        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1325
CA 11-00240
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND SCONIERS, JJ.


NORTHERN TRUST, NA, AS ADMINISTRATOR OF THE
ESTATE OF RICHARD SARKIS, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PATRICIA A. DELLEY, DEFENDANT-APPELLANT.


MICHAEL J. CROSBY, HONEOYE FALLS, FOR DEFENDANT-APPELLANT.

RICHARD G. VOGT, P.C., ROCHESTER (LINDA J. VOGT OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Monroe County (Evelyn Frazee, J.), entered September 13, 2010.
The order and judgment, among other things, adjudged that plaintiff is
entitled to receive all the proceeds from the sale of 3900 East Avenue
in the City of Rochester.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.

     Memorandum: Defendant appeals from an order and judgment entered
following a nonjury trial that, inter alia, awarded plaintiff, as
administrator of the estate of Richard Sarkis (decedent), the proceeds
from the sale of 3900 East Avenue in Rochester (hereafter, property).
When decedent and defendant became engaged, he gave her a diamond ring
and amended the contract that he had executed to purchase the property
by adding defendant as an additional purchaser. The deed to the
property listed decedent and defendant as “joint tenants with right of
survivorship.” Decedent subsequently ended the engagement and
commenced this action pursuant to Civil Rights Law § 80-b for the
return of the ring and to have defendant’s name removed from the deed.

     Defendant contends that Supreme Court erred in permitting
plaintiff to continue the instant action because the property became
solely hers when decedent died. We reject that contention. The court
properly concluded that an action pursuant to Civil Rights Law § 80-b
raises issues regarding the title and ownership interest in real
property that survive the death of a party (see generally Von Bing v
Mangione, 309 AD2d 1038, 1041; Clapper v Kohls, 169 AD2d 860; Pass v
Spirt, 35 AD2d 858, lv denied 27 NY2d 490). Unlike a pending
partition action (see generally Goetz v Slobey, 76 AD3d 954) or a
pending divorce action (see generally Kahn v Kahn, 43 NY2d 203, 207),
                                 -2-                          1325
                                                         CA 11-00240

a section 80-b action for the return of real property is not
extinguished upon the death of the party who commenced the action,
even where, as here, the subject property is held as joint tenants
with right of survivorship.

     We reject defendant’s further contention that the court erred in
awarding the proceeds from the sale of the property to plaintiff. “On
a bench trial, the decision of the fact-finding court should not be
disturbed upon appeal unless it is obvious that the court’s
conclusions could not be reached under any fair interpretation of the
evidence, especially when the findings of fact rest in large measure
on considerations relating to the credibility of witnesses” (Claridge
Gardens v Menotti, 160 AD2d 544, 544-545; see Thoreson v Penthouse
Intl., 80 NY2d 490, 495, rearg denied 81 NY2d 835; Treat v Wegmans
Food Mkts., Inc., 46 AD3d 1403, 1404). In order to recover property
pursuant to Civil Rights Law § 80-b, a plaintiff must demonstrate that
he or she gave the property as a gift in “sole consideration . . .
[of] a contemplated marriage which has not occurred . . . .” The
Court of Appeals has interpreted “ ‘consideration’ ” to mean “motive
or reason” (Gaden v Gaden, 29 NY2d 80, 86). Here, the court’s
conclusion that the property was given solely in consideration of
marriage is supported by the record and is based on a “ ‘fair
interpretation of the evidence’ ” (Treat, 46 AD3d at 1404).

     We have reviewed defendant’s remaining contentions and conclude
that they are without merit.




Entered:   December 30, 2011                    Frances E. Cafarell
                                                Clerk of the Court
