LZG Realty LLC v H.D.W. 2005 Forest LLC
Annotate this CaseDecided on May 28, 2010
Supreme Court, Richmond County
LZG Realty LLC AND TISSA FUNDING CORP., Plaintiffs,
against
H.D.W. 2005 Forest LLC, ELI WEINSTEIN, BENJAMIN HAGER, ESQ., MALLOW, KONSTAM & HAGER, P.C. AND JOHN DOE No. 1-5, Defendants.
H.D.W. 2005 FOREST LLC,Third-Party Defendant/Third-Party Plaintiff,
against
BENJAMIN HAGER, ESQ., MALLOW, KONSTAM & HAGER, P.C., BONANNO REALTY, LLC AND CONGREGATION IMREI YEHUDAH, Third-Party Defendant.
BONANNO REALTY LLC AND CONGREGATION IMREI YEHUDAH, Plaintiffs,
against
HDW 2005 FOREST, LLC, ELI WEINSTEIN, NEW YORK STATE COMMISSION OF TAXATION AND FINANCE, NEW YORK CITY DEPARTMENT OF FINANCE, LZG REALTY LLC, TISSA FUNDING CORP., AND JOHN DOE #1 through #10, Defendants.
102910/07
Judith N. McMahon, J.
Upon the foregoing papers, the above motions are consolidated herein for disposition; [*2]Motion No. 010 is permitted to be withdrawn; and the parties' respective motions for summary judgment are disposed as follows.
These actions have been joined for trial and are brought by the first and second mortgagees to foreclose mortgages held against real property owned by defendant H.D.W. 2005 Forest LLC, ("H.D.W.") and guaranteed by defendant Eli Weinstein ("Weinstein"). Defendants Benjamin Hager, Esq. and Mallow Konstam & Hager, P.C. (collectively, the "Hager defendants") allegedly represented the mortgagor and Weinstein at the title closing and at both mortgage closings.
Action No. 1 is based on the second mortgage that closed on March 24, 2006. The first
mortgage, closed November 9, 2005, is the subject of Action No. 2.
BACKGROUND
The actions have their geneses in the purchase by H.D.W. of real property in April 2005. At the time, Harvey D. Wolinetz, not a party herein, purportedly was the sole principal of H.D.W.
On November 9, 2005, H.D.W. allegedly obtained a $2 million loan, secured by a mortgage on the property, from plaintiffs in Action No. 2, Bonanno Realty LLC ("Bonanno") and Congregation Imrei Yehudah ("Yehudah"). At the closing, H.D.W. appeared by Weinstein who presented documentation showing that he was the sole owner of H.D.W. and was authorized to enter into the loan and mortgage. The documents, an Operating Agreement, and a Certificate of Authority were prepared by Benjamin Hager, Esq. who also attended the closing. Weinstein also executed a personal guarantee at the closing.
On March 24, 2006, H.D.W. allegedly sought and obtained from LZG Realty LLC ("LZG") and Tissa Funding Corp. ("Tissa"), a second mortgage loan on the property in the amount of $2 million. Weinstein again purported to be authorized to act on behalf of H.D.W., based upon a Certificate of Resolution Authorizing Loan prepared by Hagerthat stated Weinstein was the sole principal of H.D.W. and had authority to enter into the loan and mortgage.
Following the borrower's default on the loans, LZG and Tissa commenced the instant foreclosure action against H.D.W. and Weinstein (Action No. 1) in July, 2007. On or about August 30, 2007, Weinstein allegedly executed a confession of judgment in that action. Thereafter, on or about November 16, 2007, Hager and Weinstein individually, and on behalf of H.D.W. executed a forbearance agreement with LZG and Tissa conditionally holding Action No. 1 in abeyance.
Shortly thereafter, on or about December 20, 2007, an answer was interposed in Action No. 1 on behalf of H.D.W. by Wolinetz who alleged that he, not Weinstein, was the only member of the corporation and that the mortgage was invalid.
In that answer defendant H.D.W. also counterclaimed, seeking judgment declaring that the second mortgage and underlying note are invalid, and demanding monetary damages based upon slander of title. In addition, it cross claimed against defendant Weinstein for compensatory damages based upon fraud, conversion and unjust enrichment. It also commenced a third-party action against Benjamin Hager, Esq.; Mallow, Konstam & Hager LLC and the first mortgagees, Bonanno and Yehudah.
In their answer to the third-party complaint, the Hager defendants cross claimed against [*3]Weinstein, seeking contribution and indemnification.
In their answer to the third-party complaint, Bonanno and Yehudah, cross claimed against both Weinstein and the Hager defendants. LZG and Tissa thereupon served an amended complaint in Action No. 1 adding a direct claim against the Hager defendants.
On or about February 7, 2008, Bonanno and Yehudah commenced Action No. 2 against H.D.W. and Weinstein based on their default on the first mortgage. Plaintiffs joined LZG and Tissa as named defendants in that action based on their status as subordinate mortgagees.
Both Weinstein and Wolinetz served separate answers in Action No. 2 on behalf of H.D.W.
In the Answer filed by Wolinetz on its behalf, H.D.W. counterclaimed against the
first mortgagees for declaratory judgment and slander of title and cross claimed against
Weinstein for fraud, conversion and unjust enrichment.
Issue has been joined on all claims, cross claims and counterclaims. However, on May 19,
2009, this Court struck Weinstein's answers in Action No. 1 and Action No. 2.
THE MOTIONS
In Motion No. 008, defendant H.D.W. moves for an Order granting summary judgment in its favor on all of its claims in Action 1, Action 2,[FN1] and the Third-Party Action, including (1) a declaratory judgment determining that the mortgage documents are invalid and unenforceable as against H.D.W. and the property; (2) an Order dismissing plaintiffs' foreclosure complaints; (3) an Order requiring that the plaintiffs remove any liens recorded against the property; (4) an Order quieting title to the Property in favor of H.D.W.; (5) a judgment for damages incurred as a result of the plaintiffs' slander of H.D.W.'s title to the property, and (6) a judgment on default for damages against Weinstein.
In Motion No. 009, plaintiffs in Action No. 1, LZG and Tissa, move for partial summary judgment declaring the validity of the second mortgage; foreclosing the second mortgage; dismissing H.D.W.'s affirmative defenses and counterclaims; and referring the matter to a referee to compute the amounts due.[FN2]
Upon application of movant, Motion No. 010, seeking to hold a non-party witness in contempt, is permitted to be withdrawn.
In Motion No. 011, the Hager defendants move pursuant to CPLR Section 3212 for (1) summary judgment dismissing H.D.W.'s legal malpractice and fraud causes of action, (2) summary judgment as against plaintiffs LZG and Tissa dismissing their claims for contribution and indemnification; (3) summary judgment as against plaintiffs/third-party defendants Bonanno and Yehudah dismissing their claims for contribution and indemnification; or, in the alternative, [*4]summary judgment on the Hager defendants' cross claims as against defendant Eli Weinstein for contribution and indemnification.
In addition to the above, plaintiffs in Action No. 2, Bonanno and Yehudah, move therein
(Motion No. 001) for partial summary judgment declaring the validity of the first mortgage;
dismissing H.D.W.'s third-party claims, counterclaims and affirmative defenses; foreclosing the
first mortgage and referring the matter to a referee to compute the amounts due.
DISCUSSION
In a joint memorandum of law in support of their respective motions for partial summary judgment (Mot. Nos. 009 and 001), the first and second mortgagees allege that (1) plaintiffs are bonafide holders of the mortgages; (2) Weinstein had authority to act on behalf of H.D.W.; (3) Wolinetz ratified Weinstein's actions and the mortgages; and (4) the mortgages are unpaid and in default.
In opposition to plaintiffs' joint motions and in support of its own motion for summary judgment (Mot. No. 008), H.D.W. argues that (1) Weinstein did not have authority to act on behalf of H.D.W.; (2) Weinstein obtained the loans under false pretenses; and (3) the mortgages are void ab initio.
In support of their motion for summary judgment dismissing all claims and cross claims against them (Mot No. 011), the Hager defendants argue that (1) H.D.W. 2005 Forest LLC lacks standing to assert claims for legal malpractice and fraud; (2) that the mortgagees' claims for indemnification and contribution do not lie; and (3) they are entitled to both indemnification and contribution from defendant Weinstein.
In addition, because defendant Weinstein's pleadings have been struck by the Court, both
H.D.W. and the Hager defendants move for judgment on default against defendant Weinstein.
The Motions for Summary Judgment Respecting Foreclosure.
In their joint Memorandum of Law, the first and second mortgagees characterize this action as "a straightforward foreclosure case involving commercial property," and allege that the defenses proffered on behalf of the named mortgagor, H.D.W. 2005 Forest LLC, seek only to delay and hinder the lenders' rightful foreclosure against the property securing the loans.
In order to make a prima facie case for foreclosure, the lender is required to show: (1) the debt of the borrowers; (2) nonpayment of the debt; and (3) present ownership of the debt by the lender. That is, "[e]ntitlement to [summary] judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact" (Charter One Bank, FSB v. Leone, 45 AD3d 958, 958 [3rd Dept 2007]).
Here, plaintiffs have established that H.D.W. is the record owner of the mortgaged property; that Weinstein executed the mortgage and loan documents as the purported 100% principal of H.D.W., and on his own behalf as personal guarantor; and that the mortgages are in default. Thus, the mortgagees have established their prima facie entitlement to foreclosure, [*5]thereby shifting the burden of going forward to defendant H.D.W. as mortgagor (CPLR 3212)[FN3].
The crux of both H.D.W.'s opposition to plaintiffs' motions and its support of its own motion for summary judgment is that the subject mortgages should be deemed void ab initio because they were procured through the fraud of erstwhile co-defendant Eli Weinstein.
More specifically, it asserts that in April, 2005, Harvey D. Wolinetz gave Weinstein certain funds to purchase the property in the name of H.D.W. 2005 Forest LLC, a corporation wholly owned by Wolinetz and formed for the sole purpose of taking title to the property. Although title to the property was recorded in the name of H.D.W., it asserts that Weinstein and the Hager defendants subsequently prepared false documents that Weinstein used to obtain the underlying loans from the plaintiffs in H.D.W.'s name, diverting the funds to his own use.[FN4]
While it is undisputed that Weinstein executed the mortgage documents and held himself out as the sole principal of H.D.W. at the mortgage closings (indeed, at the closings, he presented Certificates of Authority, prepared by co-defendant Benjamin Hager, purporting to show his 100% interest in H.D.W.), Weinstein admitted, prior to the striking of his pleadings, that he executed the documents without authority (see, e.g., Ticor Title Guarantee Co. V. E.F.D. Capital Group, Inc., 210 AD2d 841 [3rd Dept 1994]). However, he has at other times denied such wrongdoing, and has maintained that at the time of the mortgages, he was the owner of H.D.W.; that he still retains his interest in H.D.W.; and that, although he did not need authorization from Wolinetz to encumber the property; Wolinetz did give him permission to do so (see e.g. Deposition of Eli Weinstein, dated February 3, 2009, at pp. 269 ff).
To the extent, then, that H.D.W. relies on Weinstein's purported admission in order to establish that he lacked authority to encumber the property, that reliance is misplaced. To the extent admissible, any such statement is belied by Weinstein's contrary deposition testimony, and, at best, raises issues of fact and credibility that are inappropriate for resolution on a summary judgment motion.
For this same reason, the issues of, inter alia, (1) Wolinetz's interest in the property, if any; (2) Weinstein's authority to bind H.D.W., either as its principal or in a representative capacity as its agent; and (3) Wolinetz's ratification, if any, of the mortgages or of Weinstein's actions precludes summary judgment of foreclosure in favor of plaintiff-mortgagees in either action. Although the disloyalty of a mortgagor's agent when he acted for his own self interest in entering into the mortgage is not a defense to foreclosure (see Citibank, N.A. v. Nyland [CF8] Ltd., 692 F. Supp. 1488 [S.D.N.Y.1987], judgment aff'd, 878 F.2d 620 [2d Cir. 1989]), here the very question of Weinstein's authority is a seminal, triable issue.
Accordingly, (1) so much of the respective motions as seek declaratory judgment respecting
the validity or invalidity of the mortgages is denied; (2) so much of the respective motions by
plaintiff-mortgagees seeking summary judgment of foreclosure is denied; and (3) that portion of
the defendant H.D.W.'s motion seeking summary judgment: (a) dismissing plaintiffs' foreclosure
[*6]complaints, (b) requiring that plaintiffs remove any liens
recorded against the property, and (c)) quieting title to the property in favor of H.D.W. is
denied.Summary Judgment on H.D.W.'s Counterclaim
for Damages based upon Slander of Title.
H.D.W. alleges that plaintiffs disparaged its title to the property in that each knowingly recorded an invalid mortgage and note executed by Weinstein that falsely cast doubt on H.D.W.'s title.
The tort of slander of title involves a communication that (1) falsely casts doubt on the validity of a party's title; (2) is reasonably calculated to cause harm; and (3) in fact results in special damages. That is, the gist of such a claim is false disparagement of title resulting in an impairment of marketability (Rosenbaum v. New York, 8 NY3d 1 [2006]). For example, the wrongful recording of a mortgage may give rise to an action for slander of title if provable damages result (see e.g. 39 Coll Point Corp. v. Transpac Cap. Corp., 27 AD3d 454 [2d Dept. 2006]).
However, since falsity is an essential element of the tort, the burden is on H.D.W., as the party seeking summary judgment, to prove the liens false. As with that portion of its motion for summary judgment attacking the validity of the mortgages and notes, H.D.W. has failed here to make a prima facie showing of falsity of the liens. Moreover, there is no evidence that any of the plaintiffs or their representatives knew that the mortgage liens were false or harbored any doubts about their truthfulness.
The second element of slander of title is that the statements must have been reasonably calculated to cause harm. In other words, H.D.W. must demonstrate that the mortgagees acted with malice (see Modulars by Design, Inc. v. DBJ Devel. Corp., 174 AD2d 885 [3rd Dept. 1991]). This imposes a heavy burden on H.D.W., as the proponent of summary judgment, to show more than mere falsity and the surmise of malice (see e.g. Shapiro v. Health Ins. Plan of Greater NY, 7 NY2d 56 [1959]). As with the loans themselves, here there is no evidence that plaintiffs knew or should have known of the alleged fraud by Weinstein or that they acted in reckless disregard of the borrower's interest in the property. In the absence of such a showing, H.D.W. has failed to establish its entitlement to summary judgment.
Separate and apart from the lack of demonstrated falsity or malice, H.D.W. also has failed to plead and present evidence of special damages, the necessary third element of its counterclaim (29 Coll. Point Corp. v. Transpac Cap. Corp., 27 AD3d at 455). Special damages are defined as "the loss of something having pecuniary value such as a loss of profits" (Wolf Street Supermarkets, Inc.Vv. McPartland, 108 AD2d 25, 32 [4th Dept. 1985], appeal dis. 65 NY2d 785).
In the absence of any showing that provable damages resulted from plaintiffs' recording the mortgages, no cause of action for slander of title lies (see Hanbidge v. Hunt, 183 AD2d 700, 701 [2nd Dept.1992]).[FN5]
It is incumbent upon H.D.W. to assemble, reveal and lay bare its proof on this motion. Thus, it is not enough to sustain its counterclaim for slander of title that H.D.W. raise an issue of fact [*7]concerning the underlying mortgage. While the wrongful recording of an invalid mortgage might be actionable if special damages followed, defendant having failed to present any evidence concerning either plaintiffs' malice or its own special damages, its claim must fail (Modulars By Design, Inc. v. DBJ Devel. Corp., 174 AD2d at 887).
Accordingly, so much of defendant H.D.W.'s motion for summary judgment on its
counterclaim for damages based on slander of title is denied. For these same reasons, plaintiffs
are entitled to summary judgment dismissing that counterclaim.
The Hager Defendants' Motion for Summary Judgment.
As noted above, the Hager defendants initially were named in Action No. 1 as third-party
defendants by H.D.W., which asserted causes of action sounding in legal malpractice and fraud.
Bonanno and Yehudah, also named as third-party defendants therein, then cross claimed against
the Hager defendants, seeking both contribution and indemnification. Thereupon, plaintiffs LZG
and Tissa amended their complaint to add the Hager defendants as prime defendants in Action
No. 1, also seeking contribution and indemnification.
1. The Third-Party Claims of H.D.W. in Action No. 1
The Third-Party Claim of Professional Negligence
In its first claim against the Hager defendants, H.D.W. alleges that "[as] a result of Hager's negligence . . . H.D.W. is now defending itself in the foreclosure action brought by LZG and Tissa, and the premises has two invalid mortgages placed against them (sic)."
In seeking summary judgment dismissing this claim, the Hager defendants allege that Benjamin Hager never purported to represent either H.D.W. or Wolinetz, and argue that the claim sounds in legal malpractice and therefore must be dismissed as there is no privity between Hager and either H.D.W. or its alleged principal, Wolinetz.[FN6]
Although denominated as a cause of action sounding in "professional negligence," the gist of defendant H.D.W.'s first claim against the Hager defendants is that Benjamin Hager, Esq., acting together with defendant Weinstein, (1) wrongfully caused it to provide funding to purchase the property at 2505 Forest Avenue; and (2) thereafter purported to represent H.D.W. at the title closing, and at the subsequent mortgage closings, thereby facilitating Weinstein's alleged perfidy in claiming ownership of H.D.W. and obtaining the secured loans (which he then diverted to his own use, leaving H.D.W., as both the titular owner of the property and as the named mortgagor, liable for the defaulted loans).
However denominated, it cannot be gainsaid that the pleadings herein give the Hager defendants notice of the transaction out of which H.D.W.'s claim purports to arise. CPLR 3017 allows the Court to grant "any type of relief... appropriate to the proof whether or not demanded." Here, the third-party complaint sets forth sufficient facts to state a claim upon which relief can be granted, and so long as that pleading can be read to embrace the elements of a provable claim, the fact that the pleading theorizes it as something else is immaterial (see e.g. McGinnis v. Bankers Life Co., 39 AD2d 393 [2nd Dept 1972]).
To that extent, so much of the Hager defendants' motion for summary judgment addressed
[*8]to the third-party claim of professional negligence and
grounded on the argument that "H.D.W. cannot establish privity, a necessary element in order to
prove legal malpractice" is denied.
The Third-Party Claim of Fraud
As set forth in paragraph 21 of the third-party complaint:
Plaintiff HDW (sic) also asserts a third party claim for fraud against [the
Hager defendants] for their misconduct related to the acquisition of two apartment-complexes,
the Kimball Cabana apartments located at 2856 Kimball Avenue, Memphis Tennessee and the
New Horizon apartments located at 3619 Kingsgate Drive, Memphis, Tennessee.
It appears that this claim is based upon a real estate transaction between Weinstein and Harvey D. Wolinetz (who is not a party to the instant actions) in which Weinstein and Hager allegedly defrauded Wolinetz and HDW 2005 LLC, the corporation he had formed to purchase the properties in Memphis. HDW 2005 LLC is an entity separate and distinct from defendant/third-party plaintiff herein, H.D.W. 2005 Forest LLC.
In seeking summary judgment dismissing this cause of action, the Hager defendants argue that the defendant/third-party plaintiff herein, H.D.W. 2005 Forest, LLC, therefore lacks standing to assert the claim, and that, in any event, it has failed to set forth any evidence that the Hager defendants made any representations concerning the Memphis transactions.
Standing requires that a party asserting a claim have an interest in that claim that the law will recognize as a sufficient predicate for the court to act upon (Wells Fargo Bank v. Mastropaolo, 42 AD3d 239, 242 [2nd Dept. 2007]). Here, it is undisputed that the corporate entity involved in the Memphis transactions is HDW 2005 LLC, not H.D.W. 2005 Forest LLC, and it appears that the only link between the two separate corporations is that Wolinetz claims an interest in each. Thus, the Hager defendants have met their burden establishing their prima facie right to summary judgment.
In opposition, H.D.W. 2005 Forest LLC has failed to establish its standing to assert the claim, which belongs to HDW 2005 LLC. "Where standing is put in issue by a defendant's answer, a plaintiff must prove its standing if it is to be entitled to relief" (Wells Fargo Bank v. Mastropaolo, 42 AD3d at 242; see also TPZ Corp. v. Dabbs, 25 AD3d 787, 789 [2nd Dept.2006]).
Accordingly, so much of the motion by the Hager defendants as seeks summary judgment
dismissing the third-party claim for fraud as against them is granted.
2. The Mortgagees' Claims for Contribution and Indemnification
In their respective pleadings, plaintiff-mortgagees seek both contribution and indemnification from Weinstein and the Hager defendants to the extent they may be found liable for any of the claims asserted against them.[FN7]
In moving for summary judgment dismissing these claims against them by the mortgagees, the Hager defendants argue that: (1) the contribution claims should be dismissed because the Hager defendants did not owe any duty to either the mortgagors, H.D.W. or Wolinetz; and (2) the indemnification claims should be dismissed because: (a) without a duty owed, the Hager defendants cannot be held vicariously liable for the mortgagors' liability toward the borrower, and (b) indemnification is unavailable to a party that has contributed in some degree to the harm complained [*9]of.
However, contrary to the arguments of the Hagers' counsel, the factual issues underlying their position are not without question. The sine qua non of a summary judgment motion is the absence of a triable issue of material fact. That is, the proponent must make a prima facie showing of entitlement to judgment as a matter of law. The Hager defendants have not met that burden here. Viewing the evidence in a light most favorable to the parties opposing the motion, and drawing all the favorable inferences that can be drawn from the evidence in their favor, there are triable issues of fact concerning, but not limited to: (1) which entity the Hager defendants represented in the various transactions; (2) the liability, if any, of the Hager defendants in preparing the documents produced at the closings and allegedly relied upon by the mortgagees; and (3) whether the mortgagees contributed in any way to the claimed damages.
Accordingly, so much of the Hager defendants' motion for summary judgment as seeks to
dismiss the claims for contribution and indemnification is denied.
Judgment on Default Against Defendant Weinstein
Finally, both the Hager defendants and defendant H.D.W. move for summary judgment on default against defendant Eli Weinstein, whose pleadings have been struck by the Court.
The Hager defendants have asserted claims sounding in contribution and common law indemnification as against Weinstein based on their reliance upon the latter's allegedly false representations to Benjamin Hager, Esq.
Defendant H.D.W. has asserted cross claims against defendant Weinstein sounding in fraud, unjust enrichment and conversion based upon the latter's allegedly having fraudulently obtained monies from the mortgagees in the name of H.D.W.
All of these claims and cross claims are deemed admitted by Weinstein due to the striking of his pleadings by this Court (Curiale v. Ardra Ins. Co., Ltd., 88 NY2d 268 [1996]). Therefore, the moving defendants are entitled to summary judgment against Weinstein on the issue of his liability, and the respective motions are granted to that extent.
Accordingly, it is
ORDERED that so much of the motion (No. 008) of defendant H.D.W. 2005 Forest LLC as seeks summary judgment on the issue of liability as against co-defendant Eli Weinstein is granted, and the balance of the motion otherwise is denied; and it is further
ORDERED that so much of the motion (No. 009) of plaintiff LZG Realty LLC and Tissa Funding Corp. as seeks summary judgment dismissing defendant H.D.W. 2005 Forest LLC's counterclaim based on slander of title is granted, and the balance of the motion is denied; and it is further
ORDERED that the motion (No. 010) of defendant H.D.W. 2005 Forest LLC to punish Kevin Swetsky, a non-party witness, for contempt is permitted to be withdrawn; and it is further
ORDERED that so much of the motion (No. 011) of defendants/third-party defendants Benjamin Hager, Esq. And Mallow, Konstam & Hager, P.C. for summary judgment on the issue of liability as against co-defendant Eli Weinstein is granted, and the balance of the motion otherwise is denied; and it is further
ORDERED that so much of the motion (No. 001) of plaintiffs Bonanno Realty LLC and Congregation Imrei Yehudah in Action No. 2 as seeks summary judgment dismissing defendant H.D.W. 2005 Forest LLC's counterclaim based on slander of title is granted, and the balance of the [*10]motion is denied; and it is further
ORDERED that the Clerk shall enter judgment accordingly.
E N T E R
Dated:May 28,2010____________________________
Hon. Judith N. McMahon
Justice of the Supreme Court
Footnotes
Footnote 1: Although defendant H.D.W.
improperly conflates the actions here, for purposes of judicial economy and in the absence of any
objection by the parties, the Court will consider the motion as properly addressing both actions.
Footnote 2: Plaintiff-mortgagees are not
moving with respect to any claims or cross claims against the Hager defendants at this time
(see Affirmation of Abraham B. Krieger, dated January 11, 2009 [sic], ¶ 2, fn 2).
Nor have they sought relief herein against defendant Weinstein.
Footnote 3: Defendant-guarantor
Weinstein's pleadings having been struck by the Court, he has not appeared on these motions.
Footnote 4: See e.g. purported statement of
Eli Weinstein dated August 30, 2007 (Exhibit Q to Affirmation of Crew Shielke in support of
H.D.W.'s motion for summary judgment.)
Footnote 5: Nor, for that matter, does the
filing of a lis pendens in these actions salvage defendant's cause of action. The mere
filing of a lis pendens does not constitute the tort of slander of title (Brown v.
Bethlehem Terrace Assocs., 136 AD2d 222).
Footnote 6: Hager's assertion is belied by
the testimony, inter alia, of Weinstein himself who testified at his deposition that Hager
represented both Weinstein and H.D.W. on matters involving the property (Deposition of Eli
Weinstein, dated February 12, 200 9, page 64, ll 5 ff.)
Footnote 7: See Amended Verified
Complaint of LZG and Tissa, dated June 25, 2008, ¶¶ 46-60; and Verified
Third-Party Answer of Bonanno and Yehudah, dated March 25, 2008, ¶¶52-60.
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