United States District Court, S.D. New York
LATIFA JAFFER, AHMED M. HIRJI, SHEHZAD HIRJI, HUSSEIN JAFFER, Plaintiffs,
NAUSHAD M. HIRJI, SABIRA HIRJI, Defendants.
Costantino Fragale, Esq. Law Office of Costantino Fragale
Eastchester, NY Counsel for Plaintiffs
D. Brodnick, Esq. Mount Kisco, NY Counsel for Defendants
OPINION & ORDER
KENNETH M. KARAS, District Judge
Latifa Jaffer (“Latifa”), Ahmed M. Hirji
(“Ahmed”), Shehzad Hirji (“Shehzad”),
and Hussein Jaffer (“Hussein”) brought this
Action against Defendants Naushad M. Hirji
(“Naushad”) and Sabira Hirji
(“Sabira”), seeking a judgment creating a
constructive trust for their benefit (and the benefit of
their siblings) with respect to the property located at 662
Secor Road, Hartsdale, New York (the “Property”),
and seeking a declaration that they are the fee owners of the
Property by virtue of adverse possession. Defendants
counterclaimed, seeking a judgment directing that possession
of the Property be delivered to Defendants and granting
Defendants the use and occupancy of the Property. The Parties
have cross-moved for summary judgment on Plaintiffs'
remaining claim for a constructive trust. For the reasons to
follow, Plaintiffs' Motion is denied and Defendants'
Motion is granted.
following facts are taken from the Parties' respective
Rule 56.1 Statements of Undisputed Material Facts and the
documents submitted by the Parties in support of their
The Hirji Family
Hussein Hirji (“Mr. Hirji”) and Zehra Hirji
(“Zehra”) were a married couple who lived in
Tanazania and had seven children, in order of oldest to
youngest: Latifa, Farida, Naushad, Shamim, Effat, Mustafa,
and Ahmed. (See Aff'n of Costantino Fragale
(“Fragale Aff'n”) Ex. I (“Ahmed
Tr.”), at 7-8 (Dkt. No. 65); Fragale Aff'n Ex. N
(“Hussein Aff.”) ¶ 2; see also
Pls.' Rule 56.1 Statement of Undisputed Material Facts
(“Pls.' 56.1”) ¶ 1 (Dkt. No. 67);
Defs.' Rule 56.1 Resp. (“Defs.' 56.1
Resp.”) ¶ 1 (Dkt. No. 89); Defs.' Rule 56.1
Statement (“Defs.' 56.1”) ¶¶ 1-3
(Dkt. No. 77); Pls.' Answer to Defs.' Rule 56.1
Statement of Undisputed Material Facts (“Pls.' 56.1
Resp.”) ¶¶ 1-3 (Dkt. No. 86).) At the time of
suit, Latifa and her husband Hussein resided at the Property,
along with Ahmed and his son, Shehzad, all Plaintiffs in this
suit. (See Hussein Aff. ¶ 3; see also
Pls.' 56.1 ¶ 2; Defs.' 56.1 Resp. ¶ 1.)
Defendant Naushad is married to Defendant Sabira and resides
with her in Tanzania. (See Hussein Aff. ¶ 4;
see also Pls.' 56.1 ¶ 3; Defs.' 56.1
Resp. ¶ 1.) Naushad's oldest daughter, Naushina
Esmail (“Naushina”), holds a power of attorney
over Naushad and resides in the state of Washington.
(See Fragale Aff'n Ex. L (“Naushina
Tr.”), at 109; see also Pls.' 56.1 ¶
4; Defs.' 56.1 Resp. ¶ 1.) Farida and Shamim are
both deceased, Effat resides in Tanzania, and Mustafa resides
in New York. (See Hussein Aff. ¶ 5; see
also Pls.' 56.1 ¶ 5; Defs.' 56.1 Resp.
The Property and the Transfers
intra-family dispute has its origins in the purchase of the
Property in 1982. In July 1982, the Property was purchased by
Mr. Hirji and deeded to two of his sons, Ahmed and Mustafa.
(See Fragale Aff'n Ex. C; see also
Pls.' 56.1 ¶ 7; Defs.' 56.1 Resp. ¶ 1.) The
Parties dispute whether Mr. Hirji himself paid for the entire
value of the property, or whether a portion of the property
value was paid for by Naushad. (See Fragale
Aff'n Ex. M (“Naushad Tr.”), at 17; see
also Pls.' 56.1 ¶ 8.) Although the Parties
additionally dispute why the Property was deeded to Ahmed and
Mustafa, Latifa, Ahmed, and Gould, the attorney who
represented Mr. Hirji in all of the deeds executed with
respect to the Property, each testified that they believed
the Property was intended to be used as a family home and
that Ahmed and Mustafa merely held the Property for the
benefit of the entire family, in accordance with Mr.
Hirji's wishes. (See Fragale Aff'n Ex. H
(“Gould Tr.”), at 10 (“I believe [Mr.
Hirji] wanted to purchase a home for his family to live in
here.”); Ahmed Tr. 14 (“Q: Did your father
explain why he wanted the house held in your Accordingly,
where Defendants have offered no citation to admissible
evidence in the record, the Court will consider that fact
undisputed. Of additional note, Defendants have not cited to
a single document in their own Rule 56.1 Statement. (See
generally Defs.' 56.1.) name and Mustafa's name?
A: Because he said, [i]t's the family house. It's
going to stay as a family house.”); Fragale Aff'n
Ex. K (“Latifa Tr.”), at 6 (“All I know,
that [Mr. Hirji] told me- he advised me that I am buying
this-purchasing this home for the family.”).) There is
no dispute, however, that Mustafa and Ahmed were nominal
title holders of the Property on behalf of their father, Mr.
Hirji. (See Defs.' 56.1 ¶ 5; Pls.' 56.1
Resp. ¶ 5.)
December 1982, Ahmed and Mustafa deeded the Property to
themselves and their mother, Zehra, as joint tenants.
(See Fragale Aff'n Ex. E; see also
Pls.' 56.1 ¶ 12; Defs.' 56.1 Resp. ¶ 1;
Defs.' 56.1 ¶ 7; Pls.' 56.1 Resp. ¶ 7.)
Zehra paid no consideration for the deed. (See
Pls.' 56.1 ¶ 13; Defs.' 56.1 Resp. ¶ 1;
Defs.' 56.1 ¶ 8; Pls.' 56.1 Resp. ¶ 8.) In
1984, Zehra died intestate in New York, (see Hussein
Aff. ¶ 6; see also Pls.' 56.1 ¶ 14;
Defs.' 56.1 Resp. ¶ 1; Defs.' 56.1 ¶ 9;
Pls.' 56.1 Resp. ¶ 9), and her interest in the
Property thus devolved to Ahmed and Mustafa.
December 5, 1989, Mustafa and Ahmed deeded the Property to
Mr. Hirji and Naushad for no consideration. (See
Fragale Aff'n Ex. F; see also Pls.' 56.1
¶ 15; Defs.' 56.1 Resp. ¶ 1; Defs.' 56.1
¶¶ 10-11; Pls.' 56.1 Resp. ¶¶ 10-11.)
While preparing the new deed in 1989 (the “Third
Deed”), Mr. Gould had no contact with Naushad.
(See Gould Tr. 33; Naushad Tr. 74; see also
Pls.' 56.1 ¶ 16; Defs.' 56.1 Resp. ¶ 1.)
According to Ahmed, the Third Deed was executed because Mr.
Hirji was thinking about getting married and “wanted
his house back, ” and Naushad was included on the deed
because Mr. Hirji feared that if he passed away while the
Property was in his name only, the state would take the
house. (Ahmed Tr. 22-23.) According to Hussein, it was his
idea to add Naushad based on his understanding of what could
happen if Mr. Hirji passed away while the Property was in his
name only. (See Fragale Aff'n Ex. J
(“Hussein Tr.”), at 29-31.)
1998, Mr. Hirji died intestate in Tanzania. (See
Naushad Tr. 23; see also Pls.' 56.1 ¶ 24;
Defs.' 56.1 Resp. ¶ 1; Defs.' 56.1 ¶ 12;
Pls.' 56.1 Resp. ¶ 12.) In February 2001, Naushad
deeded the Property to himself and his wife, Sabira.
(See Fragale Aff'n Ex. G; Hussein Tr. 51;
see also Pls.' 56.1 ¶ 25; Defs.' 56.1
Resp. ¶ 1; Defs.' 56.1 ¶ 13; Pls.' 56.1
Resp. ¶ 13.) Hussein was responsible for making the
arrangements in connection with the 2001 deed. (See
Hussein Tr. 51; see also Pls.' 56.1 ¶ 26;
Defs.' 56.1 Resp. ¶ 1.)
Occupation and Upkeep of the Property
1984 and 2014, all Plaintiffs, with the exception of Shehzad,
have resided at the Property. (See Ahmed Tr. 11;
see also Pls.' 56.1 ¶ 36; Defs.' 56.1
Resp. ¶ 1; Defs.' 56.1 ¶ 19; Pls.' 56.1
Resp. ¶ 19.) During that period, Plaintiffs never paid
rent. (See Ahmed Tr. 63; Hussein Tr. 49, 95-96, 105,
107; Latifa Tr. 15; see also Pls.' 56.1 ¶
37; Defs.' 56.1 Resp. ¶ 13.)Between 1984 and 2013,
Plaintiffs paid all subject property taxes and have
maintained the subject property. (See Ahmed Tr. 76;
Hussein Tr. 107; see also Pls.' 56.1 ¶
During that time, Plaintiffs made permanent repairs and
capital improvements to the Property, including replacing the
wood paneling for the house, putting in recessed lighting,
extending the driveway, replacing the fence, adding a
bathroom, and adding a kitchen. (See Hussein Tr.
62-63; see also Pls.' 56.1 ¶ 41; Defs.'
56.1 Resp. ¶ 1.)
until 2013, Naushad had visited the Property only once, for
the wedding of Hussein's and Latifa's daughter.
(See Naushad Tr. 28-29; see also Pls.'
56.1 ¶ 42; Defs.' 56.1 Resp. ¶ 1.) Naushad
never hired anyone to inspect the Property, and up until
2014, Naushad never paid any taxes on the Property.
(See Naushad Tr. 24-25; see also Pls.'
56.1 ¶¶ 43-44; Defs.' 56.1 Resp. ¶ 1.)
2013 Visit and Notice of Termination
November 2013, Naushina and her husband visited Ahmed and
Hussein at the Property and secretly recorded a conversation
between them. (See Naushina Tr. 88-91; see
also Pls.' 56.1 ¶ 27; Defs.' 56.1 Resp.
¶ 1.) Prior to her deposition in this case, Naushina had
not disclosed the recording to Plaintiffs or her attorney.
(See Naushina Tr. 89-90; see also Pls.'
56.1 ¶ 28; Defs.' 56.1 Resp. ¶ 1.) During the
conversation, Hussein reaffirmed his belief that the Property
was a family home. (See Naushina Tr. 97; see
also Pls.' 56.1 ¶ 29; Defs.' 56.1 Resp.
¶ 1.) He insisted, several times, that the Property
could not be sold without the consent of Zehra, and that
because she had passed away, her shares had devolved to her
children. (See Fragale Aff'n Ex. S.)
Naushina's husband told Hussein that Naushad had not been
sure whether he owned that Property, and told Hussein that it
was only through conducting a title search that he learned
that the Property was owned by Naushad and Sabira. (See
id.; see also Pls.' 56.1 ¶ 32.)
Although Naushina indicated that the conversation lasted
between three and four hours, Plaintiffs have received only
portions of the recorded conversation. (See
Pls.' 56.1 ¶ 33.) Naushina also recorded a conversation
between her parents and their cousins that took place in
Tanzania regarding the Property, (see Naushina Tr.
91-93; see also Pls.' 56.1 ¶ 34; Defs.'
56.1 Resp. ¶ 12), although no portion of that recording
has been produced in this litigation.
January 22, 2014, Naushad, acting through Naushina (who at
that time possessed power of attorney over Naushad), issued a
Notice of Termination to Plaintiffs requiring them to vacate
the Property on or before February 28, 2014. (See
Fragale Aff'n Ex. T; see also Pls.' 56.1
¶ 35; Defs.' 56.1 Resp. ¶ 1.) The Notice of
Termination informed Plaintiffs that if they failed to vacate
the Property, a summary proceeding would be commenced against
them to have them evicted and removed from the Property.
(See Fragale Aff'n Ex. T; see also
Pls.' 56.1 ¶ 35; Defs.' 56.1 Resp. ¶ 1.)
Other Homes & Gifts
addition to the Property, Mr. Hirji has provided for his
family in other ways. At some point in time, he gave $80, 000
to Naushad. (See Naushad Tr. 82; see also
Pls.' 56.1 ¶ 22; Defs.' 56.1 Resp. ¶ 1.)
Mr. Hirji also gave Mustafa and Ahmed each $75, 000 to
purchase homes in Ossining, New York. (See Ahmed Tr.
25-26; Hussein Tr. 103-04; see also Pls.' 56.1
¶ 22; Defs.' 56.1 Resp. ¶ 1; see also
Defs.' 56.1 ¶ 14; Pls.' 56.1 Resp. ¶ 14.)
Hussein is the nominee owner for both of the homes in
Ossining. (See Ahmed Tr. 34-35; Hussein Tr. 103-04;
see also Defs.' 56.1 ¶ 15; Pls.' 56.1
Resp. ¶ 15.)
filed their initial Complaint on February 25, 2014, in the
Supreme Court of the State of New York, County of
Westchester. (See Dkt. No. 1.) Defendants timely
removed the Action to this Court on the basis of diversity
jurisdiction. (See id.) Defendants filed their
Answer on March 31, 2014, asserting two counterclaims.
(See Dkt. No. 3.) After Plaintiffs obtained new
counsel to handle the case in federal court, (see
Dkt. Nos. 6, 7), the Court held a conference wherein
Plaintiffs indicated they wished to file an Amended
Complaint, (see Dkt. (minute entry for Sept. 16,
2014)). Plaintiffs filed their Amended Complaint on September
29, 2014, (see Dkt. No. 12), and Defendants filed
their Answer on October 17, 2014, setting forth the same
counterclaims, (see Dkt. No. 13). Shortly
thereafter, Defendants sought and were given leave to file a
Motion for Judgment on the Pleadings. (See Dkt. No.
14; see also Dkt. (minute entry for Oct. 22, 2014).)
Defendants filed their Motion on November 14, 2014,
(see Dkt. No. 17), and Plaintiffs filed their Answer
to Defendants' counterclaims on December 11, 2014,
(see Dkt. No. 20).
October 27, 2015, the Court issued an Opinion & Order
granting in part and denying in part Defendants' Motion.
(See Dkt. No. 24.) Specifically, the Court held
that, on the facts alleged, Plaintiffs' claim for a
constructive trust was not time-barred. (See Id. at
13.) However, the Court held that Plaintiffs had not stated a
claim for adverse possession. (See Id. at 19.)
Accordingly, that claim was dismissed. (See id.)
Court thereafter entered a discovery schedule. (See
Dkt. No. 26.) On June 14, 2016, the Court held a conference
wherein the Parties sought leave to file cross-motions for
summary judgment. (See Dkt. (minute entry for June
14, 2016).) Leave was granted, and the Court entered a
scheduling order. (See Dkt. No. 55.) On August 19,
2016, Plaintiffs filed their Motion for Summary Judgment and
accompanying papers. (See Dkt. Nos. 64-67.)
Defendants filed their Motion for Summary Judgment and
accompanying papers on August 30, 2016. (See Dkt.
Nos. 75-79.) After responses and replies were filed, the
Motion was fully submitted on October 4, 2016.
Standard of Review
judgment is appropriate where the movant shows that
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John
Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir.
2014) (same). “In determining whether summary judgment
is appropriate, ” a court must “construe the
facts in the light most favorable to the non-moving party and
. . . resolve all ambiguities and draw all reasonable
inferences against the movant.” Brod v. Omya,
Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal
quotation marks omitted); see also Borough of Upper
Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16
F.Supp.3d 294, 314 (S.D.N.Y. 2014) (same). “It is the
movant's burden to show that no genuine factual dispute
exists.” Vt. Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004); see also
Berry v. Marchinkowski, 137 F.Supp.3d 495, 521 (S.D.N.Y.
when the burden of proof at trial would fall on the nonmoving
party, it ordinarily is sufficient for the movant to point to
a lack of evidence to go to the trier of fact on an essential
element of the nonmovant's claim, ” in which case
“the nonmoving party must come forward with admissible
evidence sufficient to raise a genuine issue of fact for
trial in order to avoid summary judgment.” CILP
Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d
114, 123 (2d Cir. 2013) (alteration and internal quotation
marks omitted). Further, “[t]o survive a [summary
judgment] motion . . ., [a nonmovant] need[s] to create more
than a ‘metaphysical' possibility that his
allegations were correct; he need[s] to ‘come forward
with specific facts showing that there is a genuine issue for
trial, '” Wrobel v. County of Erie, 692
F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586-87 (1986)), “and cannot rely on the
mere allegations or denials contained in the pleadings,
” Guardian Life Ins. Co. v. Gilmore, 45
F.Supp.3d 310, 322 (S.D.N.Y. 2014) (internal ...