| Lauriello v Gallotta |
| 2009 NY Slip Op 01087 [59 AD3d 497] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Christopher M. Lauriello et al., Respondents, v MarthaGallotta, Appellant, et al., Defendants. |
—[*1] Michael J. Good, Brooklyn, N.Y., for respondents.
In an action to quiet title to several parcels of real property, the defendant Martha Gallottaappeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated February 28,2008, which denied her motion pursuant to CPLR 3126 to dismiss the complaint, or in thealternative, pursuant to CPLR 3124 directing the plaintiff Louis J. Lauriello to appear for adeposition, denied her separate motions pursuant to CPLR 3103 and 3111 to issue opencommissions to take the depositions of Josephine Hoffmann and Joseph Mattera in the states ofNew Jersey and Ohio, respectively, granted that branch of the plaintiffs' cross motion which wasfor summary judgment declaring that the plaintiff Christopher M. Lauriello and the plaintiffLouis J. Lauriello are each the owner of a 25% interest in certain real property located inBrooklyn, and denied her separate cross motion for summary judgment declaring that she is thesole owner of certain real property located in Mountain Lodge in the Town of Blooming Grove.
Ordered that the order is affirmed, with costs.
The defendant Martha Gallotta (hereinafter the defendant) owned two parcels of realproperty with her cousin, the decedent Louise Lauriello (hereinafter the decedent). One parcel islocated on Sackett Street in Brooklyn (hereinafter the Brooklyn property) and the other is locatedin the Town of Blooming Grove in Orange County (hereinafter the Blooming Grove property).The defendant and the decedent originally held title to the Brooklyn property as joint tenants.Prior to the decedent's death, the form of ownership was changed to a tenancy in common. Whenthe decedent died, her will devised her one-half interest in the Brooklyn property to the plaintiffsChristopher M. Lauriello and Louis J. Lauriello, who contend that they each now own anundivided 25% interest in the Brooklyn property.[*2]
The Supreme Court properly granted that branch of theplaintiffs' cross motion which was for summary judgment declaring that they each own anundivided 25% interest in the Brooklyn property. The plaintiffs established their entitlement tojudgment as a matter of law by showing that the decedent and the defendant signed a deedtransferring an undivided 25% interest in the Brooklyn property to each of them as tenants incommon. The plaintiffs established that the defendant was not fraudulently induced to sign thedeed (see Dalessio v Kressler, 6AD3d 57, 61 [2004]), and that the transfer was neither the result of undue influence norunconscionable (see Hearst v Hearst,50 AD3d 959, 961-962 [2008]). Contrary to the plaintiffs' contention, statements of adecedent are not rendered inadmissible under the "Deadman's Statute" (see CPLR 4519)when offered in opposition to a motion for summary judgment (see Rosado v Kulsakdinun, 32 AD3d282, 284 [2006]; Beyer v Melgar,16 AD3d 532, 533 [2005]; Salemo v Geller, 278 AD2d 104 [2000]).Nevertheless, even if the decedent's alleged statements were considered in opposition to thatbranch of the plaintiffs' cross motion which was for summary judgment, the defendant failed toraise a triable issue of fact warranting denial of that branch of the cross motion (see generallyFriends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]).
Furthermore, that branch of the plaintiffs' cross motion which was for summary judgmentwas not premature, since the defendant failed to offer an evidentiary basis to suggest thatdiscovery might lead to relevant evidence. Her hope and speculation that evidence sufficient todefeat that branch of the cross motion might be uncovered during discovery was insufficient todefeat that branch of the cross motion (see Conte v Frelen Assoc., LLC, 51 AD3d 620, 621 [2008]; Kimyagarov v Nixon Taxi Corp., 45AD3d 736, 737 [2007]).
The court properly denied the defendant's separate cross motion for summary judgmentdeclaring that she is the sole owner of the Blooming Grove property. The defendant failed toovercome the presumption that she and the decedent owned that property as tenants in common,and not as joint tenants, as she failed to establish by clear and convincing evidence that a jointtenancy, rather than a tenancy in common, was intended to be created (see Estate of Menon vMenon, 303 AD2d 622, 623 [2003]).
The defendant's remaining contentions have been rendered academic or are without merit.Prudenti, P.J., Dillon, Covello and Leventhal, JJ., concur.