The Plaintiff herein, Mian Karamat Ullah Butt (hereinafter "Plaintiff"), brings three Orders to Show Cause seeking the following relief as against the defendants, Mohammad Aslam Malik and Shahida J. Malik (hereinafter "Defendants"): to hold defendants in contempt for failing to turn over certain rents collected by the defendants; for summary judgment in favor of plaintiff, pursuant to CPLR 3212: a. Declaring the deed transfer by Plaintiff's wife, Aziz Begam [*2]Butt, to Defendant, Mohammed Aslam Malik, void ab initio; b. On the second cause of action declaring that the deed transfer is invalid as a matter of law; and c. On the fourth cause of action, and for a monetary judgment against the defendant Mohammed Aslam Malik accounting for, and disgorging him of improperly collected rents; and setting the matter down for a use and occupancy hearing.

The first Order to Show Cause, which sought a finding of contempt as against the defendants has been withdrawn by plaintiff and no disposition of said Order to Show Cause is required of this Court.

By his second Order to Show Cause, the plaintiff seeks to declare invalid the deed transfer of September 24, 2008, from plaintiff's wife, Aziz Begum Butt, to Defendant Mohammed Aslam Malik, along with the lease from defendant Mohammed Aslam Malik to his sister, Defendant Shahida J. Malik, is a nullity.

Plaintiff, Mian Karamat Ullah Butt claims that he and his late wife, Aziz Begum Butt, purchased the subject premises, to wit: 719 East 5th Street, Brooklyn, NY 11218, a multi-family building on January 11, 1996, as "husband and wife"for the sum of $60,000. It is uncontroverted that during the course of the party's marriage, on September 24, 2008, the decedent wife issued a Bargain and Sale Deed with Covenants Against Grantor's Acts, purporting to transfer her interest in the subject premises to defendant Mohammad.Aslam Malik, her brother. Thereafter, on October 29, 2010, Aziz Begum Butt predeceased her husband

.It is plaintiff's contention that Mrs. Butt had no authority to transfer any share of the premises held together with plaintiff as a tenancy by the entirety. He seeks summary judgment asking that the Court find any transfer from Aziz Begam Butt to be a nullity, along with any transfers occurring thereafter. The Court of Appeals, in Zuckerman v City of New York, stated:

To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form

The Courts of this State have long held that no party to a tenancy by entirety may partition said property absent the consent of the other party.

The Second Department, in Scarison, Inc. v Paracha, 7 AD3d 605 [2d Dept 20014] stated that "A matrimonial relationship between parties at the time of acquisition of a premises creates a tenancy by the entirety which creates a special type of ownership that is not severable by partition as long as the marriage exists. (See, Ripp v Ripp, 38 AD2d 65, 67, aff'd, 32 NY2d 755). See also, Vollaro v Vollaro, 144 AD242 [2d Det 1911] (neither party to a tenancy by entirety may terminate the tenancy by entirety without the consent of the other party).

Plaintiff states he never consented to the transfer of any interest in said property by his wife. Defendants tender no evidence of any such consent. In fact, Defendant Mohammad Aslam [*3]Malik, concedes, at paragraph 15 of his Affidavit in Opposition, that plaintiff refused to convey the premises to him despite plaintiff's deceased wife having done so by way of the deed which forms the subject matter of this action. Defendant further admits, at paragraph 11 of that same Affidavit, that he transferred the premises to plaintiff and his deceased wife in an effort to divest his own wife, Defendant, Shahida J. Malik, of any possible interest in the premises..

Yet, there is no evidentiary proof of defendant's allegations. There is no written agreement that the premises be re-conveyed to him on demand, as he asserts. The Statute of Frauds bars enforcement of alleged oral collateral agreements between parties to a real property transfer and the parole evidence rule would bar admission of evidence alleging an oral collateral agreement between the parties in any event. General Obligations Law § 5-703(2); Messner Vetere Berger McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229 [1999]; See also, Holland v. Ryan, 307 AD2d 723 [4th Dept 2003]

Nor does this Court believe such a provision would change the outcome herein as the defendant's assertions do not raise any issue of material fact which would cause this Court to deny the relief requested by plaintiff.

Rather, so long as there is no evidence that the decedent transferred the premises with the consent of her husband, the tenancy by entirety could not be destroyed. See, Scarison, 7 AD3d 605. As there is no dispute that the plaintiff and his deceased wife were married at the time of the transfer, neither plaintiff nor his wife could have transferred ownership of said premises without the consent of the other. Vollaro, 144 AD 242.

Even if the decedent had any ability to transfer the premises during her life, which this Court believes she did not, the plaintiff could not be divested of his right of survivorship and plaintiff would ultimately have been entitled to the whole fee in any event. Lum v Antonelli, 102 AD2d 258, [2d Dept 1984].

Insofar as defendants' request that the Court impose a constructive trust on the property in question. This request is not timely. "A cause of action to impose a constructive trust is governed by a six year statute of limitations, which begins to accrue upon the occurrence of the wrongful act giving rise to a duty of restitution." Auffermann v Distl, 56 AD3d 502 [2d Dept 2008], citing, Reiner v Jaeger, 50 AD3d 761 [2008], quoting, Socia v Socia, 35 AD3d 841[2006]. All parties concede that the deed asserting consideration of $60,000 was dated January 11, 1996, which is when the statute of limitations began to run.

WHEREFORE, it is hereby

ORDERED AND ADJUDGED that the deed transfer by Plaintiff's wife, Aziz Begam Butt, to Defendant, Mohammed Aslam Malik, is a nullity; and it is further

ORDERED AND ADJUDGED that the lis pendens filed herein is hereby vacated; and it is further

ORDERED AND ADJUDGED that the Orders to Show Cause brought by plaintiff are denied in all other respects.

The foregoing Constitutes the Decision and Order of this Court.

E N T E R :

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JOHNNY L. BAYNES, JSC