Ortiz v Gomez

[*1] Ortiz v Gomez 2006 NY Slip Op 50575(U) [11 Misc 3d 1076(A)] Decided on April 10, 2006 Supreme Court, Suffolk County Spinner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 10, 2006
Supreme Court, Suffolk County

Dora E. Ortiz, Plaintiff,

against

Francisco A. Gomez, RICARDO GOMEZ and ROSA E. ORTIZ, Defendants.



2004-03547



PLAINTIFF'S ATTORNEYS

Steven C. Askinas, Esq.

Askinas & Miller, Esqs.

1991 Union Boulevard

Bay Shore, New York 11706

DEFENDANTS' (Gomez) ATTORNEY

Robert W. Dapelo, Esq.

The Law Office of Robert W. Dapelo Esq., P.C.

73 North Ocean Avenue

Patchogue, New York 11772

Jeffrey Arlen Spinner, J.

This is an action sounding in equity wherein the Plaintiff sues to vacate a deed which, it is alleged, was procured fraudulently through a combination of misrepresentations coupled with a lack of fluency in the English language. The Plaintiff asserts that by virtue of a fraud perpetrated upon her by the Defendant FRANCISCO GOMEZ, her former husband, her fee interest in real property known as 34 Arlene Drive, Brentwood, New York was devolved unto him. Plaintiff filed a Summons, Verified Complaint and Notice Of Pendency with the Clerk of Suffolk County on February 26, 2004. Thereafter, the Defendants FRANCISCO GOMEZ and RICARDO GOMEZ appeared through counsel and interposed Verified Answers, Affirmative Defenses and Counterclaims. The Defendant ROSA E. ORTIZ failed to file any appearance or responsive pleading and was therefore found to be in default. Following a period of pre-trial discovery, a Note of Issue was filed and the matter was assigned to Part 21 for a non-jury trial, which commenced and concluded on April 6, 2006.

At the trial of this cause, the Plaintiff testified on her own behalf, through Sr. Pedro Bravo-Guzman, a Supreme Court Spanish interpreter. The Plaintiff also called Rosa E. Ortiz on her behalf, the defaulting Defendant. After the Plaintiff rested, counsel for the Defendants GOMEZ moved for [*2]a directed verdict on prima facie grounds, which application was denied by the Court. On behalf of the defense, counsel elicited testimony from Santos Gomez as well as the Defendant RICARDO GOMEZ. The Defendant FRANCISCO GOMEZ (who was represented by counsel) failed to appear for trial, owing to his incarceration at the Federal Detention Center in Oakdale, Louisiana while awaiting deportation to his native El Salvador for immigration law violations.

After careful consideration of all of the testimonial evidence and the exhibits introduced at trial (including an unsworn transcript of testimony given by FRANCISCO GOMEZ that was adduced on April 21, 2005 pursuant to CPLR Article 31) and having been afforded the opportunity to evaluate and assess the demeanor and credibility of the witnesses who appeared herein, the Court makes findings of fact and conclusions of law as hereinafter set forth.

Factual Background

All of the parties to this action were born and raised in El Salvador and, according to trial testimony, they were well acquainted with each other prior to their arrival in the United States. The Plaintiff is the former spouse of the Defendant FRANCISCO GOMEZ, who is a cousin of Defendant RICARDO GOMEZ. The Defendant ROSA ORTIZ is the elder sister of the Plaintiff DORA ORTIZ.

The Plaintiff has the equivalent of a ninth grade education, arrived in this country illegally in 1988 and lived briefly with her sister. According to the Plaintiff, her command of the English language is rather limited and she indicated that she had taken but one course in English, of three months duration, in 2003. Although the Plaintiff testified through an interpreter, it was clear to the Court (at least as of the date of trial) that the Plaintiff understood more English than she allowed herself to concede. The Plaintiff became a legal resident as a result of the immigration amnesty that was extended in 2000 by the United States.

The Plaintiff married FRANCISCO GOMEZ on January 30, 1991 and they moved to a house on Grand Boulevard in Brentwood, New York. Their first child was born in July of 1992 and their second child was born in August of 1997. Following the birth of the first child, they moved to a house on Kopf Street, also in Brentwood. Thereafter, the parties were divorced in Nassau County on October 9, 1995 though they continued to cohabit until December 25, 2003, when he was removed by the Sheriff of Suffolk County in compliance with an Order of Protection issued by the Family Court. According to the Plaintiff, her husband told her to divorce him so that she could marry an American of his choosing, become a citizen, divorce that person and remarry him in order to confer citizenship. She stated that her husband retained the attorney who filed the divorce action for them.

On July 2, 1996, the Plaintiff together with the Defendants FRANCISCO GOMEZ and ROSA ORTIZ purchased the property known as 34 Arlene Drive, Brentwood, New York. This purchase was evidenced by a Deed which vested title in them as tenants in common and was recorded with [*3]the Clerk of Suffolk County in Liber 11782 of Conveyances, at Page 985. Thereafter and on April 19, 1997, all three parties executed a Deed, for no consideration, which divested DORA ORTIZ and ROSA ORTIZ of their interests and vested fee title solely in FRANCISCO GOMEZ. This Deed (hereinafter the "Disputed Deed"), for which there was admittedly no consideration is the focal point of this lawsuit and was recorded with the Clerk of Suffolk County in Liber 11831 of Conveyances at Page 122. On October 20, 2003, FRANCISCO GOMEZ executed a Deed (hereinafter , the "Second Deed"), for no consideration, which vested fee title in RICARDO GOMEZ, which was recorded with the Clerk of Suffolk County in Liber 12282 of Conveyances at Page 725. On March 6, 2004, RICARDO GOMEZ executed a Deed (hereinafter, the "Third Deed), again for no consideration, which vested fee title in RICARDO GOMEZ and FRANCISCO GOMEZ as tenants

in common, which was recorded with the Clerk of Suffolk County in Liber 12324 of Conveyances at Page 940. Simultaneously therewith, they also granted a Mortgage in the amount of $ 243,750.00 in favor of Homebridge Mortgage Bankers Corp. which was recorded with the Clerk of Suffolk County in Liber 20771 of Mortgages at Page 85. Both the Third Deed and the Mortgage were executed on March 6, 2004 and recorded on June 15, 2004, subsequent to the recording of the Plaintiff's Notice of Pendency in this action.

The Plaintiff asserts that the Disputed Deed was obtained through fraudulent means. Both the Plaintiff and the Defendant ROSA ORTIZ aver that the express purpose of the Disputed Deed was to remove ROSA ORTIZ only from the title to the property inasmuch as ROSA ORTIZ was joined in title only as a co-maker to enable them to obtain purchase money mortgage financing. They both claim that FRANCISCO ORTIZ advised them that this was the sole (and agreed) purpose of the Disputed Deed.

The Plaintiff testified that, at the time of the Disputed Deed, she was not readily conversant in the English language and that she could neither speak, read nor write except in Spanish. She stated that FRANCISCO GOMEZ had made arrangements with an attorney (the same attorney who had represented them in the purchase transaction) to prepare the Disputed Deed and that the three of them drove to the attorney's office on a Saturday where they executed the instrument. No discussion was had between the attorney and the Plaintiff. Plaintiff stated that the papers for her to sign were in English and that she could not understand them but that she signed them because FRANCISCO GOMEZ assured her that they were for the sole purpose of removing ROSA ORTIZ from title. The Plaintiff claimed that she learned of the alleged fraud in February of 2004. The Plaintiff stated that she did not pay any rent or utilities but only cable television and telephone.

The Defendant ROSA ORTIZ offered testimony which did not differ significantly from that offered by the Plaintiff. She stated that it was their agreement that she would be removed from the title within one year after the purchase of the house since she was only joined in order to assist them in obtaining financing. Her understanding of the Disputed Deed was this only removed her from title, leaving the same to vest in FRANCISCO GOMEZ and DORA ORTIZ. Like the Plaintiff, she was not conversant in English at that time and was unable to understand the contents of the documents. [*4]

The Defendants then called Santos Gomez to the stand who testified that she was the cousin of the Defendants FRANCISCO GOMEZ and RICARDO GOMEZ. She testified in English and she asserted that the Plaintiff was fully conversant in English and had been so, at least since 1995. Upon cross-examination, she reluctantly conceded that she was collecting rent of $ 1,000.00 per month from one tenant in the house and that her uncle was living rent-free in the basement of the house. She also claimed that she had been paying the mortgage on the house for seven months. Her testimony was not particularly believable.

The Defendant RICARDO GOMEZ testified for the defense. He asserted that the Second Deed was given to him because of an antecedent debt of $ 10,000.00 owed to him by FRANCISCO GOMEZ. He stated that he was sending FRANCISCO GOMEZ $550.00 every month following the transfer to help defray the mortgage. He claimed that the purpose of the Third Deed was because he and FRANCISCO GOMEZ were planning to open a trucking company. He categorically denied ever signing a Mortgage or Note and denied ever receiving a bill or statement for the same. However, upon cross-examination, he was shown Plaintiff's Exhibit 5 in evidence (a certified copy of the Mortgage) whereupon he conceded that it

was his signature appearing thereon in several places, including an acknowledgment before a notary public. However, he then told Plaintiff's counsel to "Go and ask this mortgage company. My name should not be there." Like the testimony offered by Santos Gomez, the testimony of this witness was not particularly believable.

Applicable Law

The Plaintiff has properly commenced this action pursuant to Article 15 of the Real Property Actions and Proceedings Law ("RPAPL"). That statutory compilation provides a vehicle for determining claims to real property within the state. However, the elements of the claim herein fall within the purview of Sections 265 and 266 of the Real Property Law ("RPL"). In order to prevail, the Plaintiff must prove that her execution of the Disputed Deed was either the product of some undue influence or other malfeasance on the part of the Defendant or that the Defendant exploited and breached a confidential relationship.

In the matter of Loiacono v. Loiacono 187 AD2d 414 (2nd Dept. 1992) the Appellate Division affirmed a judgment of the Supreme Court which found the existence of a confidential relationship and voided the deed. In that case, the Plaintiff sought recission of a deed to her sons, asserting that she was unable to read or write English, that she conveyed real property to her sons for no consideration and that she was not represented by counsel. Likewise, in the matter of Russell v. Russell 128 AD2d 515 (2nd Dept. 1987), appeal dismissed 70 NY2d 783 (1987) the Court affirmed a judgment of the Supreme Court cancelling a no consideration deed, finding that the Plaintiff had not knowingly conveyed the property.

As a threshold matter, the burden of establishing undue influence or fraud rests upon the party asserting the same, Allen v. LaVaud 213 NY 322 (1915). Where the Plaintiff establishes, by the proper quantum of admissible proof, that there is a confidential relationship extant, the burden then shifts to the Defendant to demonstrate that the transaction at issue is free of improprieties, Matter [*5]of Gordon v. Bialystoker Center & Bikur Cholim 45 NY2d 692 (1978).

Here, the Plaintiff has asserted that as a result of her inability to read and write English, she was unaware of what she was signing and hence relied upon the Defendant FRANCISCO GOMEZ' representations. Based upon the evidence adduced, it appears that the Plaintiff's reliance upon his representations was reasonable. The parties had known each other for many years, had been married, were cohabiting and had children together with whom they lived as a family unit. Therefore, it is clear from all of the evidence adduced that there existed a confidential relationship between the parties to this transaction.

It has long been the settled law in New York that, absent certain narrow exceptions, a party is bound by an instrument that he or she signs and may not avoid liability thereunder by claiming not to have read the same before execution or, if unable to read it then to have another read it to him or her prior to signing it. This principle has been enunciated time and again, Thoroughgood's Case 2 Coke 9, Shulter's Case 12 Coke 90 and further, see Story's Equity Jurisprudence § 60.

However, the holding by the New York Court of Appeals in the landmark ruling in Pimpinello v. Swift & Co. 253 NY 159 (1930) is most instructive in this area of the law and sets forth, in pertinent part, as follows:

"Ordinarily the signer of a deed or other instrument, expressive of a jural

act is conclusively bound thereby. That his mind never gave assent to the

terms expressed is not material...If the signer could read the instrument, not

not to have read it was gross negligence; if he could not read it, not to procure

it to be read was equally negligent." 253 NY 159 at 162, 163 (citations omitted)

The scholarly opinion of the Court in Pimpinello vs. Swift & Co. takes this analysis yet a step further as evidenced by the following incisive language by Judge Kellogg, in which he was joined by Chief Judge Cardozo and Judges Pound, Crane, Lehman, O'Brien and Hubbs:

"If the signer is illiterate, or blind, or ignorant of the alien language of the

writing, and the contents thereof are misread or misrepresented to him by

the other party, or even by a stranger, unless the signer be negligent, the

writing is void." 253 NY 159, at 163.

It is therefore patently clear that under certain specified circumstances, an instrument may be disaffirmed by the signer thereof. In the case at bar, the Plaintiff has proven, by clear and convincing evidence, that her execution of the Disputed Deed was obtained improperly, without her [*6]true consent and through the exploitation of a confidential relationship.

Since this is an action in equity, this Court is bound by equitable principles to do what ought to be done, to do what is just and fair under all of the facts and circumstances presented. It is a maxim of equity that one who seeks equitable relief must not have unclean hands. Where parties such as the Defendants FRANCISCO A. GOMEZ and RICARDO GOMEZ appear before the Court with unclean hands, they are not entitled to obtain any equitable relief.

Conclusion



It is, therefore,

ORDERED, ADJUDGED AND DECREED that the Deed dated April 19, 1997 purporting to convey property known as 34 Arlene Drive, Brentwood, Town of Islip, New York, District 0500, Section 226.00, Block 02.00, Lot 018.00, which was recorded with the Clerk of Suffolk County in Liber 11831 of Conveyances at Page 122 is null, void and of no force and effect, in fact or in law; and it is further

ORDERED, ADJUDGED AND DECREED that each of the subsequent conveyances flowing therefrom are likewise null, void and of no force and effect, in fact or in law; and it is further

ORDERED, ADJUDGED AND DECREED that the Defendants FRANCISCO A. GOMEZ, RICARDO GOMEZ, their successors, heirs, assigns and any and all persons or entities claiming any interest under or through said Defendants, and any persons or entities claiming an interest thereunder subsequent to the filing of the Notice of Pendency herein shall be and are hereby forever barred, estopped and foreclosed from and of any and all claims to any estate or interest in or to the real property described herein; and it is further

ORDERED, ADJUDGED AND DECREED that the Plaintiff DORA E. ORTIZ is the owner, in fee simple absolute, of the real property described herein and is entitled to exclusive possession thereof; and it is further

ORDERED, ADJUDGED AND DECREED that the Affirmative Defenses and Counterclaims interposed by the Defendants FRANCISCO A. GOMEZ and RICARDO GOMEZ are hereby dismissed; and it is further

ORDERED, ADJUDGED AND DECREED that the Plaintiff is entitled to a Bill Of Costs payable by the appearing Defendants.

The real property affected by this determination is bounded and described as follows:

[*7]ALL that certain plot, piece or parcel of land with the buildings and improvements

thereon erected, situate, lying and being in the Town of Islip, County of Suffolk and

State of New York, as shown on a certain map entitled "Map of Arlyn Oaks, Section

5," filed in the Office of the Clerk of the County of Suffolk on April 18, 1962, which

said lot is more particularly bounded and described according to said map as follows:

BEGINNING at a point on the westerly side of Arlene Drive where the same is

intersected by the division line between lots 15 and 16 said map, said point being

distant 564.44 feet northerly from the extreme northerly end of a curve which

connects the northwesterly side of Candlewood Road with the westerly side of

Arlene Drive;

RUNNING THENCE North 89 degrees 41 minutes West along the last mentioned

division line 145.00 feet to the division line between lots 16 and 31 on said map;

THENCE North 0 degrees 19 minutes East along the last mentioned division line

78.00 feet to the division line between lots 16 and 17 on said map;

THENCE South 89 degrees 41 minutes East along the last mentioned division line

145.00 feet to the westerly side of Arlene Drive;

THENCE South 0 degrees 19 minutes West along the westerly side of Arlene Drive

78.00 feet to the point or place of BEGINNING.

Said real property is commonly known as and by the street address of 34 Arlene Drive, Brentwood, Town of Islip, New York 11717, District 0500, Section 226.00, Block 02.00, Lot 018.000.

Counsel for the Plaintiff is directed to settle a Judgment consistent with this determination upon fourteen days' notice to all parties.

This shall constitute the decision, judgment and order of this Court.

Dated: 10 April 2006

Riverhead, New York

_________________________________________

HON. JEFFREY ARLEN SPINNER, J.S.C [*8]