At the time she purchased the property, there was a tenant in one part of the duplex. The other part of the building was not livable. Her husband took care of the rents, paid the bills, looked into possible financing from development funds. After learning there would be delay in obtaining such funds, his wife decided to give the property back to her father. In the meantime, the tenant moved out and the property was vacant at the time of the transfer.
Defendant has the burden to establish the exemption applied in a given case.
On this record, the defendant has raised questions of fact that must be determined by a jury as to the applicability of the exemption, and, any negligence. Neither party is entitled to summary judgment where there are questions of fact for a jury. Plaintiff's motion for summary judgment is denied as is defendant's motion for dismissal of the complaint. The signing, filing, and mailing of a copy by the Court of this Decision and Order to all Counsel shall not constitute notice of entry required by CPLR 2220. Counsel are not relieved from the applicable provisions of that section respecting notice of entry.