United States District Court, E.D. New York
MEMORANDUM & ORDER
M. GOLD, UNITED STATES MAGISTRATE JUDGE
Dorothy Chasewood brings this action for partition and sale
of real property located at 176 West Street, Brooklyn, New
York (the “property”), pursuant to Article 9 of
the New York Real Property Actions and Proceedings Law
(“RPAPL”). Presently before the Court is
plaintiff's motion for summary judgment granting
partition and sale of the property and, if required, the
appointment of a referee to accomplish partition and sale and
conduct an accounting with respect to proper distribution of
the sale proceeds. For the reasons and to the extent
described below, plaintiff's motion for summary judgment
following facts are drawn from plaintiff's statement
filed in accordance with Rule 56.1 of the Local Rules of the
United States District Court for the Eastern District of New
York. See Pl.'s Statement of Uncontested Facts
(“Pl.'s 56.1”), Dkt. 36-1. Where
defendant's Rule 56.1 statement controverts a fact put
forth in plaintiff's Rule 56.1 statement, that dispute is
noted below. See Def. Christopher Kay's Statement
Controverting Pl.'s Rule 56.1 Statement and Statement of
Additional Material Facts Pursuant to Rule 56.1
(“Def.'s 56.1”), Dkt. 38-4.
and defendant are tenants in common of the property by deed
dated October 17, 2016. Pl.'s 56.1 ¶ 1; Bargain and
Sale Deed, Pl.'s Ex. 3 (“Deed”), Dkt. 36-5.
The Deed lists 176 West Street Corp. as grantor and plaintiff
and defendant as grantees. Pl.'s 56.1 ¶ 2; Deed at
Plaintiff and defendant were married in 2000 and divorced in
2009. Pl.'s 56.1 ¶ 4; Final J. Dissolving Marriage,
Pl.'s Ex. 2 (“Divorce Judgment”), Dkt.
36-4. The parties entered into a
“Separation and Settlement Agreement” that the
Divorce Judgment approved and incorporated by reference.
Divorce Judgment ¶ 6. The Agreement and Divorce Judgment
provide that plaintiff and defendant are each entitled to a
50% interest in 176 West Street Corp., which was at that time
the owner of the property. Pl.'s 56.1 ¶¶ 5-6;
Divorce Judgment, Separation and Settlement Agreement at
contends that, despite this provision in the Separation and
Settlement agreement, defendant refused to transfer a 50%
interest in 176 West Street Corp. to her. Pl.'s 56.1
¶ 7. Plaintiff thereafter brought an enforcement
proceeding in Florida against defendant. Id. ¶
8. That proceeding resulted in a stipulation and order
effectively dissolving 176 West Street Corp. as of October
26, 2011, by which time defendant still had not transferred
any interest in the corporation to plaintiff. Id.
¶¶ 9-12; Stipulated Order dated July 9, 2014,
Pl.'s Ex. 5, Dkt. 36-7; R. & R. dated Jan. 6, 2015,
Pl.'s Ex. 6, Dkt. 36-8; Order dated Feb. 26, 2016,
Pl.'s Ex. 7, Dkt. 36-9; Order dated Feb. 17, 2017,
Pl.'s Ex. 8, Dkt. 36-10; Order dated July 19, 2017,
Pl.'s Ex. 9, Dkt. 36-11; NYS Division of Corporations
Entity Information, Pl.'s Ex. 11, Dkt.
defendant failed to convey to plaintiff a 50% interest in 176
West Street Corp. prior to its dissolution, on February 26,
2016, he did, pursuant to a court order, convey to plaintiff
a 50% interest in the property that the corporation had
previously held. Pl.'s 56.1 ¶ 13; Order dated Feb.
26, 2016. However, while defendant signed the Deed, he did
not execute New York State and New York City transfer tax
returns and other documents required before the Deed could be
filed in New York State; plaintiff was accordingly required
to return to the Florida Court to obtain permission to sign
the documents necessary for filing the Deed, and finally did
so on July 19, 2017. Pl.'s 56.1 ¶¶
submits additional facts in his Rule 56.1 Statement that he
contends present genuine issues to be tried. Plaintiff
generally claims that she has insufficient knowledge or
information to confirm or deny defendant's factual
contentions, but any instance where plaintiff specifically
denies a factual assertion made by defendant is noted below.
states that he paid the full purchase price of the
property-$264, 000-in June of 2000. Def.'s 56.1 Suppl.
¶ 1. According to defendant, the property consists of
four apartment units; defendant resides in one of the units
and operates his business out of the property as well.
Id. ¶¶ 2, 32-33. As of January of 2006,
the property, then solely owned by 176 West Street Corp.,
required extensive renovations. Id. ¶¶
Defendant intended to fund the renovations with a
construction bond but learned he could not obtain one on
behalf of a single-shareholder corporation. Id.
¶¶ 5-7. Defendant therefore prepared and delivered
a Share Certificate to plaintiff for the purpose of
transferring a 50% interest in 176 West Street Corp. to her.
Id. ¶¶ 8- 11; Aff. of Christopher A.
Gorman, Esq. in Opp'n to Def.'s Mot. for Summ. J. and
Related Relief (“Gorman Aff.”), Ex. 2
(“Share Certificate”), Dkt. 38-6. Defendant submits
a letter of plaintiff, transmitted through her counsel to
defendant's former counsel on or about June 25, 2013,
claiming that plaintiff was at that time a 50% shareholder of
176 West Street Corp. and demanding to see the company's
books and records. Def.'s 56.1 Suppl. ¶ 17; Gorman
Aff., Ex. 1 (“June 25 Letter”). Defendant
indicates that plaintiff has not renounced or corrected any
statement reflecting her interest as a shareholder made in
the June 25 Letter. Def.'s 56.1 Suppl. ¶
obtaining a construction bond, defendant financed the
renovations without any contribution from plaintiff.
Id. ¶¶ 12-13, 28. Nor, according to
defendant, has plaintiff made any contribution towards
payment of the mortgage secured by the property, insurance
expenses, utility expenses, taxes, maintenance and repair
costs, or other carrying costs, other than by purchasing a
few cans of paint on one occasion, despite an oral agreement
to split costs evenly with defendant. Id.
¶¶ 19-20, 22-27.
claims he paid off the mortgage in full on August 11, 2015.
Id. ¶ 21. Defendant also contends that
plaintiff interfered with his access to the property and
efforts to show the property to prospective investors and
tenants, and “consistently acted in a way towards
[defendant] which could be described as ‘acting in bad
faith, being harassing and oppressive.'”
Id. ¶¶ 14-16.
states that the property has been appraised at a value of $3,
000, 000 as of July 26, 2018. Id. ¶
29. Defendant attributes much of the value
of the property to the renovations and repairs he funded and
oversaw. Id. ¶ 30. Defendant also opines that
the building's apartments could be converted into
separate condominium units and that doing so would
substantially increase the property's value. Id.
may grant summary judgment if the moving party shows that
“there is no genuine dispute as to any material fact
and that the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A dispute as to a material
fact is genuine if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see also Mitchell v. Shane,
350 F.3d 39, 47 (2d Cir. 2003). “In deciding whether
there is a genuine issue of material fact as to an element
essential to a party's case, the court must examine the
evidence in the light most favorable to the party opposing
the motion, and resolve ambiguities and draw reasonable
inferences against the moving party.” Abramson v.
Pataki, 278 F.3d 93, 101 (2d Cir. 2002) (internal
quotation marks and citation omitted).
other hand, “[t]o survive summary judgment . . . the
non-moving party must come forward with ‘specific facts
showing that there is a genuine issue for trial.'”
Reiseck v. Universal Commc'ns of Miami, 2012 WL
3642375, at *2 (S.D.N.Y. Aug. 23, 2012) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,475 U.S. 574, 586 n.11 (1986)). “Conclusory
allegations, conjecture, and speculation . . . are