| Lopez v Lopez |
| 2015 NY Slip Op 08389 [133 AD3d 722] |
| November 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Serafin N. Lopez, Appellant, v Serafin Lopez etal., Respondents, et al., Defendants. |
Harwood Reiff LLC, New York, N.Y. (Donald A. Harwood and Simon W. Reiff ofcounsel), for appellant.
Rosado, Chechanover, Apat & Dudley, LLP, Long Island City, N.Y. (RichardA. Apat and Thais Rodriguez of counsel), for respondents.
In an action, in effect, for a judgment declaring that the plaintiff has a one-halfinterest in certain real property, that a certain deed dated August 8, 2005, is reformed toreflect that interest, and that a certain deed dated October 22, 2012, is void, the plaintiffappeals, as limited by his brief, from so much of an order and judgment (one paper) ofthe Supreme Court, Kings County (Schmidt, J.), dated December 27, 2013, as granted themotion of the defendants Serafin Lopez, Juan Garcia, doing business as SpanishAmerican Grocery, also known as Lopez Grocery Store, and Jennifer Garcia, doingbusiness as the Law Offices of Jennifer Garcia, for summary judgment dismissing thecomplaint as time-barred, and declared that the deed dated August 8, 2005, "is notreformed," and that the deed dated October 22, 2012, "is not void."
Ordered that the order and judgment is modified, on the law, by deleting theprovisions thereof declaring that the deed dated August 8, 2005, "is not reformed," andthat the deed dated October 22, 2012, "is not void"; as so modified, the order andjudgment is affirmed insofar as appealed from, with costs to the defendants SerafinLopez, Juan Garcia, doing business as Spanish American Grocery, also known as LopezGrocery Store, and Jennifer Garcia, doing business as the Law Offices of JenniferGarcia.
This action involves a dispute regarding title to real property located at 4330 NewUtrecht Avenue in Brooklyn (hereinafter the subject property). On August 8, 2005, thedefendant Serafin Lopez (hereinafter Lopez), on behalf of the defendant 4330 NewUtrecht Ave. Corp. (hereinafter 4330 Corp.), of which he was the sole shareholder,executed a deed purportedly transferring title to the subject property to himself and hisson, the plaintiff, Serafin N. Lopez (hereinafter the plaintiff). However, at that time, theproperty was actually owned by the defendant 4326 New Utrecht Ave. Corp. (hereinafter4326 Corp.), another entity operated by Lopez. On October 22, 2012, Lopez executed adeed purportedly transferring title to the subject property from 4326 Corp. tohimself.
In February 2013, the plaintiff commenced this action, in effect, for a judgmentdeclaring, inter alia, that he has a one-half interest in the subject property, that the deeddated October 22, 2012, is void, and that the deed dated August 8, 2005, purportedlytransferring title to [*2]the subject property from 4330Corp. to the plaintiff and Lopez was the result of a scrivener's error and should havereflected the transfer of title from 4326 Corp. to the plaintiff and Lopez, and to reformthe deed accordingly. Thereafter, the defendants Lopez, Juan Garcia, doing business asSpanish American Grocery, also known as Lopez Grocery Store, and Jennifer Garcia,doing business as the Law Offices of Jennifer Garcia (hereinafter collectively thedefendants), moved for summary judgment dismissing the complaint as time-barred. Insupport of the motion, the defendants argued that the action was time-barred because itwas not commenced within six years of the alleged scrivener's error on August 8, 2005,as required by CPLR 213 (6). In an order and judgment dated December 27, 2013, theSupreme Court, among other things, granted the defendants' motion and declared that thedeed dated August 8, 2005, "is not reformed" and that a deed dated October 20, 2012, "isnot void."
A cause of action seeking reformation of an instrument on the ground of mistake,including an alleged scrivener's error, is governed by the six-year statute of limitationspursuant to CPLR 213 (6), which begins to run on the date the mistake was made (seeMatter of Wallace v 600 Partners Co., 86 NY2d 543, 547 [1995]; Johnson v Broder, 112 AD3d788, 788 [2013]; Federal Deposit Ins. Corp. v Five Star Mgt., 258 AD2d 15,20 [1999]). However, "a well-recognized exception exists 'as to one who is inpossession of real property under an instrument of title,' whereby the statute oflimitations 'never begins to run against his [or her] right to reform that instrument until he[or she] has notice of a claim adverse to his [or hers] under the instrument, or until his [orher] possession is otherwise disturbed' " (Pulver v Dougherty, 58 AD3d978, 979 [2009] [citation omitted and emphasis added], quoting Hart v Blabey,287 NY 257, 262-263 [1942]; see Schlotthauer v Sanders, 153 AD2d 731, 733[1989]).
Here, the defendants established their prima facie entitlement to judgment as a matterof law by demonstrating that the alleged scrivener's error occurred on August 8, 2005,and that the plaintiff did not commence this action until February 2013, more than sixyears after the alleged mistake (see Johnson v Broder, 112 AD3d at 788; Taintor v Taintor, 50 AD3d887, 888 [2008]; GreenHarbour Homeowners' Assn., Inc. v Ermiger, 50 AD3d 1199, 1200 [2008]). Inopposition, the plaintiff failed to raise a question of fact as to the applicability of theexception to the statute of limitations based on his alleged "possession of real propertyunder an instrument of title" (Hart v Blabey, 287 NY at 263; see Pulver vDougherty, 58 AD3d 978 [2009]). The plaintiff failed to submit any evidence withrespect to whether or when he was in possession of the subject property.
The parties' remaining contentions are without merit or need not be reached in lightof our determination.
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint as time-barred. However, since the courtdid not make any determination on the merits with respect to the allegations raised in thecomplaint, it should not have declared that the deed dated August 8, 2005, "is notreformed," and that the deed dated October 22, 2012, "is not void." Mastro, J.P., Austin,Sgroi and Barros, JJ., concur.