Mottley v Walker
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Mottley v Walker 2013 NY Slip Op 33942(U) August 26, 2013 Supreme Court, Kings County Docket Number: 4444/11 Judge: Larry D. Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Page 1 of 952 i 4Hl201"\ Decision ano orQer .•... OTO. e/2611 3 At an IAS Term, Part 41 o the Supreme Court of the State ofNew York, held n and for the County of Kings, at the Courthouse, at ivic Center, Brooklyn, New York, on the~-tttay of ugust, 2013 PRES ENT: HON. LARRY D. MARTIN, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X PIERCE E. MOTTLEY, JR., as sole heir-at-law of PETER E. MOTTLEY, Plaintiff, ' - against - -·~' I dex No. 4444/;t'l ' KEVIN WALKER, SR., et al., C ..it -::;;-:- ·- . ~ Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X The following papers numbered 1 to 5 read herein: Raoers Numbered Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed._ _ _ _ _ __ __ Opposing Affidavits (Affirmations)_ _ __ _ _ _ __ 3 4 5 Reply Affidavits (Affirmations)_ __ __ _ _ _ __ _ __ _ _. ffidavit (Affirmation)_ _ _ __ __ _ _ A Other Papers_ _ _ __ __ __ _ __ __ _ __ Upon the foregoing papers, plaintiff moves for an order, pursuant to CPLR 2221, 1) granting plaintiff Pierce E. Mottley, Jr., as sole heir-at-law of Peter (PeLy) E. Mottley, leave to renew and reargue that part of this court's order dated December 1 , 2012 which denied plaintiffs motion for an order, pursuant to CPLR 3215, granting plaint ff a default judgment against defendant, Kevin Walker, Sr. (Walker) and declaring that the purported deed from Printed: 918120 15 [* 2] Page 2 of 552 444112011 OCclslon and ordor ..... OTO. 8/26113 Percy E. Mottley (Percy) to Walker dated January 11, 1996 is voi or, alternatively, scheduling a framed issue hearing with respect to plaintiffs claim agains Walker 2) granting leave to reargue that part of the order which granted the cross mo ions of defendants Elizabeth L. Calvin (Calvin), Wells Fargo Bank, N .A (WF) and Soverei n Bank (Sovereign) for summary judgment dismissing plaintiffs complaint or, alternative! , staying the motion pending a determination as to whether the deed is void and 3) granting eave to reargue that part of the order granting summary judgment to Calvin on her coun erclaim for adverse possession. Plaintiff commenced this action to void a certain deed to Wal er on the ground of forgery and, pursuant to article 15 of the Real Property Actions a d Proceedings Law (RPAPL), to compel determination of claims of the other parties to th real property located at 20 Lefferts Place in Brooklyn. Plaintiff alleges he is the sole heir Percy, the deceased former owner of the subject property. According to a deed dated anuary 11, 1996 and recorded January 29, 1996, Percy conveyed title to the property to W Iker. According to a deed dated February 20, 1998 and recorded April 10, 1998, Walke conveyed title to the property to Jam Properties, LLC (Jam). According to a deed date recorded August 17, 1999, Jam conveyed title to the property to rogress Equities, Inc. (Progress). According to a deed dated June 22, 1999 and recorde September 30, 1999, Progress conveyed the property to Calvin. Since receiving the deed from Progress, Calvin 2 Printed: S/812015 [* 3] Page 3 or 852 4444/2011 Decision and order ...OTO. 6126/13 encumbered the property with mortgages which are currently bein; ~ held by WF and Sovereign. I In August 2000, Walker was arrested and charged with filing T'se deeds to eleven properties, including the subject property, and selling them or usii g them to procure mortgage loans. On September 15, 2000, the City of New York (City) rJorded a declaration against the property stating that the City was made aware of the record ng of the deed from Percy to Walker and "has been advised that the signature of the granter ay be forged." The declaration stated that "[u ]ntil such time as the alleged fraudulent co eyance is nullified, this affidavit shall serve as a notice to the public of a possible defect i the chain of title." On March 5, 2001, Walker withdrew his plea of not guilty to Indi tment 7150/2000 in Supreme Court. Kings County and entered a guilty plea. On February 24, 2011, plaintiff commenced the instant action eeking to nullify the deed from Percy to Walker on grounds that it was a forgery, n llify all subsequent conveyances of the property and extinguish the WF and Sovereign mortgages. In her answer, Calvin interposed seventeen affirmative defenses, including a verse possession and statute of limitations, and two counterclaims against plaintiff to quie title to the premises based on her deed and on the ground of adverse possession and for the imposition of an equitable lien. By order dated December 10, 2012, this court denied plaintiff motion for a default judgment against Walker, granted the summary judgment motions f WF and Sovereign 3 Printed: 9/8:"2015 [* 4] Pago 444412011 Decision and order .. .OTO. 8126113 dismissing plaintiffs complaint and further granted Calvin summ 4' or 9 52 judgment on her counterclaim for adverse possession. With respect to that part of the or er denying plaintiff a default judgment, this court determined that plaintiff failed to establ · h proof of the facts constituting his claim. The court noted that there was no affidavit o merit submitted by plaintiff himself and the complaint was verified only by plaintiffs attorney. A motion for leave to renew must be based upon "new facts no offered on the prior motion that would change the prior determination" and must also ontain "reasonable justification for the failure to present such facts on the prior motion" (C LR 222l[e][2], [3]; see Bd. ofMgrs. ofAnchorage Condominium v Haynia, 103 AD3d 82 , 827 [2013]). A motion for leave to reargue "shall be based upon matters of act or law allegedly overlooked or misapprehended by the court in determining the prior otion, but shall not include any matters of fact not offered on the prior motion" (CPLR 22 1 [d] [2]; see Matter ofAmerican Alternative Ins. Corp. v Pelszynski, 85 AD3d 1157, 115 8 [ 011 ]). "Motions for reargument are addressed to the sound discretion of the court which dee ded the prior motion and may be granted upon a showing that the court overlooked or misa prehended the facts or law or for some [other] reason mistakenly arrived at its earlier decisf n" (Mudgett v Long Is. R.R., 81AD3d614, 614 [2011] [internal quotation marks omitted]; 1ee E. W Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007]). A motion for I ave to reargue is not designed to provide an unsuccessful party with successive opportuni ies to reargue issues 4 Prinled: 91812015 [* 5] Page :5 ct M2 444'4/2011 oec1ston Incl Ofdef ... OTO. 8126113 previously decided, or to present arguments different from those orig nally presented (see Haque vDaddazio, 84 AD3d 940, 942 [201 l];MazinovvRella, 79 AD d 979, 980 [2010]). In its prior decision, this court denied granting a default jud ent against Walker based on the absence of an affidavit of merit. The court noted that while a verified complaint may serve as an affidavit of merit for purposes of a motion for a d fault judgment, the complaint in this action was verified by plaintiffs attorney. A "c mplaint verified by counsel amounts to no more than an attorney's affidavit and is ther fore insufficient to support entry of judgment pursuant to CPLR 3215" (Hazim v Winte , 234 422 [1996]). Plaintiff seeks renewal of his prior motion for a default judgment aga· t Walker based on the submission of a copy of a verified complaint in a prior action brou ht by Percy against Walker and Jam seeking a determination ofrights to real property. Pia tiff argues that the compliant, which is verified individually by Percy, was not submitted on the prior motion because plaintiff was unaware of the action and had no reason to searc the court records. Plaintiff states that he first became aware of the prior action when it wa referred to in WF' s reply papers. However, even ifthe verified complaint by Percy can be consider d "new facts," such cannot change the determination of the prior motion. CPLR 3215(f) pr vides that upon any application for a judgment by default, proof of the facts constituting t e claim, the default, and the amount due are to be set forth in an affidavit "made by the party ' (HSBC Bank USA, NA . v Betts, 67 AD3d 735, 736 [2009])(emphasis added). Insofar asp aintiff is seeking to 5 Prinled: 9/8/2015 [* 6] P age 6 o f 952 4444fZ011 Decision and order ...DTD. O/ZSl1 3 have Percy's verified complaint deemed an affidavit of merit, such can ot support a default judgment as Percy is not a party to the instant action. Nonetheless, upon further review of the arguments and evi , ence submitted by plaintiff, including the documents pertaining to Walker' s conviction stemming from his forging deeds to properties, including the subject property, this c urt believes that it mistakenly held plaintiff to an excessive standard of proof under the ci cumstances. "Some proof of liability is . .. required to satisfy the court as to the prima acie validity of the uncontested cause of action. The standard of proof is not stringent, am unting only to some firsthand confirmation of the facts" (Joosten v Gale, 129 AD2d 531, 535 [1987]). The court finds that the undisputed indictment, which references the subject prop rty, to which Walker ultimately pleaded guilty is sufficient to establish proof of the facts c nstituting plaintiff's forgery claim and thus entitlement to a default judgment. As a result, plaintiffs motion for reargument ofthat part of this ourt' s order denying a default judgment against Walker is granted. Upon reargument, plaintiffs motion for a J default judgment against Walker is granted. Turning to that portion of plaintiffs motion to reargue the pri r summary judgment motions of WF, Sovereign and Calvin, which were granted upon a fi ding that Calvin had established title to the subject property through adverse possession a a matter of law, this court finds that plaintiff has failed to make a sufficient showing that his court overlooked 6 Printed: 9/812015 [* 7] u 11.tao11 oec1~1on aoo order Page 7 of ~S2 OTO 0/2611J or misapprehended the facts or law or for some other reason mistaken!~ arrived at its earlier decision. While plaintiff correctly argues that the mere recording of alvin's deed is not sufficient to put plaintiff on notice of Calvin's hostile possession, Calvi specifically averred in her affidavit that she had a house sitter occupy the premises from t e time of purchase, while renovations were being performed to the property, and that afte six or seven weeks following her purchase of the property she moved into the building. C lvin further averred that when renovations were completed in September 1999 (more than en years prior to the commencement of this action), she rented the top two floors to tenants Thus, Calvin is not simply alleging that her hostile and exclusive possession is proven simply because she purchased the property and recorded a deed in her favor. The facts art sted to by Calvin in her affidavit, which occurred more than ten years prior to the commen ement of this action, should have put Percy and/or plaintiff on notice that the property as being possessed adversely. The court does not find that overlooked or misapprehended fac or law with respect to its determination that Calvin occupied the property under a claim of ight (i.e. reasonable belief that the property belonged to her). The declaration by the City o New York notifying of a possible forgery by Walker was not recorded by the City Regis er until after Calvin recorded her deed to the property. Significantly, whereas Calvin av rred that she had no knowledge of any competing claim to title, there is no allegation or evidence offered by 7 Printed: 91812015 [* 8] H11/2011 Deci~on Page6of~2 and Ofder ..•OTO 8126113 plaintiff that Percy, plaintiff or anyone acting on there behalf took any sl eps to notify Calvin of their claim to the property in the ten years prior to the commencement of this action. CPLR 212(a) provides that " [a]n action to recover real prope or its possession cannot be commenced unless the plaintiff, or his predecessor in int rest, was seized or possessed of the premises within ten years before the commencement fthe action." This section must be read together with RPAPL 311, which states that the pe on who establishes a legal title to the premises is presumed to have been possessed the of within the time required by law; and the occupation of the premises by another perso is deemed to have been under and in subordination to the legal title unless the premises ave been held and possessed adversely to the legal title for ten years before the commenc ment of the action. Since this court has found that Calvin established title to the prop Irty through adverse possession for the requisite statutory period, plaintiffs RPAPL articl 15 claims against Calvin, WF and Sovereign were time barred under CPLR 212(a) and As a result, that part of plaintiffs motion for reargument oft is court's decision granting summary judgment to WF, Sovereign and Calvin is denied. The foregoing constitutes the decision and order of the court. ENTER, c A G 2 6 2013 U w - ..J J. S. C. HON. LARRY M u. LO I Q. UI fol) TIN S JUSTICE OF THE SUPR ME COURT Prinled: 9/8/2015
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