Davis v Lancaster

[*1] Davis v Lancaster 2010 NY Slip Op 20541 Decided on June 14, 2010 Supreme Court, Bronx County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on June 14, 2010
Supreme Court, Bronx County

Joseph Davis, Plaintiff

against

Harriet Lancaster and BENEFICIAL HOMEOWNER SERVICE CORPORATION, Defendants



300479/2009



For Plaintiff

Gregory R. Preston Esq.

Preston Wilkins Martin & Rodriguez, PLLC

65 Broadway, Suite 508, New York, NY 10006

For Defendant Lancaster

Laurence M. Savedoff Esq.

3234 White Plains Road, Bronx, NY 10467

Lucy Billings, J.

Plaintiff sues defendant Harriet Lancaster for damages and equitable relief because in November 2007 she excluded him from premises at 3363 Barnes Avenue, Bronx County, where he had resided since at least July 1994. Plaintiff's first six claims seek to: (1) recover possession of the premises, R.P.A.P.L. §§ 601, 631, 633; (2) partition the premises, R.P.A.P.L. §§ 901(3), 903; (3) recover the value of his lost use and occupancy of the premises from January 2008 due to defendant's exclusion of him; (4) determine their adverse claims, NY Real Prop. Law (RPL) art. 15 (now repealed); and (5) cancel a recorded instrument, a deed conveying plaintiff's interest in the premises to defendant. RPL § 329. His seventh and eighth claims seek to recover possession of and damages for his personal property of which he has been deprived at the premises.

Defendant Beneficial Homeowner Service Corporation has not appeared in the action. Defendant Lancaster moves to dismiss plaintiff's complaint against her based on conclusive documentary evidence. C.P.L.R. § 3211(a)(1). For the reasons explained below, the court denies defendant Lancaster's motion.

II.DEFENDANT LANCASTER'S MOTION TO DISMISS THE COMPLAINT

A.Merits of Lancaster's Motion

Dismissal of the complaint and its specific claims pursuant [*2]to C.P.L.R. § 3211(a)(1) requires documentary evidence that conclusively resolves all factual issues and establishes a defense as a matter of law. Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 (2002); McCully v. Jersey Partners, Inc., 60 AD3d 562 (1st Dep't 2009); Zanett Lombardier, Ltd. v. Maslow, 29 AD3d 495 (1st Dep't 2006); Richbell Info. Servs. v. Jupiter Partners, 309 AD2d 288, 289 (1st Dep't 2003). The documentary evidence must plainly and flatly contradict the claims in the complaint. KSW Mech. Servs., Inc. v. Willis of NY, Inc., 63 AD3d 411 (1st Dep't 2009); Arfa v. Zamir, 55 AD3d 508, 509 (1st Dep't 2008); Kinberg v. Kinberg, 50 AD3d 512, 513 (1st Dep't 2008); Sprung v. Command Sec. Corp., 38 AD3d 478, 479 (1st Dep't 2007). The complaint or individual claims may be dismissed based on such evidence unless plaintiff rebuts it. Hicksville Dry Cleaners, Inc. v. Stanley Fastening Sys., L.P., 37 AD3d 218 (1st Dep't 2007).

The parties do not dispute that in July 1994 Emma Boyd, plaintiff's wife and defendant Lancaster's mother, conveyed the premises at 3363 Barnes Avenue to plaintiff and Lancaster jointly. In 1999, Boyd died, and Lancaster moved into the premises. She attests that in May 1999 plaintiff conveyed his interest in the premises to her, but continued to live there without paying for rent or for use and occupancy, until he moved out with most of his personal property in November 2007 to live with his girlfriend. Lancaster further attests that in May 2008 plaintiff instructed her to throw out his remaining personal property at the premises.

Lancaster supports her motion to dismiss the complaint with an authenticated copy of a bargain and sale deed dated May 10, 1999, and executed by plaintiff, conveying to defendant his interest in the premises. The deed is acknowledged by a notary, which is prima facie evidence that it was executed by plaintiff. C.P.L.R. § 4538; Artigas v. Renewal Arts Realty Corp., 22 AD3d 327, 328 (1st Dep't 2005); Seaboard Sur. Co. v. Earthline Corp., 262 AD2d 253 (1st Dep't 1999); Olympus Servicing, L.P. v. Lee, 56 AD3d 537 (2d Dep't 2008); Beshara v. Beshara, 51 AD3d 837, 838 (2d Dep't 2008). As the deed directly contradicts plaintiff's claimed joint ownership of the premises, this evidence supports dismissal of plaintiff's first six claims in his complaint. Matz v. Prospect Energy Corp., 63 AD3d 619, 620 (1st Dep't 2009); Beekman Regent Condominium Assn. v. Greater NY Mut. Ins. Co., 45 AD3d 311 (1st Dep't 2007); E. Lee Martin, Inc. v. Saks & Co., 30 AD3d 1139, 1140 (1st Dep't 2006). Lancaster's documentary evidence does not bear on plaintiff's seventh and eighth claims regarding his personal property, however, and warrant their dismissal. Id.

B.Opposition to Lancaster's Motion

To defeat a motion to dismiss the complaint pursuant to C.P.L.R. § 3211(a)(1), plaintiff's complaint or opposition to the motion must undermine defendant's documentary evidence or raise a factual issue regarding the claim refuted by defendant's documentary evidence. Hicksville Dry Cleaners, Inc. v. Stanley [*3]Fastening Sys., L.P., 37 AD3d 218; Torrenzano Group, LLC v. Burnham, 26 AD3d 242 (1st Dep't 2006); Grant v. Udoye, 288 AD2d 160, 161 (1st Dep't 2001); Berenthal & Assoc. v. Mechanical Plastics Corp., 288 AD2d 143, 144 (1st Dep't 2001). In opposition, plaintiff attests that he "never signed any documents or deed conveying my interest" in the premises. Aff. of Gregory Preston, Ex. B ¶ 9. Since the court must accept any opposing affidavits as true and construe them liberally, 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 (2002); Richbell Info. Servs. v. Jupiter Partners, 309 AD2d at 289, his affidavit raises an issue regarding the authenticity of his signature on the deed conveying his ownership interest in the premises. Cicale v. Wachovia Bank, N.A., 56 AD3d 392, 393 (1st Dep't 2008); Berenthal & Assoc. v. Mechanical Plastics Corp., 288 AD2d at 144; Seaboard Sur. Co. v. Earthline Corp., 262 AD2d 253; McKenna v. Double G Dev. Corp., 251 AD2d 202, 203 (1st Dep't 1998). See Artigas v. Renewal Arts Realty Corp., 22 AD3d at 328.

While clear and convincing evidence that plaintiff's signature was forged ultimately is required to rebut due execution, that heightened standard of proof applies not to defeat a motion to dismiss, but to defeat summary judgment, Cicale v. Wachovia Bank N.A., 56 AD3d at 392-93; Seaboard Sur. Co. v. Earthline Corp., 262 AD2d at 253; Brown Bark I, L.P. v. Imperial Dev. & Constr. Corp., 65 AD3d 510, 511-12 (2d Dep't 2009); John Deere Ins. Co. v. GBE/Alasia Corp., 57 AD3d 620, 621-22 (2d Dep't 2008), or to prevail at trial. Son Fong Lum v. Antonelli, 102 AD2d 258, 260-61 (2d Dep't 1984), aff'd, 64 NY2d 1158 (1985); Bryant v. Bryant, 58 AD3d 496 (1st Dep't 2009); Chianese v. Meier, 285 AD2d 315, 320 (1st Dep't 2001); Olympus Servicing, L.P. v. Lee, 56 AD3d at 537-38. Lancaster charted her own course in moving to dismiss the complaint rather than for summary judgment. E.g., Hyundai Corp. v. Republic of Iraq, 20 AD3d 56, 59 (1st Dep't 2005); Travelers Ins. Co. v. Job, 239 AD3d 289, 293 (1st Dep't 1997); Dellwood Country Club v. Budget Rent A Car Corp., 267 AD2d 194 (2d Dep't 1999); Shayne v. Julien, Schlesinger & Finz, P.C., 110 AD3d 761, 762 (2d Dep't 1985). Upon a motion to dismiss, C.P.L.R. § 3211(c) does not afford the court the discretion to look behind the complaint and treat the motion as one for summary judgment, unless the court first gives notice to the parties, or defendant and plaintiff both so treat the motion. E.g., Noonan v. City of New York, 9 NY3d 825, 827 (2007); Wieson v. New York Univ., 304 AD2d 459, 460 (1st Dep't 2003); MacDonald v. Prudential Sec., 247 AD2d 346, 347 (1st Dep't 1998); Four Seasons Hotel Ltd. v. Vinnik, 127 AD2d 310, 318, 320 (1st Dep't 1987).

Because the complaint, consistent with the absence of any such conveyance, does not address the alleged deed at all, plaintiff opposes Lancaster's motion by merely referring to his affidavit, which alleges simply that he "did not sell his interest in the Premises to defendant Harriet Lancaster." Preston Aff., Ex. A ¶ 9. Like a complaint, his affidavit is bereft of extensive details or corroboration, and whether the [*4]affidavit is supported by further evidence must await summary judgment or trial. E.g., Four Seasons Hotel Ltd. v. Vinnik, 127 AD2d at 318-19, 321.

To withstand dismissal, plaintiff's allegations are sufficiently definite, are neither inherently incredible nor mere legal conclusions, and controvert defendant's documentary evidence. Berenthal & Assoc. v. Mechanical Plastics Corp., 288 AD2d at 144; McKenna v. Double G Dev. Corp., 251 AD2d at 202-203; Martinez v. Moroldo, 160 AD2d 387, 389 (1st Dep't 1990); Diplacidi v. Gruder, 135 AD2d 395, 396 (1st Dep't 1987). See Artigas v. Renewal Arts Realty Corp., 22 AD3d at 328; Seaboard Sur. Co. v. Earthline Corp., 262 AD2d 253; Olympus Servicing, L.P. v. Lee, 56 AD3d at 538; Biondi v. Beekman Hill House Apt. Corp., 257 AD2d 76, 81 (1st Dep't 1999). No evidence indicates plaintiff took any action consistent with his alleged execution of the deed or received any value for the conveyance. McKenna v. Double G Dev. Corp., 251 AD2d at 203; Diplacidi v. Gruder, 135 AD2d at 396; Four Seasons Hotel Ltd. v. Vinnik, 127 AD2d at 314. See Artigas v. Renewal Arts Realty Corp., 22 AD3d at 328. While no evidence thus far discloses any relationship between Lancaster and the notary or other alleged witnesses to the deed's execution, neither has she offered them as disinterested witnesses, and denial of her motion to dismiss will permit plaintiff to seek such disclosure. C.P.L.R. § 3211(d). See McKenna v. Double G Dev. Corp., 251 AD2d at 203; Griffin v. Anslow, 17 AD3d 889, 892 (3d Dep't 2004). The parties' familial relationship and residence together indicate Lancaster had access to plaintiff's signature, Abrons v. 149 Fifth Ave. Corp., 45 AD3d 384, 385 (1st Dep't 2007); Peyton v. State of Newburgh, Inc., 14 AD3d 51, 54 (1st Dep't 2004); Diplacidi v. Gruder, 135 AD2d at 395, but only at trial may plaintiff establish a forgery by a handwriting expert's comparison of plaintiff's disputed signature with his undisputed signature or by the trier of fact's comparison. C.P.L.R. §§ 4536, 4538; People v. Hunter, 34 NY2d 432, 435-36 (1974); Olympus Servicing, L.P. v. Lee, 56 AD3d at 538; People v. Fields, 287 AD2d 577, 578 (2d Dep't 2001); Smith v. Coughlin, 198 AD2d 726 (3d Dep't 1993). This comparison may not be made in the context of a motion to dismiss. Seoulbank, NY Agency v. D & J Export & Import Corp., 270 AD2d 193, 194 (1st Dep't 2000); Dyckman v. Barrett, 187 AD2d 553, 555 (2d Dep't 1992).

Finally, plaintiff's fourth claim for a determination of adverse claims is based on RPL Article 15, which has been repealed. R.P.A.P.L. § 2111. Since the Legislature re-enacted those provisions, R.P.A.P.L. art. 15, and the complaint's allegations apprise defendants of the nature of this claim, however, this mistake does not prejudice defendants and thus provides no basis to dismiss the claim. C.P.L.R. § 2001. See Tagliaferri v. Weiler, 1 NY3d 605, 606 (2004); Gazes v. Bennett, 70 AD3d 579 (1st Dep't 2010); Chase Home Mtge. Corp. v. Marti, 279 AD2d 270, 271 (1st Dep't 2001).

III.CONCLUSION [*5]

For the above reasons, the court denies defendant Lancaster's motion to dismiss the complaint against Lancaster in all respects. Lancaster shall serve and file any answer within 10 days after service of this order with notice of entry. C.P.L.R. § 3211(f). E.g., Munroe v. Burgher, 43 AD3d 891 (2d Dep't 2007); Tulley v. Straus, 265 AD2d 399, 401 (2d Dep't 1999).

DATED: June 14, 2010

_____________________________

LUCY BILLINGS, J.S.C.