The following named papers numbered 1 to 3 submitted on this Motion to Dismiss on October 26, 2018Papers NumberedNotice of Motion and Supporting Documents 1Order to Show Cause and Supporting Documents Opposition to Motion 2Reply Papers to Motion 3 The Respondent moves to dismiss the Petition and the action at bar, in its entirety. Petitioner opposes the motion. Petitioner Evan S. Dictor has commenced this holdover proceeding against Respondent George Martin concerning the property located at 1594 Park Avenue, Merrick, New York. The Petition identifies Petitioner as the owner/landlord of said premises. The Petition states that Respondent lived at the premises from about February 1, 1991 and ending in June 8, 2018, with the “consent of the prior owner.” Paragraph 4 of the Petition alleges that possession expired on June 8, 2018 “as a result of the: death of the owner by JTWROS with Petitioner.” The Petitioner further alleges that a ten day notice to quit was served upon Respondent. The Ten Day Notice to Quit states:“YOU ARE HEREBY NOTIFIED that the Owner of the property known as 1594 Park Avenue, Merrick, New York 11566 (the Premises), elects to terminate your possession of the Premises in ten (10) days. Unless you remove from the Premises in ten (10) days, the Owner will commence a summary proceeding under the Real Property Actions and Proceedings Law to remove you from the Premises and will demand the value of your use and occupancy of the Premises during such possession.A certified copy of the deed to Premises evidencing the Owner’s fee title to the Premises is attached hereto and made a part of this Notice.”Petitioner is the son of Alice Dictor who owned the property at 1594 Park Avenue, Merrick. It is asserted that Petitioner became joint owner with the right of survivorship with Alice Dictor by the Deed, dated July 24, 2017, which was executed by Alice Dictor on said date.The Affidavit of Evan S. Dictor indicates that Alice Dictor died on June 7, 2018.Respondent moves by motion dated September 7, 2018, pursuant to CPLR Sec. 3211(1), (2), (3), (7) and/or (10), for an order dismissing the Petition and the action it is entirety.Respondent submits the Affirmation of Kristina S. Heuser, Esq., affirmed September 6, 2018. Respondent attacks the Petition as defective because it fails to properly “state the respondent’s interest in the premises and his relationship thereto” as required by RPAPL Sec. 741(2).Counsel further contends that based upon the Alice Dictor Living Trust, Respondent has a possessory interest in the property. It is asserted Respondent has a right to reside in the premises for 10 years, and then the premises shall be sold and $100,000 paid to Respondent from the sale.Respondent states that Alice Dictor and he were in a romantic relationship and life partnership for 38 years and resided together for 22 years at the premises.Respondent contends that the authenticity and validity of the Deed is in question. Respondent further avers that the conflict between the said Deed which transferred ownership to Petitioner, and the Trust which gives possessory rights to Respondent must be resolved in a different court which has jurisdiction over this type of case. Respondent urges that the District Court does not have subject matter jurisdiction over this case.Petitioner Evan S. Dictor submits his Affirmation, sworn to on September 18, 2018. Petitioner states that the property was purchased in June of 1972 in joint names between his mother Alice Dictor and father Paul Dictor, as tenants by the entirety. Paul Dictor died on October of 1996.The Affidavit states that Respondent, and his mother, had a long term relationship and they lived together but were never married.Petitioner states that this mother established the Alice Dictor Living Trust, dated July 28, 2009. However, Petitioner states that title to the premises was never transferred to the Trust.Petitioner claims that it was his mother’s intent for him and his wife Alison and two children Ashley and Paul, to live in the home after her death.To accomplish the foregoing, his mother transferred the property to herself and Petitioner as joint tenants with the right of survivorship on July 24, 2017. Petitioner makes the following assertions:“19. Ironically, Mr. Martin drove my mother from the Premises to the house I am renting for the deed signing. Mr. Martin was present in the room when my mother signed the deed.20. Before my mother signed the deed, her attorney explained to her that as a result of her signing the deed, the Premises would be owned by me upon her death. The attorney confirmed with my mother that this was her intent regarding the Premises after her death.21. Mr. Martin, myself and my wife were present when my mother signed the deed.22. Although my mother had been diagnosed with cancer, when she signed the deed on July 24, 2017, she was in full command of all of her facilities and understood the nature and significance of the deed she signed.23. In fact, my mother lived for over 10½ months after she signed the deed.24. My mother was hospitalized on May 11, 2018. She entered a local nursing home on May 16, 2018 and received home hospice care on June 5, 2018.25. My mother passed away on June 7, 2018.”Petitioner states he tried to work out a vacate date with Respondent but he was unsuccessful. As a result, Respondent had to continue to rent his current residence until February 28, 2019.Petitioner contends that the Petition properly asserts that he is the owner/landlord and that Respondent had his consent to occupy the premises revoked by the service of the Ten Day Notice to Quit to Mr. Martin.Respondent submits the Reply Affirmation of Kristina S. Heuser, Esq., dated September 28, 2018. Respondent contends that he was the life partner of Alice Dictor and thus was not a licensee.Respondent makes the following argument about the validity of the trust:“6. While this Court should not examine and determine the merits of the parties’ controversy in light of its lack of jurisdiction and the inappropriateness of doing so in the context of a motion to dismiss, I would be remiss not to at least briefly address the substance of Petitioner’s contentions. Petitioner and his counsel assert that the subject property was never deeded into the trust and thus the provision in the trust that permits Respondent to remain in the premises for ten (10) years after her passing carries no weight. It is clear from reading the trust document that the deceased wholly believed that her home that she shared with the Respondent was part of the trust. The trust was drawn up in the state of Illinois by an Illinois-based attorney. I am not personally familiar with Illinois law, but based upon a Google search it appears that the state of Illinois does not require a conveyance by a deed in order for real property to be included in a trust (see Exhibit A). The decedent’s will is a “pourover” will (see Exhibit B), putting all her assets into the trust and deferring to the trust in dictating her wishes as to distribution of all of her assets — including her real property — upon her death. Thus, it is probable that the failure to deed the property into the failure/omission on the part of the drafting attorney based upon the governing law in the State in which the trust document was drafted. A court of appropriate jurisdiction will have to determine the true wishes of the deceased and which document has legal superiority — the trust or the deed. Even if, for argument’s sake, a court were to determine that as a matter of law the deed conveying the property to the Petitioner as the deceased’s joint tenant with rights of survivorship supersedes Respondent’s right to reside in the premises per the dictates of the trust, other questions remain. Specifically, is the deed authentic? If the deceased’s signature is indeed hers, was she coerced or otherwise fraudulently induced into signing the document? By Petitioner’s own admission, his counsel prepared the document and the deceased did not consult with independent counsel in connection with this transaction. Did the deceased lack the requisite mental capacity at the time she executed the deed? It is undisputed fact that she was dying of cancer at the time it was executed.”Respondent attaches as an Exhibit, her Google search concerning Illinois law:“To preserve legal chain of title, real estate transfers in Illinois must be recorded with the appropriate county recorder of deeds office. Additionally, it is well-settled law that a transfer to a trust is valid without recording a deed if one later uses a pour-over will via probate.”Also attached as an Exhibit is the Last Will of Alice Dictor, dated December 20, 2014. Article Two of the Will provides that all her property shall be distributed to the Alice Dictor Living Trust, dated July 28, 2009, and any amendments thereto.The upshot of this argument is that if the Deed transfer is invalid, the real property would be transferred to the Trust which provides for the 10 year occupancy and $100,000 after sale of the premises.DecisionThe Motion to Dismiss is denied for the reasons set forth herein.This court holds that the Petition is proper. Respondent was and is a licensee having entered into the premises with the permission and consent of Alice Dictor. There is no bar to the institution of summary against the Decedent’s long term partner (Respondent — a licensee) because there are no issues of support. See Heckman v. Heckman, 55 Misc 3d 86, 50 NYS3d 793 (App Term, 2nd Dept, 9th & 10th Jud Dists (2017); Halaby v. Halaby, 44 AD2d 495, 355 NYS2d 671 (4th Dept 1974); Federation of Organizations v. Bauer, 6 Misc 3d 10, 788 NYS2d 806 (App Term, 2nd Dept, 9th & 10 Jud Dists (2004), see also Rausch’s Landlord & Tenant including Summary Proceedings, Fifth Edition, Hon. Robert F. Dolan, Section 4:11, entitled “Distinguishing Between Lease and Licensee.”The Alice Dictor Living Trust, dated July 28, 2009, contains Article Four entitled “Administration of My Trust During My Life”, Section 1 and 1c, which states:“Section 1. My Lifetime PowersDuring my life, I shall have the express and total power to control and direct payments, add or remove trust property, and amend or revoke this trust.c. Add or Remove Trust Property I shall have the absolute right to add to the trust property at any time and the absolute right to remove property, or any interest therein, from the trust at any time. Both of these rights shall be exercised in writing.”Even though the Trust was drawn in the State of Illinois by an Illinois attorney, the Trust provides that it is to be governed by New York Law. See Alice Dictor Living Trust, dated July 28, 2009 Section 7, General Matters paragraph “e”, which states:“e. Applicable State LawThe validity of this trust shall be determined by reference to the laws of the State of New York.Questions with regard to the construction and administration of the various trusts contained in this agreement shall be determined by reference to the laws of the state in which the trust is then currently being administered.”Alice Dictor executed an amendment to the Trust, dated December 20, 2014, which grants Respondent the right to occupy the premises:“Section 3. Specific Distributions of Trust PropertyGEORGE J. MARTIN JR., shall have the right to reside in my home for a period of ten years if we are living together as life partners at the time of my death and if he pays for all of the expenses of maintaining the home. At the end of the ten year term or sooner if GEORGE J. MARTIN JR. dies or no longer desires to reside there, the home shall be sold and the proceeds shall be distributed under the provisions of Article Nine of this agreement. In addition, One Hundred Thousand and 00/100 Dollars ($100,000.00) shall be distributed to GEORGE J. MARTIN JR. outright and free of the trust.”The evidence establishes that the premises was never transferred to the trust. EPTL Section 7-1.18, entitled Funding of lifetime trust, requires the recording of the deed in the name of the trust or trustee to be effective. The Practice Commentaries by Margaret Valentine Turano regarding EPTL Section 7-1.18 states the following:“This statute codifies and clarifies the requirement that the assets be transferred to the trust. It is not sufficient to recite in a “Schedule A” that certain asserts belong to the trust, or have been assigned to the trust; the grantor must actually transfer them. If the grantor is the sole trustee, transfer means recording the deed or completing the registration of the stock certificates. If the assets are not registrable or recordable, the grantor must assign particular assets to the trust in writing. If the grantor is not the sole trustee, the statute is less specific. Ideally, he should complete the same steps just described.”Since the premises was not properly recorded, the claim that Respondent has an interest in the property must fail. Counsel’s argument that Illinois law, which doesn’t require a transfer, may apply, is rejected. The Trust provides that it is to be governed by New York law. Furthermore, the Second Department has held that the laws of the place where the real property is located apply. See Deutsch v. Twersky, 96 AD3d 897, 946 NYS2d 501 (2nd Dept, 2012). Thus, the failure to transfer the premises as required by EPTL 7-1.18 is fatal to the claim that Respondent has a possessory interest.The Trust is a revocable trust and provides that Alice Dictor had the power to withdraw property from the Trust. Thus, even if the premises were considered in the Trust, this ended when Alice Dictor executed the Deed on July 24, 2017, transferring the premises to herself and Petitioner as joint tenants with the right of survivorship. The Law of Trusts and Trustees Section 1001, entitled “The exercise of a power of revocation or termination” provides:“Revocation may be held to have occurred by means of a conveyance by the settlor to a third person that covers the trust property.”This court rejects Respondent’s contention that this court lacks jurisdiction when questions of title are raised. See Rasch’s Landlord & Tenant including Summary Proceedings, Fifth Edition, Hon. Robert Dolan, Section 43:20 wherein the following is stated:“43:20 Effect on jurisdictionSummary proceedings are generally brought in inferior courts of limited jurisdiction which, as a general rule, are required by the provisions of their respective codes of procedure to dismiss an action in which a question of title to real property is involved. It is well settled, however, that these inferior courts are not ousted of jurisdiction of summary proceedings because the question of title may be raised therein by a tenant’s denial of his landlord’s title; for a summary proceeding is not an action but a special proceeding. Moreover, the real issue in the proceeding is the present right to possession; the question of title is only collaterally involved.”ConclusionThe motion to dismiss is denied, in its entirety.This matter is set down for trial on December 17, 2018 at 9:30 a.m., and is marked final with no adjournments.So Ordered:Dated: November 14, 2018
