Friscoe v Columbia

[*1] Friscoe v Columbia 2007 NY Slip Op 51396(U) [16 Misc 3d 1112(A)] Decided on May 29, 2007 Supreme Court, Rockland County Weiner, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through August 1, 2007; it will not be published in the printed Official Reports.

Decided on May 29, 2007
Supreme Court, Rockland County

Michael F. Friscoe, Jr., Michael F. Friscoe III, and Dawn Friscoe, Plaintiffs,

against

Don Columbia and Celia Columbia, Defendants.



10171/06



Daniel E. Bertolino, P.C.

Attorney for Plaintiffs

Craig E. Johns, Esq.

Attorney for Defendants

Alfred J. Weiner, J.

In the underlying action, Plaintiffs contend that Defendants schemed to defraud them under the pretext of saving their home from foreclosure. Having assumed ownership of the Plaintiff's property, Defendants are presently seeking to evict Plaintiffs in a summary proceeding now pending in the Justice Court of the Town of Stony Point. By this motion, Plaintiffs seek to stay that summary proceeding and consolidate it with this action.

Defendants oppose the motion and have cross-moved to cancel the Notice of Pendency filed by Plaintiffs.

Plaintiffs have set forth facts supporting their claim that title to their home was unwittingly conveyed to Defendants in a transaction in which they were not represented by counsel and that [*2]ended in a manner different from what they state they expected and were told. The house they live in was originally titled to Plaintiff Michael F. Friscoe, Jr., as surviving tenant by the entirety. Plaintiffs contend that when the house was in foreclosure, Defendant Don Columbia offered to rescue' them by arranging financing so they could satisfy the mortgage in default and pay other debts they had. Defendant Don Columbia was to be paid a $50,000 fee for his services. Plaintiffs further state they were told that as part of the financing process title to the residence would be transferred from Plaintiff Michael F. Friscoe, Jr., individually, to the three Plaintiffs jointly. They contend there was no written agreement among the parties. A closing was subsequently held using a mortgage company in which, Plaintiffs contend, Defendant Don Columbia had an interest. At the closing, title to the residence was transferred not to the three Plaintiffs, but to Defendant Celia Columbia, wife of Defendant Don Columbia. Plaintiffs also contend that additional funds were paid to Defendant Don Columbia in reliance upon what they considered to be a fiduciary relationship of trust and confidence and that he violated that trust to their financial detriment. Plaintiffs also state that other representations made to them about their continued occupancy in the residence "...for free until February..." and then "...until March" were not honored by Defendants. Plaintiff's complaint sets forth causes of action sounding in fraud, exploitive overreaching and unconscionable conduct.

Defendants' version of what occurred is very different. Defendant Don Columbia contends, among other things, that Plaintiff Dawn Friscoe pursued financial help from him and that she offered him a $50,000 fee for his assistance. He states that he referred Plaintiff to a mortgage company that was a tenant of a corporation he owns. He denies any financial interest in the company. He further states that because Plaintiffs could not qualify for a mortgage in their names, title was taken in his wife's name. He further explains that title was not taken in his own name because he already owns investment property and that he, too, would not qualify for another mortgage. By submitting a photocopy of a signed contract of sale and explaining how the purchase price of $415,000 was determined, Defendants have sharply contradicted Plaintiff's version of what occurred. Additionally, Defendant Don Columbia's interpretation of the conversation and agreement made regarding Plaintiffs' post-closing occupancy of the property differs from Plaintiff's. Defendant contends that Plaintiffs agreed at the closing to pay three months rent in advance, that $25,000 posted by Plaintiff Michael F. Friscoe, Jr. would be used by Defendants to pay the difference between the monthly rent of $2200 and Defendant's $3136.10 monthly mortgage and taxes expense.

A party seeking the drastic remedy of a preliminary injunction must establish a clear right to that relief "...under the law and the undisputed facts upon the moving papers..." Blake Agency v Leon, 283 AD2d 423, 2nd Dept., 2001. The burden of proof is on the movant to demonstrate a likelihood of success on the merits, the prospect of irreparable injury if the relief is withheld, and a balancing of the equities in the movant's favor. Doe v Axelrod, 73 NY2d 748,1988. A temporary injunction will not be granted where the facts are in sharp dispute since the mere existence of contrasting facts, in and of itself, negates movant's ability to establish the likelihood of ultimate success on the merits. Jurlique v Austral Biolab Pty., 187 AD2d 637, 2nd Dept., 1992. [*3]

Here, the parties dispute many of the important facts at issue, including what they actually agreed upon, whether title to Plaintiff's home was to be conveyed to Plaintiffs or to Defendant Celia Columbia, whether there was a written contract, the post-closing arrangements for Plaintiffs' continued occupancy at the residence as well as the agreed upon rent' and how it was to be paid. Since the underlying facts of the transactions are disputed, (Dental Health Assoc. v Zangeneh, 267 AD2d 421, 2nd Dept., 1999) Plaintiffs have not demonstrated the probability of their success on the merits. (CPLR §6301; Doe v Axelrod, 73 NY2d 748. Accordingly, there is no clear right to the relief requested and their motion for a preliminary injunction staying and consolidating the pending Justice Court proceeding with this action, must be DENIED.

Defendants have cross-moved for an order cancelling the Notice of Pendency in this action pursuant to CPLR §6514(b) which grants a court the discretion to direct the County Clerk to cancel a notice of pendency, if the Court finds that a Plaintiff has not commenced or prosecuted the action in good faith. After a careful review of the submissions of counsel, the Court finds that Defendants have failed to establish that Plaintiffs' action was not commenced in good faith. Accordingly, Defendant's cross-motion must also be DENIED.

Dated: May 29, 2007

New City, New York

E N T E R:

____________________ _____

HON. ALFRED J. WEINER

Justice of the Supreme Court