| Kaliontzakis v Papadakos |
| 2010 NY Slip Op 00478 [69 AD3d 803] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Haralambos Kaliontzakis, Appellant, v George Papadakos,Respondent. |
—[*1] Ginsburg & Misk, Queens Village, N.Y. (Hal R. Ginsburg of counsel), forrespondent.
In an action to reform a deed, the plaintiff appeals from an order and judgment (one paper)of the Supreme Court, Queens County (Kugelman, Ct. Atty. Ref.), entered April 3, 2009, which,after a nonjury trial, and upon the granting of the defendant's motion pursuant to CPLR 4401 forjudgment as a matter of law made at the close of evidence, is in favor of the defendant andagainst him dismissing the complaint, and vacated a notice of pendency filed in connection withthe subject real property.
Ordered that the order and judgment is affirmed, with costs.
The plaintiff and the defendant were longstanding business associates who together operateda restaurant. In February 1986 the defendant became the title owner of certain real property inAstoria (hereinafter the subject property) pursuant to a deed. The previous owner was theplaintiff's then father-in-law. In 2005 the plaintiff commenced this action to reform the deed,alleging, inter alia, that, at the time that the defendant purchased the subject property in 1986, theplaintiff had furnished one half of the purchase price and, as an accommodation to the plaintiff,title to the subject property was placed in the defendant's name alone. According to the plaintiff,the defendant acknowledged in writing that the plaintiff was a 50% owner of the subject propertyas a tenant-in-common with the defendant, but that the defendant refused to convey the subjectproperty to the plaintiff upon his demand.
A nonjury trial was conducted before a court attorney referee (hereinafter the referee), whoheard the testimony of the parties, as well as that of three nonparty witnesses. After the trialconcluded, the referee granted the defendant's motion pursuant to CPLR 4401 for judgment as amatter of law. The Supreme Court entered an order and judgment dismissing the complaint andvacating a notice of pendency filed in connection with the subject property. The plaintiff appealsfrom the order and judgment, and we affirm.
In reviewing a determination made after a nonjury trial, the power of this Court is as broadas that of the trial court, allowing this Court to render the judgment it finds is warranted by thefacts (see [*2]Northern Westchester Professional Park Assoc.v Town of Bedford, 60 NY2d 492 [1983]; Zegarowicz v Ripatti, 67 AD3d 672 [2009]; Stevens v State ofNew York, 47 AD3d 624, 624-625 [2008]). Here, the determination of the Supreme Courtwas warranted by the facts.
"The purpose of reformation is to restate the intended terms of an agreement when thewriting that memorializes the agreement is at variance with the intent of both parties" (M.S.B. Dev. Co., Inc. v Lopes, 38AD3d 723, 725 [2007]). The burden is on the proponent of reformation to establish causefor such relief by clear and convincing evidence (see Shults v Geary, 241 AD2d 850, 852[1997]). Thus, in order to establish cause for reformation of the 1986 deed, the plaintiff here wasrequired to show that the deed, naming the defendant as the title owner, did not reflect the trueintent of the parties at that time (see M.S.B. Dev. Co., Inc. v Lopes, 38 AD3d at 725).
The Supreme Court properly dismissed the complaint since the plaintiff failed to make therequisite showing for reformation of the 1986 deed. The plaintiff admitted at trial that, in 1986,due to problems he was having with his wife, he wanted the defendant to be the title owner of thesubject property. It is undisputed that the deed named the defendant as the sole owner, thusaccomplishing the parties' intent at that time.
At trial, the plaintiff offered into evidence a photocopy of a document dated May 3, 2000,denominated "Memorandum" (hereinafter the 2000 memorandum), which purportedly wassigned by both parties, and which recited that the defendant acknowledged that the plaintiff wasa 50% owner of the subject property. The trial court, in sustaining the defendant's objection,determined that the submission of the photocopy, rather than the original document, violated thebest evidence rule, thus rendering it inadmissible. Although the photocopy should have beenadmitted into evidence pursuant to CPLR 4539 (a), since the testimony of the attorney whoprepared the 2000 memorandum satisfactorily identified the photocopy, its admission would nothave warranted a different outcome. While the 2000 memorandum may have shown that theparties agreed in 2000 that the plaintiff was a 50% owner of the subject property, it did notestablish that such an agreement or understanding existed in 1986. Since the plaintiff failed todemonstrate by clear and convincing evidence that the 1986 deed was at variance with theparties' intent when the deed was executed in 1986, the complaint was properly dismissed(see M.S.B. Dev. Co., Inc. v Lopes, 38 AD3d at 725).
The plaintiff's remaining contentions are either improperly raised for the first time on appealor without merit. Rivera, J.P., Dillon, Belen and Roman, JJ., concur.