| Fabi v Hayes |
| 2012 NY Slip Op 05768 [97 AD3d 1049] |
| July 26, 2012 |
| Appellate Division, Third Department |
| Marie Nicole Fabi, Formerly Known as Marie Nicole Wakeman,Appellant-Respondent, v Theodore D. Hayes, Respondent-Appellant, et al.,Defendant. |
—[*1] Levene, Gouldin & Thompson, LLP, Binghamton (Daniel R. Norton of counsel), forrespondent-appellant.
Stein, J. Cross appeals from an order of the Supreme Court (Sherman, J.), entered September28, 2011 in Tioga County, upon a decision of the court partially in favor of defendant TheodoreD. Hayes.
Plaintiff owns real property consisting of two lots (hereinafter lot 1 and lot 2). Plaintiffresides in the home on lot 1 and defendant Theodore D. Hayes (hereinafter defendant) resides onlot 2. In 2007, plaintiff purchased both lots from her mother, Darlene Hayes (hereinafter Hayes),and defendant, Hayes's husband, because Hayes and defendant were facing financial difficultiesdue to Hayes's medical treatment. At the time, defendant and Hayes lived together on lot 2. Whendefendant attempted to renew the homeowner's insurance on lot 2 in his own name shortly afterHayes's death in 2010, the parties discovered that the deed to lot 1 conveyed a life estate interestto defendant and Hayes, whereas the deed to lot 2 contained no such provision. [*2]Defendant refused to execute a deed extinguishing his interest in lot1 and plaintiff thereafter commenced this action seeking, among other things, reformation of thedeed to that lot. In his answer to the complaint, defendant conceded that the conveyance of a lifeestate in lot 1 was an error, but asserted that it should have been included in the deed to lot 2 andinterposed a counterclaim seeking reformation of that deed; he also alleged fraud by plaintiff.
Plaintiff moved for, among other things, partial summary judgment dismissing defendant'scounterclaims and defendant cross-moved for summary judgment as to his counterclaims.Supreme Court, as relevant here, partially granted plaintiff's motion, reforming the deed to lot 1so as to remove the life estate interest conveyed therein, and denied defendant's cross motion.Following a nonjury trial, Supreme Court granted judgment in defendant's favor with respect tohis reformation claim, but denied defendant's fraud claim. Plaintiff now appeals and defendantcross-appeals.
We affirm. "When reviewing a decision following a nonjury trial, this Court independentlyevaluates the evidence and grants judgment as warranted by the record, giving due deference tothe trial court's credibility determinations concerning witnesses" (Haber v Gutmann, 64 AD3d 1106,1107 [2009], lv denied 13 NY3d 711 [2009] [citations omitted]; see Magie v Preferred Mut. Ins. Co., 91AD3d 1232, 1234 [2012]). To prevail on his reformation cause of action, defendant wasrequired to demonstrate, by clear and convincing evidence, that due to a mistake, the deed to lot 2does not reflect the agreement reached between the parties (see Carpenter v Morrette, 36 AD3d 1115, 1116 [2007]). Defendantcontends that he and Hayes sold the property to plaintiff and conveyed a gift of theirequity,[FN1] in exchange for a life estate in lot 2. Plaintiff, on the other hand, contends that there was nomutual mistake, as she never intended to convey a life estate to defendant. Instead, she allegesthat the parties' intent was that she would purchase the property and lease lot 2 to Hayes anddefendant in exchange for the payment of monthly rent.
In support of his counterclaim, defendant testified that, at the time of the 2007 closing, heinitially refused to execute the deed for lot 2 because it lacked a provision conveying a life estate,and plaintiff indicated that it must have been an oversight. Defendant testified that, after the deedwas purportedly corrected, he signed it without realizing that the life estate provision hadmistakenly been included in the deed for lot 1, rather than lot 2. Plaintiff's sister also testified thatHayes—who purportedly had a sometimes troubled relationship with plaintiff—toldher on multiple occasions that Hayes and defendant were to retain a life estate in lot 2 and thatplaintiff had acknowledged to her that they held such an interest in the property. In addition,defendant introduced into evidence a letter from plaintiff's lending institution to the law firmhandling the real property transfer, which contained the notation "[p]arents to retain life use"; thefirm's former paralegal testified that she made such notation at the time she opened the file.
In her defense, plaintiff submitted, among other things, a contract of sale, a lease agreementpurportedly signed by defendant and a single check from defendant with the notation [*3]that it was for "Aug[ust] Rent."[FN2] However, defendant's testimony, together with the testimony of a handwriting analyst,established that Hayes had signed defendant's name to the contract and lease without his consent.Likewise, the testimony of the bank employee who handled the real property transaction and ofthe bank's attorney that, among other things, bank policy would have required that defendant andHayes be listed as mortgagors if a life estate had been conveyed was undermined by the fact thata life estate was conveyed in the deed for lot 1—albeit inadvertently—withoutdefendant and Hayes being included as mortgagors for that property.
In large part, plaintiff's argument on appeal centers on matters of witness credibility. Afterhearing the testimony and reviewing the evidence, Supreme Court credited defendant'sexplanation of the events and determined that it was unlikely that defendant and Hayes wouldhave transferred both lots to plaintiff in exchange for a lease agreement, which would havesubjected them to a risk of eviction,[FN3] particularly in light of their tenuous financial circumstances and the purportedly troubledrelationship between plaintiff and Hayes. Upon our review of the record and according duedeference to Supreme Court's credibility assessments (see Magie v Preferred Mut. Ins.Co., 91 AD3d at 1235), we find no cause to disturb that court's determination that defendantestablished, by clear and convincing evidence, that the parties' intent at the time of the transferwas that defendant and Hayes retain a life estate interest in lot 2.
Our decision herein renders academic defendant's argument that his fraud counterclaimshould not have been dismissed. To the extent that they are not specifically addressed herein,plaintiff's remaining contentions have been considered and are unavailing.
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: Defendant and Hayes executedtwo documents at the time of transfer, gifting a total of approximately $25,000 in equity toplaintiff.
Footnote 2: Defendant did not deny that heand Hayes attempted to make monthly payments to plaintiff, but testified that they were intendedto help plaintiff with the mortgage payments and did not constitute rent. He explained that Hayesgenerally made the payments until her death and that the first time he made a payment after herdeath, he erroneously noted on the check that it was for rent.
Footnote 3: In fact, plaintiff later sought toevict defendant as part of the action now before us.