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Earl R. Davis | counterclaims against the Plaintiffs-Appellant

This action concerns real property (hereinafter u201cthe Propertyu201d) situated in the Borough and County of Kings, City and State of New York known as and by the Street Number 793 Willoughby Avenue, Brooklyn, NY 11206. Read this PDF to know the about entire case.

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Earl R. Davis | counterclaims against the Plaintiffs-Appellant

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  1. FILED: APPELLATE DIVISION - 2ND DEPT 04/11/2022 03:46 PM NYSCEF DOC. NO. 6 2021-07619 To be Argued by: ANDREW M.KRISEL (Time Requested: 15 Minutes) RECEIVED NYSCEF: 04/11/2022 Supreme Court of the State of New York Supreme Court of the State of New York Appellate Division – Second Department O Docket No.: 2021-07619 EARL R. DAVIS, AMERICAN REGIONAL REAL ESTATE PARTNERS INC., LCD HOLDING CORP. and WILLOUGHBY PARK INVESTORS INC., Plaintiffs-Appellants, - against - HERMAN DURAND and OLGA DURAND, Defendants-Respondents. BRIEF FOR PLAINTIFFS-APPELLANTS ANDREW M.KRISEL,ESQ. Attorney for Plaintiffs-Appellants 44 Court Street, Suite 906 Brooklyn, New York 11201 (718) 222-1720 krisel123@aol.com Kings County Clerk’s Index No.: 524565/2019 APPELLATE INNOVATIONS (914) 948-2240 16919 Printed on Recycled Paper

  2. TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................................................................... iv STATEMENT OF QUESTIONS INVOLVED ......................................................... 1 STATEMENT OF THE CASE .................................................................................. 3 STATEMENT OF FACTS ........................................................................................ 4 ARGUMENT ........................................................................................................... 13 PRELIMINARY STATEMENT ............................................................................. 13 POINT I LAW OFFICE FAILURE ARISING FROM A REASONABLE INTERPRETATION OF LAW COMBINED WITH HEALTH CONCERNS AND THE CONFUSION AND DISLOCATION CAUSED BY THE PANDEMIC CONSTITUTES A REASONABLE EXCUSE ............................................... 14 POINT II THE LOWER COURT ERRED IN GRANTING A DEFAULT JUDGMENT ON CONTRADICTORY CLAIMS ....................... 24 POINT III THE LOWER COURT ERRED IN EFFECTIVELY CONVERTING THE MOTION TO ONE FOR SUMMARY JUDGMENT .................................................................................................... 28 POINT IV THE LOWER COURT ERRED IN FINDING THAT THE DEED FROM HARVEY FERRELL AS PRELIMINARY ADMINISTRATOR TO HIMSELF INDIVIDUALLY WAS VALID .............................................................................................................. 31 i

  3. POINT V THE LOWER COURT CONFUSED THE CAPACITY OF HARVEY FERRELL INDIVIDUALLY AND HIS CAPACITY AS PRELIMINARY EXECUTOR ............................................. 33 POINT VI HAVING BEEN NOMINATED EXECUTOR UNDER AN ALLEGED WILL, HARVEY FERRELL HAD NO POWER TO CONVEY ANY INTEREST IN THE PROPERTY UNTIL THE DOCUMENT WAS PROBATED ............................................. 35 POINT VII SUFFICIENT PROOF OF FACTS CONSTITUTING THE FIRST COUNTERCLAIM WERE NOT SUBMITTED ON THE MOTION AND THE EVIDENCE CONTRADICTS THE CAUSE OF ACTION .............................................................................. 38 POINT VIII NO EVIDENCE WAS OFFERED THAT DEFENDANT’S POSSESSION OF THE PROPERTY EVER GAVE RISE TO A CAUSE OF ACTION FOR EJECTMENT .................................................. 42 POINT IX THE EVIDENCE SUBMITTED BY DEFENDANT IN SUPPORT OF HER CLAIMS FOR ADVERSE POSSESSION SHOWS NO REASONABLE BASIS FOR BELIEVING A CLAIM OF RIGHT EXISTS TO MORE THAN A ONE-THIRD INTEREST IN THE PROPERTY AS TENANTS IN COMMON ............................................................................... 43 ii

  4. POINT X THERE WAS NOT SUFFICIENT EVIDENCE FOR DEFENDANT TO ESTABLISH AN OUSTER NECESSARY FOR THE THIRD COUNTERCLAIM ................................... 45 POINT XI THE LANGUAGE OF RPAPL 541 EXCLUDES ANY PREVIOUS OWNER'S OCCUPANCY OF THE PROPERTY FROM BEING ADDED TO THE DEFENDANT'S OCCUPANCY ................................................................................................. 56 POINT XII THERE WAS NO PROOF OFFERED ON THE DEFAULT MOTION THAT ALLEN CLINTON OCCUPIED THE PROPERTY CONTINUALLY AND EXCLUSIVELY ................................. 57 POINT XIII THE LOWER COURT ERRED IN GRANTING THE MOTION FOR A DEFAULT JUDGMENT ON THE BASIS THAT PLAINTIFFS FAILED TO CROSS-MOVE FOR AN EXTENSION OF TIME TO REPLY .............................................................. 58 CONCLUSION ........................................................................................................ 60 iii

  5. TABLE OF AUTHORITIES Page Cases: Abel v. Estate of Collins, 73 AD3d 1423 (3rd Dept 2010) ........................................................................ 19 Allstate Ins. Co. v DHD Med., P.C., 70 Misc.3d 1207(A), 2021 N.Y. Slip Op. 50011(U), 2021 WL 79864 (Sup Ct Kings County 2021) ................................................. 19 Article Ten Props. v. Kocak, 164 A.D.2d 448, 564 N.Y.S.2d 558 (3d Dept.) ................................................ 48 Bank of Am., N.A. v 414 Midland Ave. Assoc., LLC, 78 AD3d 746 (2nd Dept 2010) ......................................................................... 54 Beizer v. Funk, 5 AD3d 619 (2nd Dept., 2004).................................................................... 13, 59 Bensimon v. Fishman, 242 AD2d 551 (2nd Dept. 1997) ...................................................................... 13 Berger v. Horsfield, 188 App.Div. 649, 176 N.Y.S. 854 ............................................................. 52, 53 Betty v City of New York, 12 AD3d 472 (2nd Dept 2004) ......................................................................... 17 Brnilovich v C.I.R., T.C. Memo. 1989-583, 1989 WL 127980, 58 T.C.M. (CCH) 538 (TC 1989) ....................................... 26 Capital One, N.A. v Gokhberg, 189 AD3d 978 (2nd Dept 2020) ...............................................27, 28, 29, 38, 39 Chittenden v Wurster, 152 NY 345 (1897) ........................................................................................... 22 Culver v Rhodes, 87 NY 348 (1882) ............................................................................................. 46 iv

  6. E. Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Corp. Inc. v. Serrano, 153 Misc.2d 776 (Civ. Ct. 1992) ...................................................................... 15 Gallo v. Bosco, 13 A.D.2d 982, 216 N.Y.S.2d 501 .................................................................... 17 H. Kauffman & Sons Saddlery Co. v Miller, 298 NY 38 (1948) ....................................................................................... 21, 22 Hamershlag v. Duryea, 38 App.Div. 130, 56 N.Y.S. 615 ................................................................. 52, 53 Jackson v Kessner, 206 A.D.2d 123, 618 N.Y.S.2d 635 (1st Dept.) ................................................ 34 Joint Properties Owners v Deri, 113 A.D.2d 691, 497 N.Y.S.2d 658 (1st Dept. 1986) ....................................... 34 Kolb v Anisis, 104 AD2d 399 (2nd Dept 1984) ................................................................. 49, 50 Long v State, 7 NY3d 269 (2006) ........................................................................................... 21 Louis Monteleone Fibres, Ltd. v Kejriwal Newsprint Mills LLC, 2020 N.Y. Slip Op. 33853[U] (N.Y. Sup Ct, New York County 2020) ........... 22 Matter of Blango, 166 A.D.3d 767 (2nd Dept. 2018) .................................................................... 37 Matter of Foreclosure of Tax Liens, 165 AD3d 1112 (2nd Dept 2018) ..................................................................... 15 Metro. Life Ins. Co. v State Tax Commn. of State, 55 NY2d 758 (1981) ......................................................................................... 54 Meyerson v John A. Lynch, Inc., 29 AD2d 761 (2nd Dept 1968) ......................................................................... 17 v

  7. Mihlovan v Grozavu, 72 NY2d 506 (1988) ......................................................................................... 29 Myers v Bartholomew, 91 NY2d 630 (1998) ................................................ 45-46, 48, 49, 51, 52-53, 54 New York Life Ins. Co. v State Tax Commn., 80 AD2d 675, (3d Dept 1981) .................................................................... 53-54 People v Bugge, 197 AD3d 653 (2nd Dept 2021) ....................................................................... 52 Perez v. Perez, 228 A.D.2d 161 ........................................................................................... 47, 49 Pitson v Sellers, 206 AD2d 575 (3d Dept 1994) ......................................................................... 46 Porter v. Marx, 179 A.D.2d 962, 579 N.Y.S.2d 219 (3d Dept.) ................................................ 48 Ratner v Steinberg, 259 AD2d 744 (2nd Dept 1999) ....................................................................... 29 Rauls v Directv, Inc., 81 AD3d 1252 (4th Dept 2011) ........................................................................ 29 Rovello v Orofino Realty Co., Inc., 40 NY2d 633 (1976) ......................................................................................... 30 Russo Realty Corp. v Orlando, 30 AD3d 499 (2nd Dept 2006) ......................................................................... 45 Simon v Boyer, 51 AD2d 879 (4th Dept 1976), affd, 41 NY2d 822 (1977) .............................. 25 Smyth v. Getty Petroleum Mktg., Inc., 103 A.D.3d 790 (2nd Dept. 2013) .................................................................... 19 vi

  8. SRI Eleven 1407 Broadway Operator LLC v Mega Wear Inc., 71 Misc 3d 779 (Civ Ct 2021)........................................................................... 21 U.S. Bank Tr., N.A. v Gedeon, 181 AD3d 745 (2nd Dept 2020) ....................................................................... 15 US Bank N.A. v Vogel, 171 AD3d 1243 (2nd Dept 2019) .............................................28, 29, 39, 40, 41 Vallario v 25 W. 24th St. Flatiron, LLC, 149 AD3d 791 (2nd Dept 2017) ................................................................. 17-18 Rules, Laws and Statutes: 22 NYCRR 130-1.1 .................................................................................................. 59 Civil Practice Act § 41–a ......................................................................................... 52 CPLR 2004 ............................................................................................................... 59 CPLR 2221 ............................................................................................................... 59 CPLR 3024 ............................................................................................................... 19 CPLR 3211 ................................................................................................... 19, 29, 40 CPLR 3212 ............................................................................................................... 30 CPLR 3215 ................................................................................................... 27, 30, 31 CPLR 3217 ............................................................................................................... 30 CPLR 8303-a ............................................................................................................ 59 EPTL § 11-1.3 .......................................................................................................... 36 EPTL § 1-2.4 ............................................................................................................ 16 EPTL § 4-1.1 ............................................................................................................ 16 EPTL § 6-2.2 ............................................................................................................ 16 Real Property Law § 245 ......................................................................................... 37 vii

  9. Real Property Law § 291 ......................................................................................... 40 Real Property Law § 501 ............................................................................. 26, 42, 43 Real Property Law § 511 ......................................................................................... 11 Real Property Law § 512 ......................................................................................... 11 Real Property Law § 541 ...................... 11, 26, 45, 47, 48, 49, 50, 51, 52, 54, 55, 56 Real Property Law § 941 ......................................................................................... 57 Siegel, N.Y. Prac. § 219 (6th ed.) ............................................................................ 25 Under SCPA 703 .......................................................................................... 31, 32, 33 Under SCPA 1412 ........................................................................................ 31, 32, 35 viii

  10. STATEMENT OF QUESTIONS INVOLVED Where it is discovered post-commencement that one defendant has died prior to the commencement of an action, and there has been no substitution of a personal representative, is the action stayed, and the plaintiff’s time to file a reply to the surviving co-defendant’s counterclaim tolled or stayed until the appointment of a personal representative? The lower court answered this question in the negative. Was plaintiffs’ counsel’s determination that plaintiff was stayed from filing a reply or otherwise prosecuting the action, a reasonable interpretation of the law, such that it constituted a reasonable excuse for failure to timely file a reply to the counterclaim? The lower court decision did not explicitly address this issue. Did law office failure arising from a possibly mistaken interpretation of the law and pandemic related executive orders combined with specific health concerns of plaintiff’s counsel and the confusion and dislocation caused by the pandemic constitute a reasonable excuse for failure to file a reply to the surviving co-defendant’s counterclaim? The lower court decision did not specifically reach this issue. Were there meritorious defenses to the surviving defendant’s counterclaims? The lower court held that there were not. 1

  11. Where an alleged will of all parties claimed predecessor in interest, was never probated, does it constitute a meritorious defense to a counterclaim of good title to a 100% interest in the property that a deed in the chain of title executed as “preliminary administrator” by one distributee to himself was facially void and the subsequent deed from himself to third party could only convey his partial interest as distributee? The lower court answered in the negative. Is it a meritorious defense to the counterclaim of adverse possession that defendant and her deceased spouse took title as tenants in common with the plaintiffs’ predecessors in interest and therefore had not possessed the premises adversely for the requisite statutory period? The lower court held that there were no meritorious defenses. Is it a meritorious defense to a claim of adverse possession that the alleged adverse possessor failed to investigate the facts in the chain of title of a facially suspect deed by a “preliminary administrator” to himself, and therefore had no reasonable basis for a claim of right? The lower court found that there were no meritorious defenses. Was the failure to join necessary parties a meritorious defense to the counterclaims for adverse possession? The lower court held there were no meritorious defenses. 2

  12. STATEMENT OF THE CASE This appeal is from an Order of the Supreme Court, Kings County, Hon. Richard Montelione, dated August 18, 2021 granting a motion by Defendant-Respondent, Olga Durand (hereinafter "defendant") for a default judgment on her counterclaims against the Plaintiffs-Appellant, Earl R. Davis, American Regional Real Estate Partners Inc., LCD Holding Corp. and Willoughby Park Investors Inc. (hereinafter "plaintiffs") This action concerns real property (hereinafter “the Property”) situated in the Borough and County of Kings, City and State of New York known as and by the Street Number 793 Willoughby Avenue, Brooklyn, NY 11206. The Plaintiffs claim to be title owners of a part interest in the Property, based upon a purchase in 2019 from a total of five (5) grantors described in three separate deeds both as surviving distributees of Joseph Ferrell, their grandfather, and distributees of Steven Ferrell, their uncle, a post-deceased son of Joseph Ferrell. The defendant claims to be sole title owner of a 100% interest in the Property based upon a purchase by herself and her late husband Herman Durand as tenants by the entirety in 2006, from a grantor who had been deeded the property by another son of Joseph Ferrell, Harvey Lee Ferrell who, while he was Preliminary Executor of Joseph Ferrell's estate had deeded the Property to himself. 3

  13. Alternatively, the defendant asserts title by adverse possession. STATEMENT OF FACTS The Property was conveyed to Joseph Ferrell by deed dated May 17, 1967, and recorded in Office of the City Register, Kings County on May 19, 1967 [R170]. Joseph Ferrell died on December 3, 1998 [R210]. By petition dated April 9, 1999 [R210-219], Harvey Lee Ferrell, a son of Joseph Ferrell, submitted a purported Last Will and Testament of Joseph Ferrell [R172-173] for probate to the Surrogate's Court of Kings County. The probate petition alleged that Joseph Ferrell had only three distributees, his sons Harvey Ferrell, Steven Ferrell, and Jerome Ferrell [R211-212]. The proffered document, which appears to be a printed form completed by typewriter, appointed Harvey Lee Ferrell as "Personal Representative of this my Last Will and Testament." It contains no residuary clause and a single specific disposition: "I leave my house at 793 Willoughby Avenue (Block 59 - Lot 76) to my son, Harvey Lee Ferrell." The Block and Lot number in this bequest appears to be incorrect (the actual block number for the Property being 1589 [see R153]). Objections to probate were filed by Stephen Ferrell and, it appears, Jerome Ferrell [R231 ¶ 2; R225 ¶1]. By order of the Surrogate dated October 7, 1999, preliminary letters testamentary issued to Harvey Lee Ferrell. [R220]. The order provided inter alia 4

  14. "ORDER ISSUING PRELIMINARY LETTERS TESTAMENTARY IS VALID FOR SIX MONTHS FROM THE DATE OF ORDER." (caps in original) [R220]. On November 10, 1999, Harvey Lee Ferrell executed a deed as "Harvey Ferrell as preliminary Administrator of the Estate of Joseph Ferrell" purporting to convey the Property to "Harvey Ferrell, residing at 793 Willoughby Street, Brooklyn, New York." [R174-178]. On the same day Harvey Ferrell executed a mortgage to American Holdings Investment Corp. in the amount of $60,000. The deed and the mortgage were recorded on March 2, 2000, in the Office of the City Register for Kings County. [R178; R236]. American Holdings Investment Corp. commenced a foreclosure action on or about December 27, 2000 and filed a Lis Pendens against the Property on or about December 28, 2000 [R232 ¶ 9]. This action was discontinued on or about August 27, 2001, by Stipulation and the Lis Pendens was cancelled. [R232 ¶ 9]. By order dated September 24, 2001, upon the petition of Harvey Lee Ferrell, the preliminary letters issued to Harvey Lee Ferrell were extended. On November 29, 2001, "Harvey L. Ferrell" executed a deed for the Property from "Harvey L. Ferrell 793 Willoughby Ave. Brooklyn NY" to "Allen Clinton 121 Sumner Avenue Brooklyn NY" [R180-182]. This deed was recorded by or on behalf of “Allen Clinton 121 Summer Avenue 1A. Brooklyn NY Summer Ave. 1A" on December 20, 2001. [R179]. The recorded deed was to be returned to 5

  15. "Allen Clinton 121 Sumner Avenue 1A Brooklyn NY 11206" [R182]. "Sumner Avenue" is presently known as Marcus Garvey Boulevard. The deed recited a consideration of "Ten dollars"[R180] and upon the recording of the deed a New York State Real Estate Transfer Tax of $2.00 and an RPTT fee of $.25 were paid. [R179]. On or about December 21, 2001, Steven Ferrell, in his capacity as objectant, executed an affidavit in support of an Order To Show Cause to revoke the preliminary letters of Harvey Lee Ferrell and other relief. The affidavit does not show awareness of the November 29, 2001, deed to Allen Clinton which had only been recorded the previous day. [R231-233]. Among other assertions the affirmation alleges, upon information and belief, that Allen Clinton had been in possession of the said Property, claiming ownership, and commencing demolition since the date of an unrecorded assignment of the American Holdings Investment Corp. mortgage to Allen Clinton. [R233 ¶10]. On January 3, 2002, an assignment of mortgage from American Holdings Investments, Inc. to one Irma Clinton was recorded against the Property. [R235]. By decision dated February 14, 2002, the Surrogate revoked the preliminary letters of Harvey Ferrell and ordered a temporary restraining order prohibiting Harvey Ferrell from transferring o[r] further encumbering the property 6

  16. located at 793 Willoughby Avenue, Brooklyn, New York, remain in full force and effect until further order of the court. [R225]. It appears that the alleged last will and testament of Joseph Ferrell has never been probated to this date. [R263 ¶ 26]. On June 27, 2006, a deed was executed regarding the Property from "Allen Clinton of 121 Marcus Garvey Blvd. Brooklyn, New York 11206” to Herman Durand and Olga Durand, husband and wife, which was recorded on July 1, 2006 [R183-191] Afterwards, Herman Durand and Olga Durand began to occupy the Property and pay property taxes, water and sewer for the property. The records of the New York City Department of Finance listed the owners as Herman Durand and Olga Durand, and bills were addressed to Herman Durand at the property. Steven Ferrell died on or about February 23, 2011. [R269] Herman Durand died on or about January 25, 2018. [R192] After Herman Durand's death, Herman Durand and Olga Durand continued to be listed as the owners of the property, by the New York City Department of Finance, and the mailing address for bills remained Herman Durand at the Property. [R114-127] On or about May 24, 2019, Erik Freeman, Michael Freeman and Jeanie Freeman "all being Surviving/Heirs/Distributees of Joseph Ferrell" and "as 7

  17. Surviving Heirs/Distributees of Steven Ferrell" executed a deed transferring all their right, title and interests in the Property to the plaintiffs Earl R. Davis, American Regional Real Estate Partners Inc. and LCD Holding Corp. [R273-275] On or about June 1, 2019, Corinthians Freeman, "as surviving Heir/Distributee of Joseph Ferrell" and "as surviving Heir/Distributee of Steven Ferrell" transferred all her right, title and interests in the Property, to the plaintiffs Willoughby Park Investors Inc. and LCD Holding Corp. [R269-271] On or about June 6, 2019, Vernatina R. Freeman "as surviving Heir/Distributee of Joseph Ferrell" and "as surviving Heir/Distributee of Steven Ferrell" transferred all her right, title and interests in the Property, to the plaintiffs Willoughby Park Investors Inc. and LCD Holding Corp. [R269-271] On November 11, 2019, the plaintiffs commenced this action by the filing of a summons and verified complaint. [R155]. The summons and complaint were served upon both defendants by serving a person of suitable age and discretion at the Property on January 4, 2020. Affidavits of service were filed on January 11, 2020. The verified complaint [R145-151] alleged that Joseph Ferrell had died intestate [R146 ¶9] and that his distributees had on the date of his death, by operation of law, become owners of the Property as tenants-in-common [R146 ¶12]; that the attempted conveyance by Harvey Ferrell "as preliminary 8

  18. administrator" to himself individually was without legal authority or any force or effect [R147 ¶16]; and that the subsequent deed from Harvey Ferrell, individually, to Allen Clinton was void and of no legal effect to convey complete ownership of the entire premise. [R147 ¶¶17-18] The complaint [R145-151] demanded relief on three causes of action: a declaratory judgment that the plaintiffs are title owners and seized and possessed of an undivided share in fee simple absolute of the premises and entitled to exercise all rights appurtenant thereto; a judgment pursuant to Article 15 or the Real Property Law to compel a determination of all claims adverse to the plaintiffs made by the defendants and a judgment that the deeds dated November 10, 1999 (Harvey Ferrell as "preliminary administrator" to himself, individually), November 21, 2001 (Ferrell to Clinton) and June 27, 2006 (Clinton to Durand) be judicially declared null and void to transfer One Hundred (100%) of the premises. [R150]. The defendant Olga Durand filed a verified answer with affirmative defenses and counterclaim(s) on February 24, 2020 [R193; R157-192]. On March 7, 2020, the Governor of the State of New York State declared a State disaster emergency for the entire State of New York as a result of the Covid-19 outbreak in New York. By Memorandum dated March 15, 2020, in light of the developments 9

  19. in the coronavirus emergency in New York State, the Chief Administrative Judge, announced that effective 5 P.M. on Monday, March 16, 2020, all non-essential functions of the courts would be postponed until further notice. On March 16, 2020, defendant filed an amended answer with affirmative defenses and counterclaim(s). [R195-207] The answer denied essential allegations of the complaint, in particular the allegation that Joseph Ferrell had died intestate [R158 ¶ 9]; the allegation that plaintiffs' grantors had interests in the Property [R159-160 ¶¶ 21-23]; and the allegations that the deeds by Harvey Ferrell, as preliminary administrator, to himself individually and from Harvey Ferrell to Allen Clinton were void and of no force and effect. Defendant also alleged that co-defendant Herman Durand had died on January 25, 2018 [R163 ¶52] and annexed a death certificate of German Durand a/k/a Herman Durand to their Answer. [R192]. Defendant's affirmative defenses included that "Plaintiffs’ claims are barred for failure to join a necessary party or necessary parties" [R199]; that "Plaintiffs’ claims are barred because defendant is a bona fide purchaser for value without knowledge or notice of the alleged fraud” [R199] and that "Plaintiffs’ claims are barred because they are not bona fide purchasers for value." The first counterclaim [R200-202] sought judgment quieting title to 10

  20. Property based upon a chain of title consisting of the alleged Last Will and Testament of Joseph Ferrell; the deed from Harvey Ferrell, as Preliminary Administrator to Harvey Ferrell, individually; the deed from Harvey Ferrell to Allen Clinton, and the deed from Allen Clinton to Herman Durand and Olga Durand. The defendant sought judgment declaring Olga Durand was vested with absolute title in fee simple absolute; declaring that the plaintiffs had no right, title or interest in the Property, and that the deeds conveying the interest to plaintiffs were null and void. The second counterclaim [R202-204] sought a judgment of adverse possession in favor of defendant Olga Durand based upon a claim of right under a written instrument under RPAPL 511 & 512. The third counterclaim [R204-205] sought a judgment of adverse possession based upon the ouster of co-tenants pursuant to RPAPL 541. On March 20, 2021, the Governor of the State of New York, by executive order 202.8 temporarily suspended any specific time limit for the commencement filing or service of any legal action, notice, motion or other process or proceeding, as prescribed by the procedural laws of the state. On March 22, 2021, the Chief Administrative Judge by Administrative Order AO/78/20 directed effective immediately, that no filings, paper or electronic, be accepted by the County Clerks or Courts in any nonessential 11

  21. matter, until further notice. On May 4, 2020, pursuant to AO/87/20 par. A, prohibition of digital electronic filing in nonessential matters was lifted by order of the Chief Administrative Judge for of certain specified papers, including motions. AO/87/20 par. A was superseded by AO/115/20 dated May 28, 2020, which directed that in case types approved for electronic filing, represented litigants must proceed in pending cases by NYSCEF only commencing May 25, 2020. The temporary suspension of time limits by Executive Order 202.8 which had been continued as modified by subsequent Executive Orders was ended on November 3, 2020. By Notice of Motion dated February 17, 2021, defendant moved for a default judgment against the plaintiffs on the counterclaims. [R10-11] Plaintiffs opposed the Motion, asserting a reasonable excuse for failing to reply to the counterclaims claiming law office failure arising from the circumstances caused by the pandemic, as well as asserting a reasonable belief that the matter was stayed until the appointment of a personal representative for Herman Durand. Plaintiffs also argued that there were several meritorious defenses to the counterclaims, and that there was minimal prejudice to the defendant since the time to respond to the counterclaims had been tolled by 12

  22. Executive Order until November 3, 2020. The Supreme Court, Kings County, Hon. Richard Montelione, by order dated August 18, 2021, granted the Motion and dismissed the complaint. ARGUMENT PRELIMINARY STATEMENT In order to successfully oppose a motion for leave to enter a default judgment based upon the plaintiffs failure to serve a reply to a counterclaim, a plaintiff must establish a reasonable excuse for the delay and demonstrate a meritorious defense. Beizer v. Funk, 5 AD3d 619, 620 (2nd Dept., 2004); see Bensimon v. Fishman, 242 AD2d 551 (2nd Dept. 1997). Where there is no evidence of willfulness, deliberate default, or prejudice to the defendants, the interests of justice are best served by permitting the case to be decided on its merits. Id. It is plaintiffs contention that all these factors are present in the case at bar. The Order must also be reversed on the grounds that it improperly grants judgment on inconsistent causes of action, has treated the motion for a default as a summary judgment motion, and is not supported by sufficient evidence required to establish the viability of any of the three counterclaims. In addition, the failure to join necessary parties, particularly a personal representative of the deceased co-defendant Herman Durand and/or his distributees, requires that the action be 13

  23. stayed. Finally, the plaintiffs opposition to the motion for default requested that the action be stayed pending the non-joinder of necessary parties, or in the alternative that the plaintiffs be permitted to file a late reply. Insofar as the lower courts order granted defendant's motion based on plaintiffs' failure to make a cross-motion for the relief requested, it will be argued that this was error and an improvident exercise of discretion. POINT I LAW OFFICE FAILURE ARISING FROM A REASONABLE INTERPRETATION OF LAW COMBINED WITH HEALTH CONCERNS AND THE CONFUSION AND DISLOCATION CAUSED BY THE PANDEMIC CONSTITUTES A REASONABLE EXCUSE It is respectfully submitted that under the circumstances of the first year of the ongoing pandemic, the Plaintiffs' counsel set forth a reasonable excuse of law office failure. The case involves a confluence of a number of circumstances that resulted in a law office failure: the amended answer with counterclaim being filed on March 16, 2020 just as the shutdown of New York State and the Court System was beginning; combined with counsel and his associate's serious pre-existing conditions; the belief (whether correct or erroneous) that the action was stayed or even void as the result of the death of the co-defendant prior to the commencement of the action; and the belief, whether correct or erroneous, that Executive and 14

  24. Administrative Orders issued during the pandemic had relieved the necessity of immediately filing a reply. As counsel for plaintiffs stated in his affirmation: Initially, once the answering defendant advised that one of the named defendants had passed away prior to the commencement of this action, it was assumed this action could not go forward as no action may be commenced against a person subsequent to his or her death and prior to the appointment of a personal representative to his or her estate. This was and is a reasonable belief. "No action may be commenced against a person subsequent to his or her death and prior to the appointment of a personal representative to his or her estate." U.S. Bank Tr., N.A. v Gedeon, 181 AD3d 745, 746 (2nd Dept 2020). This applies to every type of proceeding including in rem proceedings. "In the absence of any countervailing authority, we conclude that the prohibition against commencing or maintaining an action or proceeding against a deceased individual, which applies to every other type of judicial proceeding, is applicable here, too." Matter of Foreclosure of Tax Liens, 165 AD3d 1112, 1119 [2nd Dept 2018]. E. Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Corp. Inc. v. Serrano, 153 Misc.2d 776 (Civ. Ct. 1992) (cited by this Court in Matter of Foreclosure of Tax Liens, supra), held that it is a violation of ethical rules for an attorney to knowingly proceed in such a case. 153 Misc.2d at 781-783. 15

  25. That counsel’s belief was reasonable is evidenced by the fact that defendant's Fourth Affirmative Defense itself pleads: "Plaintiffs’ claims are barred for failure to join a necessary party or necessary parties." [R199]. Defendant does not appear to have withdrawn this affirmative defense, although the defendant argued and the lower court agreed that as a surviving tenant by the entirety the case could proceed. The merits of defendant's argument and the lower court’s decision miss a key point - a tenancy by the entirety is created by a disposition to a married couple EPTL§ 6-2.2 (b) and title by adverse possession does not constitute a disposition as defined by EPTL § 1-2.4: "A disposition is a transfer of property by a person during his lifetime or by will." If ownership by adverse possession arose during Herman Durand's life, only a tenancy-in-common was created. When Herman Durand died, he was survived by a wife and daughter [R13]. As there was no evidence submitted below to the contrary, it must be assumed Herman Durand died intestate. If Herman Durand died intestate, whatever interests he held in the property in which he obtained by adverse possession, he held as a tenant in common and hence, passed by intestate distribution to his wife and daughter under EPTL 4-1.1. Defendant Herman Durand’s daughter was a necessary party to this action. Accordingly, due to the death of Herman Durand this matter was and still is stayed until the appointment of 16

  26. a personal representative for his estate, or the entire action, including defendant’s counterclaims should have been dismissed. It was reversible error to award defendant judgment on her counterclaims. Notwithstanding, even if defendant and the lower court is correct on the law, it cannot be denied that plaintiffs' counsel had a reasonable and good faith belief that the action was actually stayed. This alone has been held to be sufficient to re-open a default in replying to a counterclaim: Plaintiff's application to open his default should have been granted since his default was apparently generated by counsel's mistakes of law with reference to the necessity to plead to the counterclaim and the timeliness of a motion to dismiss the counterclaim. Meyerson v John A. Lynch, Inc., 29 AD2d 761, 761-62 (2nd Dept 1968). citing (Gallo v. Bosco, 13 A.D.2d 982, 216 N.Y.S.2d 501) ("A default may be opened on appropriate terms where, as here, it occurred through a defendant's mistake or ignorance as to the law.") A default as the result of counsel's ignorance of the law has been held by this court, citing Meyerson and Gallo. to be "an excuse akin to law office failure" and "in view of the policy of deciding cases on their merits and the lack of prejudice to the defendants, we find that it was an improvident exercise of discretion to deny vacatur of the default." Betty v City of New York, 12 AD3d 472, 473-474 (2nd Dept 2004). See also Vallario v 25 W. 24th St. Flatiron, LLC, 149 17

  27. AD3d 791 (2nd Dept 2017). Plaintiffs’ counsel also cites as a reasonable excuse for the delay the confusion, dislocation and health concerns arising from the pandemic: failed to file a timely reply, this was a direct result of the confusion caused to plaintiffs attorney’s law firm due to the pandemic and the closing of his office. Both attorneys in plaintiffs attorney’s office have significant pre-existing medical conditions that required and still require strict quarantine practices. Neither attorney had been vaccinated at the time the reply would have been due. The concentration on other urgent matters, and medical inadvisability of going to the office (a suite shared with other firms), together with the uncertainty and disarray caused by the pandemic in general, resulted in the question how to proceed to prosecute a case which was legitimately thought to be stayed and not even being on the radar. . . Accordingly, if there is a default, the plaintiffs excusable default is due to this law office failure. Specifically, there was a complete disconnect between the plaintiffs and plaintiffs' attorneys as to the wisdom, permissibility and urgency in prosecuting the matter, of the necessity of filing a reply, when was it due and who was going to prepare same, and whether the application should be made in Surrogate’s Court seeking the appointment of an administrator for Herman Durand. The plaintiffs never intended to ignore their claim. Where it is shown that a party did not intend to ignore a claim but were under the belief that it was being properly prosecuted by counsel, this constitutes a 18

  28. reasonable excuse for default. Abel v. Estate of Collins, 73 AD3d 1423, 1424 (3rd Dept 2010); see Smyth v. Getty Petroleum Mktg,. Inc, 103 A.D.3d 790 (2nd Dept. 2013.) The motion for a default judgment in the case at bar was filed on February 17, 2021. It is respectfully submitted that a holding of the Supreme Court Kings County rendered the month before (January 8, 2021) perfectly sums up the situation herein: "[I]n the circumstances of this case—including pandemic-related confusion and dislocation over the last 10 months—. . . law-office failure constitutes a reasonable excuse." Allstate Ins. Co. v DHD Med., P.C., 70 Misc.3d 1207(A), 2021 N.Y. Slip Op. 50011(U), 2021 WL 79864, (Sup Ct Kings County 2021). Given the circumstances of those days and months in 2020, if the defendant was prejudiced, it was by the circumstances of the pandemic rather than the failure of plaintiffs to respond to the counterclaims. A party against whom counterclaims are asserted has a choice to serve a reply or bring a pre-reply motion to dismiss pursuant to CPLR 3211 or a corrective motion pursuant to CPLR 3024. Executive Order 202.8 which tolled various time limits during the pandemic state of emergency, specifically tolls "any specific time limit for the … service of any … notice [or] motion … as prescribed by the procedural laws of the state." Because these tolls extended until November 4, 2020, the plaintiff could have moved to dismiss the counterclaims as late as 19

  29. November 19, 2020. If the motion was noticed for December 19, 2020, and the motion argued, denied, and the decision entered that very day, that would have resulted in plaintiffs being required to file their reply on December 29, 2020, with the right of defendant to amend her counterclaims, and plaintiffs to amend the reply within 20 days after that. This optimistic scenario excludes the usual automatic adjournment of the return date resulting from first time assignment to a judge, the possibility of stipulated extensions of time to oppose the motion, and the time in which a Court might need to decide. It also assumes a complete denial of the motion to dismiss, no cross-motions, and no possibility that a stay would be granted to add necessary parties. Accordingly, taking the scenario mentioned above as a possible realistic scenario, plaintiffs would not have had to file a reply until well into 2021. Defendant's motion was made in February, 2021. She suffered no demonstrable prejudice from the failure of the plaintiffs to move in opposition to the counterclaims after the tolling by Executive Order was lifted. The lower court found that the time to reply was May 25, 2020, the date Administrative Orders which had prevented filing of papers in non-essential matters was lifted. It is respectfully suggested that such a construction of the Executive Order is untenable and improper. " "Although statutes will ordinarily be accorded their plain meaning, it is well settled that courts should construe them to 20

  30. avoid objectionable, unreasonable or absurd consequences." Long v State, 7 NY3d 269, 273 (2006). Where the language of a statute is susceptible of two constructions, the courts will adopt that which avoids injustice, hardship, constitutional doubts or other objectionable results. H. Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 (1948). It seems reasonable that an Executive Order should be construed in a like manner. See SRI Eleven 1407 Broadway Operator LLC v Mega Wear Inc., 71 Misc 3d 779, 801 (Civ Ct 2021). To adopt the interpretation that Executive Order 202.8 tolls the time to make a motion to dismiss (or correct) but not the time to answer or reply, results in that party being deprived of a right granted by statute - to determine the proper course to follow in litigation- and the right to the relief granted to all litigants during an emergency. Assume for arguments sake, that the Executive Order granted the benefit of tolling the time to make filings such as motions, which might create burdens and health concerns for both litigants and the Court system, but not of "simply" drafting and electronically filing a pleading. In that case a party who is required to respond to a pleading, must either give up the right granted by statute - the choice between answer or reply and pre-answer or pre-reply motion- and file a pleading for fear of default. Alternatively, the litigant and their attorney, especially those for whom the public health emergency poses a particular risk of 21

  31. sickness and death, must engage in the behavior which the Executive Order clearly is trying to lessen and prepare and file a motion. "We find no such unreasonable and impossible choice dictated by the scheme of the statute and reject an interpretation of its words which would so clearly offend against common sense." H. Kauffman & Sons Saddlery Co. v Miller, 298 NY 38, 44 (1948). To interpret the Executive Order so that it is read as intended to force a distinct subset of litigants who have all the characteristics of the class otherwise protected by the Executive Order, to either give up their statutory right to choose the proper litigation strategy, or to give up their statutory right to the protection of properly issued emergency Executive Orders, "when followed to all its logical consequences, practically abrogates both the constitution and the statute[s], since it makes the will of the executive the supreme law," Chittenden v Wurster, 152 NY 345, 398 [1897] no matter the "injustice, hardship, constitutional doubts or other objectionable results." H. Kauffman & Sons Saddlery Co. v Miller, supra. It is respectfully suggested that the holding of the Court in Louis Monteleone Fibres, Ltd. v Kejriwal Newsprint Mills LLC, 2020 N.Y. Slip Op. 33853[U], *2-3 (N.Y. Sup Ct, New York County 2020) is correct and should be adopted herein: As an initial matter, the Court declines to read Executive Order 202.8 (and the subsequent orders extending its application) to exclude the tolling of a defendant's time to 22

  32. answer. To embrace such a narrow reading of the subject executive order requires completely ignoring the context in which the order was issued. The order was issued while the vast majority of businesses were shuttered and litigants were prevented from filing cases deemed “non-essential.” The Court is unable to conceive of rational reading of the governor's order that would toll certain deadlines but somehow continue to require a defendant to answer. The purpose was not to protect only plaintiffs, it was to preserve the status quo for all litigants. . . . . . . This Court prefers that cases be decided on the merits and it declines to find that defaulting in the middle of a once-in-a-century global pandemic is not a reasonable excuse. Neither is it certain that any more time would have been gained were either a motion or reply filed in May of 2020, as the defendant's argument and the lower court's decision necessarily imply. Bearing in mind that the situation was much worse in 2020, the history of the decision appealed from might give a reasonable minimum time. The Notice of Motion was dated February 17, 2021, noticed initially for March 17, 2021, argued on May 25, 2021, decided on August 18, 2021 and entered on September 29, 2021. That is over seven months from the filing of the motion to the entry of the decision. On this time frame, a motion to dismiss the counterclaims filed as early as May 5, 2020 would not have been entered until December 17, 2020. If the motion was denied, then a reply would have been required by December 27, 2020, with a possibility of amending by both parties until January 16, or even until January 26, 2021, were the counterclaims amended. 23

  33. Likewise, a reply filed as early as May 5, 2020 would simply have joined issue, with the subsequent motion and practice resulting in the same time frame. A single meritorious motion by either side (for instance regarding nonjoinder of necessary parties under defendant's Fourth Affirmative Defense, and Plaintiffs Affirmative Defenses in a reply) could very well have brought the time frame well into 2021, before the action could proceed to discovery and trial. It is merely asked that the reality of what happened during 2020 and even into this year not be selectively minimized or forgotten. Any default of Plaintiffs in responding to the counterclaims was excusable neglect caused by a law office failure which in itself did not prejudice the defendant except in so far as she may be said to be prejudiced by having to defend the case and prosecute her counterclaims on the merits. POINT II THE LOWER COURT ERRED IN GRANTING A DEFAULT JUDGMENT ON CONTRADICTORY CLAIMS While it is permissible to plead alternative and even contradictory theories of a case, it certainly does not seem proper to render a judgment on multiple causes of action which require a simultaneous finding of mutually exclusive facts. As one treatise puts it: There is explicit CPLR authority for an inconsistent pleading but not for an inconsistent judgment. If the 24

  34. remedies sought are mutually exclusive, the plaintiff will have to elect from among them at some point in the case. If the plaintiff does not voluntarily elect, the trial judge will determine what that point is. Probably the only safe conclusion one can reach is that the election will have to be made before judgment." Siegel, N.Y. Prac. § 219 (6th ed.) For purposes of the doctrine of election of remedies, inconsistent remedies are those which proceed on opposite and irreconcilable claims of rights. The test is whether the facts necessary to support one remedy are consistent with the facts necessary to support the other. Simon v Boyer, 51 AD2d 879, 880 (4th Dept 1976), affd, 41 NY2d 822 (1977). In the Order appealed from no such election was made, although the counterclaims for which judgment was sought were and are inconsistent. The first counterclaim seeks to establish good title and sole ownership of the property in the defendant based upon the deed that she and her husband received in 2006. The second and third counterclaims seek judgment in adverse possession. It is impossible for a person to simultaneously be the sole owner with good title to a premises and an adverse possessor of those premises. "A person or entity is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other's superior ownership rights, in a manner that would give the owner a cause of action 25

  35. for ejectment." RPAPL 501(1) (emphasis added). If defendant is the sole owner, she is not occupying "real property of another person or entity." Conversely, if defendant is found to have adversely possessed the property that must necessarily entail that she and her husband did not in fact own the property at all during the time of adverse possession, or that they owned it is as tenants in common with others. (See RPAPL 541). The separate counterclaims each have different legal effects. In order to enter judgment on the first counterclaim it must be based on defendant's title having vested in 2006. Judgments on the second and third counterclaims will have vested in 2016 or later. See e.g. Brnilovich v C.I.R., T.C. Memo. 1989-583, 1989 WL 127980, 58 T.C.M. (CCH) 538 (TC 1989). On the first counterclaim, defendant would have taken title as tenants by the entirety with her husband Herman Durand and would have become sole owner upon his death. On the second and third counterclaims, if title vested prior to Herman Durand's death, defendant and Herman Durand would have been tenants in common, resulting in his distributees or legatees inheriting his one-half share when he died. The differing counterclaims cannot be considered the same remedy arrived at by different routes. They are quite distinct and inconsistent remedies, based on incompatible factual assertions with quite different results. 26

  36. Defendant, in the notice of motion, merely asked that a default judgment be entered "for failure to timely respond to the Counterclaims," without specifying any specific counterclaim. The lower Court granted the defendant’s motion but likewise did not specify on which counterclaim. When applying to the Court for a default judgment, the moving party must submit "proof of the facts constituting the claim" CPLR 3215. To demonstrate the facts constituting the cause of action, the plaintiff must submit sufficient proof to enable a court to determine if the cause of action is viable. Capital One, N.A. v Gokhberg, 189 AD3d 978 (2nd Dept 2020). It is not logically possible to simultaneously have sufficient proof of different claims which are mutually exclusive. Sufficient proof of one necessarily becomes sufficient proof against the others and vice-versa. It is clear from the papers supporting her motion for entry of a default judgment on the counterclaims that defendant is aware of the mutually exclusive nature of the claims. She asserts first that she is entitled to judgment on the first counterclaim arguing that the defendant holds valid title to the property in fee unencumbered by any alleged interest asserted by Plaintiffs. Defendant then argues that "should the court determine that the 2006 deed does not vest [her] with title to the property, she is vested with title based upon her Adverse possession." This is the second counterclaim. As to third counterclaim, the defendant 27

  37. argues that "Even if the alleged heirs held an interest in the Property, they were ousted when the property was sold and possession changed and the [defendant] has continued to possess the property adversely to their interests thereby vesting her with title to the property." Though the defendant was aware of the mutually exclusive nature of the Order she did not specifically elect her remedies in the notice of motion, and the Court likewise ignored the substantial contradictions between the three counterclaims and simply granted the motion. Thus, the lower court erred in granting the default judgment on all of the counterclaims irrespective of its decision on the issues of reasonable excuse or meritorious defense. See Capital One, N.A. v Gokhberg, 189 AD3d 978 (2nd Dept 2020); US Bank N.A. v Vogel, 171 AD3d 1243, 1244 (2nd Dept 2019). POINT III THE LOWER COURT ERRED IN EFFECTIVELY CONVERTING THE MOTION TO ONE FOR SUMMARY JUDGMENT As will be shown below, on each of the counterclaims, insufficient evidence was presented to show that they were viable, even beyond the fact that judgment was entered on all three without distinction, despite being inconsistent. Notwithstanding same, the lower court erred in granting the default judgment on any of the counterclaims, irrespective of its decision on the issues of reasonable 28

  38. excuse or meritorious defense. See Capital One, N.A. v Gokhberg, 189 AD3d 978 (2nd Dept 2020); US Bank N.A. v Vogel, 171 AD3d 1243, 1244 (2nd Dept 2019). The defendant may argue that the decision appealed from merely showed that under either set of contradictory facts defendant would prevail, and thus she is entitled to a judgment dismissing the complaint. In response, it must be borne in mind that this was a motion for a default judgment on counterclaims, not a motion for summary judgment addressed to the plaintiffs' causes of action. To argue that this Court should affirm a dismissal of plaintiffs’ complaint in the face of an improper grant of a default judgment, would essentially ask this Court to court to improperly convert the motion to one for summary judgment without notice to the parties. See Mihlovan v Grozavu, 72 NY2d 506 (1988). The rule against conversion of a motion to summary judgment without adequate notice is not limited to motions to dismiss pursuant to CPLR 3211. See Ratner v Steinberg, 259 AD2d 744, 744 (2nd Dept 1999) (A court may not, on its own initiative, convert a motion for a preliminary injunction into one for summary judgment without giving adequate notice to the parties and affording the parties an opportunity to lay bare their proof); Rauls v Directv, Inc., 81 AD3d 1252 (4th Dept 2011) (Supreme Court erred in sua sponte converting plaintiff's motion for leave to “renew” his prior motion for a default judgment to a motion for summary 29

  39. judgment). It is now "well established that a court may not, on its own initiative, convert a motion for relief other than for summary judgment into one for summary judgment without giving adequate notice to the parties and affording the parties an opportunity to lay bare their proof." Id. at 1253 (internal quotes, citation and brackets omitted). Insofar as the decision appealed from dismisses the complaint on the basis of a determination of disputed facts, such as those facts alleged in the complaint and denied in the answer, or makes factual findings about potential meritorious defenses, it is respectfully asserted that the lower court effectively converted the motion to one for summary judgment. There has not yet been disclosure of all the evidence, which makes such findings improper. "The mere fact that, judged on the complaint and affidavits alone, plaintiff could not withstand a motion for summary judgment under CPLR 3212, which requires disclosure of all the evidence on the disputed issues, cannot be controlling." Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 (1976). Since the default judgment was improperly granted given the failure to elect between inconsistent counterclaims by the defendant, and the lack of distinction in the Order decision appealed from, it is certainly improper to grant summary judgment under the label of granting the motion to enter a default judgment. It should be noted CPLR 3217 provides that "Except as provided in section 3215 30

  40. ["Default Judgment], the court may grant any type of relief within its jurisdiction appropriate to the proof whether or not demanded, imposing such terms as may be just." Thus, it was not appropriate to grant the relief of summary judgment dismissing the complaint. The lower court was limited to granting default on one specific counterclaim, based upon the requirements of CPLR 3215, which it failed to do. POINT IV THE LOWER COURT ERRED IN FINDING THAT THE DEED FROM HARVEY FERRELL AS PRELIMINARY ADMINISTRATOR TO HIMSELF INDIVIDUALLY WAS VALID The decision appealed from states: The court finds no question of fact that unrestricted preliminary Letters Testamentary were issued to Harvey Ferrell, as Preliminary Executor, and these Letters were in effect at the time he transferred the real property as Preliminary Executor to himself, individually and from himself, individually, to Allen Clinton. Under SCPA 703 such letters are evidence of authority. This determination is simply incorrect. SCPA 703 is part of Article 7 "General Provisions Relating To Letters." It does not imply that all letters give authority to their recipients to do anything, rather that they are evidence that the person to whom they are issued has the authority actually granted to them by the law, subject to additional restrictions the Court may impose. SCPA 1412, which 31

  41. governs preliminary letters testamentary, prohibits the preliminary executor from doing what Harvey Ferrell did in this matter: therein, subject to any limitations contained in the instrument offered for probate, all the powers and authority and shall subject him to all the duties and liabilities of an administrator except that they do not confer any power to pay or to satisfy a legacy or distributive share. SCPA 1412 (3) (a) (emphasis added). Contrary to the lower court's holding, the Preliminary Letters Testamentary The letters shall confer upon the person named are not evidence of any authority of Harvey Ferrell to deed the Property to himself to satisfy the alleged legacy in the purported will offered for probate. The letters are actually evidence of the opposite-- that he had no such legal power or authority to do so at all. The deed by Harvey Ferrell as "Preliminary Administrator" to himself, individually is simply void. It could not lawfully convey any interest in the Property. Pursuant to SCPA 703 his letters are evidence of some authority but not evidence of any power to deed the Property to himself which is specifically withheld by statute. The decision also states: "At the time Harvey Ferrell transferred the real property to himself, and thereafter to Allen Clinton, the Order for Preliminary Letters Testamentary dated October 7,1999 and extended by Order dated September 24,2001 had no restrictions or conditions." That no restrictions or 32

  42. limitations were put on the letters is not germane to the question before the Court, since the Preliminary Letters do not grant the power to convey the Property "to satisfy a legacy or distributive share." Any restrictions and limitations on preliminary letters are additional limitations and restrictions on the other powers of the preliminary executor since no power to satisfy the legacy or distributive share is granted in the first place. It should also be noted that contra the lower court's finding, there were indeed restrictions and limitations on the preliminary letters, i.e., the order granting the letters was valid for only six months, and the preliminary executor was restrained from paying attorney's fees without further order of the Court. [R220 and 223]. POINT V THE LOWER COURT CONFUSED THE CAPACITY OF HARVEY FERRELL INDIVIDUALLY AND HIS CAPACITY AS PRELIMINARY EXECUTOR The decision appealed from finds that the Preliminary Letters Testamentary "were in effect at the time he transferred the real property as Preliminary Executor to himself, individually and from himself, individually, to Allen Clinton. Under SCPA 703 such letters are evidence of authority." (emphasis added). The decision also states: " At the time Harvey Ferrell transferred the real property to himself, 33

  43. and thereafter to Allen Clinton, the Order for Preliminary Letters Testamentary dated October 7,1999 and extended by Order dated September 24,2001 had no restrictions or conditions."(emphasis added). These statements seem to imply that the existence of preliminary letters at the time of Harvey Ferrell's execution of a deed in his individual capacity to Allen Clinton as an individual was also authorized by the existence of the preliminary letters. This ignores the longstanding and substantial distinction between a person acting in the capacity of a personal representative of a decedent, and that same person acting individually, even when the personal representative of the estate is sole beneficiary of the estate. An estate is clearly a legal entity separate and distinct from that of an executor acting in his individual capacity. Joint Properties Owners v Deri, 113 A.D.2d 691, 695, 497 N.Y.S.2d 658, 662 (1st Dept. 1986) “It is of no consequence that the plaintiff is the sole beneficiary of the estate. . .the distinction between an individual's status as fiduciary of an estate and beneficiary cannot be disregarded." Jackson v Kessner, 206 A.D.2d 123, 127, 618 N.Y.S.2d 635, 637 (1st Dept.) In Joint Properties Owners, supra, the Court found that the son, who as executor of his deceased mother's estate, and was a party to a residential lease, had violated a substantial obligation of the tenancy by putting a stranger to the lease, i.e. himself individually and his family, in possession without the landlord's consent thus 34

  44. violating a substantial obligation of tenancy, as a matter of law, entitling the landlord to a judgment of possession. 113 A.D.2d at 695, 497 N.Y.S.2d at 662. The significance of this distinction in the case at bar is substantial. Given that Harvey Ferrell in his capacity as preliminary executor did not have the power to transfer the property to himself, individually, it follows that the deed from Harvey Ferrell individually to Allen Clinton cannot transfer the interest he received from the alleged deed from himself as "preliminary administrator" to himself, since no interest was transferred. The deed to Allen Clinton makes no claim to be anything other than a deed from Harvey Ferrell as an individual. With respect to that transfer, the validity of the letters is simply irrelevant. That his preliminary letters had yet to be revoked does not make his acts as an individual any more valid or somehow increase the size of his interest in the property. With respect to the transfer to Allen Clinton it is as if the preliminary letters had never issued. POINT VI HAVING BEEN NOMINATED EXECUTOR UNDER AN ALLEGED WILL, HARVEY FERRELL HAD NO POWER TO CONVEY ANY INTEREST IN THE PROPERTY UNTIL THE DOCUMENT WAS PROBATED Since SCPA 1412 prohibited Harvey Ferrell, as preliminary executor from conveying the Property to himself individually, there remains the question of whether Harvey Ferrell had the power at the time of the deed to Allen Clinton, to 35

  45. convey or transfer any interest in the Property in his individual capacity. There is no evidence that he had such power. Under the unprobated document, Harvey Ferrell was the nominated executor. As the nominated executor under the alleged will, Harvey Ferrell had no power to transfer any assets of the estate prior to the probate of the will, except as permitted by the Preliminary Letters. EPTL 11-1.3 states: An executor named in a will has no power to dispose of any part of the estate of the testator before letters testamentary or preliminary letters testamentary are granted, except to pay reasonable funeral expenses, nor to interfere with such estate in any manner other than to take such action as is necessary to preserve it. Therefore, prior to the probate of the will, Harvey Ferrell was prohibited from transferring the property to himself. Having been named executor in the unprobated will, he was prohibited from doing anything which interfered with the estate "in any manner," This included acting in an individual capacity to transfer the Property to a third party. By virtue of presenting the still unprobated writing nominating him as executor, Harvey Ferrell, as a matter of law, had no capacity to convey any interest whatsoever in the Property or any other asset of the estate. If there had been no Will, or if the Will was denied probate, then title to the Property would have vested immediately upon the death of Joseph Ferrell in his distributees as tenants in common and Harvey Ferrell's deed to Allen Clinton 36

  46. would have conveyed his intestate share. See Matter of Blango, 166 A.D.3d 767 (2nd Dept. 2018). Harvey Ferrell as nominated executor of an unprobated document could not lawfully convey, even as an individual, any interest in the property at all. Real Property Law § 245 states: estate or interest of the grantor or testator unless the intent to pass a less estate or interest appears by the express terms of such grant or devise or by necessary implication therefrom. A greater estate or interest does not pass by any grant or conveyance, than the grantor possessed or could lawfully convey, at the time of the delivery of the deed; except that every grant is conclusive against the grantor and his heirs claiming from him by descent, and as against a subsequent purchaser or incumbrancer from such grantor, or from such heirs claiming as such, other than a subsequent purchaser or incumbrancer in good faith and for a valuable consideration, who acquires a superior title by a conveyance that has been first duly recorded. (emphasis added) A grant or devise of real property passes all the In the best case scenario, the deed to Allen Clinton was only valid as against the interest of Harvey Ferrell and his heirs or grantees in the Estate. It is not valid as against the other distributees of Joseph Ferrell or their heirs and grantees. Thus, Allen Clinton's deeded interest in the property and the interest he subsequently conveyed to Herman and Olga Durand, can only be equivalent to the intestate share of Harvey Ferrell. 37

  47. POINT VII SUFFICIENT PROOF OF FACTS CONSTITUTING THE FIRST COUNTERCLAIM WERE NOT SUBMITTED ON THE MOTION AND THE EVIDENCE CONTRADICTS THE CAUSE OF ACTION It is respectfully submitted that defendant has not met the evidentiary standards required by for entry of a default judgment. The lower court therefore would have erred in granting a default judgment on any one of the counterclaims even if the motion had been unopposed. In addition, the very evidence submitted by defendant and relied upon by the Court actually shows that Plaintiffs possess a number of potentially meritorious defenses. This Court stated in Capital One, N.A. v Gokhberg, 189 AD3d 978 (2nd Dept 2020): A plaintiff moving for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear. . . To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient proof to enable a court to determine if the cause of action is viable, since “defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” [citations omitted]. But if the moving party fails to offer sufficient proof for all of the elements that must be proven in order for a cause of action to be viable, the motion must be 38

  48. denied. In Capital One, N.A. v Gokhberg, a mortgage foreclosure action, although the plaintiff submitted sufficient evidence establishing that it was the owner and holder of the note and established the note's terms, the lost note affidavits submitted by the plaintiff failed to establish the facts that prevented the production of the original note. Neither affidavit identified who conducted the search for the lost note or explains “when or how the note was lost” 189 AD3d at 978, 979-80. Similarly, in the case at bar no evidence of the probate or even the genuineness of the writing alleged to be Joseph Ferrell's Last Will and Testament was offered on the motion. Yet defendant's first counterclaim rests entirely on a chain of title beginning with a copy of this document. Failure to prove the existence of a valid will does not only constitute a lack of sufficient proof of the defendant's claim, as shown above the lack of probate actually constitutes proof sufficient to deny the defendants first counterclaim and therefore plaintiffs have shown the existence of a meritorious defense to the counterclaim. The preliminary executor Harvey Ferrell could not lawfully convey the Property to himself individually. Harvey Ferrell, as nominated executor and/or preliminary executor, had no capacity to lawfully convey any interest in the Property to himself prior to probate. In US Bank N.A. v Vogel, 171 AD3d 1243, 1244 (2nd Dept 2019) this Court held that pleadings and affidavits submitted by the party seeking default, when 39

  49. viewed in conjunction with an erroneously notarized mortgage and multiple assignments of that mortgage, failed to set forth sufficient facts to warrant the entry of a default judgment at that point in the litigation. Similarly in the case at bar, the affidavits and pleadings when viewed in conjunction with the unprobated will, the void deed from Harvey Ferrell "as preliminary administrator," followed by a deed alleging an equally unlawful conveyance by Harvey Ferrell individually to Allen Clinton (which is then recorded with the payment of transfer taxes based on a price of $10.00 only), fail to set forth sufficient facts to warrant the entry of a default judgment in defendants favor. Also of relevance in US Bank N.A. v. Vogel is this Court's reversal of the dismissal of the complaint pursuant to CPLR 3211(a) and Real Property Law § 291 since the intervenor failed to satisfy her burden of establishing that she purchased the subject property for valuable consideration and without knowledge of facts that would lead a reasonably prudent purchaser to make inquiry concerning a prior interest or equity in the property. 171 AD3d at 1245. In the case at bar, the evidence submitted by defendant actually proves that at the time of the purchase from Allen Clinton, she and her husband had knowledge of facts that would lead a reasonably prudent purchaser to make inquiry concerning a prior interest or equity in the property, namely the recorded deed from Harvey Ferrell as "preliminary administrator" to himself individually. This 40

  50. deed alerts the reasonably prudent purchaser to make inquiry of the Surrogate's Court files. There, the reasonably prudent purchaser would have discovered that the alleged last Will and Testament of Joseph Ferrell had never been probated, and that there were at least three distributees of Joseph Ferrell, Thus Harvey Ferrell the individual, could have at most only conveyed a one-third interest in the Property to Allen Clinton. At the time of purchase, the publicly recorded documents and the Surrogate's Court files, would have led a reasonably prudent purchaser to know that prior interests and equities existed, including that of the other distributees of Joseph Ferrell. They also would have concluded that Allen Clinton may not have been a bona fide purchaser for value, since the recorded documents show that transfer taxes based only upon a price of $10.00 were paid. Accordingly, defendant has not offered sufficient proof that she and Herman Durand "are bona fide purchasers for value" [R201 ¶ 51] of any more than a one-third interest in the Property, if that. The evidence which defendant submitted on the motion contradicts the assertion in the Counterclaim. The lower court erred, as the lower court did in US Bank N.A. v. Vogel in dismissing the complaint and in entering judgment in favor of defendant since defendant has "failed to satisfy her burden of establishing that she purchased the subject property . . .without knowledge of facts that would lead a reasonably prudent purchaser to make inquiry concerning a prior interest or equity in the property." 171 AD3d at 1245. 41

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