Labao v Byng

[*1] Labao v Byng 2009 NY Slip Op 52544(U) [25 Misc 3d 1242(A)] Decided on December 14, 2009 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2009
Supreme Court, Queens County

Josefina L. Labao,

against

Herman Byng, et al.



272202007



For the Plaintiff: Sanford Solny, Esq., 150 Broadway, NY, NY 10038

For Defendant Nationwide Equities Corp.: Neil H. Greenberg & Associates, P.C., Justin M. Reilly, Esq., 900 Merchants Concourse, Westbury , NY 11590

For Defendant World Savings Bank, FSB: Lamb & Barnowsky, LLP, by Michelle S. Feldman, Esq., 534 Broadhollow Road, Melville, NY 11747-9034

For Defendant WMC Mortgage LLC: Dorsey & Whitney, LLP, by David A. Scheffel, 250 Park Avenue, NY, NY 10177

For Defendant Hayden Brown: Gildin, Zelenitz & Shapiro, P.C., by Brad Zelenitz, Rachel Gallagher, & Meredith L. Sales, Esqs., 138-44 Queen Blvd., Briarwood, NY 11435

For Defendant Markland Estate Realty, Inc.: Gabriel O. Amene, 88-32 Sutphin Blvd., Jamaica, NY 11435

Charles J. Markey, J.

Plaintiff alleges that in 2005 she was in financial distress and was facing foreclosure of her home, the real property located at 139-45 249th Street, Rosedale, New York (the premises); that defendants RFS Home Solvers a/k/a Real Financial Solutions (RFS), Donald Williams, Michelle Cooper, Herman Byng (Byng), and/or Brown (collectively, the Closing defendants) learned of her financial straits from public records and communicated to her that they could help plaintiff stop the foreclosure; that on or about November 8, 2005, the Closing defendants had plaintiff execute a purported one-year "lease with purchase option" agreement (the Agreement) with Byng in exchange for 12 months of "escrowed payments" to be paid from RFS's escrow account; that the 12 months of "escrowed payments" were paid at the closing into RFS's escrow account; that the Closing defendants stopped the foreclosure by tendering monies to plaintiff's mortgage lender; and that Byng thereafter conveyed the premises to Brown.

The Agreement was attached to plaintiff's complaint, and provides that plaintiff, as tenant, will be permitted by Byng, as landlord, to reside at the premises for 12 months "in consideration of the 12 months of escrowed mortgage payments." Submitted with the instant motions are a deed dated November 7, 2005 transferring title to the premises from plaintiff to Byng (no consideration recited); two mortgage notes, also dated November 7, 2005, totaling $350,000 in principal amount, given by Byng to WMC; a deed dated June 20, 2007 transferring title to the premises from Byng to Brown for $430,360; and a mortgage dated June 20, 2007 given by Brown to WSB to secure a note for $344,288. [*2]

Plaintiff has interposed claims (1) for a temporary and permanent injunction of the pending eviction action; (2) to quiet title in the premises pursuant to RPAPL 1501 et seq., canceling the deeds executed in favor of Byng and Brown, restoring plaintiff's title to an equity in the premises, and canceling the mortgages of Mortgage Electronic Registration Systems, Inc., WMC, and/or WSB, and to return plaintiff's status as owner and mortgagor to the status quo ante; (3) for a declaration that the deed from plaintiff to Byng, and the deed from Byng to Brown, were mortgages pursuant to Real Property Law § 320; (4) for breach of fiduciary duty; (5) for violation of the Truth in Lending Act and Regulation Z; (6) for violation of the Real Estate Settlement Procedures Act; (7) for violation of General Business Law § 349; (8) for unjust enrichment; and (9) for violation of the Home Ownership Equity Protection Act. Issue was joined via service of answers, asserting various affirmative defenses, counterclaims, and cross claims.

During the pendency of this action, plaintiff was served with the following requests for discovery and inspection (the discovery requests): WSB's Notice for Discovery of Witnesses, Notice for Discovery of Expert Witnesses, and Notice for Production of Documents, all dated February 22, 2008, and Notice for Production of Documents, dated March 12, 2008; WMC's Demand for Documents, and Interrogatories to Plaintiff, both dated January 22, 2008; and Nationwide's two Notices for Discovery and Inspection, dated July 22 and 23, 2008.

A compliance conference order dated September 11, 2008, directed plaintiff to file a note of issue and certificate of readiness by January 30, 2009. On January 30, 2009, Solny filed, on behalf of plaintiff, a note of issue and certificate of readiness for trial. On April 23, 2009, the parties executed a "so ordered" stipulation (the stipulation). The stipulation recited that it was in lieu of a motion to vacate the note of issue, and directed plaintiff to respond to the discovery requests by May 7, 2009, or, failing that, "plaintiff shall be precluded from offering any documents or evidence in support of [her] cause of action in any trial of this case or in opposition to summary judgment motions." The stipulation also directed plaintiff to appear for deposition on May 18, 2009. It is undisputed that plaintiff did not respond to any of the discovery requests, and did not appear for the scheduled deposition.

Nationwide, WSB, and WMC move, and Brown cross-moves, for summary judgment pursuant to CPLR 3212; or, in the alternative, to strike plaintiff's complaint pursuant to CPLR 3126. Solny moves, via order to show cause, to withdraw as counsel. The motions of Nationwide, WSB, and WMC, and cross motion of Brown, contain valid affidavits of service but appear to be unopposed.

Plaintiff's "willful and contumacious conduct can be inferred from [her] repeated failures to adequately respond to [the discovery requests], even after [she] was directed to do so by court order" (Watson v Hall, 43 AD3d 435, 435-436 [2007]). In light of this conduct and the absence of any excuse offered in opposition, dismissal of the action is warranted (see CPLR 3126 [3]; Martel v Chupka, 26 AD3d 474, 474-475 [2006]). [*3]

Moreover, Nationwide, WMC, WSB, and Brown are all entitled to summary judgment. A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). WMC submitted the affidavit of Diane Taylor, "AVP Operations" of WMC's successor in interest (the Taylor affidavit). The Taylor affidavit states that "[o]n or around December 27, 2005, WMC sold the November 7, 2005 mortgages issued to Mr. Byng to UBS." This establishes, prima facie, that WMC has no interest in the premises, and that, thus, the complaint does not state a cause of action against it (see Jean v Joseph, 41 AD3d 657, 658 [2007]). WSB submitted the affidavit of Sharon L. Mason, Assistant Vice President of Wachovia Mortgage, FSB f/k/a WSB (the Mason affidavit). The Mason affidavit states that WSB had no knowledge of the circumstances surrounding the conveyance of the premises from plaintiff to Byng, and relied on the information in the title report indicating that title was conveyed to Byng by a duly executed and recorded deed. Brown submitted his affidavit in support of his cross motion, stating that he is the current owner of the premises, that he bought the premises from Byng on June 20, 2007, for $406,000, and that he did not know plaintiff or the co-defendants at that time. WSB and Brown have thus established, prima facie, that their respective interests in the premises are protected as those of a bona fide encumbrancer and purchaser for value (see Real Property Law § 266; Fleming-Jackson v Fleming, 41 AD3d 175, 176 [2007]). Nationwide is entitled to dismissal on the basis of its defense that the complaint fails to state a cause of action against it (see Butler v Catinella, 58 AD3d 145, 151 [2008]) because none of the substantive allegations or causes of the action in the complaint are directed towards Nationwide, or set forth how Nationwide is connected to this matter at all.

Since the stipulation's conditional preclusion order, by its terms, bars plaintiff from submitting evidence in opposition to motions for summary judgment, plaintiff cannot create a triable issue of fact (and has not, as these motions and cross motion are unopposed), and summary judgment in favor of Nationwide, WMC, WSB, and Brown is appropriate (see CPLR 3212 [b]; see also Shumalski v Government Empls. Ins. Co., 54 NY2d 671, 673 [1981]; Tejeda v 750 Gerard Props. Corp., 272 AD2d 124 [2000]; Murdock v Center for Special Surgery, 199 AD2d 482, 483 [1993]).

Solny explains in an affirmation in support of his motion to withdraw that plaintiff has not been responsive to requests for documents, has not appeared for deposition, and has failed to pay a substantial outstanding legal bill. In further support of his motion, Solny submitted a letter dated June 19, 2009 and signed by plaintiff, discharging Solny as her attorney in this matter, and furnished proof that he complied with the order to show cause's instruction to serve a copy of same on plaintiff by personal delivery. Solny is therefore entitled to have his motion granted (Sassower v Blaustein, 208 AD2d 820, 822 [1994]; Code of Professional Responsibility DR 2-110 [b] [4] [22 NYCRR 1200.15 (b) (4)]). In light of the granting of summary judgment to WSB and Brown, their oppositions to Solny's motion need not be addressed.

Accordingly, the motions of Nationwide, WMC, and WSB, and cross motion of Brown [*4]are granted to the extent of dismissing plaintiff's complaint as to them. Solny's motion is granted in all respects.

Dated: December 14, 2009

J.S.C.

Appearances:

For the Plaintiff: Sanford Solny, Esq., 150 Broadway, NY, NY 10038

For Defendant Nationwide Equities Corp.: Neil H. Greenberg & Associates, P.C., Justin M. Reilly, Esq., 900 Merchants Concourse, Westbury , NY 11590

For Defendant World Savings Bank, FSB: Lamb & Barnowsky, LLP, by Michelle S. Feldman, Esq., 534 Broadhollow Road, Melville, NY 11747-9034

For Defendant WMC Mortgage LLC: Dorsey & Whitney, LLP, by David A. Scheffel, 250 Park Avenue, NY, NY 10177

For Defendant Hayden Brown: Gildin, Zelenitz & Shapiro, P.C., by Brad Zelenitz, Rachel Gallagher, & Meredith L. Sales, Esqs., 138-44 Queen Blvd., Briarwood, NY 11435

For Defendant Markland Estate Realty, Inc.: Gabriel O. Amene, 88-32 Sutphin Blvd., Jamaica, NY 11435