the 1997 quitclaim deed, Colette conveyed to Wilbur her undivided 50% interest in any interest she held in Wilbur's undivided 50% interest to the property.

Whether Colette had no interest in Wilbur's undivided 50% interest in the property or whether Colette had some perceived interest in Wilbur's undivided 50% interest in the property, it was released and quitclaimed to Wilbur by the 1997 quitclaim deed. To that end, Real Property Actions and Proceedings Law 541 sheds light on this issue. Indeed, it is undisputed that Colette had exclusive occupancy of the property since the 1968 divorce. RPAPL 541 provides:

Where the relation of tenants in common has existed, the occupancy of one tenant, personally or by his servant or by his tenant, is deemed to have been the possession of the other, notwithstanding that the tenant so occupying the premises has acquired another title or has claimed to hold adversely to the other. But this presumption shall cease after the expiration of ten years of continuous exclusive occupancy by such tenant, personally or by his servant or by his tenant, or immediately upon an ouster by one tenant of the other and such occupying tenant may then commence to hold adversely to his cotenant

RPAPL 541, however, does not expressly indicate when the presumption of nonadverse possession ceases and the adverse possession period begins to run. In Myers v. Bartholomew, 91 NY2d 630 (1998), the Court of Appeals was faced with the question of whether, under RPAPL 541, a tenant in common in exclusive possession, who has not ousted the nonpossessory cotenant, must possess for ten years or twenty years before acquiring full title by adverse possession. The Court answered and held that “absent ouster, the period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may be said to acquire full title by adverse possession” (Myers v. Bartholomew, 91 NY2d at 638; see DeRosa v. DeRosa, 58 AD3d 794, 795 [2d Dept 2009] [“Where, as here, the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession] ). Colette had been in exclusive occupancy of the property since she and Wilbur divorced in 1968. Thus, consistent with the law, by 1997 Colette may be said to have acquired full title of the property by adverse possession since she had twenty years of continuous exclusive possession.

Here, this Court holds that the 1997 quitclaim deed evidences the intent of the parties that Colette release and quitclaim to Wilbur all of her undivided 50% interest in Wilbur's undivided 50% interest in the property. Nevertheless, Colette still retained an undivided 50% interest in the property.

There is nothing in the language of the 1997 quitclaim deed susceptible to more than one reasonable interpretation. Contrary to plaintiff's argument, the language of the 1997 quitclaim deed does not support the contention that Colette conveyed only her undivided 50% interest in the property to Wilbur thereby rendering Wilbur the exclusive owner of the property. Plaintiff bases his argument on the language in the quitclaim deed following the metes and bounds description which states, “together with the appurtenances and all the estate and rights of the party of the First Part [Colette] in and to said premises.” However, this language does not indicate any intent by Colette to convey her entire ownership interest in the property to Wilbur. In order to accept plaintiff's contention, the Court would have to ignore the phrase “in and to the undivided 50% interest of Wilbur C. Manning” recited in the quitclaim deed.

Even if the language in the 1997 quitclaim deed could be susceptible to more than one reasonable interpretation, the extrinsic evidence produced on this record demonstrates the parties' intent that Colette retain her 50% interest in the property. Colette remained in possession of the property until her death in 2009. Moreover, in her will, drafted in 2007, she bequeaths her interest in the property to her children.

“[W]hen a cotenant who has a partial interest in real property executes a deed that purports to convey full title to the property, the deed is not entirely void; rather, the deed is effective, but only to the extent of conveying the grantor's interest in the property” (Bayview Loan Servicing, LLC v. White, 134 AD3d 755, 756 [2d Dept 2015]). Thus, since Wilbur only had a 50% interest in the property at the time he executed the August 2010 quitclaim deed, the 2010 quitclaim deed—if it conveyed anything at all to the Partnership—could only at most effectively convey a 50% interest in the property.

Inasmuch as a “grantor cannot convey title to property which he or she does not possess” (Matter of New Cr. Bluebelt, Phase 4 79 AD3d 888, 891 [2d Dept 2010]), the Partnership cannot convey full title to the property to the plaintiff. Moreover, the contract of sale cannot be binding upon the heirs of Colette to affect their retained 50% undivided interest in the property. Therefore, specific performance of the contract is not available.

As a result of the foregoing, the defendants' motion for summary judgment is GRANTED and the complaint is DISMISSED.

FOOTNOTES

1.   While the Judgement of Divorce has been attached to defendants' motion as an exhibit, the separation agreement has not been made a part of this record.

2.   The issue of whether the contract is valid is not raised on this motion for summary judgment, therefore, the facts concerning the negotiation of the terms of the contract will not be discussed herein.

William J. Giacomo, J.