Brady V. Varrone

Court: New York Appellate Division, Second Department (2009)

Citation: 2009 WL 2516943 (N.Y.A.D. 2 Dept.), 2009 N.Y. Slip Op. 06228

Background: Our client, Stephen Brady (plaintiff), his sister (defendant) and her husband bought a piece of property together in 1994. The original 1994 deed provided that Stephen Brady was a one-half owner and the other half was owned by his sister and brother-in-law. Mr. Brady paid half the down payment and began making half of the mortgage payments.

The sister and her husband divorced in 2000, and the sister's husband conveyed the premises to Mr. Brady and his sister in 2001. The 2001 deed stated that Mr. Brady now held a one-third interest in the property and his sister held two-thirds interest.

Mr. Brady moved out of the house in April 2002 and, in 2005, commenced a court action to partition and sell the property. In that action, a dispute arose over whether Mr. Brady should be credited for payments in excess of his one-third interest.

Details of the case: The Supreme Court in Nassau County held that Mr. Brady should receive one third of the proceeds of the sale but, because he had based his property rights on the 2001 deed, the court rejected his claims for any overpayments made before 2001. Mr. Brady appealed.

Decision: The Appellate Division found in favor of our client, awarding him "credit for the sums he paid in excess of his interest" as well as reducing a credit that the Supreme Court had awarded his sister. Our client received one-third of the sale proceeds and reimbursement for nearly $35,000 in overpayments.

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