Matter of Neustein
2010 NY Slip Op 51612(U) [28 Misc 3d 1236(A)]
Decided on September 13, 2010
Sur Ct, Kings County
Johnson, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 13, 2010
Sur Ct, Kings County

In the Matter of the Estate of Abraham Neustein Deceased

Amy Neustein Plaintiff,


Estate of Abraham Neustein, JOSHUA NEUSTEIN, as purported executor of the Estate of Abraham Neustein, JOSHUA NEUSTEIN and FRIMA BURGER Defendants.


For Petitioner: Julia Pamela Heit, Esq., 142 East 16th Street, New York, NY 10003

For Defendants: Goldberg & Rimberg, PLLC, 115 Broadway, 3rd Floor, New York, NY 10006

Diana A. Johnson, J.

This action commenced on or about October 2002 in Supreme Court seeking to quiet title to real property, and for ejectment, wrongful eviction and damages appurtenant thereto was transferred by Supreme Court to this court. The property at issue is located at 235 Dover Street, Brooklyn, New York ("Property").

Pursuant to a deed executed on May 9, 2001 and recorded July 30, 2001, Amy Neustein ("Plaintiff") and her father Abraham Neustein, were made joint tenants of the Property [FN1]. On June 6, 2002, a deed was executed by Abraham Neustein transferring his interest in the Property to his other children, Joshua Neustein and Frima Burger.

The cause of action to quiet title pertained to the validity of the deeds executed on May 9, 2001 and June 6, 2002. In May 2009, the Court determined the deed of June 6, 2002 was void [*2]and did not serve to sever the joint tenancy with right of survivorship created by the deed of May 9, 2001. On October 13, 2009, the Court found that the deed of May 9, 2001 was valid and not the product of undue influence, and declared Plaintiff the absolute sole owner of the Property. On that same date, October 13, 2009, a stipulation was entered into surrendering possession of the Property to Plaintiff within forty-five days. The above findings made on the record by the Court in May and October 2009, were reduced to a written Interim Judgment and Order dated January 28, 2010. The remaining causes of action were heard on April 19, 2010, and June 14, 2010. Defendants called no witnesses, resting after moving for a directed verdict on the causes of action for ejectment and damages at the end of Plaintiff's case upon which the Court reserved decision.

The motion for a directed verdict as to the cause of action for damages is denied for the reasons stated below. The cause of action for ejectment is dismissed as moot based on Plaintiff now being in possession of the Property pursuant to the October 13, 2009 stipulation.

The Court finds based on the uncontroverted testimony of Plaintiff that Plaintiff was involuntarily precluded from occupying the subject Property. The record shows Joshua Neustein changed the locks denying Plaintiff access to the Property [FN2]. Plaintiff credibly testified that a few days after her father's death, Joshua Neustein called her in a rage telling her he had changed the locks and she would never go into the Property again. Plaintiff testified that after she spoke to him she gave a key to the Property to a friend who reported back to her that the key no longer worked as the locks had been changed. Plaintiff testified the first time she was able to gain access to the Property was in December 2009. This notwithstanding, she paid the liability insurance, fire insurance, water and sewage, and paid the property taxes through the third or fourth quarter of 2006.

Pursuant to RPAPL 601, Plaintiff may recover damages for the withholding of her Property, including the value of its use and occupation. Plaintiff was denied possession in late June 2002. Plaintiff received the Property back on December 1, 2009. Therefore the operative time period for any assessment of damages is July 1, 2002 through November 30, 2009.

Plaintiff presented the testimony of Jean Kulhan, a licensed associate real estate broker since 1973, who was deemed and qualified as an expert by the Court. She testified that in her expert opinion the rental value of the Property, which is located on a ocean block in a quiet residential area, during the relevant time period was $3000.00 per month. Defendants did not call any witnesses to rebut this testimony.

Based on the un-rebutted expert testimony, the Court finds the value of the use and occupancy of the Property for the period of July 2002 through November 2009 to be $3000.00 per month. Although defendants under RPAPL 601 would be entitled to a credit against damages for any permanent improvements made in good faith under color of title, no testimony as to same was elicited.

Accordingly the Court finds the damages for the withholding of the Property from Plaintiff to be the value of use and occupation/rental value of the Property at the sum of $3000 per month for the period July 2002 through November 2009 for a total of $267,000.00 (89 [*3]months at $3000/month). While defendant Joshua Neustein may have had at the time a good faith belief that Plaintiff only had a 50% interest in the Property, this does not diminish the amount of damages Plaintiff is entitled to, as she in fact had a unconditional right to possession and is entitled to the full value of the Property's use and occupancy (see Miceli v Riley, 79 AD2d 165 [2d Dept 1981]). The Court, however, declines to grant damages to Plaintiff based on the loss in value to the Property due to water damage and general neglect as no testimony was elicited regarding the cost to repair the Property.

Plaintiff also seeks treble damages pursuant to RPAPL 853. In opposition it is argued that Plaintiff is not entitled to treble damages as she was not in actual physical possession of the Property citing, ZCWK Assoc. v Spadaro, 233 AD2d 126 [1st Dept 1996]. However the Appellate Division in this Department has made it clear that to recover under RPAPL 853, actual physical occupancy is unnecessary, what is important is the legal right to possession, Lyke v Anderson, 147 AD2d 18 [2d Dept 1989]. Plaintiff by virtue of the May 2001 deed had the unconditional legal right to possess the Property.

Under RPAPL 853, trebling of damages is discretionary with the court (id.). An important consideration in determining whether treble damages are appropriate is whether the dispossession was intentional or not (see Clinkscale v Sampson, 48 AD3d 730 [2d Dept 2008]). Here there is no doubt Joshua Neustein's actions to exclude Plaintiff from the Property were intentional. Even giving defendant Joshua Neustein the benefit of the doubt that at the time he believed in good faith that as a co-tenant he had the right to occupy the Property, the law is clear that while a tenant in common has the right to take and occupy the whole of the premises, he or she can do so only as long as it does not interfere with the right of the other co-tenants to also occupy the premises (McIntosh v McIntosh, 58 AD3d 814 [2d Dept 2009]).

However the Court does not believe it proper to treble the total amount of damages constituting 100% of the value of the use and occupation of the Property. By virtue of the deed executed on June 6, 2002, defendant Joshua Neustein believed Abraham Neustein had transferred his 50% interest in the Property to him and Frima Burger, leaving Plaintiff a 50% owner of the Property. Were this deed valid, Plaintiff in consequence of her exclusion from the Property would only have been entitled to 50% of the monthly market rental value of the Property,$1,500.00 per month (Hufnagel v Burns, 152 AD2d 459 [1st Dept 1989]). Therefore the Court finds the trebling of damages is appropriate only as to that proportion of the monthly rental value Joshua Neustein believed he was depriving Plaintiff of, and not the portion of the rental value of the Property he believed at the time belonged to him and Frima Burger by virtue of the June 6, 2002 deed (see e.g. Mannion v Bayfield Dev. Co., 134 Misc 2d 1060 [Sup Ct, NY County 1987]), where court found it inappropriate to access treble damages in an eviction which was found to be jurisdictionally defective). The Court finds Plaintiff is entitled to treble damages with respect to ½ of the monthly rental value, to wit $1,500 for the period July 2002 through November 2009 in the sum of $400,500 (89 months x $1,500/month).

Accordingly the Court finds Plaintiff is entitled to recover total damages in the sum of $534,000.00 [ $133,500- ½ of the rental value of $267,000 not subject to treble damages, plus $400,500- ½ of the rental value of $133,500 trebled].

Having determined damages, the issue becomes against whom are they to be assessed. The Court agrees with defendants' counsel that no damages should be assessed against Frima [*4]Burger. There was no testimony she did anything to keep Plaintiff from possession of the Property. Her sole involvement in this action was as a purported 25% co-owner of the Property pursuant to the June 6, 2002 deed which this Court found to be void.

The protagonist of the events which occurred herein is Joshua Neustein, the question is whether his actions were taken as Executor of the Estate of Abraham Neustein or in his individual capacity. The Court finds his actions were taken in his individual capacity and not as the fiduciary of the Estate. The Property did not pass through the Estate of Abraham Neustein, therefore the claim that Joshua Neustein took possession of the Property in his fiduciary capacity is specious. Pursuant to the deed executed on May 9, 2001, Plaintiff and Abraham Neustein, were the joint tenants of the Property. On Abraham Neustein's death, Plaintiff became the sole owner. The Estate of Abraham Neustein had no interest in the Property at the time Joshua Neustein excluded Plaintiff from the Property. As such liability for the damages falls on him in his individual capacity, and Plaintiff Amy Neustein is entitled to recover damages of $534,000.00, from Joshua Neustein personally.

Additionally as defendant Joshua Neustein committed an act, "depriving or otherwise interfering with title to, possession or enjoyment of, property", CPLR 5001 (a), prejudgment interest should be awarded (North Main St. Bagel Corp. v Duncan, 37 AD3d 785 [2d Dept 2007]). Plaintiff is entitled to prejudgment interest on the entire amount of damages of $534,000.00, which includes the damages that were trebled pursuant to RPAPL 853 ( H & P Research, Inc v Liza Realty Corp., 943 F Supp 328 [SDNY 1996]; see also Stein v Einhorn, 74 AD3d 1185 [2d Dept 2010], prejudgment interest calculated on the treble damages). Pursuant to CPLR 5001(b), the interest on the damages shall be computed from July 2002 and each month thereafter in which damages was incurred. Such interest is to be calculated at the rate of 9% per annum, CPLR 5004.

This constitutes the decision of the court.

Settle Judgment


S u r r o g a t e

Dated: Brooklyn, New York

September 13, 2010


Footnote 1: Pursuant to the deed her mother Shirley Neustein retained a life estate in the Property. Shirley Neustien passed away on October 3, 2001.

Footnote 2: Defendant Joshua Neustein's deposition testimony of March 24, 2004 wherein he admitted changing the locks was read into the record.