| Ramsey v Ramsey |
| 2010 NY Slip Op 00496 [69 AD3d 829] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Ingrid Ramsey, Appellant, v John E. Ramsey,Respondent. |
—[*1] Medina, Torrey, Mamo & Camacho, P.C., Ossining, N.Y. (Amanda Medina of counsel), forrespondent.
In an action, inter alia, for the partition of real property, the plaintiff appeals (1) from anorder of the Supreme Court, Westchester County (O. Bellantoni, J.), entered August 22, 2007,which denied her motion pursuant to CPLR 3211 (b) to dismiss the third and sixth affirmativedefenses set forth in the defendant's answer to the amended complaint and thereupon directeddismissal of the amended complaint, in effect, based upon the sixth affirmative defense allegingthe existence of another action pending between the parties for the same relief, and denied, ineffect, as academic, her separate motion to compel certain disclosure, and (2), as limited by herbrief, from so much of an order of the same court entered August 19, 2008, as, upon reargument,adhered to its original determination in the order entered August 22, 2007, and denied thatbranch of her motion which was for leave to renew.
Ordered that the appeal from the order entered August 22, 2007, is dismissed, as that orderwas superseded by the order entered August 19, 2008, made upon reargument; and it is further,
Ordered that the order entered August 19, 2008, is reversed insofar as appealed from, on thelaw, that branch of the plaintiff's motion which was for leave to renew is granted and, uponreargument and renewal, the order entered August 22, 2007, is vacated, the plaintiff's motion todismiss the third and sixth affirmative defenses in the answer to the amended complaint isgranted, and the matter is remitted to the Supreme Court, Westchester County, for adetermination of the plaintiff's separate motion to compel certain disclosure on the merits; and itis further,
Ordered that the plaintiff is awarded one bill of costs.
The real property which is the subject of this dispute formerly was owned by the plaintiff,the defendant, and their father as joint tenants with rights of survivorship. It is undisputed that,following the father's death, the father's interest in the property passed to the plaintiff and thedefendant by operation of law. Several years later, the plaintiff commenced this action, inter alia,for partition of the property. In his answer to the amended complaint, the defendant asserted, ashis third affirmative defense, that the plaintiff had failed to join the Village of Scarsdale as anecessary party and, as his sixth affirmative defense, [*2]thatanother action for the same relief already was pending between the parties in the Surrogate'sCourt, Westchester County (i.e., the probate proceeding with respect to the estate of the parties'father). The plaintiff thereafter moved pursuant to CPLR 3211 (b) to dismiss these defenses,presenting documentary evidence demonstrating that the Village held no interest in the subjectproperty which would be affected by a partition, and that the father's interest in the subjectproperty had passed to the parties by operation of law and outside the estate of their father; theplaintiff argued that, hence, no issue regarding the ownership of the property was before theSurrogate's Court. The plaintiff also separately moved to compel certain disclosure. In response,the defendant's attorney claimed in an affirmation, inter alia, that the parties' rights with regard tothe property were currently being litigated in the Surrogate's Court probate proceeding.
The Supreme Court denied the plaintiff's motion to dismiss the third and sixth affirmativedefenses and thereupon directed dismissal of the amended complaint, in effect, based upon thesixth affirmative defense, crediting the representation of the defendant's attorney and finding thatthe same matter already was being litigated in the Surrogate's Court proceeding. The SupremeCourt also denied, in effect, as academic, the plaintiff's separate motion to compel disclosure.
The plaintiff subsequently moved for leave to reargue and renew, reiterating her previouscontentions and submitting additional evidence that the subject property was not before theSurrogate's Court in the probate proceeding. Following the defendant's submission of oppositionpapers, the Supreme Court, in the second order appealed from, granted leave to reargue, uponreargument, adhered to its original determination, and denied leave to renew. These appeals bythe plaintiff ensued. We reverse the second order insofar as appealed from.
Initially, the plaintiff has submitted documents, of which this Court takes judicial notice (see Matter of Khatibi v Weill, 8 AD3d485 [2004]; Matter of Allen v Strough, 301 AD2d 11, 18 [2002]), whichdemonstrate that, during the pendency of these appeals, the defendant commenced his ownaction for partition of the subject property in the Supreme Court, Westchester County, andthat he did not name the Village of Scarsdale as a party in that action. Accordingly, thedefendant's conduct constitutes an admission that the Supreme Court is the proper forum for thepartition action and that the Village is not a necessary party thereto. Accordingly, he is estoppedfrom taking contrary positions on these appeals with regard to the plaintiff's identical partitionaction (see Festinger v Edrich, 32AD3d 412 [2006]).
In any event, the Supreme Court clearly erred in adhering to its original determination uponreargument, and in denying the plaintiff leave to renew based on evidence of new developmentsin the Surrogate's Court proceeding (see CPLR 2221). The undisputed documentaryevidence submitted by the plaintiff, which included the deed by which the parties and their latefather held title to the subject property as joint tenants with rights of survivorship, and anaccounting filed by the defendant in the probate proceeding which excluded the subject propertyfrom the testamentary estate, clearly demonstrated that the jointly held property was never partof the estate (see Matter of Katz, 43AD3d 442 [2007]; Matter of Schrier v Tax Appeals Trib. of State of N.Y., 194AD2d 273, 275 [1993]; Gotte v Long Is. Trust Co., 133 AD2d 212, 215 [1987]) and wasbeyond the jurisdiction of the Surrogate's Court. Since the property was a nontestamentary asset,the plaintiff properly sought its partition in the Supreme Court. The defendant's sixth affirmativedefense of "another action pending" (CPLR 3211 [a] [4]) required a showing that the reliefsought in the Supreme Court partition action and in the Surrogate's Court probate proceedingwas "substantially the same" (Kent Dev. Co. v Liccione, 37 NY2d 899, 901 [1975];see Alpert v Alpert, 303 AD2d 433 [2003]; Benenson v SKEK Assoc., 293 AD2d694, 695 [2002]). Since the plaintiff's evidence unequivocally established that these discretelegal proceedings did not seek the same relief or even concern the same property, and there wasno other action pending between the parties for the same cause of action in another court (seeCPLR 3211 [a] [4]), that branch of the plaintiff's motion which was to dismiss the sixthaffirmative defense should have been granted upon reargument and renewal, and the prior ordershould have been vacated since it was based on a demonstrably false factual representation bythe defendant's attorney as to the matters before the Surrogate.
Similarly, even if the defendant were not now judicially estopped from arguing the defenseof failure to join the Village as a necessary party in the partition action (see CPLR 3211[a] [10]), that [*3]branch of the plaintiff's motion which was todismiss the third affirmative defense asserting that the plaintiff failed to join a necessary partyshould have been granted. The plaintiff submitted undisputed documentary evidencedemonstrating that the Village possessed no interest in the property which would be affected bythe partition so as to mandate its joinder as a defendant (see generally RPAPL 903).
Finally, as the Supreme Court denied, in effect, as academic, the plaintiff's separate motionto compel disclosure of certain documentary evidence, we remit the matter to the SupremeCourt, Westchester County, for a determination of that motion on the merits. Mastro, J.P.,Santucci, Chambers and Lott, JJ., concur.