Real Property Law

Holdover Proceeding

Point of You, Inc. v. Santangelo

NYLJ 3/27/05

AppTerm, 9th and 10th Districts

(memorandum opinion)

In alleged owner's summary holdover proceeding, alleged owner appealed from District Court's dismissal of the petition. The Appellate Term affirmed, upholding the District Court's finding that there had been no voluntary conveyance to alleged owner.

Alleged owner brought this summary holdover proceeding based on a deed executed by current occupants. Alleged owner relied on RPAPL 713(8), which authorizes maintenance of a summary proceeding by a purchaser against a former owner who, having voluntarily conveyed the property to purchaser, remains in possession without permission of the purchaser. Occupants, however, alleged that there had been no voluntary conveyance. In an earlier proceeding, Supreme Court had found that alleged owner had transferred funds to take a pre-existing first mortgage out of foreclosure status, and had allowed filing as a second mortgage. That proceeding, however, included no findings about the validity of the deed executed to alleged owners. In dismissing alleged owner's proceeding in this case, District Court relied on the testimony of one of the occupants, and on inferences resulting from failure of the alleged owner to put on witnesses with personal knowledge of the execution of the deed.

In affirming, the Appellate Term emphasized that deference was due to the credibility determinations made by the trier of fact, and concluded that the trier of fact could properly find that any presumption of due execution of the deed had been rebutted by clear and convincing evidence.

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Holdover Proceeding

Point of You, Inc. v. Santangelo

NYLJ 3/27/05

AppTerm, 9th and 10th Districts

(memorandum opinion)

In alleged owner's summary holdover proceeding, alleged owner appealed from District Court's dismissal of the petition. The Appellate Term affirmed, upholding the District Court's finding that there had been no voluntary conveyance to alleged owner.

Alleged owner brought this summary holdover proceeding based on a deed executed by current occupants. Alleged owner relied on RPAPL 713(8), which authorizes maintenance of a summary proceeding by a purchaser against a former owner who, having voluntarily conveyed the property to purchaser, remains in possession without permission of the purchaser. Occupants, however, alleged that there had been no voluntary conveyance. In an earlier proceeding, Supreme Court had found that alleged owner had transferred funds to take a pre-existing first mortgage out of foreclosure status, and had allowed filing as a second mortgage. That proceeding, however, included no findings about the validity of the deed executed to alleged owners. In dismissing alleged owner's proceeding in this case, District Court relied on the testimony of one of the occupants, and on inferences resulting from failure of the alleged owner to put on witnesses with personal knowledge of the execution of the deed.

In affirming, the Appellate Term emphasized that deference was due to the credibility determinations made by the trier of fact, and concluded that the trier of fact could properly find that any presumption of due execution of the deed had been rebutted by clear and convincing evidence.

'