Leshold Realty Corp. v Makkas

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Leshold Realty Corp. v Makkas 2004 NY Slip Op 30369(U) December 15, 2004 Supreme Court, Orange County Docket Number: 3152-2002 Judge: Lawrence Ivan Horowitz Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 0311.::1 1VNIOll:t0 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE ----------------------------------------------------------------------------->< J..,ao t t<; J30 301.::t.::tO S.>1~310 AlNOOO 3DNYYO LESHOLD REAL TY CORP., Plaintiff, - against- Index No. 3152/02 Order and Decision ANGELO MAKKAS, KONSTANEINOUS G. MAKKAS, LIGERIE L. MAKKAS and TRAVELERS BANK & Trust, FSB, Action #1 Defendants. ----------------------------------------------------------------------------->< CITICORP TRUST BANK, FSB f/k/a et al., Third-Party Plaintiff, - against- Index No. 1263/03 Action #2 LIGERIE L. MAKKAS, KONSTANEINOUS G. MAKKAS, LESHOLD REAL TY CORP., et al., Defendant. ----------------------------------------------------------------------------->< HOROWITZ, J.S.C., Pursuant to CPLR §602, the Plaintiff-Defendant Leshold Realty Corporation moved for an order consolidating the above actions, for the purposes of conducting discovery and for trial, upon the grounds that each action involves common questions of law and facts, similar issues, similar facts to be determined, and the outcome of each action is dependent upon the other actions. On November 30, 2004, This Court denied that motion on the grounds that Action #2 was not a pending case, assigned to this Court. In response to the original motion, the Defendant Travelers Bank and Third Party Plaintiff Citicorp Trust Bank had filed a cross motion, pursuant to CPLR Rule 3212, seeking summary judgment against Leshold Realty Corp., dismissing that Plaintiff's complaint in Action #1, and striking Leshold's answer in Action #2, upon the grounds that there are no issues of fact for this Court to determine. The Plaintiff opposes the requested relief. The Plaintiff alleged that the Movant's papers [* 2] required the affirmation of one of the Plaintiff's officers, or a person having knowledge of the transaction. Further, the Plaintiff alleges that there were issues concerning whether Citicorp is a bona fide purchaser for value. In reply, the Movant Bank argues that (1) Citicorp was a bona fide purchaser for value, (2) the statute of limitations expired that required that the Plaintiff commence this litigation to set aside the conveyance, as a fraudulent conveyance, within five years of the conveyance, (3) Laches barred the Plaintiff's claim, (4) Equitable Estoppel doctrine barred the Plaintiffs action against Citicorp, (5) the Plaintiff's Complaint in Action No. 1, and answer in Action No. 2, do not seek relief to set aside Citicorp's mortgage, and (6) Citicorp was a bona fide purchaser under the recording act. The following papers, numbered 1 to 6, were read upon this application: Notice of Motion - Affirmation of John R. Kelligrew, Esq. . . . . . . . . . . . . . . . . . . . . . Annexed Exhibits 1 and 2 . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notice of Cross-Motion, affidavit of Gloria Sexton, Exhibits A to K. . . . . . . . . . . . . . . . . . . . Answering Affirmation of John Kelligrew and Affidavit of Leslie Wagner . . . . . . . . . . . . . . . Exhibit Volume containing Exhibits 3 to 15 . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reply Affirmation ................................................. ·~ . . . . . . . . 1 2 3 4 5 6 Based on the foregoing papers, and information supplied by the Part Clerk, the Defendant Traveler's Bank & Trust, FSB, and the Third Party Citicorp Trust Bank's "crossmotion" is DENIED. Branches of the Banks' cross motion involving Index No. 1263-2003 As stated above, the Plaintiff was denied consolidation of Action #1 and Action #2, because the Part Clerk advised this Court that Index No 1263-2003 (Action #2) is a disposed matter that was assigned to Justice Patsolos. As such, it was not eligible for consolidation, with Action #1. Therefore, this Court has no jurisdiction to grant any relief concerning Action No. 2 (Index No. 03-1263) and all branches of the Banks' motion involving the foreclosure action at Action No. 2 are DENIED. Legal Discussion Concerning Action No. 1 [* 3] A summary judgment motion must be granted if, upon all the papers and proof submitted, the instant Movants establish that there is no factual dispute and the Defendant Bank is entitled to a finding that the Plaintiff has no cause of action against it. However, a summary judgment motion must be denied where a party shows facts sufficient to require a trial of any factual issue (see, Lan Duong v. City University, 150 AD2d 349 [2nd Dept. 1989]). In determining the instant summary judgment motion, the evidence must be viewed in the light most favorable to the nonmoving party and least favorable to the Movants (see generally, Glennon v. Mayo, 148 AD2d 580 [2"d Dept. 1989]). Here, the record reveals that significant factual issues remain to be established concerning the events surrounding the conveyance and whether the Travelers Bank was a "bona fide purchaser for value" under the "Recording Act" for the property and whether the conveyance should be set aside. The task of marshaling the record was that much more difficult because of the parties' assumption concerning consolidation. This record is littered with records and arguments that are of limited value to the Court in deciding the Movant's instant "cross-motion." Accordingly, it is ORDERED that the branchs of the Defendant Travelers Bank and Trust and Third Party Plaintiff's motion for summary judgment in Action No. 2 (Index No. 1263-2003) are DENIED, on the basis that Index No. 1263-2003 is not consolidated, pursuant to CPLR §602(a), with Index No. 3152- 2002, and, therefore, this Court lacks jurisdiction over Action No. 2, and it is further ORDERED that the branches of the Defendant Travelers Bank's motion for summary judgment in Action No. 1 (Index No. 3152-2002) are DENIED, with leave to renew; and it is further ORDERED that, upon the Court's own motion, the caption in this case shall be: [* 4] ----------------------------------------------------------------------------->< LESHOLD REAL TY CORP., Plaintiff, Index No. 3152-2002 - againstANGELO MAKKAS, KONSTANEINOUS G. MAKKAS, LIGERIE L. MAKKAS and TRAVELERS BANK & Trust, FSB, Defendants. ----------------------------------------------------------------------------->< The foregoing constitutes the decision and order of this Court. Dated: GOSHEN, New York December 15, 2004 Honorable LAWRENCE IVAN HOROWITZ JUSTICE OF THE SUPREME COURT John R Kelligrew, Esq. Attorney for Plaintiff-Counterclaiming Defendant Leshold Realty Corp. 301 Old Tarrytown Road White Plains, New York 10603 Kevin P. Preston, Esq. Mcvean & Lewis 34 Grove Street, PO Box 310 Middletown, New York 10941 Dollinger, Gonski & Grossman One Old Country Road, PO Box 9010 Carle Place, New York 11514

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