ORDER & JUDGMENT Plaintiff commenced this action claiming partition of real property known as 155 Broadwaters Road, Cutchogue, Town of Southold, New York. Defendant, through capable counsel, seasonably answered and vigorously opposed the relief demanded by Plaintiff. It was undisputed that Plaintiff and Defendant were engaged in an intimate interpersonal relationship, that they resided together and were, at one point in time, engaged to be married.Familiarity with the procedural history is presumed. The Court commenced trial proceedings herein. On September 21, 2009 Plaintiff defaulted in appearance at the continuing trial of this cause and this Court entered a judgment, inter alia, granting partition, determining that Defendant was vested with an 85 percent interest in the property and appointing a Referee to sell the property at issue. Among the findings of fact which were made were that the parties were owners of the property, as joint tenants with the right of survivorship, by virtue of a Deed dated February 8, 2002 which was recorded with the Clerk of Suffolk County, New York on May 14, 2002 in Liber 12185 of Conveyances at Page 872. That Deed reflects that consideration in the amount of $ 170,000.00 was tendered therefor.However and unknown to this Court, on August 24, 2009, which was during the pendency of the ongoing trial herein, Plaintiff wrongfully and unlawfully executed a “no consideration” Deed which purported to sever the joint tenancy and to convey the entire fee interest in the property at issue to himself. Thereafter and October 10, 2011 at 3:34 p.m., Plaintiff died of natural causes. Apparently intestate, Plaintiff was survived by his adult two children Gary Gerns Jr. and Jennifer Piano as his sole heirs at law.Thereafter, Defendant was successful in securing an arm’s length purchaser for the property for consideration of $ 990,000.00. Upon approaching Plaintiff’s heirs at law, the said heirs at law declined to “agree” to the sale in spite of this Court’s clear and unequivocal Order to the contrary. Defendant has now secured a second arm’s length buyer at a higher amount, to wit., $ 1,050,000.00. The heirs at law, again in derogation of this Court’s prior Order, have refused to proceed with the consummation of the sale.Defendant now moves (seq. 003) for an Order imposing a constructive trust in her favor, for reconveyance of the property to herself as the sole surviving joint tenant and a declaration that she is the sole owner of the property. Although duly and properly served with Defendant’s moving papers, Plaintiff’s heirs at law have failed to appear and have likewise failed to interpose any opposition thereto. As such, they are in default, compelling the Court to proceed in their absence.As a threshold matter, Plaintiff’s “no consideration” conveyance to himself, as memorialized in a Deed which was dated August 24, 2009 and recorded with the Clerk of Suffolk County, New York on September 16, 2009 in Liber 12600 of Conveyances at Page 250, is a nullity. In accordance with the provisions of RPL §240-c(a), this Deed was legally insufficient to effect a severance of the joint tenancy of the parties and was therefore void ab initio.Where one joint tenant dies, the entire fee interest immediately vests in the surviving joint tenant, Purdy v. Hayt 92 NY 446 (1833), Coster v. Lorillard 14 Wend 265 (1835), Downing v. Marshall 23 NY 366 (1861). It indubitably follows then that at the moment of Plaintiff’s demise, all right, title, interest in and ownership of the property passed to Defendant as the surviving joint tenant.In the matter presently sub judice, it is beyond any good faith dispute that Plaintiff’s conveyance to himself was legally inefficacious and further, that Defendant succeeded to the entire fee interest in the property at the moment of Plaintiff’s passing.The Court therefore grants Defendant’s application to that extent that it finds that Defendant is the sole owner, in fee simple, of the property at issue in this matter and has been so vested since October 10, 2011 at 3:34 p.m..It is, therefore,ORDERED, ADJUDGED and DECREED that the within application by Defendant (seq. 003) shall be and is hereby granted to the extent hereinafter set forth; and it is furtherORDERED, ADJUDGED and DECREED that the Deed which was recorded with the Clerk of Suffolk County, New York on September 16, 2009 in Liber 12600 of Conveyances at Page 250 shall be and is hereby declared, ab initio, to be null, void and of no legal effect whatsoever; and it is furtherORDERED, ADJUDGED and DECREED that Defendant PAMELA LIGUORI is declared to be the owner, in fee simple, of the property known as 155 Broadwaters Road, Cutchogue, Town of Southold, New York which is designated upon the Suffolk County Land and Tax Map as District 1000, Section 104.00, Block 12.00, Lot 008.001; and it is furtherORDERED, ADJUDGED and DECREED that Defendant PAMELA LIGUORI acquired her fee interest in the property by Deed recorded with the Clerk of Suffolk County on May 14, 2002 in Liber 12185 of Conveyances at Page 872 and that she is the sole surviving joint tenant; and it is furtherORDERED, ADJUDGED and DECREED that upon payment by Defendant to the Clerk of Suffolk County of the proepr fees, if any, the Clerk of Suffolk County shall cause this Order and Judgment to be indexed in the Land Records with respect to the property at issue herein; and it is furtherORDERED, ADJUDGED and DECREED that any relief not expressly granted herein shall be and the same is hereby denied.This shall constitute the decision, judgment and order of the Court.Dated: October 10, 2018Riverhead, New York
