Gagasoulas v Daneshfar
Annotate this CaseDecided on August 25, 2006
Supreme Court, Suffolk County
Costas Gagasoulas, Plaintiff,
against
Siavash Daneshfar, Defendant.
2003-08662
PLAINTIFF'S ATTORNEYS
Douglas M. Lieberman, Esq.
Markotsis & Lieberman, Esqs.
183 Broadway
Hicksville, New York 11801
DEFENDANT'S ATTORNEY
Paul H. Senzer, Esq.
224 Seventh Street
Garden City, New York 11530
Jeffrey Arlen Spinner, J.
The Plaintiff commenced this action by the filing of a Summons and Verified Complaint containing ten separate causes of action demanding a plethora of alternative relief. Distilled to its essence, the Plaintiff's action sought a money judgment in the amount of $ 70,000.00 as well as a conveyance of the fee simple interest in the real property known as 2A Flanders Avenue in Melville or alternatively, judicial declaration of an equitable mortgage lien thereon in the amount of $ 70,000.00 together with an award of counsel fees to abide the event. The Defendant timely answered and interposed three affirmative defenses together with a counterclaim demanding $ 50,000.00 in damages for abuse of process. Following a protracted period characterized by pre-trial discovery, motion practice and a series of conferences, a Note of Issue was filed and the matter was randomly assigned to Part 21 for a non-jury trial, which commenced on May 9, 2006 and concluded on May 11, 2006.
Prior to the commencement of trial, the Plaintiff sought assistance by a foreign language interpreter. Although conversant in English, the Plaintiff appeared better able to express himself in his native tongue. At the Plaintiff's request, the Clerk of the Supreme Court caused to be retained the services of Fr. Jerasimos Ballas as official Greek interpreter. The Plaintiff was neither previously acquainted with the interpreter nor was he permitted any input in the selection of the interpreter, who [*2]was chosen from a list maintained by the Clerk of the Court. Defense counsel vehemently objected to the Court's employment of the interpreter, asserting that the pre-trial depositions were conducted in English and without the benefit of an interpreter, claiming that the Plaintiff's request was grounded in bad faith. Direct inquiry by the Court revealed that the Plaintiff, although able to speak English (albeit with a very heavy accent), was apparently better able to express himself in Greek, his native tongue.
The law in New York is clear on its face that the question of whether or not an interpreter is necessary is one within the trial court's sound discretion, People v. Warcha 17 AD3d 491 (2nd Dept. 2005). Here, the Court conducted an inquiry into the facts and circumstances and opted, in its discretion, to employ the services of the interpreter.
Factual Background
The matter now before the Court represents the result of the deterioration of what was, for all intents and purposes, a wonderful friendship between the Plaintiff and the Defendant. These parties have been split asunder over an unseemly squabble regarding money.
The parties first became acquainted with each other in or about 1997 when the Plaintiff, a furrier by profession, rented retail space in Huntington, New York which adjoined the Defendant's high quality oriental rug retail establishment. The parties became friendly and came to socialize on numerous occasions. During this time, the Plaintiff was the fee owner of a single family residence (at one point the Plaintiff testified that it was held for investment while at another point in time, he stated that he and his family had resided there but then relocated to Syosset), located at 2A Flanders Avenue in Melville, New York. As of 1998, the property had been uninhabited for over one year and inasmuch as the Defendant sought a permanent place to reside, it was agreed that the Defendant would be permitted to reside in the premises. It is beyond dispute that the Defendant did reside there along with Amir Soleymani, his partner in several business ventures and that he did pay rent each month to the Plaintiff for the use and occupancy thereof. However, in September of 2000, the Defendant serendipitously discovered that the Plaintiff's mortgage in favor of GMAC Mortgage Corporation had been subject to foreclosure proceedings since sometime in 1998 (a fact not disclosed to the Defendant) and that the property was to be sold at public auction by the Referee on September 29, 2000. Both the Plaintiff and the Defendant appeared at the public auction and the Defendant, as high bidder, successfully purchased the property for $ 215,161.85, closing the transaction on October 27, 2000 and financing the purchase with a mortgage in the sum of $ 193,500.00 granted by Washington Mutual Bank F.A. The parties also substantially agree that the Defendant purchased the property at the auction with the Plaintiff's "blessing," as it were. At this juncture, the parties' accounts become wildly divergent. The Plaintiff asserts that the Defendant agreed to sell the property back to him but subsequently reneged upon that promise. The Defendant avers that he agreed to purchase the house from the Plaintiff for $ 215,000.00 before he had knowledge of the foreclosure, paying earnest money to him of some $ 10,000.00 and even retaining [*3]counsel to prepare a Contract of Sale, all of which did not come to fruition due to the foreclosure. The Defendant asserts that the Plaintiff agreed to keep the earnest money and apply the same as and for future rent.
The record then becomes obfuscated with a plethora of claims and cross-claims of investments in business, alleged co-partnerships, gratuitous loans and many other assertions, none of which are germane nor borne out by any of the evidence adduced at trial.
The Plaintiff introduced into evidence, as Exhibit 1, a document, which is dated May 2, 2002 and reads verbatim (and without grammatical correction herein) as follows:
"This is an agrement between Gus Gagasoulis and Siavash Daneshfar to certifide that a
conversation in front of witnesses Eleni Christodoulou that Siavash Daneshfar has to pay
a total of $ 75,000 seventy five thousant dollars to Gus by the end of 2002 less any monthly
payments. In case Siavash Daneshfar fails to pay he has to give title from the house 2A
Flanders Ave Melville NY with out lean's or second loans to Gus Gagasoulis to take over
the mortgage. Siavash is responsible for all legal fees.
/s/ Siavash Daneshfar
/s/ Gus Gagasoulis
/s/ Eleni Christodoulou"
This document constitutes what is essentially the crux of the Plaintiff's lawsuit. The testimony offered by the Plaintiff was that the agreement was penned on the reverse side of one of the Plaintiff's fur sale flyers by Eleni Christodoulou (Plaintiff's employee) in the actual physical presence of both parties in Plaintiff's store. He asserted that both he and Mr. Daneshfar dictated the terms of the agreement to Eleni who acted both as a scrivener and witness. However, he then stated that he dictated it to Eleni, they both signed it and took it over to Defendant who read it, signed it and shook hands with him.
When called as a witness, Eleni Christodoulou identified the document as being in her handwriting and stated that it was the product of both parties dictating "back and forth." According to her testimony, the document at issue was the successor to a rough draft which she re-wrote after both parties had approved the draft. While she was re-writing the document, Defendant was called back to his store so she finished it, the Plaintiff signed it, she signed it and then Plaintiff took it to the Defendant to be signed. She was not present at the time it was actually presented to Defendant and did not know whether or not he actually signed it.
Throughout the pre-trial proceedings and up until the time he was called to the stand, the Defendant stoutly and repeatedly maintained that he did not sign the document at issue. Indeed, his Answer [*4](verified under oath by Defendant and not counsel) contained an Affirmative Defense wherein he explicitly denied ever seeing the document and denied ever signing it, asserting the same as a forgery.
The Plaintiff then called an expert witness, one Gregory A. McNally. This witness testified that, by profession, he is a Forensic Document Examiner, having been so engaged for thirty years. He detailed his vast experience and in-depth training and the Court declared him to be an expert in the area of questioned documents.
Mr. McNally testified that he was asked to compare the questioned signature on Plaintiff's Exhibit 1 (that purporting to be the signature of the Defendant Siavash Daneshfar) with known original samples of the signature of Siavash Daneshfar and to provide an opinion as to whether such signatures were made by the same person. Mr. McNally provided written conclusions which were embodied in the documents received into evidence as Plaintiff's Exhibits 5 and 6, respectively. Mr. McNally compared the questioned signature
upon Plaintiff's Exhibit 1 with 35 original signatures of Siavash Daneshfar made prior in time to the document in question (i.e.- those appearing on original cancelled bank checks) as well as with 35 photocopies of documents containing the known signature of Siavash Daneshfar. He then gave exhaustive testimony regarding methodology and analysis (including ink flow, pressure, lack of retouching, spacing, line quality and such), ultimately concluding that the purported signature of Siavash Daneshfar affixed to Plaintiff's Exhibit 1 and the known signatures of Siavash Daneshfar upon the 70 exemplars were all made by the same individual.
The Plaintiff also called Zissis Takantzas who stated that he had been a friend of the Plaintiff for a number of years. However, his testimony was, in some respects, in direct contradiction to the evidence offered by the Plaintiff.
Following the close of the Plaintiff's case, the Court denied the Defendant's oral application to dismiss the proceeding.
The Defendant then offered sworn testimony on his own behalf. Much of his testimony was at odds with that offered by the Plaintiff although there was some concurrence. However, when he was shown Plaintiff's Exhibit 1 and asked by his attorney whether he had signed the document, he answered that "It certainly looks like my signature" but upon further prodding by his attorney, he then stated "It isn't my signature." When asked how he arrived at this conclusion, his response was "I could not sign a paper like this, it's impossible, it's preposterous." Upon questioning from his counsel, he embarked upon a string of testimony, detailing the Plaintiff's alleged repeated demands upon him for loans of large sums of money and though he denied ever lending any money to him (and denied that the Plaintiff ever loaned money to him), he did allow that he gave the Plaintiff some $ 5,000.00 in 2002 as well as three oriental carpets without charge because, he claimed, Plaintiff had "fallen on hard times." Upon cross-examination, Defendant was confronted with certain items from his pre-trial deposition, including evidentiary matter that was received in this proceeding without [*5]objection. In particular, the item received as Plaintiff's 10, a record of payments made by Defendant to Plaintiff (which was prepared by Defendant) was characterized by Defendant as "coincidental" and again he referred to Plaintiff's Exhibit 1 as a forgery.
Thereafter, Defendant called Amir Soleymani on his behalf. This witness was acquainted with both parties and was a business partner of the Defendant. He had also resided with the Defendant in the real property for several years. For the most part, his testimony was consistent though it did, in some material respects, contradict that of the Defendant, upon whose behalf he was called.
Applicable Law
The Plaintiff action appears to sound in a claim 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. By demanding the imposition of constructive trust, reconveyance of the real property and extinguishment of a valid and subsisting mortgage lien, the Plaintiff has invoked this statute.
The threshold issue for the Plaintiff is demonstration of a colorable claim to the real property that is the subject of the proceeding, New York Real Property Actions & Proceedings Law § 1501(1). The statutory definition is very broad and a proceeding hereunder is a hybrid one, invoking both law and equity. Certainly, the Plaintiff is not a contract vendee Regan v. Security Trust Co. 42 AD2d 830 (4th Dept., 1973) nor can
he be in any manner deemed to be the holder of equitable title to the premises Karp v. Twenty Three Thirty Ryer Corp. 185 Misc 440 (Supreme Ct. Bronx County, 1945) neither has he demonstrated that the Defendant is a conditional grantee Goldbourne v. Williams, 175 AD2d 860 (2nd Dept. 1991). In short, the Plaintiff has demonstrated nothing more than the fact that his interest was foreclosed pursuant to Article 13 of the Real Property Actions & Proceedings Law and that the Defendant was the purchaser, for value, as a result of the sale pursuant to RPAPL § 1351 et. seq. Since the Plaintiff has not shown that he is entitled to any of this statutory and equitable relief his claims as they affect the real property must be denied.
Likewise, the Plaintiff has not proven any of the elements that would entitle him to the imposition of a constructive trust nor has he been able to demonstrate any fraud or other conduct on the part of the Defendant that would entitle him to the relief sought. Although the Defendant has interposed a counterclaim, it is the opinion of this Court that he has failed to introduce sufficient evidence to adequately prove the same. Since neither party has proven their respective claims, they are not entitled to any award of counsel fees, though both have demanded the same.
During the trial of this cause, the Court did not find either the Plaintiff or the Defendant to be particularly believable. Much of their respective testimony was contradictory, even as to themselves [*6]and their prior testimony in this proceeding. In matters such as this one, it is the province and indeed the obligation of the trial court to determine matters of credibility, Morgan v. McCaffrey 14 AD3d 670 (2nd Dept. 2005), Matter of Licicone v. Michael A. 65 NY2d 826 (1985). The burden of proof imposed upon the Plaintiff and Defendant herein is that of a fair preponderance of the credible, relevant and material evidence, Prince-Richardson On Evidence § 3-210, Torem v. Central Ave Rest. 133 AD2d 25 (1st Dept., 19 87). Where a party to an action fails to meet his or her statutory burden, the claim asserted must be denied. Here, neither party has successfully met the burden of proof necessary to demonstrate the entitlement to the respective relief sought.
Conclusion
It is, therefore,
ORDERED that after trial of this cause, the Complaint of the Plaintiff shall be and the same is hereby dismissed; and it is further
ORDERED that after trial of this cause, the Affirmative Defenses and Counterclaim interposed by the Defendant shall be and the same are hereby dismissed; and it is further
ORDERED that the Notice of Pendency, if any, filed herein which purports to affect premises commonly known by the street address of 2A Flanders Avenue, Melville, Town of Huntington, New York and designated as District 0400, Section 238.00, Block 01.00, Lot 028.002, shall be and the same is hereby adjudged to be cancelled, discharged, void and of no further force and effect; and it is further
ORDERED that the Clerk of Suffolk County, upon payment of the appropriate fees, to be borne by Plaintiff, shall cause the Notice of Pendency be reflected as cancelled and discharged of record.
Counsel for the Plaintiff is directed, within twenty one days from the date of this order, to settle a Judgment consistent with this determination upon fourteen days' notice.
This shall constitute the decision, judgment and order of this Court.
Dated: 25 August 2006
Riverhead, New York
_________________________________________ [*7]
HON. JEFFREY ARLEN SPINNER, J.S.C
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