Trotta v. OllivierTrotta v. Ollivier
APPEARANCES OF COUNSEL
Dillon, J.P.
Very sparse case law exists interpreting the scope of
On November 17, 1992, the plaintiff‘s decedent, Susan Leone, and the defendant, Charles Ollivier, purchased real property as joint tenants with the right of survivorship. The property was located at 10 Chipperfield Drive in Effort, Pennsylvania. Leone and Ollivier lived together as an unmarried couple for a period of time after they purchased the property. Leone paid $90,000 toward the purchase price, a construction loan, and other closing costs and expenses from her own funds. In the years that followed, Leone also paid from her own funds the sums of $102,000 for the mortgage, $20,000 for property insurance, $11,000 for repairs, $2,500 for utilities, and $1,000 for replacement appliances. In total, Leone expended $226,500 from her own funds. Allegedly, Ollivier did not contribute to the purchase and carrying charges of the property or, if he ever did, his contributions were not equal to those of Leone. However, at no time did either Leone or Ollivier ever seek a partition of the property.
Leone died unexpectedly on February 3, 2008. The plaintiff, Gloria Trotta, was appointed executor of Leone‘s estate (hereinafter the Estate) by order of the Surrogate‘s Court, Kings County, dated April 7, 2008. After Leone‘s death, the Estate made mortgage and other payments on the property totaling $7,500.
Trotta, as executor, commenced this action against Ollivier in the Supreme Court, Kings County, alleging unjust enrichment and seeking a judgment reimbursing the Estate for one half of the purchase price of the property and the carrying charges of the property, and full reimbursement for $7,500 for carrying charges paid by the Estate after Leone‘s death. No separate cause of action was asserted for an accounting. Nor was any proceeding commenced in the Surrogate‘s Court to compel an accounting or for discovery.
In June 2009, Ollivier made a pre-answer motion to dismiss the complaint pursuant to
Trotta opposed Ollivier‘s motion to dismiss, arguing that
In an order dated December 4, 2009, the Supreme Court granted Ollivier‘s motion to dismiss. In the judgment appealed from, entered February 17, 2010, the complaint was dismissed. In granting the motion to dismiss the complaint, the Supreme Court determined that the Estate‘s reimbursement claim did not survive Leone‘s death, and that
For reasons set forth below, we agree that the complaint fails to state a cause of action as to any of the expenses paid by Leone prior to her death. However, we find that it does state a cognizable cause of action for unjust enrichment, for the reimbursement from Ollivier of the $7,500 paid by the Estate toward the property‘s expenses after Leone‘s death. Therefore, we reverse the judgment, and modify the order by denying that branch of Ollivier‘s motion which was to dismiss so much of the complaint as sought reimbursement for Trotta‘s payment of $7,500 after the death of Leone.
When a party moves to dismiss a complaint pursuant to
Here, we accept as true the allegations of the complaint that Leone purchased the property with her own funds and paid the carrying charges on it. Such facts do not mean, however, that after Leone‘s death, her Estate is entitled to recover one half of those expenses from Ollivier. A joint tenancy, as here, is an estate held by two or more persons jointly who have equal rights to share in its enjoyment during their lives, and where each joint tenant has a right of survivorship (see Goetz v Slobey, 76 AD3d 954, 956 [2010]). The right of survivorship has been defined as “a right of automatic inheritance” where, upon the death of one joint tenant, the property does not pass through the rules of intestate succession, but is automatically inherited by the remaining tenant (United States v Craft, 535 US 274, 280 [2002]). For one joint tenant to alienate his or her individual interest in the tenancy, the estate must first be severed or, in other words, converted into a tenancy in common with each tenant no longer possessing the entire estate, but instead, possessing an equal fractional share (id. at 280).
Under New York law, joint tenancies may be severed by the court-ordered partition of the property that adjusts the rights of the parties and permits its sale if it appears that a partition cannot be made without great prejudice to the owners (see
Leone, during her lifetime, was free to manage her finances and spend her money as she saw fit, even if, with the benefit of hindsight, her decision to purchase the subject property and hold title with Ollivier as a joint tenant, and to continue to pay its ongoing expenses after Ollivier moved to another address, inured to the financial benefit of Ollivier. Accordingly, the complaint fails to state a cause of action to recover for unjust enrichment for reimbursement by the Estate of Leone‘s pre-mortem expenditures because, at the time those expenditures were made, they were not at the expense of the Estate.
Trotta argues that
There is a paucity of case law addressing
There is no authority by which
However, the complaint states a separate viable cause of action to recover for unjust enrichment, for the reimbursement from Ollivier of the $7,500 the Estate paid toward the property‘s expenses after Leone‘s death. By the time these payments were
While, as a result of our decision, the only remaining claim is for the reimbursement of $7,500, the Supreme Court nevertheless has subject matter jurisdiction to hear the action (see Matter of Murphy v Milonas, 234 AD2d 109, 110 [1996];
In light of the foregoing, the judgment is reversed, on the law, that branch of the defendant‘s motion which was pursuant to
Florio, Chambers and Miller, JJ., concur.
Ordered that the judgment is reversed, on the law, without costs or disbursements, that branch of the defendant‘s motion which was pursuant to