Preview
FILED: KINGS COUNTY CLERK 09/20/2023 04:56 PM INDEX NO. 504785/2017
NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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NANCY C. FRETTA, individually and as Trustee of the
Louise Fretta Trust Dated October 21, 2013, Index No.: 504785/17
Plaintiffs, REFEREE REPORT AND
ACCOUNTING
-against-
ANNA FRETTA and VINCENZA FRETTA,
Defendants.
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BRUNO F. CODISPOTI, an attorney at law, duly admitted to practice before the courts of
the State of New York, under penalties of perjury, affirms and says:
1. I hereby submit this Report and render this Accounting as Referee in connection with this
action.
2. By Order dated January 5, 2018 (Hon. Karen B. Rothenberg, J.S.C.) I was appointed
Referee (“Referee”) to take a full accounting of the Louise Fretta Trust Dated October 21,
2013 (“Trust”) and the property located at 8005 13th Avenue, Brooklyn, New York
(“Property). A copy of the January 5, 2018, Order (“Order”) is annexed hereto as Exhibit
A.
3. A Supplemental Order was issued by the Court on March 19, 2019, (Hon. Karen B.
Rothenberg, J.S.C.) and directed me, among other things, to forthwith effect the sale of the
property, determine whether there is any creditor not a party who has a lien, and file with
the Court a report for confirmation containing a description of each parcel sold, the name
of the purchaser and the price, and upon confirmation, distribute the sale proceeds to the
parties according to their interests. A copy of the March 19, 2019, Supplemental Order
(“Supplemental Order”) is annexed hereto as Exhibit B.
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4. Plaintiff, NANCY C. FRETTA, individually and as Trustee of the Louise Fretta Trust
Dated October 21, 2013, and Defendants, ANNA FRETTA and VINCENZA FRETTA,
(“Parties”) further entered into a Stipulation of Partial Discontinuance and filed with the
Court on March 13, 2019, subject to the terms of a Settlement Agreement entered into as
of March 13, 2019, in connection with the partition and sale of the property. A copy of the
March 13, 2019, Stipulation of Partial Discontinuance (“Stipulation of Partial
Discontinuance”) is annexed hereto as Exhibit C. A copy of the March 13, 2019, Settlement
Agreement (“Settlement Agreement”) is annexed hereto as Exhibit D.
5. Your affiant hereby renders the following account of all proceeds received and disbursed
by myself as Referee which are due to the Plaintiffs and Defendants from the sale of the
property.
6. Upon consent of all parties, I entered into a contract of sale of the Property dated December
12, 2019, between the Referee and Hong Jian Liu (“Purchaser”) with the purchase price of
$2,228,000 (“Contract”) for the Property. A copy of the Contract is annexed hereto as
Exhibit E.
7. Pursuant to the Supplemental Order, I opened a Referee bank account as Referee and made
a deposit of the down payment received from the Purchaser pursuant to the Contract in the
amount of $222,800 on December 18, 2019, at Signature Bank located at 26 Court Street,
Brooklyn, NY 11201 (“Referee’s Account”).
8. The Property was sold for the sum of $2,228,000.00 on March 20, 2020 (“Closing Date”)
in accordance with the Contract and pursuant to the Supplemental Order.
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9. The following is an accounting of all sums received and paid by me as Referee related to
the sale of the Property pursuant to the Supplemental Order and the Closing Memorandum
of the Sale, a copy of which is annexed hereto as Exhibit F:
(a) Total payments for the costs of closing were $140,726.66 ($191.45 of which were
paid by me from my Referee Account).
(b) An adjustment payable to Sellers in the amount of $339.92.
(c) Wire Transfer of $20,000.00 to Nancy C. Fretta pursuant to the Settlement
Agreement.
(d) Bank Check of $20,000.00 to Anna Fretta pursuant to the Settlement Agreement.
(e) Bank Check of $20,000.00 to Vincenza Fretta pursuant to the Settlement
Agreement.
10. On March 31, 2022, pursuant to the Settlement Agreement, I made the following payments:
(a) Wire Transfer of $334,553.70 to Kleinberg, Kaplan Wolff & Cohen, P.C.
(b) Wire Transfer of $156,617.09 to L'Abbate, Balkan, Colavita & Contini, L.L.P.
11. On January 4, 2021, pursuant to the Settlement Agreement, I made the following payment:
(a) Payment of $1,460.38 to National Grid.
12. As of January 4, 2021, there was a balance in my Referee Bank Account of $1,514,982.09.
13. On January 3, 2022, the Court So Ordered a Stipulation signed by the parties and myself
as Referee (Hon. Lillian Wan, J.S.C.) which provided for the payment of interim
distributions and Referee’s commission (the “Jan. 3, 2022 Order”). A copy of the Jan. 3,
2022, Order is annexed hereto as Exhibit G.
14. All payments required to be made pursuant to the Jan. 3, 2022, Order have been issued and
received by each of the parties named therein.
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15. On March 8, 2023, the Court So Ordered a Supplemental Stipulation signed by the parties
and myself as Referee and Amended Ordered by the Court (Hon. Karen B. Rothenberg)
which provided for the payment of Final Distributions and Referee’s Commission (the
“Mar. 8, 2023 Order”). A copy of the Mar. 8, 2023, Order is annexed hereto as Exhibit H.
16. All payments required to be made pursuant to the Mar. 8, 2023, Order have been issued
and received by each of the parties named therein.
17. A copy of the Account Ledger for the Referee’s Bank account in connection with this
matter is annexed hereto as Exhibit I. A copy of the Bank Statement of May 2023 of the
Referee’s Bank account in connection with this matter is annexed hereto as Exhibit J. Both
the Account Ledger and the Bank Statement show a balance of $0.00.
18. I have completed, executed and returned the Notice of Appointment and Certification of
Compliance from UCS 872 to the Fiduciary Clerk, A copy of which is annexed hereto a
Exhibit K.
19. All obligations and requirements of myself as Referee and the parties pursuant to any
stipulation, order or statute have been completed.
WHEREFORE, I respectfully request that an Order be issued:
1. Restoring this action to the active calendar;
2. Discharging me as Referee of any and all obligations and requirements hereunder;
3. Discontinuing this action with prejudice and without any costs to any party; and
4. For such other and further relief as may be required by this Court.
Dated: Brooklyn, New York
September 20, 2023
____________________________________
BRUNO F. CODISPOTI, Referee
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Exhibit
A
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504785/2017
FILED:
FILED: KINGS
KINGS COUNTY
COUNTY CLERK
CLERK 09/20/2023
01 17 2018 04:56 PM
NYSCEF
NYSCEF DOC.
DOC. NO. 73
NO. 107 RECEIVED
RECEIVED NYSCEF: 01/19/2018
NYSCEF: 09/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS: TRIAL TERM PART 35 x
NANCY C. FRETTA, individually and as Trustee of the
Louise Fretta Trust Dated October 21, 2013, uM
Plaintiff, Index No: 504785/17
__.--
-against-
DECISION AND ORDER
ANNA FRETTA and VINCENZA FRETTA,
Defendants,
x
Recitation as required by CPLR 2219(a). of the papers considered in plaintiff's motion
for summary judgment pursuant to RPAPL §901(1) for partition and pursuant to CPLR
defendants'
321 l(b) dismissing the defendants affirmative defenses and cross-motion to
amend and for partial summary judgment.
Papers Numbered
Order to Show Cause/Motion and Affidavits Annexed. 1
Cross-motion and affidavits annexed............................ 2
Answering Affidavits....................................................
Reply Papers................................................................... 3,4
Memoranda of law.......................................................... 5; 6: 7
Upon the foregoing cited papers, the Decision/Order on this motion:
In this action, plaintiff, Nancy Fretta, individually and as Trustee of Louise Fretta Trust
dated October 21, 2013 [hereinafter Nancy] moves for an order pursuant to CPLR 3212
granting her summary judgment against defendants Anna Fretta [Anna] and Vincenza Fretta
[Vincenza], on her cause of action pursuant to RPAPL §901(1) for partition and sale of the
13th
property located at 8005 Avenue, arooklyn. alock 6280, Lot 8, which is owned by the
parties as tenants in common. Nancy also seeks an order pursuant to CPLR 321 1(b)
dismissing Anna and Vincenza's affirmative defenses. Anna and Vincenza cross-move for an
order pursuant to CPLR 3025(b) granting them leave to amend their verified answer to add
additional counterclaims and upon amendment for an order granting them partial summary
judgment under RPAPL Art. 15 declaring them the exclusive owners of the subject property.
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NYSCEF
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DOC. NO. 73
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parties'
The parties to this action are siblings and the subject property is the childhood
home. A Trust Agreement dated October 21, 2013 was created by their mother, Louise Fretta,
for her own benefit, with a remainder to Nancy, Anna and Vincenza. Ownership of the
subject property was transferred into the Trust pursuant to Article Two of the Trust and by a
deed executed on October 21, 2013. The Trust Agreement named Nancy as sole trustee and
provided her with discretion to sell or dispose of the corpus of the Trust and to make
distributions of principal and income to the beneficiaries of the Trust. Article 5 of the Trust
provided that upon Louise's death, the corpus of the Trust, including any real property held by
the Trust, would be distributed in three equal shares to the parties, or their living issue, after
the satisfaction of any mortgages on the property. Louise died on September 17, 2014. On
February 12, 2016, Nancy, in her capacity as Trustee, paid the full existing reverse mortgage
on the property and received a Satisfaction of Mortgage which was filed with the Office of
the City Register of the City of New York on or about March 2, 2016. By operation of the
Trust, title in the property then vested in Nancy, Anna and Vincenza, equally as tenants in
common.
In her affidavit in support of this motion, Nancy states that in the years since her
mother's death, as a convenience to her sisters, she continued to pay all expenses related to
the property out of the corpus of the Trust. She claims that she is bearing one-third of the
expenses to keep and maintain the property, while her sisters are deriving one hundred percent
of the benefits of ownership and possession. Nancy further claims that disagreements have
arisen between the sisters regarding the use, occupancy, control and disposition of the
property and that she no longer wishes to own the property as a tenant in common with them.
Nancy states that since late 2015 she has offered to sell her share of the property to her sisters,
but they have refused to offer her a fair price and will not agree to sell the property to a third
party. further states that although the property, which consists of a four-story, two-
Nancy
family residence, has a separate electrical meter and separate entrance for a fourth floor
apartmem, has one roof, one basement, one boiler and heating system, one hot water tank, one
gas main, one sewer service, one main water supply, one real estate tax liability and therefore
it is not practical to divide it into three equal parcels. Nancy contends that any attempt to
physically partition the property would cause great prejudice and significantly devalue the
property.
In opposition to the motion and in support of the cross-motion, Anna submits an
affidavit on behalf of herself and her sister, Vincenza. In her affidavit, Anna states that
pursuant to a Durable Power of Attorney [POA] signed by Louise on March 13, 2006,
appointing Nancy her agent and power of attorney, Nancy was restricted in the amount she
could gift herself. Specifically, Anna points to paragraph 18 of the PGA which provides that
"any gift in any year to or for the benefit of my attorney shall not exceed the maximum annual
Code..."
exclusion provided for by the federal Internal Revenue Based on this provision,
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Anna states that Nancy, as power-of-attorney, by the subject into the
transferring property
trust in which she had a remainder interest, gifted herself more than what she
inappropriately
was permitted, which, at most, was $14,000, the "maximum annual exclusion provided for by
the Federal Internal Revenue Code", and, therefore, is not entitled to a 1/3 interest in the
property. Based thereon, Anna and Vincenza seek to amend their verified answer to assert a
second counterclaim, under Article 15 of the RPAPL, for a judgment them the
declaring
owners of the property as tenants in common and upon amendment, an award of summary
judgment on this counterclaim. Anna and Vincenza also seek to add a third counterclaim for
abuse of process arising from Nancy's commencement and prosecution of certain eviction
proceedings against them and a fourth counterclaim arising out of Nancy's breach of her
fiduciary duty, and for self-dealing and waste. In regard to the proposed fourth counterclaim,
Anna states that Nancy obtained a reverse mortgage encumbering the premises to obtain funds
to make up for losses incurred by Louise as a result of improvident investments made by
Nancy, as her agent, during Louise's lifetime. In order to pay for the reverse rnortgage,
Nancy, after Louise's death forced the sale of another property, which was also an asset of the
Trust. Anna also states that Nancy has failed to distribute other assets of the Trust upon
Louise's death and has improperly used Trust assets to pay her own legal expenses in this
action. Anna further states that to date, Nancy has never provided an accounting and has
ignored her request for same. Lastly, Anna states that if the court does grant summary
judgment to Nancy, it should not order that the house be sold as a physical partition can be
made and includes a letter from a real estate broker stating the possible monthly rent for the
apartment.
"A plaintiff establishes his or her right to summary judgment on an action for partition
property"
and sale by demonstrating ownership and right to possession of the (Cadle
Company v Calcador, 85 AD3d 700, 702 [2d Dept 201 l ]). Here, Nancy establishes prima
facie entitlement to summary judgment for partition of the subject property and for dismissal
of Anna and Vincenza's first and second affirmative defenses by submitting a copy of the
Trust Agreement, indicating that upon Louise's death, she and her sisters each acquired a 1/3
interest in the property as tenants in common. Contrary to Anna and Vincenza's contentions
there are no issues of fact regarding Nancy's right to possession and ownership of the
property, which is all that is needed to maintain the partition action (see RPAPL §901 [1] ;
Dalmacy v Joseph, 297 AD2d 329 [2d Dept 2002]). Anna and Vincenza's claim that Nancy
inappropriately gifted herself a 1/3 ownership interest in the home is without merit. Firstly,
the POA provided for the transfer of Louise's real estate into a trust. Moreover, the Trust did
not change the distribution of the property as provided for in Louise's will dated October 10,
2003, annexed as an exhibit to the reply papers. Further, the cases cited by Anna and
Vincenza including, Matter of Ferrara, 7 NY3d 244 [2006]) and Matter of Audrey Carlson
Revocable Trust, 59 AD3d 538 [2d Dept 2009]), involving agents gifting to themselves are
materially different and distinguishable. Unlike the cited cases, the transfer of the subject
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property to the Trust, made while Louise was still alive and retained a power of appointment
of the principal, did not give Nancy a present interest in the property, an essential element of a
gift (see Gruen v Gruen, 68 NY2d48[1986]).
Additionally, Anna and Vincenza cannot sustain their third affirmative defense of
unclean hands as their allegations pertain to inappropriate conduct to the use and
relating
distribution of certain Trust assets and not conduct directly related to the property, which is
the subject matter of this litigation (see Goldberg v Goldberg, 173 AD2d 679 [2d Dept
1991]).
Nancy also establishes, prima facie, her entitlement to summary judgment directing
that the real property be partitioned and sold by showing that the subject
Preview
FILED: KINGS COUNTY CLERK 09/20/2023 04:56 PM INDEX NO. 504785/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X NANCY C. FRETTA, individually and as Trustee of the Louise Fretta Trust Dated October 21, 2013, Index No.: 504785/17 Plaintiffs, REFEREE REPORT AND ACCOUNTING -against- ANNA FRETTA and VINCENZA FRETTA, Defendants. -------------------------------------------------------------------X BRUNO F. CODISPOTI, an attorney at law, duly admitted to practice before the courts of the State of New York, under penalties of perjury, affirms and says: 1. I hereby submit this Report and render this Accounting as Referee in connection with this action. 2. By Order dated January 5, 2018 (Hon. Karen B. Rothenberg, J.S.C.) I was appointed Referee (“Referee”) to take a full accounting of the Louise Fretta Trust Dated October 21, 2013 (“Trust”) and the property located at 8005 13th Avenue, Brooklyn, New York (“Property). A copy of the January 5, 2018, Order (“Order”) is annexed hereto as Exhibit A. 3. A Supplemental Order was issued by the Court on March 19, 2019, (Hon. Karen B. Rothenberg, J.S.C.) and directed me, among other things, to forthwith effect the sale of the property, determine whether there is any creditor not a party who has a lien, and file with the Court a report for confirmation containing a description of each parcel sold, the name of the purchaser and the price, and upon confirmation, distribute the sale proceeds to the parties according to their interests. A copy of the March 19, 2019, Supplemental Order (“Supplemental Order”) is annexed hereto as Exhibit B. 1 of 79 FILED: KINGS COUNTY CLERK 09/20/2023 04:56 PM INDEX NO. 504785/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/20/2023 4. Plaintiff, NANCY C. FRETTA, individually and as Trustee of the Louise Fretta Trust Dated October 21, 2013, and Defendants, ANNA FRETTA and VINCENZA FRETTA, (“Parties”) further entered into a Stipulation of Partial Discontinuance and filed with the Court on March 13, 2019, subject to the terms of a Settlement Agreement entered into as of March 13, 2019, in connection with the partition and sale of the property. A copy of the March 13, 2019, Stipulation of Partial Discontinuance (“Stipulation of Partial Discontinuance”) is annexed hereto as Exhibit C. A copy of the March 13, 2019, Settlement Agreement (“Settlement Agreement”) is annexed hereto as Exhibit D. 5. Your affiant hereby renders the following account of all proceeds received and disbursed by myself as Referee which are due to the Plaintiffs and Defendants from the sale of the property. 6. Upon consent of all parties, I entered into a contract of sale of the Property dated December 12, 2019, between the Referee and Hong Jian Liu (“Purchaser”) with the purchase price of $2,228,000 (“Contract”) for the Property. A copy of the Contract is annexed hereto as Exhibit E. 7. Pursuant to the Supplemental Order, I opened a Referee bank account as Referee and made a deposit of the down payment received from the Purchaser pursuant to the Contract in the amount of $222,800 on December 18, 2019, at Signature Bank located at 26 Court Street, Brooklyn, NY 11201 (“Referee’s Account”). 8. The Property was sold for the sum of $2,228,000.00 on March 20, 2020 (“Closing Date”) in accordance with the Contract and pursuant to the Supplemental Order. 2 2 of 79 FILED: KINGS COUNTY CLERK 09/20/2023 04:56 PM INDEX NO. 504785/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/20/2023 9. The following is an accounting of all sums received and paid by me as Referee related to the sale of the Property pursuant to the Supplemental Order and the Closing Memorandum of the Sale, a copy of which is annexed hereto as Exhibit F: (a) Total payments for the costs of closing were $140,726.66 ($191.45 of which were paid by me from my Referee Account). (b) An adjustment payable to Sellers in the amount of $339.92. (c) Wire Transfer of $20,000.00 to Nancy C. Fretta pursuant to the Settlement Agreement. (d) Bank Check of $20,000.00 to Anna Fretta pursuant to the Settlement Agreement. (e) Bank Check of $20,000.00 to Vincenza Fretta pursuant to the Settlement Agreement. 10. On March 31, 2022, pursuant to the Settlement Agreement, I made the following payments: (a) Wire Transfer of $334,553.70 to Kleinberg, Kaplan Wolff & Cohen, P.C. (b) Wire Transfer of $156,617.09 to L'Abbate, Balkan, Colavita & Contini, L.L.P. 11. On January 4, 2021, pursuant to the Settlement Agreement, I made the following payment: (a) Payment of $1,460.38 to National Grid. 12. As of January 4, 2021, there was a balance in my Referee Bank Account of $1,514,982.09. 13. On January 3, 2022, the Court So Ordered a Stipulation signed by the parties and myself as Referee (Hon. Lillian Wan, J.S.C.) which provided for the payment of interim distributions and Referee’s commission (the “Jan. 3, 2022 Order”). A copy of the Jan. 3, 2022, Order is annexed hereto as Exhibit G. 14. All payments required to be made pursuant to the Jan. 3, 2022, Order have been issued and received by each of the parties named therein. 3 3 of 79 FILED: KINGS COUNTY CLERK 09/20/2023 04:56 PM INDEX NO. 504785/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/20/2023 15. On March 8, 2023, the Court So Ordered a Supplemental Stipulation signed by the parties and myself as Referee and Amended Ordered by the Court (Hon. Karen B. Rothenberg) which provided for the payment of Final Distributions and Referee’s Commission (the “Mar. 8, 2023 Order”). A copy of the Mar. 8, 2023, Order is annexed hereto as Exhibit H. 16. All payments required to be made pursuant to the Mar. 8, 2023, Order have been issued and received by each of the parties named therein. 17. A copy of the Account Ledger for the Referee’s Bank account in connection with this matter is annexed hereto as Exhibit I. A copy of the Bank Statement of May 2023 of the Referee’s Bank account in connection with this matter is annexed hereto as Exhibit J. Both the Account Ledger and the Bank Statement show a balance of $0.00. 18. I have completed, executed and returned the Notice of Appointment and Certification of Compliance from UCS 872 to the Fiduciary Clerk, A copy of which is annexed hereto a Exhibit K. 19. All obligations and requirements of myself as Referee and the parties pursuant to any stipulation, order or statute have been completed. WHEREFORE, I respectfully request that an Order be issued: 1. Restoring this action to the active calendar; 2. Discharging me as Referee of any and all obligations and requirements hereunder; 3. Discontinuing this action with prejudice and without any costs to any party; and 4. For such other and further relief as may be required by this Court. Dated: Brooklyn, New York September 20, 2023 ____________________________________ BRUNO F. CODISPOTI, Referee 4 4 of 79 FILED: KINGS COUNTY CLERK 09/20/2023 04:56 PM INDEX NO. 504785/2017 NYSCEF DOC. NO. 107 RECEIVED NYSCEF: 09/20/2023 Exhibit A 5 of 79 INDEX INDEX NO. NO. 504785/2017 504785/2017 FILED: FILED: KINGS KINGS COUNTY COUNTY CLERK CLERK 09/20/2023 01 17 2018 04:56 PM NYSCEF NYSCEF DOC. DOC. NO. 73 NO. 107 RECEIVED RECEIVED NYSCEF: 01/19/2018 NYSCEF: 09/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS: TRIAL TERM PART 35 x NANCY C. FRETTA, individually and as Trustee of the Louise Fretta Trust Dated October 21, 2013, uM Plaintiff, Index No: 504785/17 __.-- -against- DECISION AND ORDER ANNA FRETTA and VINCENZA FRETTA, Defendants, x Recitation as required by CPLR 2219(a). of the papers considered in plaintiff's motion for summary judgment pursuant to RPAPL §901(1) for partition and pursuant to CPLR defendants' 321 l(b) dismissing the defendants affirmative defenses and cross-motion to amend and for partial summary judgment. Papers Numbered Order to Show Cause/Motion and Affidavits Annexed. 1 Cross-motion and affidavits annexed............................ 2 Answering Affidavits.................................................... Reply Papers................................................................... 3,4 Memoranda of law.......................................................... 5; 6: 7 Upon the foregoing cited papers, the Decision/Order on this motion: In this action, plaintiff, Nancy Fretta, individually and as Trustee of Louise Fretta Trust dated October 21, 2013 [hereinafter Nancy] moves for an order pursuant to CPLR 3212 granting her summary judgment against defendants Anna Fretta [Anna] and Vincenza Fretta [Vincenza], on her cause of action pursuant to RPAPL §901(1) for partition and sale of the 13th property located at 8005 Avenue, arooklyn. alock 6280, Lot 8, which is owned by the parties as tenants in common. Nancy also seeks an order pursuant to CPLR 321 1(b) dismissing Anna and Vincenza's affirmative defenses. Anna and Vincenza cross-move for an order pursuant to CPLR 3025(b) granting them leave to amend their verified answer to add additional counterclaims and upon amendment for an order granting them partial summary judgment under RPAPL Art. 15 declaring them the exclusive owners of the subject property. -1- 61 of of 79 5 HDEX INDEX NO. NO. 504785/2017 504785/2017 FILED: FILED: KINGS KINGS COUNTY COUNTY CLERK CLERK 09/20/2023 01 17 2018 04:56 PM NYSCEF NYSCEF DOC. DOC. NO. 73 NO. 107 RECEIVED RECEIVED NYSCEF: 01/19/2018 NYSCEF: 09/20/2023 parties' The parties to this action are siblings and the subject property is the childhood home. A Trust Agreement dated October 21, 2013 was created by their mother, Louise Fretta, for her own benefit, with a remainder to Nancy, Anna and Vincenza. Ownership of the subject property was transferred into the Trust pursuant to Article Two of the Trust and by a deed executed on October 21, 2013. The Trust Agreement named Nancy as sole trustee and provided her with discretion to sell or dispose of the corpus of the Trust and to make distributions of principal and income to the beneficiaries of the Trust. Article 5 of the Trust provided that upon Louise's death, the corpus of the Trust, including any real property held by the Trust, would be distributed in three equal shares to the parties, or their living issue, after the satisfaction of any mortgages on the property. Louise died on September 17, 2014. On February 12, 2016, Nancy, in her capacity as Trustee, paid the full existing reverse mortgage on the property and received a Satisfaction of Mortgage which was filed with the Office of the City Register of the City of New York on or about March 2, 2016. By operation of the Trust, title in the property then vested in Nancy, Anna and Vincenza, equally as tenants in common. In her affidavit in support of this motion, Nancy states that in the years since her mother's death, as a convenience to her sisters, she continued to pay all expenses related to the property out of the corpus of the Trust. She claims that she is bearing one-third of the expenses to keep and maintain the property, while her sisters are deriving one hundred percent of the benefits of ownership and possession. Nancy further claims that disagreements have arisen between the sisters regarding the use, occupancy, control and disposition of the property and that she no longer wishes to own the property as a tenant in common with them. Nancy states that since late 2015 she has offered to sell her share of the property to her sisters, but they have refused to offer her a fair price and will not agree to sell the property to a third party. further states that although the property, which consists of a four-story, two- Nancy family residence, has a separate electrical meter and separate entrance for a fourth floor apartmem, has one roof, one basement, one boiler and heating system, one hot water tank, one gas main, one sewer service, one main water supply, one real estate tax liability and therefore it is not practical to divide it into three equal parcels. Nancy contends that any attempt to physically partition the property would cause great prejudice and significantly devalue the property. In opposition to the motion and in support of the cross-motion, Anna submits an affidavit on behalf of herself and her sister, Vincenza. In her affidavit, Anna states that pursuant to a Durable Power of Attorney [POA] signed by Louise on March 13, 2006, appointing Nancy her agent and power of attorney, Nancy was restricted in the amount she could gift herself. Specifically, Anna points to paragraph 18 of the PGA which provides that "any gift in any year to or for the benefit of my attorney shall not exceed the maximum annual Code..." exclusion provided for by the federal Internal Revenue Based on this provision, -2- 72 of of 79 5 FILED: FILED: KINGS KINGS COUNTY COUNTY CLERK CLERK 09/20/2023 01 17 2018 04:56 PM INDEX INDEX NO. NO. 504785/2017 504785/2017 NYSCEF NYSCEF DOC. DOC. NO. NO. 107 73 RECEIVED RECEIVED NYSCEF: NYSCEF: 09/20/2023 01/19/2018 Anna states that Nancy, as power-of-attorney, by the subject into the transferring property trust in which she had a remainder interest, gifted herself more than what she inappropriately was permitted, which, at most, was $14,000, the "maximum annual exclusion provided for by the Federal Internal Revenue Code", and, therefore, is not entitled to a 1/3 interest in the property. Based thereon, Anna and Vincenza seek to amend their verified answer to assert a second counterclaim, under Article 15 of the RPAPL, for a judgment them the declaring owners of the property as tenants in common and upon amendment, an award of summary judgment on this counterclaim. Anna and Vincenza also seek to add a third counterclaim for abuse of process arising from Nancy's commencement and prosecution of certain eviction proceedings against them and a fourth counterclaim arising out of Nancy's breach of her fiduciary duty, and for self-dealing and waste. In regard to the proposed fourth counterclaim, Anna states that Nancy obtained a reverse mortgage encumbering the premises to obtain funds to make up for losses incurred by Louise as a result of improvident investments made by Nancy, as her agent, during Louise's lifetime. In order to pay for the reverse rnortgage, Nancy, after Louise's death forced the sale of another property, which was also an asset of the Trust. Anna also states that Nancy has failed to distribute other assets of the Trust upon Louise's death and has improperly used Trust assets to pay her own legal expenses in this action. Anna further states that to date, Nancy has never provided an accounting and has ignored her request for same. Lastly, Anna states that if the court does grant summary judgment to Nancy, it should not order that the house be sold as a physical partition can be made and includes a letter from a real estate broker stating the possible monthly rent for the apartment. "A plaintiff establishes his or her right to summary judgment on an action for partition property" and sale by demonstrating ownership and right to possession of the (Cadle Company v Calcador, 85 AD3d 700, 702 [2d Dept 201 l ]). Here, Nancy establishes prima facie entitlement to summary judgment for partition of the subject property and for dismissal of Anna and Vincenza's first and second affirmative defenses by submitting a copy of the Trust Agreement, indicating that upon Louise's death, she and her sisters each acquired a 1/3 interest in the property as tenants in common. Contrary to Anna and Vincenza's contentions there are no issues of fact regarding Nancy's right to possession and ownership of the property, which is all that is needed to maintain the partition action (see RPAPL §901 [1] ; Dalmacy v Joseph, 297 AD2d 329 [2d Dept 2002]). Anna and Vincenza's claim that Nancy inappropriately gifted herself a 1/3 ownership interest in the home is without merit. Firstly, the POA provided for the transfer of Louise's real estate into a trust. Moreover, the Trust did not change the distribution of the property as provided for in Louise's will dated October 10, 2003, annexed as an exhibit to the reply papers. Further, the cases cited by Anna and Vincenza including, Matter of Ferrara, 7 NY3d 244 [2006]) and Matter of Audrey Carlson Revocable Trust, 59 AD3d 538 [2d Dept 2009]), involving agents gifting to themselves are materially different and distinguishable. Unlike the cited cases, the transfer of the subject -3- 83 of of 79 5 FILED: FILED: KINGS KINGS COUNTY COUNTY CLERK CLERK 09/20/2023 01 17 2018 04:56 PM INDEX INDEX NO. 504785/2017 NO. 504785/2017 NYSCEF DOC. NYSCEF DOC. NO. NO. 107 73 RECEIVED RECEIVED NYSCEF: 09/20/2023 NYSCEF: 01/19/2018 property to the Trust, made while Louise was still alive and retained a power of appointment of the principal, did not give Nancy a present interest in the property, an essential element of a gift (see Gruen v Gruen, 68 NY2d48[1986]). Additionally, Anna and Vincenza cannot sustain their third affirmative defense of unclean hands as their allegations pertain to inappropriate conduct to the use and relating distribution of certain Trust assets and not conduct directly related to the property, which is the subject matter of this litigation (see Goldberg v Goldberg, 173 AD2d 679 [2d Dept 1991]). Nancy also establishes, prima facie, her entitlement to summary judgment directing that the real property be partitioned and sold by showing that the subject