DECISION, ORDER, AND JUDGMENT AFTER INQUEST Introduction Gerald Knowlden (“Defendant”) and Von Knowlden (“Plaintiff”) immigrated to the United States from Liberia in or around 1968. In 1970, their father, Kaiser (K.A.A.) Knowlden, acquired the property located at 120-128, 198th Street, St. Albans, New York 11412. In 1983, their father died intestate, and the ownership of that property was not directly determined. Now, over 40 years later, this Court is tasked with addressing the claims to the property. The Court hopes that this Decision lends some clarity to this unfortunate state of affairs. Procedural History This action arises out of a dispute over ownership of the real property located at 120-28 198th Street, St. Albans, New York 11412 [Block 12683, Lot 17] (the “Property”). On April 26, 2018, Plaintiff filed a complaint, in the main, seeking a declaration that he is the owner of the Property. As part of the complaint, Plaintiff also sought preliminary injunctive relief. Specifically, Plaintiff sought an order that Defendant provide to him any rents collected by Defendant in connection with the Property and that Defendant be enjoined from filing any “deed, mortgage note or other such instrument” with the “New York City Recorder of Deeds” with respect to the Property. On June 21, 2018, Defendant filed a verified answer to the complaint with counterclaims. Pursuant to the counterclaims, Defendant seeks a declaratory judgment vacating and setting aside the deed dated September 13, 1996, which purports to convey the Property to Plaintiff. Defendant also seeks a declaratory judgment adjudging that Defendant acquired title to the Property by adverse possession pursuant to RPAPL §501(2). By decision dated June 26, 2018, Plaintiff’s request for a preliminary injunction was denied. The Court, in its decision, concluded that Plaintiff failed to establish any of the requisites for injunctive relief. Thereafter, Plaintiff moved to discontinue the action. Defendant opposed the motion. By Order dated January 17, 2019, and entered on January 31, 2019, the Court (Hon. Leonard Livote), denied Plaintiff’s motion. In so ruling, the Court concluded that discontinuance would prejudice Defendant, as Defendant’s counterclaims “involve title to real property where the defendant resides and…seeks a final resolution [of those claims].” Thereafter, by Order dated October 25, 2022, the Court (Hon. Joseph Risi), dismissed Plaintiff’s claims because Plaintiff failed to appear for the conference scheduled for October 25, 2022. As part of that Order, the Court ordered that an Inquest on Defendant’s counterclaims be held. That Inquest was held on July 2, 2024. Property History Although only one deed with respect to the Property was submitted into evidence at the Inquest, the Court takes judicial notice of the relevant filings on ACRIS with respect to the Property, which taken together, as set forth below, provide a more complete history of the Property (see HSBC Bank USA, N.A. v. Santos, 185 A.D.3d 475, 478 [1st Dept 2020] [taking "judicial of the most recent filing on ACRIS concerning the subject property" that was not mentioned in the parties papers]; Flushing Bank v. Phase 2 Dev. LLC, 2022 NY Slip Op 30428[U] [Sup Ct, Kings County 2022] [court taking judicial notice of document "since those documents were publicly recorded on ACRIS"]; U.S. Bank N.A. v. Martinez, 54 Misc 3d 1209[A], n.5 [Sup Ct, Kings County 2016] [court taking "judicial notice of the mortgage recording documents on ACRIS"]). By deed recorded on August 11, 1970, ownership of the Property was transferred to K.A.A. Knowlden Sr. Thereafter, by deed recorded on December 6, 1976, the Property was conveyed from the Commissioner of Finance of the City of New York to the City of New York by virtue of a judgment of foreclosure entered on December 1, 1976. By Order dated April 14, 1977, and recorded on April 28, 1977, the judgment of foreclosure entered on December 1, 1976, effecting the deed to the Property, was vacated. Thereafter, by deed recorded on October 31, 1990, the Property was conveyed from the Commissioner of Finance of the City of New York to the City of New York by virtue of a judgment of foreclosure entered on October 12, 1990. By Order dated May 28, 1991, and recorded on August 8, 1991, the judgment of foreclosure entered on October 12, 1990, effecting the deed to the Property, was vacated. On September 18, 1996, a deed, dated September 13, 1996, conveying the Property, was recorded between “VON KNOWLDEN as sole heir and distributee of K.A.A. KNOWLDEN, SR., deceased” as grantor and “VON KNOWLDEN” as grantee. On February 19, 1997, a mortgage against the Property was recorded reflecting Von Knowlden as the mortgagor/borrower and Greenpoint Bank as the mortgagee/lender. On July 22, 1999, an assignment of mortgage was recorded, reflecting that the mortgage was assigned to Fidelity National Insurance Company of New York. Finally, on June 12, 2019, a second mortgage was recorded, reflecting Salim Abdul Malik (a/k/a Von Knowlden) as the mortgagor/borrower and Glass Capital Ventures LLC as the mortgagee/lender. The Inquest The Inquest in this matter was held on July 2, 2024. At the Inquest, Defendant (Gerald Knowlden) testified and introduced various exhibits. Defendant testified that his father was Kaiser Knowlden and that his brother was Von Knowlden. Tr.1 at p. 5. In support of his claim relating to his relationship with Kaiser Knowlden. Defendant submitted a Certificate of Birth Registration and a Birth Affidavit (see Exs. A and B). Defendant also testified that he came to the United States in or around 1968 from Liberia and lived in the house on the Property with his father and brother (Plaintiff/Von Knowlden) until the mid-1970′s. Tr. at pp. 13, 15-16. The house on the Property is a two-family home with two bedrooms on each floor and a finished basement. Tr. at p. 13. Defendant testified that in the mid-1970′s, he and his brother moved in with his mother, in Hollis Queens, New York. Tr. at p. 16. Defendant’s father died intestate in Liberia in 1983. Tr. at p. 6. Thereafter, following the death of his father, Defendant moved into the house on the Property and has remained there ever since. Tr. at pp. 5, 14. Defendant testified that Plaintiff did not move into the house with him, and that Plaintiff has never lived in the house with him. Tr. at pp. 18, 23. However, since 1983, there have been two tenants who have occupied one of the floors of the home and have paid rent. Tr. at p. 14. With respect to the deed recorded on September 18, 1996, Defendant testified that the deed contained false information as it listed Plaintiff (Von Knowlden) as the sole heir of Kaiser Knowlden, when, in fact, Defendant was also an heir. Tr. at p. 7 (see Ex. C). Defendant testified that he first became aware of this deed, when, in or around 2008 or 2009, he began receiving letters from the New York City Department of Finance under Von Knowlden’s name. Tr. at p. 20. Defendant testified that he went to the “City Department of Finance” and discovered that Von Knowlden had “transferred the deed into his name” and filed a “fraudulent deed.” Tr. at p. 21. Defendant testified that he spoke with the lawyer who prepared the deed and that “they were totally shocked” to learn Plaintiff had a brother as Plaintiff represented to them that he had no relatives. Tr. at pp. 22-23. No other testimony was provided regarding any further action taken with respect to the deed. In support of Defendant’s adverse possession claim, in addition to his testimony that he resided at the Property since 1983, Defendant submitted several exhibits. Exhibit D is an assortment of documents referencing property tax assessments and notices of property value. The earliest such document with Defendant’s name on it shows a 2007 date. However, many of the documents submitted identify the name of “Darick Johnson” as payor of property taxes in 2009 (see Ex. D). Other documents submitted by Defendant do not have any identifying name on them at all. Finally, notices relating to water bills are provided in this exhibit. While Defendant’s name is provided on some of the notices, one of the notices reflecting payments between 2016-2018 contains Plaintiff’s name exclusively and another notice from 2022 identifies Plaintiff as the Property owner. Exhibit E is a series of bank statements that relate to the Property. These statements set forth payments made relating to property taxes and water bills. The statements which contain Defendant’s name on them, reflect 2019 as the earliest payment made by Defendant. Exhibit F is a letter from Liberty Mutual Insurance to Defendant, dated June 19, 2018. The letter reflects an insurance policy in effect from August 21, 2007, up to and including the date of the letter. Defendant testified that the insurance policy is his homeowner’s policy. The letter, however, does not reflect the type of policy that was in effect during that period. Moreover, Defendant initially testified that he had paid for property insurance throughout the entire period that he lived at the Property. Tr. at p. 9. However, upon questioning by the Court, Defendant acknowledged that from 1983 to 2007, he did not have an insurance policy on the Property. Tr. at p. 10. Exhibit G is an invoice from Singh Landscaping, dated July 25, 2022. The invoice seeks payment for work done at the Property in September of 2022 and for a period before that of 61-90 days. Finally, Exhibit H is a bill from Bath Systems NY LLC for work done at the Property between April 1, 2022 and June 2, 2022. Discussion Defendant asserts that based upon his testimony and the documents submitted into evidence at the Inquest that he is entitled to a declaratory judgment: (i) vacating and setting aside the deed dated September 13, 1996, as fraudulent and void ab initio; and (ii) adjudging that Defendant has acquired title to the Property by adverse possession pursuant to RPAPL §501(2). The Court addresses each contention, in turn, below. I. Defendant’s Counterclaim to Set Aside the Deed dated September 13, 1996 It is well settled that “[a] deed based on forgery or obtained by false pretenses is void ab initio” (Cruz v. Cruz, 37 AD3d 754, 754 [2d Dept 2007]; see also Crispino v. Greenpoint Mortg. Corp., 304 AD2d 608, 609 [2d Dept 2003]; Yin Wu v. Wu, 288 AD2d 104, 105 [1st Dept 2001]; Rosen v. Rosen, 243 AD2d 618, 619 [2d Dept 1997]; Filowick v. Long, 201 AD2d 893 [4th Dept 1994]). Here, Plaintiff executed a deed conveying the entire Property to himself as “sole heir” and distributee of K.A.A. Knowlden, Sr. However, as evidenced by the birth certificate and birth affidavit, and as testified to by Defendant, the Defendant was also a child of K.A.A. Knowlden, Sr. Accordingly, since K.A.A. Knowlden, Sr., died intestate, upon his death, Defendant, as an heir, became a co-owner of the Property, as a tenant in common with his brother Von Knowlden (see LCD Holding Corp. v. Powell-Allen, 203 AD3d 811, 812 [2d Dept 2022] ["When a property owner dies intestate, title to real property automatically vests in his or her distributees as tenants in common…. This vesting by descent occurs by operation of law at the time of the decedent's death, regardless of any failure to appoint an administrator or to file new deeds…or, if an administrator is appointed, without the necessity for any act by the administrator"]). Accordingly, under the circumstances presented here, the deed dated September 13, 1996, was executed by Plaintiff under false pretenses and is void (see Cruz v. Cruz, 37 AD3d 754, 754 [2d Dept 2007]). II. Defendant’s Counterclaim for Adverse Possession With respect to Defendant’s adverse possession claim, the Court begins its analysis with the fact that “[b]ecause the acquisition of title by adverse possession is not favored under the law” the elements of adverse possession “must be proven by clear and convincing evidence” (Estate of Becker v. Murtagh, 19 NY3d 75, 81 [2012]). In order to establish a claim by adverse possession, the claimant must prove, by clear and convincing evidence, that possession of the property was “(1) hostile and under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous for the required period” (Walling v. Przybylo, 7 NY3d 228, 232 [2006]; see also Salzberg v. Sena, 204 AD3d 853, 856 [2d Dept 2022]; Warren v. Carreras, 133 AD3d 592, 594 [2d Dept 2015]). “In addition, where, as here, the claim of right is not founded upon a written instrument, the party asserting title by adverse possession must establish that the land was ‘usually cultivated or improved’ or ‘protected by a substantial inclosure’” (Estate of Becker v. Murtagh, 19 NY3d at 81, quoting [RPAPL former section 522]; see also Bolognese v. Bantis, 215 AD3d 616, 619 [2d Dept 2023]).2 Although the “adverse possession statutes” were amended in 2008, if “title allegedly vested” in the claimant through adverse possession before the effective date of the amendments than “the law in effect prior to the amendments is applicable” (Waterview Towers, Inc. v. 2610 Cropsey Dev. Corp., 181 AD3d 754, 755 [2d Dept 2020]; Megalli v. Yeager, 167 AD3d 860, 861 [2d Dept 2018]). Here, Defendant does not specify when his title to the Property allegedly vested but simply claims adverse possession through his use of the Property since 1983. Tr. at p. 26. This is of no moment, however, since, as set forth below, under either iteration of the law, Defendant fails to demonstrate by clear and convincing evidence all of the elements necessary to establish a claim for adverse possession. In addition, where, as here, a party claiming adverse possession is a tenant in common, the statutory “period required by RPAPL 541 is 20 years of continuous exclusive possession before a contenant may acquire full title by adverse possession” (Myers v. Bartholomew, 91 NY2d 630, 632 [1998]). “Under the common law, tenants-in-common have long been afforded a measure of extra protection from adverse possession claims asserted by their cotenants. In a tenancy-in-common, each cotenant has an equal right to possess and enjoy all or any portion of the property as if the sole owner. Consequently, nonpossessory cotenants do not relinquish any of their rights as tenants-in-common when another cotenant assumes exclusive possession of the property” (Myers v. Bartholomew, 91 NY2d at 632-33). Accordingly, “[a]bsent ouster, a cotenant may begin to hold adversely only after 10 years of exclusive possession. RPAPL 541′s statutory presumption, therefore, effectively requires 20 years — or two consecutive 10-year periods — of exclusive possession before a cotenant may be said to have adversely possessed a property owned by tenants-in-common” (Myers v. Bartholomew, 91 NY2d at 634-35). Where one tenant in common seeks to establish a claim of adverse possession against another tenant in common “[a]dverse possession requires obvious and overt acts by the person holding possession that are openly hostile to the nonpossessory owner’s rights” (Gonzalez v. Gonzalez, 236 AD2d 589, 590 [2d Dept 1997]; see also Trevisano v. Giordano, 202 AD2d 1071, 1071 [4th Dept 1994] ["Adverse possession requires very obvious and overt acts which unmistakably repudiate a non-possessory owner's right by one possessing the property"] [internal citation and quotations omitted]). To this end, “[p]aying mortgage and taxes or maintenance expenses, and providing for upkeep of the property, do not constitute acts sufficient to establish a claim of right for purposes of adverse possession as against a cotenant” (Russo Realty Corp. v. Orlando, 30 AD3d 499, 500-01 [2d Dept 2006]; see also Perez v. Perez, 228 AD2d 161, 163 [1st Dept 1996]). Applying the above principles, the Court finds that whatever proof may be necessary to establish by clear and convincing evidence the elements of an adverse possession claim of a cotenant over a period of 20 years, the Defendant falls far short of that standard. Indeed, other than his testimony, Defendant provides no documentary evidence from the years 1983 through 2007 to support his claim. And, while some documentary evidence was submitted relating to the time period from 2007 through 2022, much of it does not set forth clearly that it even relates to Defendant and some of which postdates the filing of his counterclaims in June 2018. Indeed, Defendant even submitted two documents relating to the Property which have Plaintiff’s name on them, one document from 2022 identifies Plaintiff as the owner of the Property and the other document reflects Plaintiff as the payor of water bills on the Property between 2016-2018 (see Ex. D). Moreover, many of the documents submitted by Defendant identify the name of “Darick Johnson” as payor of property taxes in 2009 (see Ex. D). Finally, the Court notes that while Defendant originally testified that he had a homeowner’s insurance policy in effect throughout his occupancy of the Property since 1983, when questioned, he acknowledged that the policy was only in effect since 2007. And, while Defendant testified to payment of property taxes and water bills since his occupancy of the premises, he has provided no evidence of such, and indeed, his response to the questioning relating to the insurance policy, calls into question the accuracy of his testimony to the time periods for which he made any such payments on the Property. Accordingly, under the circumstances presented here, Defendant failed to demonstrate by clear and convincing evidence all of the elements necessary to establish a claim for adverse possession. Conclusion As indicated at the beginning of this Decision, the Court has endeavored to clarify the landscape. To this end, based on the testimony taken at the Inquest, as well as the documents submitted, it is hereby, ORDERED, ADJUDGED, and DECLARED that: (a) the deed to 120-28 198th Street, St. Albans, New York 11412, Block 12683, Lot 17, in the State and City of New York, County of Queens, which was dated September 13, 1996, and recorded on September 16, 1996, at Reel 4425, Page 1334, is hereby declared and adjudged to be cancelled, vacated, discharged, and set aside as void ab initio; and (b) that the Queens City Register’s Office of Queens County, State of New York, is hereby ordered and directed to vacate, cancel and discharge the subject deed to 120-28 198th Street, St. Albans, New York 11412, Block 12683, Lot 17, in the State and City of New York, County of Queens, dated September 13, 1996, and recorded on September 16, 1996, at Reel 4425, Page 1334. It is further, ORDERED that Defendant’s counterclaim seeking a declaratory judgment that Defendant acquired title to the Property by adverse possession pursuant to RPAPL §501(2), is DENIED. This constitutes the Decision, Order, and Judgment of the Court. Dated: September 17, 2024
