Jaffer et al v. Hirji et al
Filing
24
OPINION AND ORDER: In light of the foregoing analysis, the Court grants in part and denies in part Defendants' Motion for Judgment on the Pleadings. Specifically, the Motion is denied as to Plaintiffs' constructive trust claim and granted as to Plaintiffs' adverse possession claim. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 17.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 10/27/2015) (lnl)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LATIFA JAFFER, et al.,
Plaintiffs,
v.
No. 14-CV-2127 (KMK)
OPINION AND ORDER
NAUSHAD M. HIRJI, et al.,
Defendants.
Appearances:
Costantino Fragale, Esq.
Law Office of Costantino Fragale
Eastchester, NY
Counsel for Plaintiffs
Andrew D. Brodnick, Esq.
Mount Kisco, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Plaintiffs Latifa Jaffer (“Latifa”), Hussein Jaffer (“Hussein”), Ahmed M. Hirji
(“Ahmed”), and Shehzad Hirji (“Shehzad”) (collectively, “Plaintiffs”) filed the instant Amended
Complaint against Naushad M. Hirji (“Naushad”) and Sabira Hirji (“Sabira”) (collectively,
“Defendants”), alleging claims for constructive trust and adverse possession related to a property
located at 662 Secor Road, Hartsdale, New York (the “Property”). Before the Court is
Defendants’ Motion for Judgment on the Pleadings. (See Notice of Mot. (“Mot.”) (Dkt. No.
17).) For the following reasons, Defendants’ Motion is granted in part and denied in part.
I. Background
A. Factual Background
The following facts are drawn from Plaintiffs’ Amended Complaint and are taken as true
for the purpose of resolving the instant Motion. In or about December 1982, Mohamed Hussein
Hirji (“Mohamed”) and Zehra Hirji (“Zehra”) were married, lived in Tanzania, and had seven
children as follows (listed in order of their age): Latifa, Farida, Naushad, Shamim, Effat,
Mustafa, and Ahmed. (Am. Compl. ¶ 3 (Dkt. No. 12).) Latifa presently resides at the Property
with her husband, Hussein. (Id. ¶ 4.) Ahmed resides at the Property with his son, Shehzad. (Id.
¶ 5.) Naushad is married to Sabira and they live together in Tanzania. (Id. ¶ 6.) Farida died in
Tanzania in 2009 and is survived by two children. (Id. ¶ 7.) Shamim died in Tanzania in 2003
and is survived by two children. (Id.) Effat currently lives in Tanzania, and Mustafa currently
lives in New York. (Id.)
In or about July 1982, a deed was executed that named Ahmed and Mustafa as the
grantees of the Property. (Id. ¶ 8.) In or about December 1982, Ahmed and Mustafa, as
grantors, deeded the Property to themselves and their mother, Zehra, as joint tenants (the “First
Deed”). (Id. ¶ 9.) No consideration was paid for the addition of Zehra as a fee owner of the
Property under the First Deed. (Id.)
In or about 1984, Zehra died intestate in New York, where she had temporarily relocated
from Tanzania to receive medical treatment. (Id. ¶ 10.) On or about December 5, 1989, Mustafa
and Ahmed, as grantors, deeded the Property to their father, Mohamed, and their eldest brother,
Naushad, as joint tenants with right of survivorship (the “Second Deed”). (Id. ¶ 11.) The
Second Deed was made at the request of Mohamed, (id. ¶ 22), and no consideration was paid for
the transfer of the Property under the Second Deed, (id. ¶ 12).
2
At the time of the Second Deed, Mohamed was seeking to re-marry, and it was Plaintiffs’
intent to vest title in the Property to their father to maximize his ability to find a new wife. (Id.
¶ 13.) Naushad was added as a nominee grantee to keep the Property within the family because
Mohamed “did not then have a Last Will and Testament and resided in Tanzania
and . . . Plaintiffs mistakenly believed that should Mohamed die without a will, the Property
would become property of the State of New York.” (Id. ¶ 14.) Plaintiffs allege that the Second
Deed was made “with the express understanding that . . . Plaintiffs would be permitted to reside
at the [Property] for as long as they should live and that the house would be owned equally by
each of Mohamed[]’s . . . children.” (Id. ¶ 22.) Moreover, at the time of and prior to the
execution and delivery of the Second Deed to Naushad, Plaintiffs allege that “the [P]arties were
in a confidential relationship and . . . Plaintiffs had the utmost trust and confidence
in . . . [Naushad], . . . which is why the Second Deed was executed in accordance with the
parties’ religious and cultural traditions.” (Id. ¶ 23.) Plaintiffs allege that it was understood that
Mohamed and Naushad were to hold complete legal title to the Property in trust for the purpose
of allowing Plaintiffs to reside at the Property, and Ahmed relied upon this understanding in
deciding to sign and deliver the Second Deed. (Id. ¶ 24.) Plaintiffs explain that the family “has a
history of having certain older family members hold legal title to real property in trust for
younger family members.” (Id. ¶ 25.) Plaintiffs state that, for example, Hussein holds legal title
to Mustafa’s residence in Ossining, New York, in trust for Mustafa, his younger brother-in-law.
(Id.)
In or about 1998, Mohamed died intestate in Tanzania. (Id. ¶ 15.) In or about February
2001, Naushad, as grantor, deeded the Property to himself and his wife, Sabira as tenants by the
entirety (the “Third Deed”). (Id. ¶ 16; Aff. of Andrew D. Brodnick (“Brodnick Aff.”) Ex. F
3
(Dkt. No. 17).)1 On or about January 22, 2014, Naushad, through his agent and attorney,
Naushina Esmail, issued a Notice of Termination (the “Notice”) to Plaintiffs, which indicated
that Plaintiffs were required to “remove and vacate” the Property by no later than February 28,
2014, and that upon their failure to do so, a summary proceeding would be commenced against
Plaintiffs to have them evicted and removed from the Property. (Am. Compl. ¶ 17.)
Prior to and at all times subsequent to 1984, Plaintiffs were in actual possession of the
Property, they paid real estate taxes on the Property, they made all repairs and capital
improvements to the Property at their own cost and expense, and they held themselves out as
owners of the Property. (Id. ¶¶ 18–19.) Plaintiffs allege that they are the de facto owners and in
possession of the Property because, among other things, “[t]here has been actual and continuous
occupation and possession of the Property by Plaintiffs since 1984 and for more than 25 years
since [D]efendants became the fee simple owners of the Property pursuant to the Second Deed
and [the Third Deed].” (Id. ¶ 32–33.)
1
The Court considers the deed in the instant Motion. “The Second Circuit has explained
that a ‘necessary prerequisite for the exception’ that materials integral to the complaint may be
considered on a motion to dismiss [or for judgment on the pleadings] ‘is that the plaintiff rely on
the terms and effect of the document in drafting the complaint . . .; mere notice or possession is
not enough.’” Alvarez v. Cty. of Orange, — F. Supp. 3d — , 2015 WL 1332347, at *9 (S.D.N.Y.
Mar. 25, 2015) (second alteration in original) (some internal quotation marks omitted) (quoting
Global Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir. 2006)). Here,
Plaintiffs allege that “[i]n or about February 2011, [Naushad], as grantor, deeded the Property to
himself and . . . Sabira,” (Am. Compl. ¶ 16), and all of Plaintiffs’ claims center on the deeds
related to the Property. Accordingly, Plaintiffs’ Amended Complaint “relies heavily upon the
terms and effects of the deed.” Smith v. Manhattan Club Timeshare Ass’n, 944 F. Supp. 2d 244,
254 n.3 (S.D.N.Y. 2013). Moreover, “[o]n a motion to dismiss, courts may take judicial notice
of public records, such as properly recorded deeds.” Awan v. Ashcroft, No. 09-CV-1653, 2010
WL 3924849, at *2 (E.D.N.Y. Sept. 28, 2010); see also Costello v. Town of Huntington, No. 14CV-2061, 2015 WL 1396448, at *2 n.2 (E.D.N.Y. Mar. 25, 2015) (same).
4
B. Procedural History
Plaintiffs filed the original Complaint in the Supreme Court of the State of New York,
County of Westchester, and the Complaint was removed to this Court on March 26, 2014 based
on diversity jurisdiction. (Dkt. No. 1.) Defendants filed an answer and a counterclaim on March
31, 2014. (Dkt. No. 3.) On September 29, 2014, Plaintiffs filed the Amended Complaint
seeking a constructive trust and claiming adverse possession of the Property. (Dkt. No. 12.)
Defendants filed an answer on October 17, 2014. (Dkt. No. 13.) Pursuant to a scheduling order
so ordered on October 23, 2014, (Dkt. No. 16), Defendants filed their Motion For Judgment on
the Pleadings and their supporting papers on November 14, 2014 and November 17, 2014, (Dkt.
Nos. 17–19), Plaintiffs filed their Memorandum of Law in Opposition to the Motion on
December 12, 2014, (Dkt. No. 21), and Defendants filed their reply on January 9, 2015, (Dkt.
No. 22).
II. Discussion
A. Standard of Review
“The standard of review on a motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c) is the same as the standard of review applied to a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).” Marte v. Safety Bldg. Cleaning
Corp., No. 08-CV-1233, 2009 WL 2827976, at *1 (S.D.N.Y. Sept. 2, 2009); see also L-7
Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011) (“In deciding a Rule 12(c)
motion, we employ the same standard applicable to dismissals pursuant to Rule 12(b)(6).”
(alterations and internal quotation marks omitted)). The Supreme Court has held that although a
complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a
plaintiff's obligation to provide the ‘grounds’ of his [or her] ‘entitle[ment] to relief’ requires
5
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in
original). Instead, the Court has emphasized that “[f]actual allegations must be enough to raise a
right to relief above the speculative level,” id., and that “once a claim has been stated adequately,
it may be supported by showing any set of facts consistent with the allegations in the complaint,”
id. at 563. A plaintiff must allege “only enough facts to state a claim to relief that is plausible on
its face.” Id. at 570. But if a plaintiff has “not nudged [his or her] claims across the line from
conceivable to plausible, the[] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (“Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” (alteration in original) (citation omitted)
(quoting Fed. R. Civ. P. 8(a)(2))).
For the purposes of Defendants’ Motion, the Court is required to consider as true the
factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184,
188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint pursuant to
Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable
inferences in the plaintiff’s favor.” (italics and internal quotation marks omitted)); see also
Gonzalez v. Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008) (same). In deciding the
Motion, the court “must confine its consideration to facts stated on the face of the complaint, in
documents appended to the complaint or incorporated in the complaint by reference, and to
matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y.,
6
199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted) (applying standard to a Rule
12(b)(6) motion); see also Smith v. City of New York, No. 13-CV-2395, 2014 WL 4904557, at *3
(E.D.N.Y. Sept. 30, 2014) (“When deciding a motion on the pleadings, the court must confine its
consideration to the pleadings and their attachments, to documents . . . incorporated in the
complaint by reference, and to matters of which judicial notice may be taken.” (alteration in
original) (internal quotation marks omitted)).
Finally, “[a] statute of limitations defense is an affirmative defense that a defendant must
plead and prove.” Rite Aid Corp. v. Am. Express Travel Related Servs. Co., 708 F. Supp. 2d 257,
263 (E.D.N.Y. 2010) (citing Fed. R. Civ. P. 8(c)(1)). “[C]ourts may nonetheless dismiss a case
on statute of limitations grounds if a complaint, on its face, ‘clearly shows the claim is out of
time.’” Boles v. Eastman Kodak Co., No. 14-CV-6243, 2015 WL 213248, at *1 (W.D.N.Y. Jan.
14, 2015) (quoting Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)). “Because a
failure-to-state-a-claim defense can be brought on a motion for judgment on the pleadings, it
follows that a defendant may properly bring a statute-of-limitations defense on a motion for
judgment on the pleadings.” Rite Aid Corp., 708 F. Supp. 2d at 263 (citing Higgins v. N.Y. Stock
Exch., Inc., 942 F.2d 829, 831 (2d Cir. 1991)).
B. Constructive Trust Claim
1. Applicable Law
“A constructive trust will be imposed where property has been acquired in such
circumstances that the holder of legal title may not in good conscience retain the beneficial
interest.” Van Brunt v. Rauschenberg, 799 F. Supp. 1467, 1474 (S.D.N.Y. 1992) (internal
quotation marks omitted). The purpose of a constructive trust is to prevent unjust enrichment,
although the existence of unjust enrichment does not reflect the commission of a wrongful act by
7
the enriched party. See Simonds v. Simonds, 380 N.E.2d 189, 194 (N.Y. 1978); see also Beatty v.
Guggenheim Expl. Co., 122 N.E. 378, 380 (N.Y. 1919) (“A constructive trust is the formula
through which the conscience of equity finds expression.”), superseded by statute as recognized
in Israel v. Chabra, 906 N.E.2d 374, 377–78 (N.Y. 2009). “Under New York law, a party
claiming entitlement to a constructive trust must ordinarily establish four elements: (1) a
confidential or fiduciary relationship; (2) a promise, express or implied; (3) a transfer made in
reliance on that promise; and (4) unjust enrichment.” In re Koreag, Controle et Revision S.A.,
961 F.2d 341, 352 (2d Cir. 1992); see also Counihan v. Allstate Ins., 194 F.3d 357, 361–62 (2d
Cir. 1999) (same). The Second Circuit has “observed that, although these factors provide
important guideposts, the constructive trust doctrine is equitable in nature and should not be
rigidly limited.” Counihan, 194 F.3d at 362 (alteration and internal quotation marks omitted);
see also Lia v. Saporito, 909 F. Supp. 2d 149, 172 (E.D.N.Y. 2012) (same), aff’d, 541 F. App’x
71 (2d Cir. 2013). “What the New York courts do insist upon is a showing that property is held
under circumstances that render unconscionable and inequitable the continued holding of the
property and that the remedy is essential to prevent unjust enrichment.” Counihan, 194 F.3d at
362.
“A cause of action for a consecutive trust is governed by New York’s six-year statute of
limitations applicable to those claims ‘for which no limitation is specifically prescribed by law.’”
Reale v. Reale, 485 F. Supp. 2d 247, 252 (W.D.N.Y. 2007) (quoting N.Y. C.P.L.R. § 213(1)).
The statute of limitations for a constructive trust claim “starts to run upon the
occurrence of the wrongful act giving rise to a duty of restitution. A
determination of when the wrongful act triggering the running of the statute of
limitations occurs depends upon whether the constructive trustee acquired the
property wrongfully, in which case the property would be held adversely from the
date of acquisition, or whether the constructive trustee wrongfully withholds
property acquired lawfully from the beneficiary, in which case the property would
be held adversely from the date the trustee breaches or repudiates the agreement
8
to transfer the property.”
Quiroga v. Fall River Music, Inc., No. 93-CV-3914, 1998 WL 851574, at *34 (S.D.N.Y. Dec. 7,
1998) (quoting Sitkowski v. Petzing, 572 N.Y.S.2d 930, 932 (App. Div. 1991)); see also
McGovern v. Solomon, 466 F. Supp. 2d 554, 558 (S.D.N.Y. 2006) (“Under New York law, an
action for a constructive trust begins to accrue, and the limitations period begins to run, as of the
date when the acts occurred on which the claim of constructive trust is predicated.” (internal
quotation marks omitted)). “Generally, the date of the ‘wrongful act’ ‘is the date that the party
holding legal title takes some action that is inconsistent with the promise he made to the
transferor.’” Saporito, 909 F. Supp. 2d at 167 (quoting Reale, 485 F. Supp. 2d at 252).
Moreover, an equitable constructive trust claim “accrues when the party seeking to impose the
trust knows or should have known of the wrongful withholding.” Two Clinton Square Corp. v.
Friedler, 459 N.Y.S.2d 179, 181 (App. Div. 1983).
2. Application
Defendants argue that the six-year statute of limitations on Plaintiffs’ constructive trust
claim has run. (Defs.’ Mem. of Law (“Defs.’ Mem.”) 4 (Dkt. No. 19).) Specifically, Defendants
contend that the Third Deed constituted a breach of the constructive trust and, therefore, the
statute of limitations began to accrue in 2001. (Id. at 4–5.) Plaintiffs, in turn, claim that
Naushad never “acquire[d] the property wrongfully,” and, accordingly, “the statute of limitations
would begin to run at that point in time when Naushad . . . wrongfully withheld the Property
from Plaintiffs” in 2014. (Pls.’ Mem. of Law in Opp’n to Defs.’ Mot. for Judgment on the
Pleadings (“Pls.’ Mem.”) 11 (Dkt. No. 21) (internal quotation marks omitted).)
“A determination of when the wrongful act triggering the running of the Statute of
Limitations occurs depends upon whether the constructive trustee acquired the property
9
wrongfully, in which case the property would be held adversely from the date of acquisition or
whether the constructive trustee wrongfully withholds property acquired lawfully from the
beneficiary, in which case the property would be held adversely from the date the trustee
breaches or repudiates the agreement to transfer the property.” Tornheim v. Tornheim, 888
N.Y.S.2d 603, 605 (App. Div. 2009) (emphasis added) (alteration and internal quotation marks
omitted).
Here, Plaintiffs do not allege that Defendants acquired the property wrongfully. Rather,
Plaintiffs allege that Naushad wrongfully withheld the Property that he acquired lawfully from
Ahmed and Mustafa. Specifically, on or about December 5, 1989, Mustafa and Ahmed deeded
the Property to their father and Naushad as joint tenants with right of survivorship. (Am. Compl.
¶ 11.) Plaintiffs allege that the deed was executed and delivered to their father and Naushad
“with the express understanding that . . . Plaintiffs would be permitted to reside at the [Property]
for as long as they should live and that the house would be owned equally by each of
Mohamed[]’s children.” (Id. ¶ 22.) On or about January 22, 2014, Naushad issued the Notice to
Plaintiffs that Plaintiffs were required to “remove and vacate” the Property by no later than
February 28, 2014. (Id. ¶ 17.) These allegations are sufficient to allege that Naushad acquired
the Property lawfully and wrongfully withheld the Property in 2014, thus triggering the statute of
limitations on Plaintiffs’ constructive trust claim. See Morris v. Gianelli, 897 N.Y.S.2d 210,
211–12 (App. Div. 2010) (reversing the trial court’s determination that the defendants had
demonstrated the constructive trust claim was time-barred because the complaint “allege[d] that
the wrongful act that triggered the running of the statute of limitations did not occur until after
the death of the parties’ father,” when the defendants refused to convey to plaintiff her share in
the properties, which they had promised their father when the father executed the deeds
10
conveying the properties from him to the defendants); Zane v. Minion, 882 N.Y.S.2d 255, 257
(App. Div. 2009) (holding that the plaintiff’s claim brought in 2008 for a constructive trust was
not time barred because the claim “accrued when the defendant allegedly failed to honor her
promises, which, according to the complaint, occurred in late 2005 or early 2006”); Panish v.
Panish, No. 05-01111, 2005 WL 1364510, at *2 (N.Y. Sup. Ct. Apr. 15, 2005) (rejecting the
defendant’s contention that the action was untimely since the property was acquired in 1996
because “the complaint [did] not appear to allege that the defendant acquired the property
wrongfully but rather, that he refused to reconvey the property at a later date,” and thus “the
defendant has not established that the action is time-barred”).
Even though the Amended Complaint states that in or about February 2001, Naushad
deeded the Property to himself and Sabira, (Am. Compl. ¶ 16), Plaintiffs’ claim is not based on
this transfer, but rather on the alleged breach of the agreement in 1989 to allow Plaintiffs to
reside at the Property for as long as they should live. See Sitkowski, 572 N.Y.S.2d at 932
(explaining that “the gravamen of the plaintiff’s complaint is not that the constructive trustee
acquired the property wrongfully, but rather, that the defendant breached the trust relationship at
some later date”); Bodden v. Kean, No. 23250/2008, 2009 WL 8574335, at *3 (N.Y. Sup. Ct.
May 22, 2009) (“Here, evidence supports [the] plaintiff’s claim that [the] defendant did not
repudiate his duty as constructive trustee until June 2008 when he refused to convey the property
to [the] plaintiff. The gravamen of [the] plaintiff’s complaint is not that [the] defendant acquired
the property wrongfully in June 1997, but, rather, that he breached the trust relationship in June
2008 when he refused to convey the property to [the] plaintiff.”), adhered to on reargument,
2010 WL 8415297 (N.Y. Sup. Ct. Jan. 26, 2010), aff’d, 927 N.Y.S.2d 137 (App. Div. 2011).
Contrary to Defendants’ suggestion, the Third Deed does not definitively establish that the
11
statute of limitations began to run in 2001. “The law requires proof of a repudiation by the
fiduciary which is [c]lear and made known to the beneficiaries.” In re Barabash Estate, 286
N.E. 2d 268, 270 (N.Y. 1972); see also Bodden, 2009 WL 8574335, at *3 (same).
Naushad deeded the property to himself and Sabira in 2001, which made Sabira a tenant
by the entirety. Assuming that in theory by execution of the Third Deed, Sabrina held title to the
whole of the Property, see Matter of Gosier v. Aubertine, 891 N.Y.S.2d 788, 790 (App. Div.
2009) (explaining that “the salient characteristic of a tenancy by the entirety is the unique
relationship between a husband and his wife each of whom is seized of the whole and not of any
undivided portion of the estate such that both and each own the entire fee” (alterations and
internal quotation marks omitted)), and was entitled to a life estate in the Property, see Cardozo
v. Wlasiuk, 777 N.Y.S.2d 615, 617 (Sup. Ct. 2004) (noting “the principle that the individual
property interests held by spouses who own property as tenants by the entirety as having a life
estate in the subject property, subject to the right of survivorship of the co-tenant spouse”),
Plaintiffs do not allege that Sabira exercised her rights to their exclusion prior to 2014, or that
there were other indications of a breach or repudiation of the agreement made in 1989.2 In other
words, while the Third Deed arguably may have constituted a clear breach or repudiation of the
agreement between Naushad and Plaintiffs, Plaintiffs allege otherwise and indeed resided in the
Property and therefore received the benefits of the agreement until they were told to leave in
2014. Accordingly, even though Sabira became a tenant in the entirety in 2001, (see Brodnick
Aff. Ex. F.), Defendants have not established that the Third Deed constituted a clear breach or
repudiation of the agreement to trigger the statute of limitations in 2001. See Kopelman v.
2
The Court notes that the factual landscape concerning the circumstances and
understandings of the Parties at the time the Third Deed was executed will likely be developed
through discovery.
12
Kopelman, 710 F. Supp. 99, 103 (S.D.N.Y. 1989) (noting that the parties disagreed on what
wrongful act gave rise to a restitution duty for the plaintiff’s constructive trust claim and denying
the defendant’s motion for summary judgment because “[a]t the very least, there are factual
issues relative to the commencement of the limitations period”); Maric Piping, Inc. v. Maric, 705
N.Y.S.2d 684, 685 (App. Div. 2000) (holding that the supreme court erred in dismissing the
claim seeking to impose a constructive trust as barred by the statute of limitations because the
plaintiffs alleged that the defendant breached a fiduciary duty by refusing to convey interest in
the property after its acquisition and, accordingly, there were questions of fact as to when the
defendant “allegedly breached any agreement by refusing to convey . . . interest in the
property”); Mardiros v. Ghaly, 614 N.Y.S.2d 436, 436–37 (App. Div. 1994) (explaining that the
defendants contended that the action was time-barred because the statute of limitations “started
to run when the defendants allegedly had their names put on the deed surreptitiously,” whereas
the “plaintiff contend[ed] that the operative event for purposes of the period of limitations was
the defendants’ refusal to give her a year-end bank statement for tax purposes and their refusal to
let her enter the premises” and that, therefore, “there are questions of fact as to when the [s]tatute
of [l]imitations began to run”); Sitkowski, 572 N.Y.S.2d at 932 (explaining that there are at the
very least questions of fact as to “when the [D]efendant[s] allegedly breached the agreement
[made in executing the Second Deed] by an identifiable, wrongful act demonstrating his refusal
to convey [the] interest in the [Property]”). Because the Amended Complaint does not, “on its
face, ‘clearly show[] [Plaintiffs’ constructive trust] claim is out of time,’” Boles, 2015 WL
213248, at *1 (quoting Harris, 186 F.3d at 250), Defendants’ Motion is denied as to Plaintiffs’
constructive trust claim.
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C. Adverse Possession Claim
1. Applicable Law
“[T]o establish a claim of adverse possession, the occupation of the property must be (1)
hostile and under a claim of right . . . , (2) actual, (3) open and notorious, (4) exclusive, and (5)
continuous for the statutory period (at least 10 years).” Millington v. Kenny & Dittrich Amherst,
LLC, 2 N.Y.S.3d 273, 275 (App. Div. 2015) (internal quotation marks omitted); see also
Reardon v. Broadwell, 993 N.Y.S.2d 836, 837 (App. Div. 2014) (same). “Reduced to its
essentials, this means nothing more than that there must be possession in fact of a type that
would give the owner a cause of action in ejectment against the occupier throughout the
prescriptive period.” Talmage v. Ronald Altman Tr., 871 F. Supp. 1577, 1585 (E.D.N.Y. 1994)
(internal quotation marks omitted).
“Under longstanding decisional law applying these traditional common-law elements, a
party seeking adverse possession could assert that he or she was acting under a claim of right
regardless of whether he or she had actual knowledge of the true owner at the time of
possession.” Hogan v. Kelly, 927 N.Y.S.2d 157, 159 (App. Div. 2011); see also Stickler v.
Halevy, 794 F. Supp. 2d 385, 399 (E.D.N.Y. 2011) (applying the traditional elements and
explaining that “the manifest acts of the possessor are what put the owner on notice of the hostile
claim”). In 2008, however, the New York Legislature enacted changes to the adverse possession
statutes, which “include[d], for the first time, a statutory definition of the ‘claim of right’ element
necessary to acquire title by adverse possession.” Hogan, 927 N.Y.S.2d at 159. The amended
statute provides that, “[a] claim of right means a reasonable basis for the belief that the property
belongs to the adverse possessor or property owner, as the case may be.” N.Y. Real Prop. Acts.
Law § 501(3). The 2008 amendments “took effect on July 7, 2008, and apply to all claims filed
14
on or after the effective date of the amendments.” Hogan, 927 N.Y.S.2d at 159. The Second
Department has instructed that if an action is
commenced after the effective date of the 2008 amendments . . . [they] cannot be
retroactively applied to deprive a claimant of a property right which vested prior
to their enactment . . . . Therefore, the version of the law in effect at the time the
purported adverse possession allegedly ripened into title is the law applicable to
the claim, even if the action was commenced after the effective date of the new
legislation.
Id. Accordingly, if a plaintiff’s property right allegedly vested before the effective date of the
2008 amendments, “in the absence of an overt acknowledgment during the statutory period that
ownership rested with another party, actual knowledge of the true owner [does] not destroy the
element of claim of right.” In re Lee, 946 N.Y.S.2d 621, 623 (App. Div. 2012) (internal
quotation marks omitted).
At least prior to the 2008 amendments, “[f]or possession to be hostile it must be without
permission and non-consensual.” Stickler, 794 F. Supp. 2d at 398. “Seeking permission, but
little else, would negate hostility.” Id. Indeed, “[t]here is a presumption of hostility if use is
open, notorious, and continuous for the statutory period.” Id. at 398–99; see also Talmage, 871
F. Supp. at 1586 (same). Accordingly, “the burden shifts to the owner to show that the use was
permissive.” Koepp v. Holland, 688 F. Supp. 2d 65, 82 (N.D.N.Y. 2010), aff’d, 593 F. App’x 20
(2d Cir. 2014). Nevertheless,
while it is true that the element of hostile use under a claim of right may be
presumed if the other elements have been proven, where it is shown that the user
and the landowner are related by blood . . . the proponent is not accorded the
benefit of presumption, and the onus remains on the proponent to come forward
with evidence of hostile use sufficient to raise a triable issue of fact.
Turner v. Baisley, 602 N.Y.S.2d 907, 908–09 (App. Div. 1993) (alteration in original) (citation
and internal quotation marks omitted); see also Talmage, 871 F. Supp. at 1586–87 (same).
15
2. Application
Defendants do not dispute that Plaintiffs adequately allege the first three elements of an
adverse possession claim. Indeed, Plaintiffs claim that they “have for more than [10] years and
under claim of right, been in hostile, actual, open, notorious, exclusive[,] and continuous
possession of the Property,” during which time they have “paid all taxes pertaining to the
Property, maintained the condition of the Property, made permanent repairs, capital
improvements, maintained insurance coverage, never paid rent and [D]efendants never
demanded any rent, and have always conducted themselves as the de facto fee simple owners of
the Property.” (Am. Compl. ¶ 36.) Instead, Defendants contend that Plaintiffs cannot establish
that their possession of the Property was hostile. To begin, taking the allegations in the
Amended Complaint as true, the 2008 amendments to the adverse possession statutes are
inapplicable to Plaintiffs’ claim. Plaintiffs allege that “[t]here has been actual and continuous
occupation and possession of the Property by Plaintiffs since 1984 and for more than 25 years
since defendants became the fee simple owners of the Property pursuant to the Second Deed and
subsequent February 2001 deed,” (id. ¶ 33), and that they have “actually and continually held,
occupied, possessed, used[,] and enjoyed the Property for more than [10] years and, in fact, for
more than 30 years,” (id. ¶ 35). Accordingly, Plaintiffs claim that their “purported adverse
possession allegedly ripened into title,” Hogan, 927 N.Y.S.2d at 159, in or around 1994, well
before the 2008 amendments to the adverse possession statutes went into effect and the law prior
to the 2008 amendments governs Plaintiffs’ adverse possession claim, as alleged.
Defendants argue that Ahmed “cannot establish that he occupied the home in a manner
hostile to Defendants because he voluntarily deeded his interest in the [Property]
to . . . Naushad,” and “there is no basis for claiming adverse possession until there is occupation
16
with the intent to claim title.” (Defs.’ Mem. 8.) Plaintiffs allege, however, that even though
Ahmed and Mustafa deeded the legal title of the Property to Naushad, they believed that “the
house would be owned equally by each of Mohamed[]’s children.” (Am. Compl. ¶ 22.) Under
the “longstanding decisional law applying the[] traditional common-law elements [of an adverse
possession claim],” which Plaintiffs adequately allege governs their claim here, “a party seeking
adverse possession [may] assert that he or she was acting under a claim of right regardless of
whether he or she had actual knowledge of the true owner at the time of possession.” Hogan,
927 N.Y.S.2d at 159 (internal quotation marks omitted); see also Stickler, 794 F. Supp. 2d at 399
(explaining that although “[s]ome courts have held that [a] plaintiff’s affirmative knowledge of
another’s legal title in the property defeats her adverse possession claim if knowledge existed
during the statutory period[,] . . . [t]he Appellate Division [has] held . . . that a possessor’s
subjective belief or motive is irrelevant to the claim; the manifest acts of the possessor are what
put the owner on notice of the hostile claim” (citing Walling v. Przybylo, 851 N.E.2d 1167, 1170
(N.Y. 2006))). Plaintiffs allege that, since 1984, they were in actual possession of the Property,
paid real estate taxes on the Property, made all repairs and capital improvements to the Property
at their own cost and expense, and they held themselves out as owners of the Property. (Am.
Compl. ¶¶ 18–19.) These actions may have been sufficient to put Defendants on notice of a
hostile claim and suggest that there was “possession in fact of a type that would give
[Defendants] a cause of action in ejectment against the occupier throughout the prescriptive
period.” Talmage, 871 F. Supp. at 1585 (internal quotation marks omitted).
Nevertheless, Plaintiffs do not state a claim for adverse possession. Defendants are
correct that New York courts have found that “a familial relationship is not accorded the benefit
of . . . a presumption [of hostility] and,” accordingly, the burden of establishing hostility rests
17
with Plaintiffs. (Defs.’ Mem. 7.) See Turner, 602 N.Y.S.2d at 908–09 (explaining that there is
no benefit of presumption when the “user and the landowner are related by blood”).
Accordingly, Plaintiffs must allege, in more than a conclusory fashion, that their possession was
hostile and under a claim of right. See Giannasca v. Lind, 934 N.Y.S.2d 656, 658–59 (Sup. Ct.
2011) (explaining that the “plaintiffs . . . failed to allege, except in a conclusory fashion, that the
use of the parcel was hostile,” and dismissing the plaintiffs’ adverse possession claim where the
parties were related by blood and, therefore, the plaintiffs needed to allege hostile use, rather
than “rel[y] upon the assumption of hostility”). Plaintiffs fail to do so here. Instead, the
Amended Complaint alleges that Plaintiffs’ occupation of the Property was consensual.
Specifically, Plaintiffs claim that the Second Deed was made “with the express understanding
that . . . Plaintiffs would be permitted to reside at the [Property] for as long as they should live
and that the house would be owned equally by each of Mohamed[]’s children,” (Am. Compl. ¶
22), and that it was understood that Mohamed and Naushad were to hold complete legal title to
the Property in trust for the purpose of allowing Plaintiffs to reside at the Property, (id. ¶ 24).
Because “[f]or possession to be hostile it must be without permission and non-consensual,”
Stickler, 794 F. Supp. 2d at 398, Plaintiffs cannot allege hostility while claiming that Defendants
permitted Plaintiffs to reside at the Property. See Albright v. Beesimer, 733 N.Y.S.2d 251, 253
(App. Div. 2001) (explaining that a conversation the parties had in which they agreed that the
plaintiffs could use the land in dispute was “an acknowledgment [that] defeats the claim of
adverse possession”); cf. Lee, 946 N.Y.S.2d at 623 (holding that the plaintiffs sufficiently alleged
that their possession was hostile and under a claim of right where, among other things, “the
amended complaint, amplified by the affidavits, alleges that [the plaintiff] never had any
communication with the decedent concerning her possession of the premises [and] that the
18
plaintiffs never sought or gained the express or implied permission of the decedent to use or
possess the premises"); Stickler, 794 F. Supp. 2d at 399 (explaining that "[i]fajury finds that
[the plaintiffs] use and occupation ofthe [d]isputed [a]rea infringed on the defendants' interests
without permission, the claim could be found to be hostile"). Accordingly, Plaintiffs do not
sufficiently allege that they adversely possessed the Property.
III. Conclusion
In light of the foregoing analysis, the Court grants in part and denies in part Defendants'
Motion for Judgment on the Pleadings. Specifically, the Motion is denied as to Plaintiffs'
constructive trust claim and granted as to Plaintiffs' adverse possession claim . The Clerk of
Court is respectfully requested to terminate the pending Motion. (Dkt. No. 17.)
SO ORDERED.
DATED:
- l-,
a
2015
October
White Plains, New York
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