Frias v. Frias

For Plaintiff Patrick W. Johnson, Esq. The Johnson Law Office P.C.

For Defendant Jonathan Samuel Roller, Esq.

Richard J. Montelione, J.

Background

Causes of Action/Counterclaims/Relevant Proceedings

The plaintiff sues for an accounting, declaratory judgment, injunctive relief, ejectment of the defendant and damages for conversion. The plaintiff MARIA FRIAS, and her brother AURELIO FRIAS, now deceased, purchased real property as joint tenants with rights of survivorship which is located at 565 50th Avenue, Brooklyn, NY 11209, block 784, lot 51,. By operation of law, plaintiff became the legal owner upon the death of her brother and now seeks, inter alia, to eject defendant ZOILA FRIAS who is her brother's widow and all the tenants. The counterclaim asserts a constructive trust and alleges that decedent AURELIO FRIAS placed plaintiff's name on the deed and mortgage because the sellers, who held the mortgage, required it and as an accommodation. Further, the counterclaim alleges that plaintiff MARIA FRIAS promised that she would transfer her entire ownership interest, upon request, to her decedent brother AURELIO FRIAS.

Although the plaintiff filed a jury demand, the court, without objection from plaintiff and over objection of the defendant, sua sponte vacated the jury demand because "the deliberate joinder of claims for legal and equitable relief arising out of the same transaction amounts to a waiver of the right to demand a jury trial." See Fakiris v Gusmar Enterprises, LLC, 189 A.D.3d 1543, 135 N.Y.S.3d 297, 2020 NY Slip Op 08039, 2020 WL 7760650 [2d Dept 2020]; see also Herbil Holding Co. v Mitrany, 11 A.D.3d 430, 432 [2d Dept 2004]), "(a)lthough one of the plaintiffs' causes of action sought a legal remedy, the Supreme Court properly granted the plaintiffs' motion to strike the appellant's jury demand. Where, as here, the appellant interposes a counterclaim of an equitable nature related to a cause of action asserted in the complaint, the appellant waives a jury trial on all causes of action, whether legal or equitable in nature (see Goldberg v Goldberg, 173 A.D.2d 679, 681, 570 N.Y.S.2d 333 [1991] (additional citations omitted)." Defendant has no right to a jury trial because her claim of a constructive trust is solely of an equitable nature. CPLR 4101.

ANDREW FRIEDMAN, Esq., was appointed Receiver by the Court by Order dated February 26, 2018 (NYSCEFNo.22) and a Notice of Appointment of Receiver (plaintiff's exhibit 16) was sent to the defendant and tenants of the subject property on or about August 12, 2019. The court by Order of the Hon. Peter P. Sweeney, J.S.C. dated March 4, 2021 held the defendant in contempt of court for, inter alia, failing to turn over all rents collected to the Receiver, to pay to the Receiver the sum of $1,500.00 for having to bring the motion, to pay use of occupancy of $1,500.00 monthly from May 1, 2019 and ongoing, and fined the defendant $2,500.00 (plaintiff's exhibit 18).

Trial/Witnesses

The trial commenced in this action on May 1, continued on May 2, and 4th, and concluded on May 5, 2023. Testimony was taken from plaintiff MARIA FRIAS, defendant ZOILA FRIAS, receiver ANDREW FRIEDMAN, tenant MAGDALYS DELVALLUE (apt. 1F), tenant JUAN ARIAS (apt. 2R), OLIVIA QUINTO (friend of tenant JACABOB GUANTA, apt. 3F), tenant TOMAS HERNANDEZ (apt. 2F), NYNERVA A. GARCIA (sister of decedent AURELIANO A. FRIAS), DOROTHY FRIAS (daughter of defendant ZOILA FRIAS and decedent AURELIANO A. FRIAS), and CARMEN NUNEZ (sister of decedent AURELIANO A. FRIAS).

Trial Testimony

Defendant ZOILA FRIAS testified that she was married to AURELIANO A. FRIAS in 1972 in the Dominican Republic. Neither party presented any documentation as to the marriage, but the court accepts defendant ZOILA FRIAS' uncontroverted testimony of marriage predating the purchase of the real property and that she resided on the premises since its purchase on March 12, 1980. Although plaintiff testified that she helped manage the property prior to the death of her brother AURELIANO A. FRIAS, all the tenants who testified said they never saw plaintiff on the property, they previously paid rent to the late AURELIANO A. FRIAS or his wife ZOILA FRIAS, and they never provided any rent payments to plaintiff. The court credits the testimony of these non-party witnesses, and defendant, and finds that prior to the death of AURELIANO A. FRIAS, the plaintiff neither collected rent nor managed the building.

The court accepts the testimony of plaintiff's two sisters, NYNERVA A. GARCIA and CARMEN NUNEZ, who testified that each heard on separate occasions that plaintiff specifically promised that plaintiff MARIA FRIAS would transfer the real property to defendant ZOILA FRIAS.

Plaintiff testified that although her brother spoke only Spanish, the attorney retained was bilingual and the title company added the language "joint tenants with rights of survivorship" because plaintiff and her brother wanted the survivor to have complete ownership upon the death of the first sibling. The plaintiff was 20 years old at the time the property was purchased and brother AURELIO FRIAS, now deceased, was twelve years her senior.

Findings of Fact

There is no issue of fact that plaintiff MARIA FRIAS and AURELIANO A. FRIAS, defendant ZOILA FRIAS' husband, became legal owners of a building located at 565 50th Avenue, Brooklyn, NY 11209, block 784, lot 51, which was purchased on March 12, 1980 (see deed and mortgage, plaintiff's Exhibits 1 & 2) which contained six-units. Plaintiff MARIA FRIAS, and defendant's deceased husband, AURELIANO A. FRIAS, were sister and brother. Further, there is no issue of fact that the deed was held, "as joint tenants with rights of survivorship," this language being handwritten into the deed. There is no issue of fact that decedent AURELIANO A. FRIAS was Spanish speaking and did not speak or write in English. There is no issue of fact that no documentary evidence was ever admitted indicating that the survivorship language was...