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The following papers were considered in determining this motion: Cynthia Butcher’s Motion for Default Judgment, Summary Judgment and other related relief, Affidavit and Affirmation in Support, with Exhibits         1, 2, 3, 4 Kew Gardens Dev Corp.’s Affirmation in Opposition and Memorandum of Law, with Exhibits              5, 6, 7 Cynthia Butcher’s Reply Affirmation     8 ADDITIONAL CASES Cynthia Butcher, Third-Party Plaintiff, v. Robert Campbell, Third-Party Defendant DECISION In this action, transferred from Supreme Court, Kings County, by order dated November 12, 2019, plaintiff Kew Gardens Dev Corp (KGDC) seeks to partition certain real property located at Block 10363 Lot 0019, commonly known as 1334 St. Marks Avenue, Brooklyn, New York 11233 (the premises). KGDC asserts that it derives its interest in the premises by conveyance from Robert Campbell (Robert), who KGDC asserts, is the sole distributee of Ferdinand Campbell (Ferdinand), the surviving spouse of Reva Butcher Campbell (the decedent). On October 26, 2018, Cynthia Butcher (Cynthia) filed an amended answer and counterclaims against KGDC. On April 4, 2019, she filed a third-party summons and complaint naming Robert as a third-party defendant. An affidavit of service asserts that the third-party summons and complaint was personally served on Robert on April 5, 2019. On August 30, 2019, Cynthia filed the instant motion for a default judgment against Robert for failure to file a timely answer to the third-party complaint and against KGDC for failure to file a timely answer to her counterclaims, as well as summary judgment dismissing the complaint of KGDC.1 On September 3, 2019, KGDC filed an answer to the counterclaim, which was rejected by Cynthia on September 4, 2019, as untimely. On October 24, 2019, KGDC filed opposition to the instant motion but raised no opposition to the relief sought against Robert. Robert has not filed an answer, sought an extension of time to answer, nor opposed the instant motion, and KGDC has not moved for leave to file a late answer to the counterclaim. BACKGROUND On July 31, 1958, the decedent purchased the premises with Isaac Simmons. On October 27, 1960, Isaac Simmons transferred his interest to the decedent’s husband, John Butcher. When John Butcher died in 1974, the premises passed through intestacy to the decedent and their four children, namely Dennis Butcher, Miryam Butcher, Loretta Folks, and Cynthia.2 The decedent later married Ferdinand; they had no issue of the marriage. When the decedent died on September 2, 1993, Ferdinand sought to be appointed as administrator of her estate. Cynthia propounded for probate the decedent’s last will and testament dated January 20, 1979, which was admitted to probate and letters testamentary were issued to Cynthia on June 20, 1996. According to the terms of the decedent’s will, Cynthia was named sole legatee/devisee of the decedent’s real and personal property. Ferdinand, who was not named as a beneficiary of the decedent’s will, exercised his right of election and was granted the right of his elective share by decree of this court dated February 2, 1998, to wit: the executor of the decedent’s estate was ordered to “pay to Ferdinand A. Campbell the amount of the decedent’s estate, including testamentary substitutes, to which it shall be determined that he is entitled pursuant to EPTL 5-1.1 as his elective shares.”3 There is no indication that Ferdinand received his elective share or ever sought to enforce the February 8, 1998 decree. In its complaint, KGDC asserts that Ferdinand’s elective share is equal to 50 percent of the decedent’s estate which entitled him to a 37.5 percent interest in the premises. Ferdinand died on February 4, 2001 and KGDC alleges that Robert became the successor in interest to Ferdinand’s purported interest in the premises via intestacy, as Ferdinand’s “sole heir.” KGDC relies upon Ferdinand’s death certificate as evidence that Robert is the son of Ferdinand. Specifically, KGDC asserts that because the death certificate lists Robert as the informant and son of the decedent, it is evidence that he is Ferdinand’s son. KGDC claims that Robert conveyed his purported interest in the premises to them. Seventeen years after the decedent’s death, on May 7, 2018, KGDC recorded a deed (the 2018 deed), which claims to convey Robert’s purported interest in the premises to KGDC in consideration of $35,000.00. Cynthia asserts that she, as the sole devisee/legatee of the decedent’s interest, has maintained the premises since the decedent’s death and has resided in the premises for over fifteen years. Cynthia further asserts that she knew Ferdinand and he did not have a son named Robert, neither biological nor adopted. DISCUSSION 1. Default Judgment against KGDC On the Counterclaim. On October 26, 2019, Cynthia served and filed an amended answer and a counterclaim against KGDC. The counterclaim seeks to vacate, void, and discharge the deed dated May 7, 2018, and declare it null, void, and unenforceable based on fraud. KGDC neither denies receipt of service of the amended answer and counterclaim, nor does KGDC deny failing to respond. Instead, KGDC counters that Cynthia’s counterclaim for a default judgement should be denied because no answer was required to a counterclaim seeking declaratory judgment. Cynthia’s argument is without merit. A claim for declaratory judgment cannot be granted on default since the party seeking declaratory judgment must prove their claim at trial. Ameriprise Insurance Co. v. Kim, 185 AD3d 995 (2d Dep’t 2020); JBBNY LLC v. Dedvukaj, 171 AD3d 898 (2d Dep’t 2019). Accordingly, Cynthia’s motion for default judgement on her counterclaim seeking declaratory judgment is denied. 2. Summary Judgment in Favor of Cynthia and Dismissing the Complaint by KGDC Summary judgment may not be granted unless the movant demonstrates that no material triable issues of fact exist. See Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). The moving party has the burden of establishing a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The evidence submitted in support of a motion for summary judgment is always scrutinized in a light most favorable to the non-moving party. Makaj v. Metropolitan Transportation Authority, 18 AD3d 625 (2d Dep’t 2005). Once a prima facie showing is made, the burden of going forward shifts to the party opposing the motion. A failure to make a prima facie showing requires denial of the motion regardless of the sufficiency of the opposing papers. Winegrad v. New York University Medical Center, 64 N.Y. 2d 851, 853 (1985). Cynthia asserts that summary judgment dismissing the complaint should be granted because (1) Robert is not the child of Ferdinand and could not inherit a property interest though intestacy, and (2) even if Robert is Ferdinand’s distributee, Ferdinand held no property interest in the premises that could be inherited by Robert. In support of these claims, Cynthia proffers (1) a deed dated July 31, 1958 conveying the premises to the decedent and Isaac Simmons; (2) a deed dated October 27, 1960 conveying Isaac Simmons’ interest in the premises to John Butcher; (3) the last will and testament of the decedent dated January 20, 1979, naming Cynthia as the legatee/devisee of the decedent’s personal and real property; (4) letters testamentary issued to Cynthia in the decedent’s estate dated June 20, 1996; (5) a decree issued by Kings County Surrogate’s Court dated February 2, 1998, which granted Ferdinand a right of elective share in the decedent’s estate; (6) the 2018 deed, which purports to convey the premises from Robert to KGDC; (7) KGDC’s notice of pendency on the premises, summons and complaint dated August 14, 2018; (8) Cynthia’s answer dated October 15, 2018; (9) Cynthia’s amended answer dated October 26, 2018; and (10) Cynthia’s third-party complaint dated April 4, 2019. In opposition, KGDC asserts that summary judgment should be denied because (1) discovery is incomplete, and (2) there exists a dispute of fact regarding Robert’s relationship to Ferdinand. In support of its position, KGDC proffers the affirmation of Alan L. Poliner dated October 24, 2019, alleging that (1) discovery is incomplete, (2) Cynthia failed to inform KGDC of its own failure to answer the counterclaim, and (3) Robert is the son of Ferdinand, and proffers Ferdinand’s death certificate.4 The death certificate lists Robert as the son and informant for Ferdinand’s personal information such as place of birth and parents’ names, and indicates that Robert resided at the same location as Ferdinand at the time of death.5 The evidence submitted clearly demonstrates that Cynthia was the only person with authority to convey title to the premises after June 20, 1996. The letters testamentary issued in a decedent’s estate grants a fiduciary exclusive authority to convey title to the premises, and the passage of time does not lessen that exclusive power. Capozolla v. Oxman, 216 AD2d 509 (2d Dep’t 1995). The letters testamentary issued to Cynthia on June 20, 1996 is conclusive evidence of her continuing and exclusive authority to convey title to the premises. SCPA §703; JP Morgan Chase Bank, National Association v. Milgrim, 169 AD3d 1020 (2d Dep’t 2019). The last valid recorded deed is dated October 27, 1960 conveying interest from Isaac Simmons to John Butcher, husband of the decedent and father of Cynthia. Upon John Butcher’s death, his interest passed to the decedent and to the children of John Butcher. Upon the decedent’s death, her will, nominating Cynthia as the executor in the decedent’s estate and naming her as the sole legatee and devisee of all the decedent’s personal and real property was admitted to probate on June 20, 1996. Ferdinand’s pecuniary interest granted by decree of this court on February 2, 1998, did not confer any interest in the premises to Ferdinand. While this court has the authority to transfer such interest to Ferdinand to satisfy a right of election, no such transfer was made by the court in the February 2, 1998 decree. See SCPA §1901 et. seq. Moreover, neither Ferdinand nor his estate has ever sought to enforce the decree by seeking an interest in the premises. Cynthia, who has maintained exclusive authority to transfer interest in the premises prior to the granting of Ferdinand’s right of election, has never transferred any interest in the premises to Ferdinand, or to anyone else. Accordingly, no valid property interest in the premises has ever vested in Ferdinand; Robert could not inherit any interest in the premises from Ferdinand, and Robert could not transfer any interest, which he did not have, in the premises to KGDC. As such, KGDC has never possessed an interest in the premises. The documentary evidence, even when viewed in the light most favorable to KGDC, establishes a prima facia entitlement to summary judgment in favor of Cynthia and dismissal of KGDC’s complaint. Alvarez v. Prospect Hosp., supra. KGDC’s first argument in opposition to summary judgment is that there are material facts in dispute with regard to Robert’s relationship to Ferdinand. Although it is a fact in dispute, it is immaterial to determining KGDC’s purported property interest. Assuming arguendo that Robert is the only child of Ferdinand,6 Robert would first have to initiate an estate proceeding to seek the appointment of a fiduciary in Ferdinand’s estate, and then the fiduciary could seek to enforce the February 2, 1998 decree granting Ferdinand a pecuniary interest in the decedent’s estate equal to Ferdinand’s elective share.7 In the light most favorable to KGDC, even if Robert was the only child of Ferdinand, at best Robert would only be entitled to enforce the February 2, 1998 decree. EPTL §5-1.1. KGDC has failed to establish that there are any triable issues of material facts regarding ownership of the premises. Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). KGDC’s second argument in opposition to summary judgment is that the motion is premature. This argument is unsupported by the record. Proof of any relationship between Ferdinand and Robert is not in Cynthia’s exclusive knowledge and control, as evidenced by KGDC’s own submission of Ferdinand’s death certificate in support of its claim. Castro v. Rodriguez, 176 AD3d 1031 (2d Dep’t 2019). KGDC has also failed to present sufficient facts showing that additional discovery would lead to relevant evidence to support the allegations contained in the complaint or in support of its opposition to the instant motion for summary judgment dismissing the complaint. Id. Furthermore, there have been reasonable sufficient time for the parties to have engaged in discovery. 3. Default Judgment Against Robert Campbell On the Third-Party Complaint Cynthia filed a third-party complaint naming Robert as a third-party defendant. The third-party complaint seeks to vacate, void, and discharge the 2018 deed, and declare it null and void ab initio. In support of these claims, Cynthia asserts in the third-party complaint that (1) Ferdinand did not have a son named Robert, (2) the February 2, 1998 decree of this court granted Ferdinand a pecuniary interest in the decedent’s estate but not an interest in the premises, and (3) Ferdinand has no interest in the premises to transfer to Robert and, thus, Robert did not inherit any interest in the premises to transfer to a successor. Cynthia effectuated proper service of the third-party complaint on Robert by personal service on April 5, 2019 and filed an affidavit of service with the court on April 11, 2019. Cynthia asserts a viable claim through documentary evidence discussed supra, which establishes that Robert never possessed an interest in the premises, nor had the authority to convey any interest in the premises to KGDC. Cynthia has also established that Robert has defaulted. Despite having received personal service of the third-party summons and complaint, as well as service by mail on August 30, 2019 of the instant motion seeking default judgment on the third-party complaint, Robert has failed to appear. Cynthia has established a prima facie showing of entitlement to a default judgment in her favor against Robert on the third-party complaint. Fried v. Jacob Holding, Inc., 110 AD3d 56 (2d Dep’t 2013). CONCLUSION Accordingly, the motion for summary judgment in favor of Cynthia Butcher dismissing the complaint of Kew Gardens Dev Corp is granted; the motion for default judgment against Kew Gardens Dev Corp and in favor of Cynthia Butcher on the counterclaim is denied; and the motion for default judgment against Robert Campbell and in favor of Cynthia Butcher on the third-party complaint is granted as to the relief seeking declaratory judgment. The court has considered all other relief requested and they are denied as without merit. The defendant/third-party plaintiff, Cynthia Butcher, herein is entitled to a declaratory judgment in this action pursuant to CPLR §3001, declaring the rights and other legal relationships of the parties hereto with regard to the premises located at Block 10363 Lot 0019, commonly known as 1334 St. Marks Avenue, Brooklyn, New York 11233. The court finds and determines that the rights of the plaintiff, Kew Gardens Dev Corp, the defendant/third-party plaintiff, Cynthia Butcher, and the third-party defendant, Robert Campbell, with respect to the subject matter of the above-entitled action are as follows: 1. Robert Campbell has never possessed a property interest nor can he convey a property interest in the premises located at Block 10363 Lot 0019, commonly known as 1334 St. Marks Avenue, Brooklyn, New York 11233; 2. Kew Gardens Dev Corp has never possessed any property interest nor can it convey property interest in the premises located at Block 10363 Lot 0019, commonly known as 1334 St. Marks Avenue, Brooklyn, New York 11233; 3. The deed recorded on May 17, 2018 conveying property interest from Robert Ferdinand to Kew Gardens Dev Corp for the premises located at Block 10363 Lot 0019, commonly known as 1334 St. Marks Avenue, Brooklyn, New York 11233 is null and void ab initio, vacated and cancelled. The Clerk of the City Register’s Office for the County of Kings where deeds are recorded is authorized and directed to strike said deed from the records and to make a notation on the records that said deed is null and void. Settle decree. Dated: May 13, 2021

 
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