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Time of Request: Thursday, December 02, 2010      14:57:20 EST
Client ID/Project Name: website cite check
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Job Number:      1823:256544283

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Service:   Terms and Connectors Search
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Source: NY State Cases, Combined
Search Terms: name(bank of america and 414 midland ave.)




Send to:   ZERDEN, JUDITH
           KURZMAN EISENBERG CORBIN & LEVER LLP
           1 N BROADWAY
           WHITE PLAINS, NY 10601-2310
                                                                                                                  Page 1




                                                   1 of 1 DOCUMENT

                  [*1] Bank of America, N.A. etc., respondent, v 414 Midland Avenue Associates,
                         LLC, et al., appellants, et al., defendants. (Index No. 26349/08)

                                                       2009-08151

                 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DE-
                                       PARTMENT

                               2010 NY Slip Op 8053; 2010 N.Y. App. Div. LEXIS 8360


                                              November 9, 2010, Decided

NOTICE:                                                       of ouster, adverse possession, failure to state a cause of
                                                              action, a defense founded on documentary evidence, the
   THE LEXIS PAGINATION OF THIS DOCU-
                                                              statute of limitations, laches, waiver, estoppel, unclean
MENT IS SUBJECT TO CHANGE PENDING RE-
                                                              hands, and culpable conduct on the part of the plaintiff,
LEASE OF THE FINAL PUBLISHED VERSION.
                                                              and so much of their first counterclaim as asserted that
THIS OPINION IS UNCORRECTED AND SUBJECT
                                                              the plaintiff's interest in the [**2] property was extin-
TO REVISION BEFORE PUBLICATION IN THE
                                                              guished by ouster, the statute of limitations, estoppel, and
OFFICIAL REPORTS.
                                                              laches.
                                                                  ORDERED that the order is affirmed insofar as ap-
COUNSEL: [**1] Cuddy & Feder LLP, White Plains,               pealed from, with costs.
N.Y. (Andrew P. Schriever and Anthony P. Luisi of
                                                                   At issue in this case is whether the appellant 414
counsel), for appellants.
                                                              Midland Avenue Associates, LLC (hereinafter the LLC),
                                                              holds a two-thirds interest in the subject property, with
Kurzman Eisenberg Corbin & Lever, LLP, White Plains,
                                                              the plaintiff, Bank of America, N.A. (hereinafter the
N.Y. (Eric D. Koster and Judith C. Zerden of counsel),
                                                              Trustee), holding the remaining one-third interest. In its
for respondent.
                                                              complaint, the Trustee alleges, inter alia, that it adminis-
                                                              ters a trust created during the life of Edith Quirk, who
JUDGES: MARK C. DILLON, J.P., ANITA R. FLO-
                                                              died on October 27, 1997. Edith Quirk had acquired a
RIO, DANIEL D. ANGIOLILLO, THOMAS A.
                                                              one-third undivided interest in the subject property upon
DICKERSON, JJ. DILLON, J.P., FLORIO, ANGI-
                                                              the death of her husband, John P. Quirk, in 1995. At that
OLILLO and DICKERSON, JJ., concur.
                                                              time, Leslie P. Quirk was the owner of an undivided
                                                              two-thirds interest. In his will, Leslie P. Quirk be-
OPINION
                                                              queathed his interest in equal shares to the defendants
    DECISION & ORDER                                          Corey Kupersmith and Kenneth Kupersmith. By deed
                                                              dated May 26, 1996, recorded June 11, 1996 (hereinafter
     In an action to quiet title to the plaintiff's alleged
                                                              the Kupersmith deed), Corey Kupersmith, as executor of
one-third interest in certain real property, to be restored
                                                              Leslie P. Quirk's estate, conveyed Leslie P. Quirk's in-
to possession of the property, and for damages, the de-
                                                              terest to himself and his brother Kenneth Kupersmith.
fendants 414 Midland Avenue Associates, LLC, and
                                                              The Kupersmith deed stated that "ALL" of the property
Provident Bank appeal from stated portions of an order
                                                              [**3] was being conveyed. In 2007, Kenneth Kupersmith
of the Supreme Court, Westchester County (Smith, J.),
                                                              executed a quitclaim deed releasing any interest he had
dated July 16, 2009, which, inter alia, granted those
                                                              to Corey Kupersmith. In 2008, Corey Kupersmith pur-
branches of the plaintiff's motion pursuant to CPLR
                                                              ported to convey the entire subject property to the LLC,
3211(b) which were to dismiss their affirmative defenses
                                                                                                                     Page 2
                             2010 NY Slip Op 8053, *; 2010 N.Y. App. Div. LEXIS 8360, **


which took out a first mortgage in the principal sum of $       the facts alleged are accepted as true, and the proponent
840,000 and a second mortgage in the sum of $ 280,000           of the pleading is accorded the benefit of every favorable
from the appellant Provident Bank.                              inference (see CPLR 3026; Leon v Martinez, 84 NY2d
                                                                83, 87-88, 638 N.E.2d 511, 614 N.Y.S.2d 972; Cayuga
      [*2] On December 2, 2008, the Trustee com-
                                                                Partners v 150 Grand, 305 AD2d 527, 759 N.Y.S.2d
menced this action, inter alia, to quiet title to its alleged
                                                                347). Those branches of the Trustee's motion which were
one-third interest in the subject property. In their answer,
                                                                to dismiss the affirmative defenses were governed by
the appellants asserted affirmative defenses including
                                                                CPLR 3211(b), which authorizes a plaintiff to make such
ouster, adverse possession, failure to state a cause of
                                                                a motion on grounds that "a defense is not stated or has
action, a defense founded on documentary evidence, the
                                                                no merit." The motion is granted if the plaintiff can
statute of limitations, laches, waiver, estoppel, unclean
                                                                demonstrate that the "defenses are [**6] without merit
hands, and culpable conduct on the part of the Trustee. In
                                                                as a matter of law because they either do not apply under
their first counterclaim, they seek a judgment declaring
                                                                the factual circumstances of [the] case, or fail to state a
that the LLC is the owner of the complete fee interest on
                                                                defense" (Tenore v Kantrowitz, Goldhamer & Graif-
the grounds, among other things, that the LLC is a bona
                                                                man,76 AD3d 556, 557-558, 907 N.Y.S.2d 255). On a
fide purchaser for value, the Trustee was effectively
                                                                motion pursuant to CPLR 3211(b), the court should ap-
ousted from the subject property by the Kupersmith
                                                                ply the same standard as it applies to motions to dismiss
deed, and the Trustee's interest was extinguished by the
                                                                pursuant to CPLR 3211(a)(7), and the factual assertions
applicable 10-year statute of limitations, equitable es-
                                                                will be accepted as true (see Siegel, NY Prac § 269, at
toppel, and [**4] laches. In their second counterclaim
                                                                449 [4th ed]; Greco v Christoffersen, 70 AD3d 769, 771,
pursuant to RPAPL article 15, they seek a judgment
                                                                896 N.Y.S.2d 363). Here, accepting the appellants' alle-
quieting title and declaring any interest of the Trustee to
                                                                gations as true, the Supreme Court properly dismissed
be void on the ground that the LLC is a bona fide pur-
                                                                the aforesaid affirmative defenses and so much of their
chaser for value. In support of their counterclaims, the
                                                                first counterclaim as asserted that the Trustee's interest in
appellants allege that the Trustee had constructive notice
                                                                the property was extinguished by ouster, the statute of
of its ouster on June 11, 1996, when the Kupersmith
                                                                limitations, estoppel, and laches.
deed was recorded, and inquiry notice of the ouster on
October 27, 1997, when Edith Quirk died and the prop-                "Where parties hold property as tenants in common,
erty passed to the trust, for which the Trustee had a duty      Real Property Actions and Proceedings Law § 541
to account. They further allege that the Trustee had ac-        creates a statutory presumption that a tenant in common
tual notice of the ouster in 2001, when the Trustee's at-       in possession holds the property for the benefit of the
torney became aware of a chain of title containing the          cotenant" (Russo Realty Corp. v Orlando, 30 AD3d 499,
Kupersmith deed, yet waited until 2008 to commence              500, 819 N.Y.S.2d 265; see RPAPL 541). "The presump-
this action to quiet title.                                     tion ceases only after the expiration of 10 years exclusive
                                                                occupancy of such tenant or upon ouster" (Pravato v
     The Trustee moved to dismiss the affirmative de-
                                                                M.E.F. Bldrs., 217 AD2d 654, 655, 629 N.Y.S.2d 796).
fenses and counterclaims, contending that as a matter of
                                                                [**7] "Although actual ouster usually requires a pos-
law, the Kupersmith deed did not constitute an ouster
                                                                sessing cotenant to expressly communicate an intention
because there was no change in possession after that
                                                                to exclude or to deny the rights of cotenants, the common
deed was recorded. The Supreme Court, in the order ap-
                                                                law also recognizes the existence of implied ouster in
pealed from, inter alia, dismissed the affirmative de-
                                                                cases where the acts of the possessing cotenant are so
fenses of ouster, adverse possession, failure to state a
                                                                openly hostile that the nonpossessing cotenants can be
cause of action, a defense founded on documentary
                                                                presumed to know that the property is being adversely
[**5] evidence, the statute of limitations, laches, waiver,
                                                                possessed against them" (Myers v Bartholomew, 91
estoppel, unclean hands, and culpable conduct on the
                                                                NY2d 630, 633, 697 N.E.2d 160, 674 N.Y.S.2d 259). The
part of the Trustee, and so much of the first counterclaim
                                                                mere recording of a deed, without any change in posses-
as asserted that the Trustee's interest in the property was
                                                                sion or notice to the allegedly ousted cotenant, does not
extinguished by ouster, the statute of limitations, estop-
                                                                constitute an ouster (see Culver v Rhodes, 87 NY 348,
pel, and laches. That branch of the Trustee's motion
                                                                353; [*3] Goodwin v Nixon, 15 Misc 3d 1142[A], 841
which sought dismissal of the second counterclaim al-
                                                                N.Y.S.2d 820, 2007 NY Slip Op 51111[U]; Matter of
leging that the LLC is a bona fide purchaser for value
                                                                Nazarro, 7 Misc 3d 1001[A], 801 N.Y.S.2d 237, 2005 NY
was denied, and that determination is not challenged on
                                                                Slip Op 50396[U]; cf. Pravato v M.E.F. Bldrs., 217
appeal.
                                                                AD2d at 655). Title by adverse possession is acquired
     In determining a motion to dismiss a cause of action       when possession is hostile and under claim of right, ac-
pursuant to CPLR 3211(a)(7), or, as in this case, a coun-       tual, open and notorious, exclusive, and continuous for
terclaim, the pleading is afforded a liberal construction,      the statutory period of 10 years after ouster (see Walling
                                                                                                                    Page 3
                             2010 NY Slip Op 8053, *; 2010 N.Y. App. Div. LEXIS 8360, **


v Przybylo, 7 NY3d 228, 232, 851 N.E.2d 1167, 818                    Here, the appellants alleged that, in 2008, Corey
N.Y.S.2d 816).                                                  Kupersmith conveyed the entire subject property to the
                                                                LLC. However, they made no allegation that the Trustee
     Here, contrary to the appellants' contention, the mere
                                                                knew of this conveyance but did nothing. In addition, the
recording of the Kupersmith deed on June 11, 1996, did
                                                                appellants do not make any further allegations concern-
not constitute an ouster of the Trustee, since no change
                                                                ing the Trustee's conduct in support of their affirmative
[**8] in possession of the property was alleged. The
                                                                defense of waiver, defined as the voluntary and inten-
Trustee's first actual notice of the conveyance allegedly
                                                                tional abandonment of a known right which may not be
occurred in 2001. The Trustee commenced this action in
                                                                inferred from mere silence or inaction (see e.g. Golfo v
2008, within the 10-year statutory limitations period (see
                                                                Kycia Assoc., Inc., 45 AD3d 531, 532-533, 845 N.Y.S.2d
CPLR 212[a]; RPAPL 501). The appellants, therefore,
                                                                122), or their affirmative defenses of unclean hands and
failed to adequately allege the defenses of ouster, adverse
                                                                culpable conduct. Accordingly, the appellants failed to
possession, and statute of limitations and so much of
                                                                adequately allege the affirmative defenses of equitable
their first counterclaim as asserted that the plaintiff's in-
                                                                estoppel, laches, waiver, unclean hands, and culpable
terest in the property was extinguished by ouster and the
                                                                conduct, and so much of their first counterclaim as as-
statute of limitations.
                                                                serted that the plaintiff's interest in the property was ex-
     Where an owner knows of a defect in title and fails        tinguished by estoppel and laches (see Tenore v Kantro-
to address it, laches does not apply unless the facts are       witz, Goldhamer & Graifman, P.C., 76 AD3d 556, 907
sufficient to constitute equitable estoppel (see Kraker v       N.Y.S.2d 255).
Roll, 100 AD2d 424, 433, 474 N.Y.S.2d 527; Washington
                                                                      The appellants contend that discovery may reveal
Temple Church of God in Christ, Inc. v Global Props. &
                                                                facts now unknown to them [**10] which would allow
Assoc., Inc., 15 Misc 3d 1142[A], 841 N.Y.S.2d 824,
                                                                them to plead new facts in support of the legal conclu-
2007 NY Slip Op 51114[U], affd 55 AD3d 727, 865
                                                                sions they assert. However, where affirmative defenses
N.Y.S.2d 641). Equitable estoppel arises when a property
                                                                "merely plead conclusions of law without any supporting
owner stands by without objection while an opposing
                                                                facts," the affirmative defenses should be dismissed pur-
party asserts an ownership interest in the property and
                                                                suant to CPLR 3211(b) (Fireman's Fund Ins. Co. v Far-
incurs expense in reliance on that belief (see Andrews v
                                                                rell, 57 AD3d 721, 723, 869 N.Y.S.2d 597).
Cohen, 221 NY 148, 153, 116 N.E. 862). The property
owner must "inexcusably" delay in asserting a claim to                The appellants' remaining contentions are without
the property, knowing that "the opposing [**9] party            merit or need not be addressed in light of our determina-
has changed his position to his irreversible detriment"         tion.
(Orange & Rockland Utils. v Philwold Estates, 70 AD2d
                                                                   DILLON, J.P., FLORIO,             ANGIOLILLO         and
338, 343, 421 N.Y.S.2d 640, mod on other grounds 52
                                                                DICKERSON, JJ., concur.
NY2d 253, 418 N.E.2d 1310, 437 N.Y.S.2d 291).
                                                                 133SS4
********** Print Completed **********

Time of Request: Thursday, December 02, 2010      14:57:20 EST

Print Number:    1823:256544283
Number of Lines: 154
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Send To:   ZERDEN, JUDITH
           KURZMAN EISENBERG CORBIN & LEVER LLP
           1 N BROADWAY
           WHITE PLAINS, NY 10601-2310

				
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