78 A.D.3d 746
N.Y. App. Div.2010Background
- Plaintiff Bank of America, as trustee, seeks to quiet title to a one-third interest and restore possession, with damages.
- Defendant LLC and Provident Bank appeal an order that dismissed several affirmative defenses and part of a counterclaim.
- Edith Quirk died in 1997, having acquired a one-third interest; her husband John E. Quirk died in 1995, leaving Leslie E. Quirk with a two-thirds interest.
- By a 1996 deed (Kupersmith deed), Corey Kupersmith conveyed Leslie E. Quirk’s entire interest to himself and Kenneth Kupersmith, stating all property was being conveyed.
- In 2008, Corey Kupersmith purported to convey the entire property to the LLC, which later borrowed against it from Provident Bank.
- Trustee filed the action on December 2, 2008; defendants asserted defenses including ouster, adverse possession, statute of limitations, and related equitable defenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does recording the Kupersmith deed constitute ouster? | Kupersmith deed caused ouster by change in possession. | No ouster without change in possession; mere recordation is not ouster. | No ouster; recording alone does not extinguish trustee's interest. |
| Are ouster, adverse possession, and statute of limitations properly dismissed as defenses? | Affirmative defenses fail as a matter of law. | Defenses assert valid title extinguishment and possession. | Dismissed; defenses lacking merit under CPLR 3211(b). |
| Does laches or equitable estoppel apply against the trustee? | Trustee knowledge and conduct support equitable estoppel against trustee. | Estoppel and laches should bar the claim. | Equitable estoppel and laches not adequately pleaded; dismissal affirmed. |
| Did discovery potential permit pleading new facts to support defenses? | Discovery might reveal facts to support defenses. | Pleadings should be dismissed where defenses merely plead conclusions of law. | Dismissed; conclusory defenses insufficient. |
Key Cases Cited
- Russo Realty Corp. v. Orlando, 30 A.D.3d 499 (2006) (RPAPL 541 presumes cotenants in possession for benefit of another)
- Pravato v. M.E.F. Bldrs., 217 A.D.2d 654 (1995) (ouster ends presumption after 10 years of exclusive occupancy)
- Myers v. Bartholomew, 91 N.Y.2d 630 (1998) (implied ouster when acts are openly hostile)
- Culver v. Rhodes, 87 N.Y. 348 (1882) (mere deed recording without possession change not ouster)
- Walling v. Przybylo, 7 N.Y.3d 228 (2006) (tenancy in common; possession and adverse possession standards)
- Tenore v. Kantrowitz, Goldhamer & Graifman, P.C., 76 A.D.3d 556 (2010) (affirmative defenses must have factual support to survive CPLR 3211(b))