Orlando v DePrima

2008 NY Slip Op 28512 [22 Misc 3d 987]

December 18, 2008

Kramer, J.

Supreme Court, Kings County

As corrected through Monday, April 27, 2009

[*1]

Joanne Desmond Orlando, Plaintiff, v Denise DePrima,Formerly Known as Denise Desmond, et al., Defendants.

Supreme Court, Kings County, December 18, 2008

APPEARANCES OF COUNSEL

James I. Williams, Brooklyn, for plaintiff. Harvey Sorid, Uniondale, forDenise DePrima, defendant. Wingate, Kearney & Cullen, Brooklyn, for JohnDesmond Jr., defendant.

Herbert Kramer, J.

{**22 Misc 3d at 988}When a tenant holding property in ajoint tenancy with rights of survivorship dies during the pendency of a partition proceeding, is thetenancy deemed severed such that the heirs may claim an interest in the property?

The now deceased plaintiff and the two defendants were siblings and joint tenants in aproperty that is the subject of this action for partition. The partition action proceeded only so faras the entry of an order appointing a referee to take an accounting when plaintiff died. Noaccounting was made and no sale was had and no final judgment of partition was entered.

Plaintiff's husband, the executor of her estate, moves for an order substituting him in thisaction and for a declaratory judgment that as plaintiff's successor in interest he has an interest inthe subject property and is entitled to partition. He argues that an order of this court directingpartition defined the rights of the parties and granted partition. The defendants oppose, arguingthat the partition action did not ripen sufficiently so as to sever the joint tenancy. They argue thatit is therefore only the two surviving defendants that have claims upon the property since thedeath of their joint tenant extinguished the interest of any of her heirs or successors.

In August of 2004, the decedent commenced an action in partition against her two siblingjoint tenants. In December of 2004 the decedent moved for summary judgment in the partitionaction and defendant DePrima sought summary judgment on the grounds of adverse possession.In June of 2005 this court denied defendant DePrima's motion and granted the decedent's motionfor partition as a matter of right. Contrary to the contention of plaintiff's executor suchdetermination did not constitute a final judgment of partition, but rather a [*2]determination that the movant wasentitled to proceed with the partition action—an essential component of which is theappointment of a referee to make an accounting. (Tedesco v Tedesco, 269 AD2d 660 [3dDept 2000]; Worthing v Cossar, 93 AD2d 515 [4th Dept 1983].) Thus, in that June order,the parties were invited to make an appropriate application as to the claims that remained to beresolved. In June of 2006 an order designating a referee in the partition action issued upon themotion made by John Desmond Jr. that was granted on default. No further action was taken andthe plaintiff passed away on August 6, 2006.

"[T]he apparently universal rule in this country is that a pending suit for partition ofa joint tenancy does not survive the death of one of the tenants.{**22Misc 3d at 989} This rule is compelled by two related concepts: first, the theory ofsurvivorship - that at the moment of death title to the property vests exclusively in the survivingjoint tenant or tenants; and second, the doctrine that severance of the joint tenancy does not occuruntil the suit for partition reaches final judgment. Therefore, unless partition has been decreedbefore the death of the joint tenant, no interest in the property remains in the representatives ofthe decedent which can support an action for partition." (Cobb v Gilmer, 365 F2d 931,933 [DC Cir 1966], quoted by Rusnak v Phebus, 2008 WL 2229514, *4, 2008 Tenn AppLEXIS 328, *10-11 [2008].)

The same rule is essentially acknowledged by New York courts with some fact dependentprovisos. (See Ellison v Murphy, 128 Misc 471 (Sup Ct, Chemung County 1927];Zalewski v Zalewski, 118 Misc 346 [Kings County Ct 1922]; O'Brien v O'Brien,89 Misc 2d 433 [Sup Ct, Oneida County 1976].) In Ellison (at 472), the court denied theexecutor's demand for partition, applying the rule in the most straightforward manner, holdingthat "the commencement of the action amounted to no more than a request by the plaintiff thatthe court order the property to be sold, and that no severance would occur until the granting of ajudgment in the action decreeing a partition and sale." In O'Brien (at 434), a case uponwhich the movant relies heavily, the court acknowledged the general rule but found an exceptionin the fact that unlike the circumstances at bar, the parties had stipulated to all of the pertinentfacts and all that remained to be done was a computation of the "interest[s] and liabilities of thejoint tenants" and as such "the referee's actions were mere formalities and the partition was byconsent." Indeed dispositive in this determination was that all the "parties [had] consented topartition . . . . [and w]hen the parties agree, in writing, that there shall be a partitionit is not necessary that it be reduced to judgment or prescribed in a deed." (Id.)

Finally, in Zalewski (at 347), the plaintiff in a partition action died between theinterlocutory judgment and the sale, and by way of dicta, the Zalewski court opined thatan

"interlocutory judgment in partition is to all intents and purposes a final judgment.It cannot be made otherwise than a final judgment by merely calling it something else. It declaresthe right, share or interest of each party in the property, and directs a sale{**22 Misc 3d at 990} . . . All subsequent procedure is inaccordance with the terms of the interlocutory judgment and of the statute . . . At notime is the plaintiff called upon to take any further procedural step. The sale is conducted by areferee, upon whose shoulders is also placed the duty of publishing the notice of sale. Any partywhose interest in the property has been adjudicated by the interlocutory judgment may move forconfirmation of sale and for the so-called final judgment; although the latter is, in its true intentand meaning, an order supplemental to judgment, made for the purpose of confirming theprocedure, and which carries the provision of the latter into effect . . . If a party ininterest dies following the [*3]interlocutory judgment, the share of such party may be claimed byhis or her personal representatives, even though the final judgment may have been enteredwithout knowledge of the death of such party."

Thus, the question that needs to be answered in the case at bar is whether, as the movantargues, this court's decision of June of 2005 granting the motion for partition, or the default orderthat issued in June of 2006 appointing a referee to ascertain the rights, shares andinterests of the various parties would constitute an interlocutory judgment that "declaresthe right, share or interest of each party in the property, and directs a sale" (id.[emphasis added]).

This court holds that no judgment either interlocutory or final was entered in this case. Thestatutory scheme describing the partition procedure clearly indicates this, as it describes the orderthat issued at bar that calls for a reference to ascertain the rights, shares and interests of theparties in the property as one that issues before interlocutory judgment is rendered (RPAPL 911),and further recites that an "interlocutory judgment shall determine the right, share or interest ofeach party in the property, as far as the same has been ascertained." (RPAPL 915.) No suchjudgment issued in this matter. Moreover, and contrary to counsel's contention, this matter washotly disputed and could hardly be characterized as one in which there was a virtual agreementbetween the parties. The affidavit submitted by the plaintiff's executor reveals that any attemptsto settle this matter between the siblings met with abject failure.

Accordingly, the motion by Frank E. Orlando is granted to the extent that it seeks tosubstitute the executor, Frank E.{**22 Misc 3d at 991} Orlando,of the estate of Joanne Desmond Orlando for the recently deceased plaintiff, Joanne DesmondOrlando, and restore this matter to the active court calendar. However, his request for adeclaration that he has an interest in this property and is entitled to partition is denied.

The cross motion made by John Desmond Jr. for a declaration that John Desmond Jr. has aone-half interest in the property located at 492 19th Street, Brooklyn, New York (hereinafter,property) and that defendant Denise DePrima has the remaining one-half interest in this propertyis granted.

It is thus hereby ordered, adjudged and declared that the plaintiff's executor Frank E. Orlandohas no interest in this property and is not entitled to partition; John Desmond Jr. has a one-halfinterest in the property; and Denise DePrima has the remaining one-half interest in the property.

The parties are to proceed in accordance with this court's order of June 9, 2006 whichordered a reference in this matter.