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McCaffery v. McCaffery

United States District Court, E.D. New York

March 21, 2014

MARC McCAFFERY, Defendant.

Christopher Torres, Esq., David Barnett Weinstein, Esq., John A. Wirthlin, Esq., Greenberg Traurig PA, Tampa, FL, Attorneys for Plaintiff.

George M. Chalos, Esq., Chalos & Co., P.C., Oyster Bay, NY, Attorneys for Plaintiff.

Robert N. Swetnick, Esq. Eaton & Van Winkle LLP, New York, NY, Attorneys for Defendant.


DENIS R. HURLEY, District Judge.

Regina McCaffery ("plaintiff") and Marc McCaffery ("defendant") are adult siblings who purchased a condominium at 27-1 Mitchell Road, Westhampton Beach, New York ("the property") in which their mother Barbara McCaffery ("Barbara") currently resides. Plaintiff commenced this diversity action against defendant seeking partition, sale, and purchase of the property. In the alternative, plaintiff asserts a cause of action for unjust enrichment and seeks dissolution of an at-will partnership formed between her and defendant pursuant to N.Y. Gen. Partnership Law ยงยง 10-11.

Presently before the Court is plaintiff's motion for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56 asking the Court to "(1) partition the property and sever the co-tenancy of the Parties, (2) declare the Parties' rights and obligations with respect to the property, (3) grant sole title of the property to Plaintiff upon her purchase of Defendant's interest, and (4) order Defendant to reimburse Plaintiff for her disproportionate contributions as a co-tenant." (Pl.'s Mem. in Supp. at 2.) In the alternative, plaintiff argues that she "is entitled to summary judgment for unjust enrichment because there is no genuine issue of material fact that Defendant has been enriched as a result of Plaintiff's consistent and disproportionate monetary and non-monetary contributions to the Property, " ( id. at 11), and seeks summary judgment to dissolve the alleged at-will partnership between the parties and to reimburse plaintiff for her capital contributions. ( Id. at 12-13.) For the reasons set forth below, plaintiff's motion is denied.


The following material facts are drawn from the parties' Local Civil Rule 56.1 Statements and evidentiary submissions and are undisputed unless otherwise noted.

Plaintiff Regina McCaffery resides in Florida, although she also maintains a residence at the property. Defendant Marc McCaffery resides in Michigan. Plaintiff and Defendant purchased the property so that their mother Barbara McCaffery could live there and also to incur the long-term benefits of the property's appreciation. It is undisputed that prior to the parties' purchase of the property, Barbara lived at the property and paid rent, to which plaintiff sometimes contributed.

It is undisputed that the parties purchased the property as tenants in common for $220, 000. To fund the purchase, the parties executed a promissory note dated July 2, 1998 in favor of Long Island Savings Bank, FSB in the original principal amount of $198, 000 and delivered a mortgage securing the payment of that note ("the First Mortgage"). The parties also executed a second promissory note dated June 22, 1998 in favor of Rocco Oliverio ("Oliverio") in the original principal amount of $28, 000 also to fund the purchase of the property, and they delivered a second mortgage to Oliverio. On March 24, 2003, the parties refinanced the property with the execution of a third promissory note in favor of Ohio Savings Bank in the original principal amount of $225, 000 and delivered a third mortgage to Ohio Savings Bank. Although plaintiff claims that the purpose of this loan was to make improvements to the property, defendant claims that plaintiff retained excess funds without his knowledge or consent. It is undisputed, however, that this refinancing fully satisfied the First Mortgage.

Moreover, it is undisputed that the parties are fee simple owners of the property as tenants in common and neither party has transferred any of his or her ownership interest in the property. In addition, the parties' agree that their ownership interests in the property are subject only to the interest of the Ohio Savings Bank, as a holder of the third mortgage, the outstanding balance of which at the time this motion was filed was $188, 433.42.[1]

The Parties' Monetary Obligations and Contributions

Although it is undisputed that there was no written agreement between the parties concerning the management, maintenance, and ownership of the property, defendant contends that there was an oral agreement between the parties as to each party's obligations. According to defendant, as a condition of defendant contributing funds for the purchase of the property, defendant would not contribute any funds toward the mortgage payments, homeowners association dues, or other expenses of the ownership, maintenance or operation of the property. In addition, according to defendant, the parties verbally agreed that Barbara would pay the mortgage and homeowners' association dues, which were similar in amount to her former rent payments, and plaintiff would contribute the balance needed to cover any shortfall. Plaintiff disputes the existence of any agreement.

It is undisputed that defendant contributed $10, 275 towards the down payment and appraisal. In addition, plaintiff claims that she contributed $19, 616 towards the down payment and closing costs, although defendant asserts that these funds were derived from the Oliverio loan. In addition, Plaintiff claims that both she and defendant each paid $10, 053.50 towards the refinancing of the Property.[2] According to plaintiff, defendant has contributed a total of $20, 328.50 towards the property (the total of his contributions to the down payment and the refinancing), though defendant claims that he contributed over that amount and that his credit ...

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