Victor M. Metsch, Esq.

Court Determines Whether (or Not) William Raised Issue of Fact on Adverse Possession Claim

Stella Vassilakos and her brother, Peter, commenced an action against their brother, William Vassilakos, seeking a judgment declaring that they were tenants in common with a cumulative 40% interest in property located in Brooklyn, to quiet title to the property, and for the partition of the property. William interposed an answer and asserted various affirmative defenses and counterclaims, including that he had acquired sole title to the property by adverse possession. Stella moved for summary judgment on the complaint and dismissing William’s affirmative defenses and counterclaims. Supreme Court denied the motion. Stella appealed.

To obtain summary judgment in an action to quiet title pursuant to RPAPL article 15, the movant must establish, prima facie, that it holds title, or that the nonmovant’s title claim is without merit. Here, Stella established their prima facie entitlement to judgment as a matter of law by submitting evidence that Stella and the others each acquired an interest in the property as tenants in common upon the death of their father intestate in 1988, and thereafter, they each acquired an additional interest in the property as tenants in common upon the death of their mother intestate in 2004.

Was Alleged Oral Modification of Contract of Sale Barred By the Statue of Frauds?

By written contract dated December 10, 2008, Alan Gestetner agreed to purchase and New York Golf Enterprises, Inc. agreed to sell 9.29 acres of property located in New Hempstead for the purchase price of $3,460,000. At the time the contract was entered into, the 9.29 acres were part of an undivided tax lot totaling approximately 160 acres on which NYGE operated a golf course. The contract called for the payment of $250,000 upon signing and an additional down payment of $750,000 due upon subdivision approval. It was undisputed that Gestetner did not tender payment of either the initial $250,000 down payment or the additional $750,000 down payment. It was also undisputed that on December 15, 2008, and again on December 19, 2008, nonparty Cheon Cho, who executed the contract as the president of NYGE, accepted two payments from Gestetner, each in the amount of $25,000.

Were Defenses of Life Estate and Constructive Trust Barred As A Matter of Law?

Kenneth Rosenblum brought a license holdover proceeding against Diana Treitler and Bruce Treitler seeking possession of apartment 15 at 42 Bank Street. The Treitlers answered and asserted several affirmative defenses.

The third affirmative defense:

That Respondent Diana Treitler who is the sister of the Petitioner has been granted the equivalent of a Life Estate to occupy the subject premises by the Petitioner who promised her the apartment for as long as she wanted. Said Life Estate was granted in or about 2011 and the Respondent has been in possession of the subject apartment since said date. Respondent Diana Treitler has unequivocally relied upon the representation of Petitioner who said that he was giving the subject apartment to said Respondent for as long as she wanted. Respondent in reliance has taken possession of the subject apartment and made improvements thereto. Thus, pursuant to Promissory Estoppel and detrimental reliance, the Petitioner is estopped from denying Respondent’s right of possession to the subject apartment.

Were Two Real Estate  Deeds Authorized/Prohibited Under the POA?

In October 2016, Mustafa Choudari executed a deed purporting to convey title to property located at 1474 Broadway in Brooklyn from Mohammad Choudari, his brother, to Mohammad and Mustafa, jointly. In February 2017, Mohammad commenced an action, pursuant to RPAPL article 15 against Mustafa to quiet title to that property, alleging that Mustafa forged his name on the October 2016 deed.

In March 2017, Mustafa executed a second deed purporting to convey title to property located at 1472 Broadway in Brooklyn from Mohammad to Mohammad and Mustafa, jointly. In June 2017, Mohammad commenced another action to quiet title to that second property, alleging that the March 2017 deed was also forged. Mustafa asserted counterclaims, alleging, in effect, that the properties were purchased as part of a joint venture agreement between the brothers. The actions were subsequently consolidated.