NYCTL 2018 TRUST v. DETOY (2022)

In this tax lien foreclosure action, 21 Bronx, a limited liability company (“21 Bronx”) moves for leave to reargue the denial of its prior motion, dated January 24, 2022 for an order/judgment: (i) pursuant to CPLR 1021, substituting 21 Bronx as a party defendant in the place and stead of “John Doe No. 1,” and amendment of the caption; (ii) pursuant to CPLR 3025 (c), amending the cross-claim to conform to the evidence; and (iii) pursuant to CPLR 3212, granting 21 Bronx summary judgment against those “John Doe” defendants intended to be the heirs-at-law of Elizabeth Burke, a/k/a Elizabeth Ann Burke (“Burke”).

A motion for leave to reargue a prior motion pursuant to CPLR § 2221 is addressed to the sound discretion of the Court and may be granted upon a showing that the Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (Oparaji v. Yablon, 159 AD3d 539, 70 N.Y S.3d 44 (1st Dept. 2018).

In its decision dated September 8, 2022, denying summary judgment to 21 Bronx, this Court determined that 21 Bronx failed to make a prima facie showing of entitlement to judgment as a matter of law declaring that it is, as set forth in the cross-claim, one hundred (100%) percent owner of the subject property. The Court explained that there was no credible evidence that there was a legitimate conveyance of the subject property, or that the property was conveyed in accordance with the will of the decedent. In the decision, the Court overlooked the other branches of the motion, and did not address them. As such, 21 Bronx's motion for reargument is granted and the decision is hereby vacated.

In its motion for reargument, 21 Bronx maintains that it is a party defendant and that it is entitled to summary judgment based on its legitimate acquisition of the property, and that this court overlooked or misapprehended the relevant facts or misapplied the relevant law in denying its summary judgment motion.

By deed dated September 24, 1990, Burke, in her capacity as the Executrix of the Estate of Mary Burke, conveyed the premises, a two-family house located at 250 West 260th Street, in Bronx County (“subject premises”), to herself. Burke died on January 13, 2010. Pursuant to her will, which has not been probated to date, Burke devised all of the real estate she owned, which specifically included the subject premises, to her cousin, Agnes McHale.

A deed dated December 11, 2019 purportedly conveyed the subject premises from Agnes McHale to 2016-1 PNW Corp. This deed raises the following concerns for the Court: (1) The grantor/seller is not named Agnes McHale, but it is a Bridget Agnes McHale, residing at an address in Ireland; (2) although the subject premises are located in New York, the subject deed was executed in Virginia and notarized by a Virginia notary who in the acknowledgment on the deed refers to this Bridget Agnes McHale, as a male not a female; and (3) the notary in her acknowledgment stated that this Bridget Agnes McHale appeared before her, yet it is an E-filed signature of this Bridget Agnes McHale that appears on the deed.

Following the aforementioned December 11, 2019, purported conveyance, a deed dated June 30, 2021, then purportedly conveys the subject premises from 2016-1 PNW Corp. to the movant of this motion, 21 Bronx LLC.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issues of fact (Winegrad v New York University Medical Center, 64 NY2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. The burden on the movant is a heavy one, and the facts must be viewed in the light most favorable to the non-moving party (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824 [2014]). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the instant case, the record shows that Burke executed a will which upon her death in 2010, left her interest in the subject property to her cousin, Agnes McHale. In 2019, a Bridget Agnes McHale purportedly conveyed the subject premises to 2016-1 PNW Corp., even though the Burke will was never probated. 21 Bronx argues that as the owner of the subject premises, “McHale” had the absolute right to convey the subject premises to whomsoever she chose, upon such terms as were acceptable to her.

Contrary to movant's contention, while it is true that title to an estate's real property vests in beneficiaries at the moment of a testator's death, their title is qualified and subject to the executor's power to sell the property to satisfy the debts and obligations of the estate (Matter of Ballesteros, 20 AD3d 414, 415 (2d Dept 2005]; Matter of Katz, 55 AD3d 836, 836 [2nd Dept 2008]). Accordingly, “title does not fully vest in the legatee until a fiduciary gives an assent to its release.” (Estate of Coe Kerr, Jr., NYLJ Mar. 16, 1983, at 6, col.3 [Sur. Ct. NY County 1983]; see also Estate of Edwards, NYLJ Feb. 18, 2000, at 30, col. 2 (Sur. Ct. Kings County 2000) (“Even where a real property is specifically devised, title to the property remains in the decedent's name and remains an estate asset available for the payment of administration expenses and taxes, until the fiduciary gives assent to its release”).

Here, even if the Court were to find that Bridget Agnes McHale is the Agnes McHale listed in Burke's Will, “McHale's” alleged conveyance by deed, of her interest in the estate's real property, before the will was probated and without the executor of the Burke estate assenting to the conveyance, was premature and without legal authority.

The branches of the motion for substitution and amending the caption and cross-claim to conform to the proof to reflect that 21 Bronx LLC, rather than 2016-1 PNW Corp., is the party that was substituted for “John Doe No. 1, is denied in light of this Court's finding that the December 11, 2019, purported conveyance from Bridget Agnes McHale to 2016-1 PNW Corp. was without legal authority. 21 Bronx has not sufficiently established an interest in the subject premises so as to warrant intervention.

Accordingly, it is hereby

ORDERED, that 21 Bronx LLC's motion to reargue is granted; and it is further

ORDERED, that 21 Bronx LLC's motion is denied in its entirety.

This constitutes the Decision and the Order of the Court.

Adrian Armstrong, J.