The (Property) Bonds of Matrimony That Can’t Be Broken

Two sisters and their respective husbands decided to purchase a two-family house in The Bronx in 1995. At the closing, they took title to the property, reflected on the Deed, as follows: “Gilberto Hernandez and Consolacion Hernandez, his wife …. And Erlinda Que and Elpidio Rodriguez, her husband.” Erlinda executed her Last Will and Testament, in which she devised her “half share and interest in the real property” to her sister, Consolacion, and her husband, Elpidio, in equal shares. In December 2000, Erlinda passed away, survived by her husband, Elpidio.

For a long time after Erlinda’s death, Elpidio and his deceased wife’s sister continued to maintain the house. At some point, he remarried and wanted to sell it and move. And, when they all couldn’t agree on how to accomplish this, a lawsuit was initiated called a “Partition and Sale” action. In this type of lawsuit, the parties ask a judge to order the property sold at auction.

The decedent’s sister and her husband, along with the nominated executor under the Will, claimed that ownership of the Bronx property passed under Erlinda’s Last Will and Testament. Therefore, they claimed that half of Erlinda’s quarter-share went to Consolacion (or one-eighth of the total interest in the property), and half of Erlinda’s quarter-share went to Elpidio. By their claim, Elpidio would be entitled to only 37.5% of the house.

Elpidio, the decedent’s surviving spouse, came to Richard A. Klass, Your Court Street Lawyer, for legal advice. Elpidio felt that, as Erlinda’s husband, he should get more.

Tenancy by the Entirety:

One of the “perks” of being married is that real property deeded to a husband and wife creates a “tenancy by the entirety,” under New York’s Estates Powers and Trusts Law Section 6-2.2(b). This form of ownership, among other things, prevents creditors of one spouse from forcing the sale of the house and easily transfers title to one spouse upon the death of the other. The exception to this rule about a tenancy by the entirety is if the Deed expressly declares it to be a joint tenancy or tenancy in common (where each spouse owns a divisible share).

Commonly, the Deed to a husband and wife will indicate that they are married, with language such as “A and B, as husband and wife” or “A and B, his wife” or “A and B, her husband.” This form of ownership, by statute, cannot be altered or changed without the mutual consent of the spouses or a divorce. Obviously, the ownership of a house by spouses as a tenancy by the entirety gives comfort that one spouse cannot sell his/her interest in the house without the other spouse’s consent. Only in limited circumstances, such as a divorce proceeding or bankruptcy case, can a court force the disposition of a house owned by the spouses in this form without their consent.

Granting of Summary Judgment:

The term “summary judgment” means that the litigant believes that there are no issues of fact which necessitate a trial before a judge or jury. When one litigant “moves” or asks the judge to grant summary judgment, he must present proof (in admissible form) which supports the request and which demonstrates that the matter may be decided on the law alone. It can then be said that the movant has established his“prima facie” case (meaning “at first sight”). Then, the other side to the litigation must present the judge with proof that there are genuine factual issues, and that the matter cannot be decided without a trial. Many readers will understand that judges deny summary judgment motions in most cases because they want to give litigants their day in court, and the facts are not always the facts.

In the probate proceeding in the Surrogate’s Court for Bronx County, Elpidio asked the Surrogate to grant him “summary judgment” on his claim that he is entitled to Erlinda’s entire interest in the house. The ‘Exhibit A’ proof, offered by Elpidio that he was entitled to Erlinda’s whole share, was the Deed itself. There was no express declaration in the Deed that it had been conveyed or transferred to Elpidio and Erlinda as anything other than husband and wife.

In granting summary judgment to Elpidio, in In the Estate of Erlinda Que, Deceased [Surrogate’s Court, Bronx County, February 25, 2010], Surrogate Holzman determined that, despite the language of Erlinda’s Last Will and Testament granting her sister a half-share of her interest in the house, Elpidio should be declared the full owner of half or 50% of the whole house. Specifically, Surrogate Holzman held that:

“ A tenancy by the entirety is different from both a tenancy in common and a joint tenancy in that ‘it remains fixed and cannot be destroyed without the consent of both parties’ for ‘as long as the marriage remains legally intact,’ with both parties continuing ‘to be seized of the whole, and the death of one merely results in the defeasance of the deceased spouse’s coextensive interest in the property.’ (V.R.W. Inc. v. Klein, 68 NY2d 560 [1986].) ”

Accordingly, by operation of law, the death of Erlinda, one of the spouses, resulted in that spouse/tenant no longer having an interest in the property, with Elpidio, as the surviving spouse, now owning her share as well as his own. Surrogate Holzman recognized the long-standing rule that “a severance of a tenancy by the entirety cannot be effectuated by the unilateral last will of one of the spouses alone.” (Matter of Strong, 171 Misc. 445 [1939].

 
by Richard A. Klass, Esq.

Credits:
Paar im Walde (1912). by artist August Macke (1887-1914).
Photo of Richard Klass by Tom Urgo, 2008.
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copyr. 2010 and 2011 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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The Wrong Side of the Tracks Costs Law Firm $800,000.

The Long Island Railroad (LIRR) leased one of its old rail yards in Queens to a recycling company. One of the recycling company’s employees was working the late shift on a rainy evening in 2003. That rainy night, he was assigned the task of welding on a portion of the metal fence surrounding the yard with an acetylene torch. He got up on a ladder, climbed up several rungs, and started to weld. At that point, the injured worker got a shock from the welding equipment. The ladder then shifted in the mud and he fell to the ground, suffering severe injuries. Since that incident, he was unable to work, having become disabled, and having had several surgeries to his back and knee.

The injured worker hired a law firm to bring a personal injury claim against the owner of the yard under New York’s Labor Law Section 240 known as the “Scaffolding Law.” That law firm brought a petition to file notices of claim against the MTA (Metropolitan Transportation Authority) and the LIRR. The Supreme Court Justice dismissed the petition, indicating in his decision that, as to the MTA, the reason for the late notice of claim was not meritorious and, as to the LIRR, no notice of claim was needed and that the law firm merely needed to timely commence a lawsuit under New York’s Public Authority Law. Needless to say, the time within which the injured worker needed to commence the lawsuit against the LIRR had already passed by the time of that decision. The injured worker retained Richard A. Klass, Your Court Street Lawyer to sue the personal injury law firm for legal malpractice.

Time-barred by the Statute of Limitations:

The concept of a “ Statute of Limitations ” is that people are afforded a certain amount of time to take action concerning a legal claim they may have; if that period of time passes without taking action, then the ability to pursue the legal claim has been waived. Most people are familiar, for instance, that in New York State the statute of limitations period within which to file most personal injury cases is three years from the date of accident. In this particular case, though, the Statute of Limitations period within which to sue the potentially liable parties was shorter (to a period of one year and thirty days) because the personal injury claim was against the LIRR, a governmental authority under a special statute.

Once the judge had dismissed the injured worker’s lawsuit, thus leaving him without recourse to recover monetary damages for his injuries, the law firm was exposed to the legal malpractice claim brought against it because it was alleged to have “blown” the statute of limitations by neglecting to timely file the lawsuit against the LIRR.

In legal malpractice cases, the statute of limitations in which to sue an attorney is three years from the date of malpractice under New York’s CPLR Section 214(6). Since many times in litigation, attorneys who have committed malpractice continue representing their clients for months or years afterward, there is also a concept of “ continuous representation. ” This means that the statute of limitations “clock” does not start to tick until the attorney has stopped representing the client in the matter.

Proving the underlying case under Labor Law Section 240:

A legal malpractice case is a very difficult type of litigation for one particular reason: Assuming that the lawyer ‘screwed up’ as much as possible, doing everything as wrong as could be done or failing to do any of the right things, it still might not matter — the ultimate question for purposes of liability for legal malpractice will be whether there was any merit to the underlying case that the lawyer was hired to handle. Rephrased: Would the client have won “but for” his lawyer?!

New York’s Scaffolding Law provides that owners of real estate, such as the LIRR, are “strictly liable” for injuries suffered by workers who fall from a ladder or scaffold under almost all circumstances, with limited exceptions, such as if there was a lack of adequate safety devices. This basically means that the landowner is responsible to pay for all of the worker’s damages for his injuries, including medical bills, lost wages, and pain and suffering. An exception to holding the landowner strictly liable under the Scaffolding Law is where the injured worker is found to have been the “ sole proximate cause ” of his injuries. In this case, the law firm being sued for legal malpractice argued that, in the event the LIRR had been sued, the injured worker would not have prevailed anyway because this exception to the Scaffolding Law would have applied because he knew not to weld in the rain. In response, the injured worker claimed that his employer at the yard instructed him to weld in the rain and that he was not going to be insubordinate.

Separate and apart from the Scaffolding Law issue, the law firm argued that there was no proof of exactly where the fall occurred to establish that it happened on the LIRR’s property. In response, a surveyor was retained to survey the area surrounding the old rail (now recycling) yard, and Deeds dating back to the 1800s were obtained. These documents were produced to establish the legal ownership of the location where the fall took place. This was a necessary element of the case in order to prove that the LIRR would have been liable for injuries to workers on its property under the Scaffolding Law.

The legal malpractice case came up for a pre-trial conference. Attorneys Richard A. Klass and Stefano A. Filippazzo appeared at the conference on behalf of the injured worker. The law firm being sued for legal malpractice finally settled with the injured worker for $800,000 to settle the action and pay for his injuries and extensive medical lien.

by Richard A. Klass, Esq.

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copyr. 2011 Richard A. Klass, Esq.

Art credits: page one, Hjørring – Hirtshals Line in Northern Denmark. Photograph by Tomasz Sienicki, 2003.

The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.

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R. A. Klass
Your Court Street Lawyer

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