Casale v Londa
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Casale v Londa 2012 NY Slip Op 31028(U) April 11, 2012 Supreme Court, New York County Docket Number: 400291/12 Judge: Eileen A. Rakower Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] I c SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY PART &3-A!rPL /r ! Justice MOTION DATE -v- a/ MOTION $EO. NO. MOTION CAL. NO. were read on thls motion to/for The following papers, numbered 1 to PAAFRB NUM B E W Notlce of Motion/ Order to Show Cause .. E Anawerlng Affldavlts - Exhlblta 3 a Cross-Motion: - Affldavlts - Exhlblts ... 3 0 I 7 Replylng Affidavlts c Yes ] No Upon the forsgolng papers, It la ordered that thls motlon Check one: FINAL DISPOSITION 0 NON-FINAL DISPOSITION Check if appropriate: c DO NOT POST ] REFERENCE 17 SUBMIT ORDER/ JUDG. r] SETTLE ORDER/ JUDG. [* 2] v c - against - DECISION and ORDER /pg 1 7 2012 ERNEST LONDA, Mot. Sea. 00 1 Gerald Casale ( Plaintiff ) seeks an order staying a landlord-tenantproceeding brought by Ernest Londa ( Defendant ) and a judgment declaring that Defendant has no right to evict Plaintiff from Apartment #9A at 30 East 37fi Street in New York County ( the Apartment ), which Plaintiff characterizes as their marital residence. Plaintiff states that he and Defendant are life-partners , and that [their] current relationship is a marriage. According to Plaintiff, he and Defendant met in 1991 and entered into a loving relationship shortly thereafter. They moved into the Apartment months later. Plaintiff and Defendant split the rent and household expenses. In 1993, Plaintiff and Defendant registered as Domestic Partners. Plaintiff states that in 1995, he and Defendant discussed the idea of starting a family. Initially, Defendant was going to have a child through a surrogate mother. However, after having reservations, he decided to back[] out of the deal. Plaintiff then decided to have a child through a surrogate mother, and his son Taylor was born on September 20, 1997.After Taylor s birth, his biological mother commenced legal proceedings to gain custody of Taylor. Plaintiff states that these proceedings have been ongoing for the past 14 years and have depleted his life s savings. In 2005 the owners of the building Plaintiff and Defendant lived in announced a plan for a condominium conversion. Plaintiff and Defendant together bought the Apartment in 2007. Plaintiff states that he and Defendant paid their mortgage and common charges equally, in the same manner as they had previously shared 1 [* 3] c - - responsibility for rent and other expenses. However, due to the legal expenses of the legal action brought by Taylor s mother, Plaintiff ultimately starting having financial difficulties. By 2010, he was unable to pay his half of mortgage payments and expenses, and Defendant began to pay all mortgage payments and common charges for the Apartment. Plaintiff and Defendant refinanced their mortgage in 2009. In so doing, Plaintiff settled a tax lien with the State of New York of approximately $1 8,000 by having the bank pay that amount and add it to their mortgage. In 201 1, Defendant, an attorney, suggested that they again refinance their mortgage in order to lower monthly payments. At this point, however, Plaintiffs credit rating had fallen through the floor. Accordingly Defendant proposed that Plaintiff sign over his half of the Apartment to Defendant. Plaintiff states that, although he was initially hesitant, after being alternately pestered and cajoled for a few weeks, [he] signed the letter that pefendant] had prepared. Defendant submits an affirmation in opposition.Defendant states that Plaintiff voluntarily and willfully deeded his one-half ownership interest in the Unit to [him] on the 15* of April, 20 10 in exchange for the payment of debts due and owed to [him]. Defendant further states that he and Plaintiff were never married. While they . . were at one time Domestic Partners, Defendant states that he terminated the domestic partnership, and he provides a receipt from the City Clerk evidencing termination on September 1,2011.Defendant also notes that he is not Taylor sbiological or adoptive parent. Defendant further notes that, [ilf plaintiff believes that he is entitled to unpaid proceeds from the transfer or any additional unpaid monies owed by the defendant then plaintiff is entitled to bring suit against the defendant in another action. The court finds that Plaintiffs motion must be denied. It is undisputed that Plaintiff deeded his interest in the subject condominium to Defendant. While Plaintiff argues, both in his reply affidavit and on the record at oral argument on March 13, 2012, that he deeded his interest to Defendant through fraud and duress, he fails to allege any facts which state viable causes of action under either theory. The elements of fraud are material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages (see Pramer S. C.A. v. Abaplus, Intl. Corp., 76 A.D.3d 89 [ 1st Dept. 20101). Plaintiffs assertion that he 2 .. [* 4] did not carefully read the documents that he signed, andonly afterbeing alternately pestered and cajoled for a few weeks is unavailing. It is well settled that [aln individual who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of the other contracting pasty, is conclusively presumed to know its contents and to assent to them ( h e r o Fiorentino Associates, Inc. v. Green, 85 A.D.2d 419,420 [ 1st Dept. 19821). Similarly, [a] contract may be voided on the ground of economic duress where the complaining party was compelled to agree to its terms by means of a wrongful threat which precluded the exercise of its free will (767 Third Ave. LLC v. Orix Capital Mkts., LLC, 26 A.D.3d 2 16, 2 18 [ 1st Dept. 20061). Plaintiff does not allege any such action on the part of Defendant. Moreover, while Plaintiff states that he views the personal bonds of affection shared between himself and Defendant over the course of over twenty years as tantamount to a marital relationship, it is undisputed that Plaintiff and Defendant were never officially married at any point. Indeed, while Plaintiff and Defendant were domestic partners, Defendant terminated that domestic partnership in September of 201 1 (after passage of the Marriage Equality Act in New York State). The Court of Appeals has observed that cohabitation without marriage does not give rise to the property and financial rights which normally attend the marital relation (Morone v. Morone, 50 N.Y.2d 481, 486 [1980]). While some courts have held that certain members of a household cannot be evicted from a premises by way of a summary proceeding, the court s research has uncovered no authority in support of the proposition that a former domestic partner, without more, is exempted from a summary proceeding pursuant to WAPL $713 (see Piotrowski v. Little, 30 Misc.3d 609 [Middletown City Ct., 20101) (after engaging in an in-depth analysis of case law concerning whether former domestic parties are exempt from summary proceedings, holding that former same-sex partner was subject to removal via summary proceeding). As Defendant notes, Plaintiff is not foreclosed from asserting claims against Defendant [ilf plaintiff believes that he is entitled to unpaid proceeds from the transfer or any additional unpaid monies owed by the defendant when the Apartment is ultimately sold. However, Plaintiff has failed to demonstrate entitlement to the relief sought herein. Wherefore it is hereby 3 [* 5] ORDEmD that Plaintiffs motion for a stay of the Housing Court proceeding is denied; and it is further ORDERED that Plaintiffs request for sanctions is denied; and it is further ORDERED that Plaintiffs request for an order directing Defendant to change the deed back to the way it was is denied; and it is further ORDERED that Plaintiffs request for an order directing defense counsel to show [Plaintiffl a copy of his retainer agreement with [Defendant] is denied; and it is further ORDERED that Plaintiffs request for an order directing Defendant to present a true statement of his net worth is denied. This constitutes the decision and order of the court. All other relief requested is denied. DATED: April 11,2012 EILEEN A. RAKOG H m ? y x .. FILED APZ 1 7 2012 NEW YORK COUNTY CLERKS OFFICE 4
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