| Butt v Malik |
| 2014 NY Slip Op 00957 [114 AD3d 716] |
| February 13, 2014 |
| Appellate Division, Second Department |
| Mian Karamat Ullah Butt, Respondent, v MohammadAslam Malik et al., Appellants. |
—[*1] Wenig Saltiel LLP, Brooklyn, N.Y. (Meryl L. Wenig and Leslie Perez-Bennie ofcounsel), for respondent.
In an action, inter alia, for a judgment declaring that a certain deed is void and thatthe plaintiff is the sole owner of certain real property, the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Baynes,J.), dated January 30, 2013, as, in effect, granted those branches of the plaintiff's motionwhich were for summary judgment declaring that the subject deed is void and that theplaintiff is the sole owner of the subject property, and pursuant to CPLR 3211 (a) (5) todismiss, as time-barred, the counterclaim to impose a constructive trust on the subjectproperty.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff and Aziz Begum Butt (hereinafter Aziz) purchased certain property inJanuary 1996 "as husband and wife." In September 2008, Aziz transferred her interest inthe subject property to her brother, the defendant Mohammad Aslam Malik (hereinafterMohammad). Aziz died on October 29, 2010. In December 2011, the plaintiffcommenced this action, seeking, inter alia, a declaration that the deed to Mohammad isvoid and that the plaintiff is the sole owner of the subject property. In an order datedJanuary 30, 2013, the Supreme Court, inter alia, in effect, granted those branches of theplaintiff's motion which were for summary judgment declaring that the deed toMohammad is void and the plaintiff is the sole owner of the subject property, andpursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, a counterclaim to impose aconstructive trust on the subject property. The court determined, inter alia, that Aziz didnot have the authority to transfer the subject property without the consent of the plaintiff.
"[W]here a tenancy by the entirety is created, 'there is nothing in New York law thatprevents one of the co-owners from mortgaging or making an effective conveyance ofhis or her own interest in the tenancy . . . subject to the continuing rights ofthe other' " (Deutsche BankNatl. Trust Co. v Feliciano, 105 AD3d 889, 890 [2013], quoting V.R.W.,Inc. v Klein, 68 NY2d 560, 565 [1986]; see Rose v Levine, 107 AD3d 967, 970 [2013]). " '[T]heinterest acquired by a grantee or mortgagee of such a unilateral [*2]conveyance is not denominated a tenancy by the entirety,but rather is labeled a tenancy in common'; however, 'the grantee's or mortgagee's rightsin the property are essentially the same as those possessed by the grantor or mortgagor: aright to shared possession and ownership subject to the original cotenants' reciprocalrights of survivorship' " (Deutsche Bank Natl. Trust Co. v Feliciano, 105 AD3dat 890, quoting V.R.W., Inc. v Klein, 68 NY2d at 565).
Here, we agree with the Supreme Court's determination, in effect, granting thatbranch of the plaintiff's motion which was for summary judgment declaring that theplaintiff is the sole owner of the subject property, albeit on different grounds. Contrary tothe Supreme Court's conclusion, Aziz was permitted to convey her interest in the subjectproperty, held by the entirety, to Mohammad via the deed to Mohammad, subject to thecontinuing rights of the plaintiff (see V.R.W., Inc. v Klein, 68 NY2d at 565). Asa result of that conveyance, Mohammad became a tenant in common with the plaintiffinsofar as the rights to possession and to share in rents and profits are concerned (seeSon Fong Lum v Antonelli, 102 AD2d 258, 262 [1984], affd 64 NY2d 1158[1985]). However, the plaintiff demonstrated, prima facie, that upon the death of Aziz,he became the sole owner of the subject property by right of survivorship (seeV.R.W., Inc. v Klein, 68 NY2d at 565; Lawriw v City of Rochester, 14AD2d 13, 15 [1961], affd 11 NY2d 759 [1962]). In opposition, the defendantsfailed to raise a triable issue of fact.
The Supreme Court also properly, in effect, granted that branch of the plaintiff'smotion which was pursuant to CPLR 3211 (a) (5) to dismiss, as time-barred, thecounterclaim to impose a constructive trust. The plaintiff established, prima facie, thatthis counterclaim was time-barred by showing that the applicable six-year statute oflimitations began to run on January 11, 1996, the date of the allegedly wrongful transferof the subject property, and that this action was not commenced until December 2011.Since the cause of action constituting the counterclaim to impose a constructive trust wastime-barred as of the date the claims asserted in the complaint were interposed, thiscounterclaim is time-barred (see CPLR 203 [d]; Auffermann v Distl, 56 AD3d502, 502-503 [2008]). In opposition, the defendants failed to raise a question of factas to the applicability of an exception to the statute of limitations, or as to whether thestatute of limitations was tolled or the counterclaim was interposed within the applicablelimitations period (see Benjaminv Keyspan Corp., 104 AD3d 891, 892 [2013]).
The defendants' remaining contentions either are without merit or need not bereached in light of our determination. Skelos, J.P., Dillon, Hall and Roman, JJ., concur.