District Court of Suffolk County, Sixth District, April 8, 2022

Robert Beltrani, Mineola, for respondent.

Tarbet & Lester, PLLC, East Hampton, for petitioner.

Ordered that respondent's motion brought on by order to show cause to vacate a default in appearance on December 22, 2021, is denied and the stay is vacated and the execution of the warrant of eviction shall issue forthwith. A prerequisite to vacate a default in appearance is the showing of a reasonable excuse for the failure to appear and a potentially meritorious defense to the petition. (Jong Gwon Kim v Strippoli, 144 AD3d 982, 983 [2d Dept 2016].) As [*2]to a reasonable excuse for the default, respondent alleges that she had retained an attorney who failed to appear and who also failed to notify respondent of the appearance date. Based upon the affidavit of respondent in this regard, the court finds that respondent has established a reasonable excuse for her default. Respondent, however, fails to allege a meritorious defense.

Respondent alleges that she presently occupies premises known as 380 Free State Drive, Shirley, New York 11967, pursuant to a lease granted by Kathleen Martinis on April 1, 2020, for a five-year period, expiring on March 31, 2025. The lease was allegedly signed by Danyele Ferrara on April 1, 2020, pursuant to a power of attorney granted her by Kathleen Martinis, who died on May 16, 2020. At the time of the lease signing, Kathleen Martinis owned the subject property with petitioner "as joint tenants with right of survivorship" as set forth in the deed dated September 30, 2005, recorded in the office of the Suffolk County Clerk on November 16, 2005. This purported lease was granted without the knowledge or consent of petitioner, a co-owner of the property.

Petitioner argues that upon the death of Kathleen Martinis, he succeeded to full ownership of the property by operation of law as the joint owner with right of survivorship. If in fact the joint tenancy was not severed prior to the cotenant's passing, there is no question that petitioner succeeds to full ownership of the property. Petitioner further avers that he had no knowledge and did not consent to the lease. This fact is not in dispute. Petitioner does not concede that the aforesaid lease was validly executed by the cotenant's attorney-in-fact. For the purposes of this motion, however, the court will assume that the lease was validly executed.

The question before the court is whether the execution of the lease severed the joint tenancy thereby creating a tenancy in common without right of survivorship or, alternatively, whether{**75 Misc 3d at 348} upon the death of Kathleen Martinis her interest in the property passed by operation of law to petitioner, which had the effect of extinguishing the lease. For the reasons set forth herein, the court finds that the lease was extinguished upon the death of Kathleen Martinis. Consequently, respondent lacks a meritorious defense, a necessary element of her application to vacate the default judgment of possession and warrant of eviction granted by the court on December 22, 2021.

As stated, there is no dispute that a joint tenancy with right of survivorship was created. Under New York law, a "joint tenancy is an estate held by two or more persons jointly, with equal rights to share in its enjoyment during their lives, and creating in each joint tenant a right of survivorship" (24 NY Jur 2d, Cotenancy and Partition § 16). "The continuance of the joint tenancy depends on the maintenance of the unities of title, interest and possession; and the destruction of any of these unities leads to a severance of the tenancy, and to the creation of a tenancy in common or of several tenancies" (Loker v Edmans, 204 App Div 223, 226 [3d Dept 1923] [internal quotation marks omitted]; Goetz v Slobey, 76 AD3d 954, 956 [2d Dept 2010]).

This specific question appears to be a case of first impression in New York. A survey of the law on this subject can be found at 49 ALR2d 797 (W. W. Allen, Annotation, Effect of Lease Given by Part Only of Cotenants), including the cumulative supplement. [*3]This article reviews the circumstances when the act of one tenant has the effect of converting a joint tenancy into a tenancy in common. Under English common law, the act of one joint tenant in leasing their interest to a third party would result in severance of the joint tenancy. This rule, however, has not been followed here across the pond.

In Tenhet v Boswell (18 Cal 3d 150, 155-158, 554 P2d 330, 333-336 [1976]), the court ruled that a joint tenancy was not severed by a lease granted by a cotenant for a period of years to a third party. The court further ruled that the lease expired upon the death of the cotenant-lessor. Interestingly, in Alexander v Boyer (253 Md 511, 253 A2d 359 [1969]), the court found that a joint tenancy had been severed as a result of a lease surrendering all of a joint tenant's possessory rights to the husband of the other joint tenant. They based this ruling on a finding that the joint tenant had retained none of her possessory rights and had conveyed the lease to the cotenant's husband with the cotenant's knowledge and consent. These unique facts distinguish this case from the facts here.{**75 Misc 3d at 349}

Real Property Law § 240-c entitled "Joint tenancy severance" provides in pertinent part as follows:

"1. In addition to any other means by which a joint tenancy with right of survivorship may be severed, a joint tenant may unilaterally sever a joint tenancy in real property without consent of any non-severing joint tenant or tenants by:

"(a) Execution and delivery of a deed that conveys legal title to the severing joint tenant's interest to a third person . . .

"(b) Execution of a written instrument that evidences the intent to sever the joint tenancy, including a deed that names the severing tenant as the direct grantee of the severing tenant's interest.

"2. No severance of a joint tenancy pursuant to subdivision one of this section shall terminate the right of survivorship of any non-severing joint tenant or tenants as to the severing tenant's interest unless the deed or written instrument effecting the severance is recorded, prior to the death of the severing tenant, in the county where the real property is located."

This statute mandates that a deed or written instrument effecting the severance be recorded prior to the death of a severing tenant as a precondition to termination of the right of survivorship of the non-severing tenant. (Real Property Law § 240-c [2].) It is not at all clear that the lease granted to respondent evinced an intent by the grantor to sever the cotenancy. Even if we were to assume that it did, the fact that it was not recorded prior to the death of Kathleen Martinis would invalidate any claim that by granting the lease the petitioner's right to survivorship was thereby terminated.

Moreover, the facts disclose that Kathleen Martinis did not grant respondent an exclusive right of possession. Ms. Martinis continued to reside at the address with respondent, who was her caretaker, after the date the lease was allegedly signed. She resided there until her passing on May 16, 2020. Nothing in the lease purports to restrict in any way Ms. Martinis' or petitioner's right to possession. The court finds on the undisputed facts that the lease was not in [*4]fact intended to sever the joint tenancy, either by its terms or its effect.

In Smith v Bank of Am., N.A. (103 AD3d 21 [2d Dept 2012]), the Court decided, as a matter of first impression, that a{**75 Misc 3d at 350} mortgage given by one cotenant without the knowledge or consent of the other cotenant was extinguished as a lien on the real property upon mortgagor's passing. The Court found that the act of mortgaging the property did not evince an intent to sever the cotenancy, even though the mortgage was recorded prior to the mortgagor's death. It did not interfere with any of the requirements to maintain a joint tenancy: unity of time, title, interest and possession. (103 AD3d at 24, 27.) Significant to the case at bar, the Court in Smith stated: "the mortgage instrument contains no language evincing Hassid's intent to sever the joint tenancy. In the absence of any such language or some other writing, we cannot conclude that the mere act of delivering a mortgage to the defendant evinced Hassid's intent to sever the joint tenancy." (103 AD3d at 27.) The Court held that upon his death, full ownership of the property passed to his surviving cotenant free and clear of the mortgage lien. This court reaches the same conclusion with respect to petitioner's succession to title, free and clear of the lease, upon which respondent bases her claim.

The court finds that the reasoning behind the Court's decision in Smith v Bank of Am. is applicable to the subject case. It also is clear that under New York law as set forth in Real Property Law § 240-c described above, a written instrument intending to evidence an intent to sever a joint tenancy must be recorded prior to the death of the tenant intending to sever the joint tenancy. This stands to reason as a means of both informing the cotenant and the world that the property was no longer being held in joint tenancy but had been converted to a tenancy in common.

The court therefore finds and determines that petitioner was the joint tenant with right of survivorship at the time of the cotenant's passing on May 16, 2020. As a result, he succeeded to full ownership of the property, free and unencumbered by the April 1, 2020 lease that had granted respondent a non-exclusive tenancy of the subject premises. At most, Ms. Martinis as cotenant had conveyed only her non-exclusive possessory interest. At all times petitioner, as cotenant, retained his possessory interest. Upon Ms. Martinis' passing, her possessory interest terminated, which also had the effect of terminating the lease to respondent. In short, the purported lease did not interfere with the unity of time, title, interest and/or possession.

Accordingly, the court finds that respondent has failed to allege a meritorious defense and therefore denies her motion to{**75 Misc 3d at 351} vacate the judgment of possession and warrant of eviction previously granted by the court. The stay of enforcement of the warrant of eviction granted by the court in the order to show cause dated February 24, 2022, is hereby vacated and execution of the warrant of eviction shall be forthwith.