Lusk v. McNamee

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CV-24-1583 CV-25-1843

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Lusk v McNamee

2026 NY Slip Op 04536 July 23, 2026

Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Jeanne Marie Lusk, Appellant,

Dardis McNamee, Respondent.

Decided and Entered:July 23, 2026

CV-24-1583 CV-25-1843

Calendar Date: May 27, 2026

Before: Aarons, J.P., Pritzker, Ceresia, Fisher And Mcshan, JJ.

William A. Thomas, New York City, for appellant.

Hacker Murphy LLP, Schenectady (Benjamin F. Neidl of counsel), for respondent. [*1]

Fisher, J.

Appeals (1) from an order of the Supreme Court (Thomas Marcelle, J.), entered August 16, 2024 in Albany County, which partially granted defendant's motion for, among other things, summary judgment dismissing the complaint, (2) from an order of said court, entered August 27, 2024 in Albany County, which partially denied plaintiff's motion to amend the complaint, (3) from an order of said court, entered May 27, 2025 in Albany County, which, upon reargument, adhered to its prior determination partially granting defendant's motion for, among other things, summary judgment, and (4) from a judgment of said court, entered July 2, 2025 in Albany County, upon a decision of the court in favor of defendant on her counterclaim for ejectment.

In 2019, plaintiff sought to prevent an imminent tax foreclosure sale of her home in the Town of Rensselaerville, Albany County. Following verbal and written discussions with defendant, her neighbor, plaintiff executed a real estate purchase agreement, deed and demand promissory note in favor of defendant. In return, defendant agreed to pay the full amount of back taxes to save the property from foreclosure, and further permitted plaintiff to continue to live in the home as a tenant, subject to certain terms. Shortly after the transaction, a dispute arose over ownership of the property. Defendant commenced an eviction proceeding in town court and plaintiff commenced this action seeking, among other things, a declaration that the transaction constituted a loan, as well as compensation for damages caused by trespass, intentional infliction of emotional distress and a violation of Real Property Law § 265 (a). Defendant joined issue and asserted various counterclaims, including for a declaration that the transaction constituted a conveyance of real property and for quiet title. The eviction proceeding was stayed and the parties engaged in disclosure. Thereafter, defendant moved for summary judgment dismissing the complaint and for a judgment on some of her counterclaims, as well as for leave to amend the answer to assert a counterclaim for ejectment. Plaintiff opposed and cross-moved to amend the complaint to add additional defendants and claims, predominantly sounding in fraud. Supreme Court determined that the parties' agreements were ambiguous and that, upon consideration of parol evidence, the parties' transaction constituted a sale of the property. As a result, Supreme Court partially granted defendant's motion and dismissed all but the second cause of action in the complaint. The court also granted defendant leave to amend the answer to add a proposed counterclaim for ejectment and, except for the second cause of action which was repleaded as the sixth cause of action, denied plaintiff's cross-motion to amend the complaint. Plaintiff moved to reargue the court's summary judgment determination, which Supreme Court denied, but it considered a new argument, ultimately adhering to its prior determination. Defendant then moved [*2]by order to show cause for summary judgment on her counterclaim for ejectment. After a hearing, Supreme Court granted defendant's motion and entered judgment in her favor on this counterclaim. Plaintiff appeals from the order partially granting defendant's motion for summary judgment, the order partially denying plaintiff's motion to amend her complaint, the order adhering to the prior summary judgment determination upon reargument, and the judgment in defendant's favor on her ejectment counterclaim.

We affirm. "The fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent" (Donohue v Cuomo, 38 NY3d 1, 12 [2022] [internal quotation marks and citations omitted]). "What the parties say in their writing provides us with the best evidence of this intent, and when a written contract is complete, clear and unambiguous on its face, we must enforce its plain terms" (Dibrino v Rockefeller Ctr. N., Inc., ___ NY3d ___, ___, 2025 NY Slip Op 07077, *2 [2025] [internal quotation marks, brackets and citations omitted]). Therefore,

"[u]nless there is an ambiguity, extrinsic evidence beyond the four corners of the document as to what was really

intended but unstated or misstated is generally inadmissible to add to or vary the writing" (O'Brien v Sagbolt LLC, 246 AD3d 111, 114 [3d Dept 2025] [internal quotation marks and citation omitted]). However, extrinsic evidence is available to resolve an ambiguity "if the agreement, read as a whole, fails to disclose its purpose and the parties' intent, or when specific language is susceptible of two reasonable interpretations" (Mulacek v ExxonMobil Corp., 42 NY3d 931, 933 [2024] [internal quotation marks, ellipsis and citation omitted]). "In determining whether a contract is ambiguous, the court should examine the entire contract and consider the relation of the parties and the circumstances under which it was executed. Particular words should be considered, not as if isolated from the context, but in the light of the obligation as a whole and the intention of the parties as manifested thereby" (Hogan v Bullock, 233 AD3d 1321, 1324 [3d Dept 2024] [internal quotation marks and citations omitted]). To that end, "instruments that were executed at substantially the same time, relate to the same subject-matter, and are contemporaneous writings must be read together as one" (Nationstar Mtge. LLC v Goeke, 151 AD3d 1237, 1238 [3d Dept 2017] [internal quotation marks, brackets, ellipsis and citation omitted]; see Harris v Reagan, 161 AD3d 1346, 1349 [3d Dept 2018]). Here, plaintiff's home had been in foreclosure for several years and she owed approximately $135,000 in back taxes. According to defendant, she discussed with plaintiff, her then-friend and neighbor, the prospect of defendant purchasing the property and having plaintiff remain on the premises as a tenant so that plaintiff could satisfy her outstanding tax debt and still live on the property. According to [*3]plaintiff, she understood the proposed transaction to be a loan for the funds necessary to satisfy her property tax obligations. Plaintiff, who was unrepresented by counsel at the time, testified that she travelled to defendant's attorney's office to sign the transaction documents on the final day to prevent a foreclosure on the property. The purchase agreement and corresponding deed purportedly transferred the property from plaintiff to defendant for the exact amount of plaintiff's tax liability. Meanwhile, the promissory note signed by plaintiff in favor of defendant allowed for defendant to call for repayment of the entire amount of back taxes. As each document was executed on the same day concerning the same subject matter, these documents are

"contemporaneous writings and must be read together as one" (1471 Second Corp. v NAT of NY Corp., 162 AD3d 449, 450 [1st Dept 2018] [internal quotation marks and citation omitted]; accord BGC Notes, LLC v Prusse, 237 AD3d 530, 532 [1st Dept 2025]; see Nationstar Mtge. LLC v Goeke, 151 AD3d at 1238) as they collectively form the agreement from which ambiguity is determined (see U.S. Bank N.A. v GreenPoint Mtge. Funding, Inc., 157 AD3d 93, 100 [1st Dept

2017]).

As Supreme Court found, when read together, these three documents are ambiguous as to the parties' true agreement; although the existence of the deed and the express terms of the purchase agreement indicate that a "convey[ance] and transfer" of the property in exchange for the back taxes was contemplated, the note reflects only a debt by plaintiff for the amount of back taxes which is enforceable in the event of default. Accordingly, there is a basis for a "reasonable difference of opinion . . . as to the meaning of the contract language" (Catskill Barbeque, LLC v Mid-Hudson Co-Op. Ins. Co., 237 AD3d 1462, 1463 [3d Dept 2025] [internal quotation marks, brackets and citations omitted]). As resorting to extrinsic evidence is thus appropriate, this Court turns to an email exchange from the day before the documents were signed. These emails purportedly set forth the "terms" of the parties' transaction, plainly reciting that the parties contemplated a transfer of "title to the property" from plaintiff to defendant and a resulting tenancy for plaintiff, an arrangement plaintiff stated was "[a]cceptable."

Plaintiff's deposition testimony that she nonetheless believed that she was negotiating a loan is simply belied by the record. When further considering the accelerated timing of the transaction due to the foreclosure sale and defendant's inability to obtain title insurance prior to the planned closing date, the promissory note served the purpose set forth in defendant's communications with her counsel, i.e., as a means to "bridge the gap" so that, in the event defendant ultimately did not become satisfied as to the state of title, she could decline to proceed with the sale and separately recover the tax payments she would have made on plaintiff's behalf[*4]. That reading is further confirmed by the language of the purchase agreement, which states that defendant could choose to record the deed or could choose not to do so until she was "satisfied as to good and marketable title." Based on the foregoing, Supreme Court, upon reviewing the extrinsic evidence and seeking to "harmonize[ ]" the language of the parties' agreements, did not err in concluding that the parties' agreement contemplated a transfer of the property, with the promissory note serving as a contingency plan in the event defendant was not satisfied with the state of title (Dibrino v Rockefeller Ctr. N., Inc., ___ NY3d at ___, 2025 NY Slip Op 07077, *3; see Olivieri v Barnes & Noble, Inc., 208 AD3d 1001, 1004 [4th Dept 2022]; Mid-State Indus., Ltd. v State of New York, 117 AD3d 1255, 1257 [3d Dept 2014]). Accordingly, Supreme Court properly awarded defendant summary judgment.^FN1

In light of this determination, we conclude that Supreme Court properly adhered to its prior decision upon reargument (see Matter of Manufacturers & Traders Trust Co. v J.D. Mar. Serv., 187 AD3d 1249, 1251 [3d Dept 2020]).^FN2 In her motion to reargue, plaintiff contended that the proof demonstrated that defendant had never obtained title insurance for the property or verified that title to it was clear, and, as a result, under Supreme Court's own reading of the parties' agreement, the promissory note never ceased to have effect and continued to establish that the parties had entered into a loan rather than a sale of the disputed property. Although it is presumed in all transactions for the sale of real property that a "marketable title is to be conveyed," which is title "reasonably free from any doubt which would interfere with its market value" (Voorheesville Rod & Gun Club v E.W. Tompkins Co., 82 NY2d 564, 571 [1993] [internal quotation marks and citation omitted]), parties may contract around defects in title (see e.g., Regan v Lanze, 40 NY2d 475, 482 [1976] ["a purchaser is entitled to a marketable title unless the parties stipulate otherwise in the contract"]; Hiu Ian Cheng v Salguero, 164 AD3d 768, 769 [2d Dept 2018]; Venetoklis Family L.P. v Kora Devs., LLC, 74 AD3d 1057, 1058-1059 [2d Dept 2010]; Janian v Barnes, 294 AD2d 787, 789 [3d Dept 2002]). Under the circumstances, even if the ambiguities surrounding plaintiff's acquisition of the property rendered her title unmarketable, defendant "agree[d] to accept less than marketable title" (Janian v Barnes, 294 AD2d at 789; see Beagle Devs., LLC v Long Is. Beagle Club No. II, Inc., 63 AD3d 607, 608 [1st Dept 2009]; EMF Gen. Contr. Corp. v Bisbee, 6 AD3d 45, 51 [1st Dept 2004], lv dismissed 3 NY3d 656 [2004], lv denied 3 NY3d 607 [2004]). Since defendant proceeded with the sale of the property and recorded the deed, the promissory note ceased to have effect and, therefore, Supreme Court properly adhered to its original summary judgment determination.

Next, plaintiff contends that Supreme Court erred in denying [*5]her motion to amend the complaint. We disagree. "The

rule on a motion for leave to amend a pleading is that, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" (Walden v Varricchio, 195 AD3d 1111, 1113 [3d Dept 2021] [internal quotation marks and citations omitted]; see CPLR 3025 [b]). "Supreme Court, which has considerable latitude in exercising its discretion, may consider how long the party seeking the amendment was aware of the facts upon which the motion was predicated and whether a reasonable excuse for the delay was offered," and its determination will not be disturbed absent an abuse of that discretion (NYAHSA Servs., Inc., Self-Ins. Trust v People Care Inc., 156 AD3d 99, 103 [3d Dept 2017] [internal quotation marks, brackets and citations omitted]; see Bailey v Village of Saranac Lake, Inc., 100 AD3d 1089, 1090 [3d Dept 2012], lv dismissed 20 NY3d 1053 [2013]).

Here, plaintiff moved to amend the complaint to add six new codefendants, seven new causes of action and to increase her demand for punitive damages by $19 million. The factual predicate for such amendment almost exclusively concerned events occurring in 2019 and 2020, and most of the proposed codefendants and new causes of action had already been part of a federal lawsuit that was voluntarily discontinued by plaintiff in 2021. Rather than amending her complaint at that time, disclosure continued for over two years before defendant moved for summary judgment and plaintiff finally sought to incorporate some of her discontinued federal claims in state court â this time adding new parties and claims. Although plaintiff alluded to changes in counsel and COVID-19 litigation delays in her motion papers, she did not offer these as an excuse for her delay in seeking the present amendments â nor does she do so on appeal. While a two-year delay does not bar an amendment, plaintiff failed to offer any satisfactory excuse for the delay (see CitiMortgage, Inc. v Nunez, 198 AD3d 865, 866 [2d Dept 2021]; Vermont Mut. Ins. Co. v Mowery Constr., Inc., 96 AD3d 1218, 1219 [3d Dept 2012]; Thibeault v Palma, 266 AD2d 616, 617 [3d Dept 1999]). When further considering this unexplained delay coupled with the significant change in her claims, the addition of new parties and her request for significantly more damages which would result in unfair surprise and prejudice to defendant, we cannot say that Supreme Court abused its discretion in denying plaintiff's cross-motion to amend her complaint (see CitiMortgage, Inc. v Nunez, 198 AD3d at 866; Walden v Varricchio, 195 AD3d at 1113).^FN3

Lastly, plaintiff contends that Supreme Court erred in granting summary judgment on defendant's counterclaim for ejectment on the grounds that she was entitled to six months' notice of termination. "To demonstrate entitlement to judgment on a cause of action for [*6]ejectment, a [party] must establish [that] (1) it is the owner of an estate in tangible real property, (2) with a present or immediate right to possession thereof, and (3) the [opposing party] is in present possession of the estate" (Esposito v Larig, 241 AD3d 782, 786 [2d Dept 2025] [internal quotation marks and citations omitted]; see GMMM Westover LLC v New York State Elec. & Gas Corp., 155 AD3d 1176, 1178 [3d Dept 2017]).A property owner is required to serve a notice to quit on a tenant before commencing an ejectment action so long as the tenant is not one "who wrongfully holds over after expiration of a fixed and definite term" (Alleyne v Townsley, 110 AD2d 674, 675 [2d Dept 1985]; see Livingston v Tanner, 14 NY 64, 65, 67 [1856]; Gerolemou v Soliz, 184 Misc 2d 579, 580 [App Term, 2d Dept 2000]; Hsiu v Trujillo, 192 Misc 2d 147, 151-152 [Sup Ct, Bronx County 2002]; see also Domen Holding Co. v Aranovich, 1 NY3d 117, 125 [2003]; Esposito v Larig, 241 AD3d at 786; 406 W. 48th LLC v Vaituzis, 74 AD3d 549, 549-550 [1st Dept 2010]). Although ejectment has been codified under article 6 of the RPAPL,

"[t]he notice to quit requirements, as to tenancies other than at will and at sufferance, are among those procedures never codified" (Kosa v Legg, 12 Misc 3d 369, 382 [Sup Ct, Kings County 2006]; see Olympic Galleria, Co., Inc. v Sitt,

241 AD3d 1092, 1093-1094 [1st Dept 2025]; Hetfield v Lawton, 108 App Div 113, 115 [3d Dept 1905]). It remains true that "the common-law principles governing the ejectment action are unchanged, unless explicitly modified by statute"

(Olympic Galleria, Co., Inc. v Sitt, 241 AD3d at 1093 [internal quotation marks, brackets and citation omitted]). However, courts have dispensed with the notice to quit requirement under specific circumstances such as a "surfeit of notice" (East 82 v O'Gormley, 295 AD2d 173, 174 [1st Dept 2002] [internal quotation marks omitted]), or after prior unsuccessful holdover actions (see 769 E. LLC v Ofori, 226 AD3d 464, 465-466 [1st Dept 2024]). Here, we are satisfied that defendant established a prima facie case for ejectment (see 302 W. 87th St. LLC v SHS Upper City NY II LLC, 241 AD3d 1114, 1114 [1st Dept 2025]; GMMM Westover LLC v New York State Elec. & Gas Corp., 155 AD3d at 1178). Turning to plaintiff's contention, the record reveals that defendant served a notice to quit on plaintiff in October 2019 and then initiated an eviction proceeding by filing a holdover petition in town court. This represents a time period of over four years before defendant sought permission to amend her answer to include the counterclaim of ejectment, an amendment consented to by plaintiff. Even if plaintiff genuinely believed the transaction constituted a loan and that she remained the property owner, it is undisputed that she did not tender any rent â or loan payments â to defendant during these four years and, therefore, her continued possession of the property remained untenable under her own version of the facts[*7]. We find that, under the highly unique circumstances of this case, the foregoing satisfies any notice requirement, statutory or at common law, that would be applicable here (see 769 E. LLC v Ofori, 226 AD3d at 465-466; East 82 v O'Gormley, 295 AD2d at 174). When further considering the balance of the record and her opposition, we conclude that plaintiff failed to raise a triable issue of fact precluding summary judgment on defendant's counterclaim for ejectment (see 302 W. 87th St. LLC v SHS Upper City NY II LLC, 241 AD3d at 1114; Noamex, Inc. v Domsey Worldwide, Ltd., 192 AD3d 817, 819 [2d Dept 2021]; GMMM Westover LLC v New York State Elec. & Gas Corp., 155 AD3d at 1178-1179; Alleyne v Townsley, 110 AD2d at 675). Accordingly, Supreme Court properly granted defendant's motion. We have examined the remaining contentions of the parties and have found them to be without merit or rendered academic.

Aarons, J.P., Pritzker, Ceresia and McShan, JJ., concur.

ORDERED that the orders and the judgment are affirmed, with costs.

Footnotes

Footnote 1 Supreme Court granted defendant's counterclaims for a declaratory judgment and quiet title. To the extent that

defendant's counterclaim seeking a declaration is, in effect, one for quiet title, the relief sought for a declaratory judgment is duplicative and unnecessary to address given the adequate remedy available to her at law (see Matter of Central Hudson Gas & Elec. Corp. v State of N.Y. Pub. Serv. Commn., 242 AD3d 33, 36-37 [3d Dept 2025]; see also Matter of Morgenthau v Erlbaum, 59 NY2d 143, 149 [1983], cert denied 464 US 993 [1983]). Footnote 2

Although Supreme Court purported to deny plaintiff's motion to reargue, we note that the court's order in effect granted plaintiff's motion by addressing the merits in the course of denying the same, rendering the order appealable as of right (see Peak Prop. & Cas. Ins. Corp. v Mulverhill, 239 AD3d 1169, 1170 n [3d Dept 2025]; Matter of Kitto v City of Albany, N.Y. Dept. of Police, 213 AD3d 1165, 1168 n 2 [3d Dept 2023]).

Footnote 3

We further note that the proposed amended complaint failed to conform with the requirements of CPLR 3025 (b) (see CitiMortgage, Inc. v Nunez, 198 AD3d at 865).

Lusk v. McNamee

Lusk v. McNamee

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