Swierzcek v. Swierczek

2023 NY Slip Op 34574

• Court: New York Supreme Court, Kings County
• Decided: December 26, 2023
• Status: Unpublished

Opinion

Swierzcek v Swierczek 2023 NY Slip Op 34574(U) December 26, 2023 Supreme Court, Kings County Docket Number: Index No. 511686/2020 Judge: Debra Silber Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 01/02/2024 10:46 AM INDEX NO. 511686/2020 NYSCEF DOC. NO. 208 RECEIVED NYSCEF: 01/02/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : PART 9

ANETA SWIERZCEK, individually and as Administrator of the Estate of Lukasz Swierczek, DECISION / ORDER

Plaintiff, Index No. 511686/2020 Motion Seq. No. 5 -against-

TERESA SWIERCZEK,

Defendant.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of defendant’s motion for an order dismissing the claims plaintiff has asserted on behalf of her deceased husband’s estate, and for related relief.

Papers NYSCEF Doc.

Notices of Motion, Affirmations and Exhibits................................ 159-173 Affirmation in Opposition and Exhibits.......................................... 182 Reply ……………..........................................................................

Upon the foregoing cited papers, the Decision/Order on this motion is as

follows:

Background

This is an action to determine the ownership of a two-family house in Brooklyn,

located at 26 Bay 41st Street. In brief, the property was purchased in 2005 by decedent

Lukasz Swierczek and defendant, his mother, as joint tenants with the right of survivorship.

At that time, two mortgages were taken out, both signed by decedent and defendant. The

plaintiff married him subsequently, and they had two children, who are minors. The plaintiff

and the decedent lived at the premises, and defendant did not reside there. The other

apartment was rented, and the rent was applied toward the expenses of the home. In 2012,

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the first mortgage was modified, and both decedent and defendant signed the documents.

On or about January 10, 2018, plaintiff and decedent entered into a Separation

Agreement. It was filed in this action by plaintiff’s attorney and has been sealed by the court,

as documents from a matrimonial file may not be put on the internet in NYSCEF. Therein,

paragraph 2 states: “The Wife and Husband currently own a two (2) family home located at

26 Bay 41st Street, Brooklyn, NY 11214, which is their current residence. The parties have

decided and agreed that this property will be sold as a result of the divorce. Whatever

amount the property is sold for, the Wife and Husband agree that $80,000 of the sale shall

be paid to the Wife.”1 Paragraph 11 states “Each party, individually and for his or her heirs,

executors, administrators, successors and assigns, hereby waives, releases and

relinquishes any and all claims, rights or interest as a surviving spouse in or to any property,

real or personal, which the other party owns or possesses at death, or to which the other

party or his or her estate may be entitled. Each party expressly waives all rights which she

or he may now or may hereafter have pursuant to any provisions of the Estates, Powers and

Trust Law of the State of New York and the laws of any State or country which may have

jurisdiction over the estate of either party hereto on his or her death, as now or hereafter in

effect.” The last clause states “This Agreement shall be binding upon the parties hereto, and

their respective heirs, executors, administrators, successors and assigns.”

A few months after executing this Separation Agreement, in June of 2018, decedent

executed a quit-claim deed which transferred all of his interest as a joint tenant with

1 It must be noted that he could not actually sell the property without his mother’s consent, or an order in a partition action, as she was a co-owner. The representation that the husband and wife owned the property was incorrect. It is not known who drafted this agreement, but counsel for one of the parties informed the court that the notaries were employed by the Romuald P. Magda Law Office, defendant’s prior attorneys in this action. On this date, decedent and his mother owned the house as joint tenants with rights of survivorship.

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defendant, his mother, to his mother alone. This deed was notarized by Romuald P. Magda,

Esq., defendant’s prior attorney in this action. In July of 2018, plaintiff filed for divorce, in

Kings County, under index number 53448/2018. By the date the divorce action was

commenced, the deed had been recorded. It is not known when plaintiff learned of the

transfer. On or about April 26, 2019, plaintiff’s attorney filed a motion in the matrimonial

action for, among other things, an order “joining [defendant] as a third-party defendant, and

for an order that decedent had “transmuted the marital residence from separate to marital

property, and therefore the [defendant] holds a constructive trust,” . . . or, should the court

find no transmutation, for an order enforcing the Marriage Settlement Agreement of the

parties,” or, in the alternative, “for an order reimbursing the [plaintiff wife] for 50% of the debt

and tax reduction during the marriage and 50% of the appreciation” and for other relief. The

court (Part 5M-IDV2) issued a decision on November 15, 2019, which concluded that the

case was scheduled for trial on January 15, 2019, and that “all issues in the wife’s application

herein are reserved for trial.” Decedent passed away on November 20, 2019, and the

divorce action could not continue. Plaintiff was issued restricted Letters of Administration for

her husband’s estate by the Surrogate’s Court, Kings County, on June 3, 2020, file 2020-

491.

This action was commenced on July 6, 2020 by the electronic filing of a summons

and complaint and a notice of pendency. There are two causes of action asserted in the

complaint: fraudulent conveyance and constructive trust. Plaintiff filed an order to show

cause [August 2020] seeking a stay of the Housing Court eviction action which defendant

had brought against plaintiff, requesting the TRO to remain in place until a decision has been

issued in this action “resolving the true owner of the marital property.” Defendant answered

the complaint [Doc 24] and asserted counterclaims in September of 2020. They are for use

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and occupancy, unjust enrichment, an accounting, and sanctions for bringing a frivolous

action. The motion was argued, and this court issued a decision dated October 7, 2020,

which granted the motion for a stay, but provided conditions, specifically that “plaintiff shall

not interfere in the rental of the upstairs apartment by defendant or her agents” and “plaintiff

shall not interfere with the showing of the house for sale, except she is not required to allow

people into her apartment during the Covid-19 Pandemic.”

Discovery commenced. In April of 2021, defendant’s attorney filed an order to show

cause (MS #2) which sought an order vacating the stay of the Housing Court proceeding,

vacating the Notice of Pendency, and granting defendant summary judgment dismissing the

complaint. This court heard oral argument and issued an order dated June 28, 2021 [Doc

90] which denied the branch of defendant’s motion for summary judgment dismissing the

action, concluding that defendant had failed to make a prima facie case; denied the branch

of the motion which sought an order vacating the notice of pendency; and denied the branch

of the motion which sought an order lifting the stay of the eviction proceeding pending in

Housing Court. The last sentence in that order contains dicta which should not have been

included, and which seems to be inaccurate. It is hereby stricken, nunc pro tunc.

Defendant changed attorneys a few months later, and discovery proceeded. Plaintiff’s

attorney then brought motion seq. #3, to strike defendant’s answer for failing to comply with

discovery, on October 13, 2022. This motion was heard in CCP, and an order was issued

dated November 21, 2022, which states that defendant failed to appear or oppose the

motion, and that the motion to strike defendant’s answer was denied, but defendant had to

appear for a deposition and to respond to plaintiff’s discovery demands by specified dates.

Defendant’s attorney filed an order to show cause on October 20, 2022, which was

signed on November 30, 2022 due to delays in the ex parte office and assigned motion

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sequence #4. This court heard oral argument and issued an interim order [Doc 158] on June

15, 2023, which is in the form of a so-ordered stipulation, and, following an adjournment to

August 10, 2023, a final order resolving motion seq. #4 [Doc 179]. The provisions primarily

are addressed to the renting of the upstairs vacant apartment, and the provisions which had

been included in the October 2020 order. The August 10, 2023 Order modified the October

2020 order to remove the language about not letting people into plaintiff’s apartment during

the Pandemic and added that “neither plaintiff nor defendant shall speak to prospective

buyers. The broker shall conduct all communications with the parties and prospective

purchasers.” The court has e-filed the transcript of the oral argument [Doc 207] as the

chronology of events, among other things, were placed upon the record.

At the August 10, 2023 oral argument, counsel for plaintiff stated that the balance

owing on the two mortgages is about $450,000, that both mortgages are in foreclosure, that

the house is worth about $1,100,000, so there is about $600,000 in equity, and that his client

believes that the imposition of a constructive trust will result in her entitlement to ownership

of the entire house, and that if it is sold while this case is pending, that she will be entitled to

all of the proceeds. She believes she can establish at trial that defendant did not contribute

any funds toward the purchase of the house, that she and her husband paid all of the

expenses, including all of the mortgage payments, and that since he has passed away, she

has paid all of the expenses on her own. Plaintiff does not believe that the Separation

Agreement is an enforceable agreement. She is not willing to accept the $80,000 she

agreed to accept in the Separation Agreement. She does not want to sell the house, but

counsel acknowledged that she cannot qualify for a mortgage to refinance the mortgages

on the property. She believes she is entitled to own the entire house as decedent’s surviving

spouse. Defendant has an entirely different version of the facts, and claims that she paid the

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downpayment and closing expenses.

The first mortgage was recently (2022) assigned to Wilmington Savings Fund Society

FSB. Document 155 is a copy of a Forbearance Agreement which plaintiff, described therein

as Aneta Balkun, signed on December 20, 2022. It is noted that she is not a borrower under

the mortgage.

The compliance conference order issued on April 6, 2023 provides that the Final Pre-

Note Conference will be held on April 4, 2024.

This Motion

Oral argument on this motion was held on September 7, 2023 and decision was

reserved. The branch of the motion which requests a so-ordered subpoena to the court

reporting company that had prepared the transcript of the deposition of the plaintiff in the

divorce action was denied on the record and is denied. The branch of the motion which

requested a so-ordered subpoena for the matrimonial file from the attorney Dariusz Marzec,

Esq. who represented plaintiff in the matrimonial action was withdrawn on the record. Mr.

Marzec’s motion (seq. #6) for a “retaining lien” for his legal fees was withdrawn and the court

informed Mr. Marzec, who appeared in court to oppose the branch of the motion that was

addressed to the subpoena that he had been served, that he should file a claim against the

estate in Surrogate’s Court.

The branch of the motion which asks the court to conduct an in-camera review of the

matrimonial file, and for the release of documents relevant to this action, is granted to the

following extent. The court has reviewed the file, in camera. Defendant is entitled to a copy

of the summons and complaint, which, in the wherefore clause, the request is that the marital

property be distributed pursuant to the separation agreement. Defendant is also entitled to

a copy of the plaintiff’s motion to add defendant as a third-party to the matrimonial action,

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along with the exhibits to that motion and the decision and order issued by the court. The

court will provide copies to both attorneys shortly, by e-mail. These documents should not

be e-filed in the NYSCEF system. Both parties already have copies of the Separation

Agreement. There is nothing else in the matrimonial file which relates to this dispute.

Finally, the court must address the branch of the motion which seeks an order

dismissing the claims in the complaint to the extent they are asserted by the plaintiff as

Administrator of the Estate of Lukasz Swierczek. Counsel for defendant avers that these

claims should be dismissed as plaintiff “is improperly conflicted.” The court finds that there

is not one word in the complaint that is in fact asserted on behalf of the Estate, and thus this

branch of the motion is granted.

The cause of action which claims that there was a fraudulent conveyance (as regards

the 2018 deed) asserts, at Paragraph 22, that “Husband fraudulently transferred his interest

in the marital residence.” Then, at Paragraph 34 “Defendant accepted the transfer knowing

that she did not provide the adequate consideration for the transfer.” And, at Paragraph 36,

“Husband’s transfer of his interest in the Marital Residence to Defendant was intended to

defeat Aneta’s rights of equitable distribution if the parties did in fact divorce.” Plaintiff avers

that [Par. 38] “Despite due demand, defendant has neglected, failed, and refused to

surrender Husbands interest in the Marital Residence to Aneta. As set forth herein, the

Marital Residence was fraudulently transferred by Husband to Defendant.”

It must be noted that the complaint fails to state which statute this claim is made

under. Before this action was commenced, New York’s Debtor and Creditor Law was

repealed and replaced with a new statute. But this is of no moment, as the claims are all

asserted against the decedent, not on his behalf. As such, plaintiff cannot represent the

estate’s interests in this action while asserting claims against the decedent. The wife is

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essentially asserting claims against the husband’s estate as a creditor, which is a position

contrary to that of someone representing the Estate (see Kasinski v Questel, 99 AD2d 396

[4th Dept 1984]). In fact, the Estate should be a defendant in this action, and plaintiff should

not be the estate representative.

The new statutes are called the Uniform Voidable Transactions Act, which became

effective on December 6, 2019, and were in effect when this action was commenced. They

are located at a new Article 10 of the NY Debtor and Creditor Law.

To be clear, the transferee of a zero-consideration transfer is a proper defendant for

a fraudulent conveyance claim (Emirates NBD Bank P.J.S.C. v Sys. Construct LLC, 2022

NY Slip Op 30489[U] [Sup Ct, NY County 2022]). Ordinarily, the transferor is also a party

defendant. Since he has since passed away, it is not clear whether his estate is a necessary

party defendant. It certainly is not a plaintiff.

With regard to the cause of action for a constructive trust, again, there are no claims

asserted in the complaint on behalf of the Estate. The claims assert a claim against the

defendant for the imposition of a constructive trust on the property, which are presumably

asserted with regard to the 2005 deed. There are essential elements which must be shown

to establish a constructive trust at trial. These elements are: (1) a confidential or fiduciary

relationship, (2) a promise, (3) a transfer in reliance thereon, (4) breach of the promise, and

(5) unjust enrichment (Bontecou v Goldman, 103 AD2d 732, 733 [2d Dept 1984]). Here, it

is not known if defendant was added to the deed to enable the decedent to qualify for the

mortgage, or if the defendant had made a promise to her son to not to assert an ownership

interest in the house (Reiner v Reiner, 100 AD2d 872 [2d Dept 1984]). In Reiner, the court

found that the family ties constituted a fiduciary relationship, that there was an implied

promise that the parents would not assert an ownership interest in the home, that the wife

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had relied on that promise in permitting the transaction, and the parents, who had not made

any mortgage payments, would otherwise receive a windfall with no expenditure on their

part. The Appellate Division held that the Supreme Court had erred in denying the wife’s the

imposition of a constructive trust on the house. Here, however, there are triable issues of

fact, as defendant claims she made the downpayment and paid the closing expenses, and

that it was her son who was added to the deed and mortgage because she was the one who

couldn’t qualify for the mortgage, but that it was supposed to be her house, not his.

The court notes that the complaint fails to seek damages for the sums plaintiff has

been paying while this litigation proceeds, to keep the house from being foreclosed on, and

for repairs, real estate taxes, water, sewer, and the like, which she is entitled to be

reimbursed for if the house is sold. As plaintiff’s attorney acknowledged that there are two

foreclosures pending, one for each mortgage, and that she cannot qualify for a refinance,

the house may have to be sold. While plaintiff may owe defendant use and occupancy, which

defendant has asserted in a counterclaim, plaintiff is entitled to amend the complaint to seek

damages for the upkeep of the property. Perhaps the plaintiff would like to amend the

complaint to track the language in the new Debtor and Creditor law. If plaintiff wishes to do

so, as pleadings are freely amendable before the note of issue is filed, she should file a

motion for leave to amend the complaint.

Conclusions of Law

Accordingly, it is

ORDERED that the branch of the defendant’s motion (MS #5) for an order “allowing

for review of the matrimonial action” is granted solely to the extent that the court shall send

the attorneys for the parties herein copies of the summons and complaint in the matrimonial

action and a complete copy of the plaintiff’s motion (seq. #3 in that action) to, inter alia, add

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the defendant as a third-party defendant and assert claims against her with regard to

imposing a constructive trust on the property at issue herein; and it is further

ORDERED that the branch of the defendant’s motion for an order “dismissing any

and all claims brought by Aneta Swierczek on behalf of and as Administrator of The Estate

of Lukasz Swierczek” is granted and the caption is amended accordingly to reflect that the

plaintiff is solely Aneta Swierczek; and it is further

ORDERED that the branch of the defendant’s motion to compel compliance with the

subpoena served on Dariusz Marzec, Esq. is moot, as it was withdrawn on the record; and

it is further

ORDERED that the branch of the defendant’s motion for a so-ordered subpoena

compelling Lexitas Court Reporting to provide a transcript of the plaintiff’s deposition in the

matrimonial action is denied.

This constitutes the decision and order of the court.

Dated: December 26, 2023 ENTER:

Hon. Debra Silber, J.S.C.

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