Graffeo v. PacielloGraffeo v. Paciello
Ordered that the order is reversed, on the law, with costs, and the plaintiff‘s motion for summary judgment is granted.
By deed dated July 9, 1976, the parties’ maternal grandmother conveyed certain property consisting of a three-family multiple dwelling building located in Brooklyn (hereinafter the property) to her granddaughter, the defendant, Debra Carol Paciello, also known as Debra Carol Graffeo, as sole fee owner. However, by “Warranty Deed with Full Covenants” dated August 1, 1978 (hereinafter the 1978 deed), the defendant conveyed the property to herself and her brother, the plaintiff Louis Anthony Graffeo, as tenants in common. The 1978 deed contained the following restrictive covenant:
“The grantees herein expressly understand and agree that the above property shall not be sold, encumbered or conveyed until their mother, Concettina Graffeo, shall die; and then the above property may only be sold, encumbered or transferred with the written consent of both grantees. During the life of Concettina Graffeo, all above restrictions may be removed with her signature & other grantees. The grantee, Louis Anthony Graffeo, is signing this deed as evidence of his consent to the foregoing, and his agreement to be bound by the foregoing restrictions.”
The 1978 deed containing both
In 2000 the defendant commenced an action against her mother, Concettina Graffeo, the plaintiff, and Tavolacci, seeking to set aside the 1978 deed, claiming that her acknowledged signature on the 1978 deed transferring sole ownership of the property to herself and her brother was forged by her mother. Two appeals to this Court ensued with respect to that action (see Paciello v Graffeo, 8 AD3d 543 [2004], 32 AD3d 461 [2006]). Ultimately, the action was dismissed, as the defendant failed “to come forward with proof of the nature required to rebut the presumption of due execution arising from the certificate of acknowledgment” of the attorney who drafted the 1978 deed and notarized her signature (Paciello v Graffeo, 32 AD3d 461, 462 [2006]). Thus, the 1978 deed to the property in both the plaintiff and defendant‘s names remained valid.
By summons and verified complaint dated June 17, 2003, the plaintiff commenced the instant action against the defendant for “a judgment of partition pursuant to the Real Property Actions and Proceedings Law together with costs and disbursements of this action.” In his verified complaint, the plaintiff alleged that their mother had passed away and, therefore, the property was no longer subject to any restrictions and should be partitioned and sold at a public auction, given the fact that it cannot be physically partitioned in equal parts. He thereafter moved for summary judgment in his favor, and the Supreme Court denied the motion. We reverse. “A person holding and in possession of real property as joint tenant or tenant in common, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition of the property, and for a sale if it appears that a partition cannot be made without great prejudice to the owners” (
Here, the plaintiff established his entitlement to summary judgment directing that the real property be partitioned and
In opposing the plaintiff‘s motion for summary judgment, the defendant failed to demonstrate the existence of a triable issue of fact (see Russo Realty Corp. v Katz, 211 AD2d 673 [1995]). Her argument that the restrictive language of the 1978 deed prohibits the alienation of the property without the parties’ consent was inappropriately raised before the Supreme Court for the first time in a self-entitled “Supplemental Affidavit,” which was, in effect, an improper surreply affirmation (see
Krausman, J.P., Fisher, Angiolillo and Balkin, JJ., concur.