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Jaffer v. Hirji

United States District Court, S.D. New York

March 28, 2017

LATIFA JAFFER, AHMED M. HIRJI, SHEHZAD HIRJI, HUSSEIN JAFFER, Plaintiffs,
v.
NAUSHAD M. HIRJI, SABIRA HIRJI, Defendants.

          Costantino Fragale, Esq. Law Office of Costantino Fragale Eastchester, NY Counsel for Plaintiffs

          Andrew D. Brodnick, Esq. Mount Kisco, NY Counsel for Defendants

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Plaintiffs 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.

         I. Background

         A. Factual Background

         The 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 Motions.

         1. The Hirji Family

         Mohamed 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).)[1] 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. ¶ 1.)

         2. The Property and the Transfers

         This 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.)

         In 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.

         On 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.)

         In 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.)

         3. Occupation and Upkeep of the Property

         Between 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.)[2]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 ¶ 40.)[3] 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.)

         Up 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.)

         4. 2013 Visit and Notice of Termination

         In 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.)[4] 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.

         On 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.)

         5. Other Homes & Gifts

         In 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.)

         B. Procedural History

         Plaintiffs 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).

         On 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.)

         The 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.

         II. Discussion

         A. Standard of Review

         Summary 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. 2015) (same).

         “However, 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 ...


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