Jilted Boyfriend Can Proceed with Action Against Ex For Wrongful Transfer of Real Property: Menteiga v DePaola
In a November 30, 2011 decision by Justice Pines, the court granted in part and denied in part the defendants’ motion to dismiss the complaint which contained 12 separate causes of action premised on the plaintiff’s allegations that defendant DePaola transferred title to real property located in Pennsylvania to herself and the plaintiff as tenants in common when they began dating but then wrongfully transferred the deed back to herself by forging the plaintiff’s name, following their break-up. The court dismissed the cause of action for slander on the grounds that the plaintiff failed to plead special damages with the requisite particularity, the fraud claim because the plaintiff failed to allege in detail, as required under CPLR § 3016(b), any misrepresentation DePaola made on which the plaintiff justifiably relied, and the claim for civil conspiracy as such cause of action is not recognized in New York. However, the court permitted the plaintiff to proceed on his other claims (except those he voluntarily dismissed). First, the court rejected the defendants’ argument that it lacked subject matter jurisdiction over the claims brought under Article 15 of the Premises Actions and Proceedings Law and RPL § 329 because the subject property was located in Pennsylvania on the grounds that the court’s undisputed personal jurisdiction over the defendants gave the court equity jurisdiction over their rights with respect to foreign property. The court also found that the plaintiff stated a claim for breach of fiduciary duty based on the legal principle that co-tenants in common owe each other fiduciary duties and may not ordinarily acquire adverse title to the common property without consent. Finding that claim sufficient, the court permitted the plaintiff to proceed on his claim for aiding and abetting breach of fiduciary duty. Finally, the court found the defendants’ argument that the claims against defendant Nolan as a notary failed because the plaintiff cannot prove money damages, as premature, because the plaintiff was not required to provide a rationale for his damages at the pleadings stage.
Manteiga v DePaola, Sup Ct Suffolk County, November 30, 2011, Pines, J, Index No. 16432-2011
My Brother's Keeper; Court Grants Motion for Temporary Receiver for Properties Co-Owned by Deceased's Brother and Widow: Clark v Clark
In a December 20, 2011 decision by Justice Warshawsky, the court granted in part the plaintiff’s motion, pursuant to CPLR 6401 for the appointment of a temporary receiver. The plaintiff, Winifred Clark, the widow of William Clark, brought the action against William’s brother, James Clark. In the instant motion, Winifred moved for the appointment of a temporary receiver for 32 properties, 28 of which she, through William, and James owned as tenants in common; as to the others, the ownership was disputed. Winifred’s brought the motion in an attempt to protect her rights to 50% of the net rental income from the properties, which James managed. The appointment of a temporary receiver is an extreme remedy; the statute requires the movant to prove, by clear and convincing evidence that “there is a danger that the property will be removed from the state, or lost, materially injured or destroyed.” The court explained that while it is “loathe to appoint a receiver in most cases,” and notwithstanding the significant cost required to do so, it found that all of James’ actions taken together, including: defaulting on tax payments; under reporting income; maintaining double books; failing to pay Winifred her fair share of income; and misuse of joint income for personal needs, provided clear and convincing evidence that the CPLR 6401 standard was met. Therefore, the court granted the motion with respect to the 28 properties for which Winifred and James’ co-ownership was undisputed.
Clark v Clark, Sup Ct, Nassau County, December 20, 2011, Warshawsky, J., Index No. 5514/2008
