DeMaio v Capozello

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DeMaio v Capozello 2013 NY Slip Op 30158(U) January 18, 2013 Sup Ct, Suffolk County Docket Number: 28320/2005 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT - STATE OF NEW YORK CALENDAR CONTROL PART - SUFFOLK COUNTY PRESENT: HON.I'AUL J. BAISLEY, JR., J.S.c. ----------------------------------------------------------------)( JAMES P. DeMAIO, Plainlin~ -againstROBERT CAPOZELLO, ANNA CAPOZELLO, STEPHEN ZANGRE, ANTHONY OLIVERJ and JOSErI·1 PAPPALARDO, Defendants. INDE)( NO.: 28320/2005 CALENDAR NO.: 200900831EQ MOTION DATE: 4/19/12 MOTION SEQ. NO.: 011 MOT D PLAINTIFF'S ATTORNEY: ROBERT A. BRUNO, ESQ. 235 Brooksite Drive Hauppauge, New York 11788 DEFENDANTS' ATTORNEYS: SI fLIMBAUM & SCHLIMBAUM 265 Main St., P.O. Box 8 Islip, New York I 1751-0008 ----------------------------------------------------------------)( MARK L DEBENEDITTIS, ESQ. 99 Smithtown Blvd. Smithtown, New York 11787 Upon the following papc-fS numbered I 1020 rem] on this motion for le<lvc 10 amend caption. summar\' jmll:'ll'lcn! and 10 compel: Notice of MOlionl Order 10 Show ('aust> and supporting papcrs---l.:..!1...-: NOIiee of Cross Motion and supporting papcrs_ : Answering A!lid(WIIS and supporting papers 13-14: 15-16 : Replying Affida\'iL~ and supporting papers 17-18: 19-10. Othcr_ : (and after hearing counsel in suppOrt and opposed to the mOlion) it is. ORDERED that this motion by plaintiff James P. DeMaio (DeMaio) seeking an order pursuant to CPLR Sections 100 I, 3025, 3124 & 3212: I) granting leave to add Wells Fargo Home Mortgage as successor in interest to World Savings Bank as an additional party defendant to this action and to amend the complaint; 2) compelling defendant Stephen Zangre (Zangre) to provide adequate responses to plaintiff's November 24,2011 "Second Notice for Discovery and Inspection" and to provide additional discovery including depositions of defendant Zangre and his attorney; and 3) granting plaintiff summary j udgmcnt against defendant Zangre with respect to the fomth cause of action declaring that Zangre was not a bona tide purchaser for value of the premises in issue is determined as follows: PlailltiO'DeMaio is the former son-in-law of the defendants Robert and Anna Capozello (Capozcllos). On February 23. 2005, 'while still married to the Capozcllos' daughter. plaintiff conveyed title of the marital residence to his in-laws to prevent the home from being lost to foreclosure. The Capozellos obtained a $187,00.00 mortgage which was used to pay off the existing mortgage and olher debts accumulated by the DeMaios, and promised to reconvey the premises to the plaintifTonce DeMaio became creditworthy. In return, DeMaio agreed to continue to reside in the premises, collect rent payments 1"/'om tenant \vho occupicd a portion ol'the premises and to a make the monthly mortgage paymcnts (together with tax & insurance payments). Five months laler the DeMaios' separated and the plaintiff ceased making the agreed-upon mortgage payments. After evicting their former son-in-law in October, 2005. the Capozellos sold the premises to defendant Zangre on October 11, 2006, [* 2] ./rwl<'.I'/' 11,''\lai" \. N"f>er! ('lIl',,:effo t'! "I. Plaintiff commenced this action III Nowmbcr. 2005 seeking to have the deed set aside on the hasis oflj'aud: declaring thai DeMaio was the Ia\vfultitle owner oCtile prcmises and directing the COLlIl1.Y Clerk to register title in the plaintiffs name: enjoining the Capozellos from convcying the pn.'J1l1Ses:and awarding compensatory and punitive damages. The complaint wns amended in March, 1006 sCl1ing !(lrth causes of action claiming rraud (I Sl & 1,"1causes of action). impositl(1I1 of a constructive lrust (3'd cause or action) and seeking a declaralion thmlhe February 23. 2005 Capozello/DcMaio deed was a mortgage pursuant lo Real Property L1W Section ]10 (1()unh C~lliseor aClion). By short rorm Order dated February 1X. 2009 pbinliWs motion for an order pursuanl 10 CPI.R Sections :'211 & 3124 granling summary judgment with respect to the first. third and fourth causes of m:tion and compelling the Capozello defendants to provide discovery was granted solely to the extcnt that partial summary .judgment was granted in favor or the plaintiff with respect to the lhird cause of action (imposition of a constructive trust) on the issue of liability with the l]uestion of the amoutl! orlhe net proceeds to be distributed to the plaintilTto be detennincd at a sllbseqllenllrial. Plaintifrs remaining requcsts I()J" rcliefwcrc denied. The Februmy 18,2009 Qflh:r also granled the dclcndants Capozello cross motion ror summary judgmenl dismissing the lirst, second and 1(1Urlh causes of action asserted inlhc a1l1ended complninl and gran led the delcndant CapozelJo's summary .Judgment onlhe third counterclaim set i()fth inlhcir answer declaring that they were the litle owners orthe premisr:s based upon the February 23, 2005 Capozcllo/DcMalo deed. l3y Dccision and Order dated June 8, 2010 the Appellate DiviSion. Second ])epartmelll modified the Februmy 18.1009 Order by granting the plaintiffs motion for summary judgment with respect to thl.' fourth cause of action (RPL Section 320) dcclaring thattlw February 23, 2005 Capozello/DeMaio deed \-vas a mortgage and by granting plaintiff s CPLR Section 31:24 application 10 compel the Capozellos to produce copies of all documents relating to the sale of the premises to derendant Zangre. The June 8, 10 I0 DeCision and Order also denied the defendant Capozellos' cross motion I()r summary judgment with respect to the first and fourth causes of action and the third counterclaim set (nth IJ1their answ"Cr. The action was remil1ed to the Supreme Court for a detcrmination as to whether defendant Zangrc waS:l bona fide purchascr ror value when ti1le of the premises wus conveyed to him by the CnpOl'Tllos on October 11,2006 and for a hearing, if necessary, to delermine the amount of net proceeds 10 be awarded t(lthc plai11lilr. Plaintiffs motion seeks ~lllorder granling 1c~\ve10 amend the complaint by ,ldding an additional party dcJl~ndanL permilting. additional discovery and granting summary judgment againsl del<:ndant Z,mgn: with respect to the fourth cause or action declaring that/...<'lngre was nol J hona fiul.' purchaser f()r value or the premises, In supporl plainti ITsubmits fOllr affirmations or counsel and claims lhai the addilion or defendant Wells Fargo Ilome MOrigage as successor in Interest to World Savings Hank is necessary 10 detenninc whether the mortgage lender had notice of plaintilT l)cMmo's lilk clallns pnor III rinancmg defendant Llllgrc's purcilasl: of the premises ami [0 ll1erel(HC declare the !angre/W(lrld Savings Bank's mortgage null and void. Plainlirrclaillls thal the prnposecl second ~llnended complaint i~ suflieiclll, meritorious <lod necessary to resolve Ih\.' rernaining Issues SUITllLllldingthe alleged 1l,lIlsfCr or title orthe premises fj-Olll(he. Capo'/,cllos to defCndanl I'.angre since the Appellate DiVIsion June 8. 201 () decision granted pi,linti Jf sUlllmary - iud!2,ll1enta!.'.,a ~ ~inst th(; ('anozello de.lcndant~ on the f{)l]r1hcause of action. PIa inl irf HI so clai ms 1hal , summaryjudgmcnl musl be granled againsl c1c!cndant I.angre declaring thalZangrc was not a bona -2- [* 3] ./(11I1<'.< I' "df"1<! \" Nol>,'r/ {·"f",.:dlo ,'I "I. fide purchaser for valuc of the premises in October. 2006 since the undisputed evidence in the record proves that /angre had actual notice ofDcMaio's claim based upon personal service ofthl: aJn<'lldcd complaint made upon Zallgre in March. 2006 together with further proof or Langr..:·s notice and knowledge during oral argumell\ of plaintifrs application for injunctive relief on March 14. 1006_ It is the plaintilrs position that a hearing to determine \-vhethcr Zangre is a bona ride Jlun.:ha~er It)r value is 1101required since the purchaser undisputedly had knowledge oCneMaio's claims morc th~1I1 sewn months prior to the Capo/-dlos/Zangre transfer. I'inally plaintitTclaims that hl~is cntitled tll full and cumpicle responses 10 his "Second Notice ror Discovery uncllnspection" dated Nowmber 14, 2011 li-(l]l1dclcndant Z~lllgre including examinations before trial of dclcncbnt 7angre (lnd his attorney. PlainlilTargues that the I\ppellate Division decision directed disclosure of documents relating. to the sale {lfthe property and the proceeds from the sale and that the defendant Zangre has refused to provide the relevant documents. In opposition the Capozello defendants submit an attorney's affirmation and daim that plaintirrs application seeking leave to amend the complaint must be denied since the proposed second amended complaint is insullicient since it sets lorth only one cause of action with new l~lC!LIal allegations against all defendants. Defendants contend that any proposed amended pleading must clearly show the changes or additions which are made tn the original plcadings and claim that DeMaio's proposed complaint j~lils to delineate all changes being made to the pleading. DelCndants also contend that iI' the proposed complaint only sets forth one cause or action. the plaintiff must be deemcd to have abandoncd the remaining callses or action set li)rth in the amended complaint. Defcndants also claim that triable issues of I~lct remain concerning whether defendant Zangre was a bona fide purchaser for value or the premises which requires that a hearing be conducted in compliance with {he June 8. 20 I Appellate Division decision. a In further opposition c1clcndant Zangre submits an attorney's artlmlation plaintiff is Hot cmitled to conduct discovery until an application is made seeking issue. Defendant also claims that the Appellate Division decision provides that exist cOllccrning Zangrc's status as a bona fide pl1l"chaser lor value and no basis grant thc plaintirfs summary judgmcnt motioll. and dailEs that the to vacate the note or triable issucs of l~lCt therefore c\ists to Lcnvl: to i.lmcnU il plc<.lding may be granlco <Itany time. Illcluding prior to or during triaL absent prejudice or surprise to the opposing party, unless the proposed amendmenl is palpably ll1sufllcient or patcntly dcvoid or merit (see valal"raga 1'. ('ily of New York. 54 1\03d 308. 863 NYSld 47 (2'-.1DepL 2008)). Leave to amend is entrusted to the sound discretion oCthe (OUr! (see Arcuri I'. Ramos. 7/\D3d 741. 776 NYS2d 895 (2,,<1 De-pt.. 2004». Whne the application is made long alier lhe action is certified lor IriaL 'judicial discretion in allowing such amend11lellt~ should he discrete. circumspect. prudent and cautious" {Morris 1'. Queens LOllg Islalld Medical (irol/fJ. 1'. 49 /\D3d 827. 854 NYS2d 212 (2"<1 Dc-pI.. 2008)). c., Plainliflhas submillcd a rC~lsollablc c.'\l'l<lnalion for the proposed amendlllcnL ,ldding ~Hl aodiunnal P~\rty dcrcndant and has provided all ,u'guably mcritorious claim against the nlllrtgage lender sufiicienl to justify the proposed amcnded pleading. Accordingly plaintilrs 11wti,1\1sccking leavc to amcnd the complaint to add Wclls hll"go J IOlllc Mortgage ~lSsuccessor in interesl of. and formcrly known 3S World Savings Hank. as a defendant must be granted -3- [* 4] ./(/IIIC,\' I'. /)".\Iulo,' No/wI'! ("I/}fJ=eI/O i'l ill. The proponent of <.l ummary judgment motion muslmake a pril11i1lacie showing of s entitlement 10 judgment as a matter oflaw. tendering sunJcient evidence to diminate any material question of 1~lctfrom the casc. The gran! of summary judgment is appropriate only when it is clear that no material and triable issues of fact have been presented U.,'i//1J1all I'. Tll"('J1fielli ('elllw\'-Fox Fillll Corp.. 3 NY1J 295 (1957)). The movant hears the initial burden proving entitlcmcnllo summary judgment (lVinegmd\' NYU Medical Cellfer. 64 NY2d 851 (1985». Once sU\.:hproof has been submitted. the burden shilts to the opposing party who. 10 defeat the motion, must oliCr l'videncl' in admissible 1"01111 must set fOl1h facts sufficient to require a trial of any issue of fact and ((,IlLR Section 3212(b): 7./Il.:ke/"llwJl v. CifY o(Nell' Vork. 49 N Y2d 557 (1980)). Summary Judgment shall only be granted when there arc no issues of material fact and the evidence requires the court to dirl'ct .judgment in favor oj" the movant as a matter of" 1,]\VUriends ojAl7ilJw/s \'. ;!ss(lciu/ed Fllr . MWlIIjoc/weJ".\'. . 46 N Y2d I O(lS (1979,). . The June B, 2U10 lkeision and Order oJ'the Appellate Division remitted to the Supreme Court Cordetermina1ion the issue oCwhether defendant Zangre was a bona lick purchaser ror value when he purcl13scd the premises on October 11,2006. While the plaintiff has submitted evidence in the fi.mll oCservice ofl11c amended pleadings. written applications made on behalrol"the plaintilT and a transcript of the oral. argument concerning plaintifrs motIOn for injunctive reliefro show that defendant l.-angn: clearly had notice of Dc maio's claim of title prior to the premises sale. the issw: of whether I..angrc was a bona liuc purchaser for value cannot be determincd purely 011the ba<;ls of notice. That issue- goes beyond the issue of notice and would necessarily involve a dctennination of whether the claims set forth in the plaintifi"s amended complaint were arguahly meritorious so as to compel a reasonably prudent purchaser to make further inquiry prior to the time the premises were to be sold to detennine whether the seller retained legal title to the premises (see Haron ..1s·suL·iafes I'. LaIOlH', 74 Ad3d 714. 9m NYS2d 447 (2"<1 Dept., 2010). The evidence submitted by the plaintiff in the !()l"l11 f attorney settlement discussions primarily involves hearsay and docs not provide a o suflicicnt evidentiary framework lu make that ucLL:nninalion. Plaintiffs motion seeking an order granting summary judgmenl against the dcl'endant Zangre declaring that Zangre was not a bona fide purchaser I()r value must thcn:!()re be denied. l:inally \.vith respect to the plaintiffs application I(lr addiUollC1I c!iscowry, the t'ccorel is ele:lr t!l,ll such discovery is rcquired in advance ora hlctual hearing concerning the clalll1s set forth against ddl'nuants Zangn:: and Wells Fargo Ilome Mortgage. Accordingly the note of issue filed by the pbintliT shall be vacated and ihe action remanded to the originallAS Part so thal completion 01" discoVl'ry relevant to the n::maining issues can be scheduleu in an expeditious ll1unner. That discovery shall ll1clude the submission of adequate and complete responses to the plall1td'f s Second Notice I(lr Discovery and Inspection by dclendant Zangre and the scheduling of depositiocs including l'xamlllaiions bcJi.ln.:'trial of delendant Zangre, delcndant Zangre· s counsd, a representative of the defendant Wells Fargo I-Iome MOrlgagt' and any other witnesses relevant to the issues remaining to be resolved among the partlcs. J\ccordll1g1y It is ORDERED that plaintiJrs motion I()r an ord(.'r pursuant to CPIJ{ Sections 1001 <1:. 015 is 3 granted to the \.':\Ient thaI the plaintiff is permiLted leave to add the additional part)' ddl.'ndant, Wells Fargo llome Mortgage and III amend the complaint. Upon personal scrvic~ 01"copi~s ortl:e pkadings in thIS action. the supplemental summons :lIld complaint in the form anllexed to the lllOving papl'rs and this ol"tkr with notice uf elltry in ac:conlanc:l' wnh the reqllir~rncnts nf CPUZ -4- [* 5] .Il1l11r",·I', IJr,.I/,,'" \, N"Il('rI ('(11m::"'!" ,'I "I. Ind,'X .\"_ 's3]IJ 1)5 Sel'lion 311. Wells Fargo Ilomc Mortgage shall be added as an additional parly defendant. Responsive pleadings shall be served in accordance with CPLR Section 3025(d), The additional party ddl'ntiallt shall be served withmtwcnty days ol'ihe date ofcntry of this orcin: and it is furlher OIU)ERF,I) that plaintilrs motion lor an order pursuant 10 CPLR Section 3212 granting sUlllmary judgment with respect to the fourth cause or action against defendant !.angn: is denied; and it is further ORIlERED that plaintiff's motion for an order pursuant to CPLR Section] 114 compelling ddcndant Zangre to provide responscs 10 rlaintttrs Novcmber 24.2011 "Second Notice fur Discovery and Inspection" is granted to thc cxlent Ihat the dclcndanl Zangre is directed tn provide ,1c1cquatc and completc responses to rlainti demands within twenty days or service or Cl cory of this order wjth notice or enlry: it is further '-lnu rcs ORDERED that Ihe Clerk oflhe Court is dirccted 10 vacale the nole orisslIc, to remove this ,IClioll from the trial caknuar ~llld to return this action to the Court's IAS Part 1'01' the purpose or completing all discovery. The parties arc directed to arpear for a conference at 11 :00 ,1.111 on .1Jnuary 24. 20]] on the Court's IAS Pmtcalcndar to schedule depositions and 10 resolve all remaining discovery issues. Dated. January 18. 2013 J.S.c. -)-

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