Marks v Jericho Homes, Inc.

[*1] Marks v Jericho Homes, Inc. 2013 NY Slip Op 50606(U) Decided on March 8, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 8, 2013
Supreme Court, Kings County

Sherwin Marks, as proposed receiver of the interest of Esther Guy-Marks, with respect to premises 131 Lewis Avenue, Brooklyn, New York,, Plaintiff,

against

Jericho Homes, Inc., Esther Guy-Marks and Kobi Nagar,, Defendants.



532/12



Plaintiff Attorney: Eliot Tannenbaum, Esq., Naimark & Tannenbaum, 169-95 137th Avenue, Jamaica, NY 11434

Defendant Attorney: Jacqueline Chin Quee, Esq., 959 Utica Avenue, 2nd Fl., Brooklyn, NY 11203

David I. Schmidt, J.

The following papers numbered 1 to 6 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-2, 3-4

Opposing Affidavits (Affirmations)56

Reply Affidavits (Affirmations)

Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, plaintiff Sherwin Marks, proposed receiver of the interests of defendant Esther Guy-Marks (Guy-Marks) regarding the premises at 131 Lewis Avenue in Brooklyn (the Property), moves, pursuant to CPLR 2221 (d) and (e), for leave to renew and reargue the court's July 3, 2012 decision and order, which granted defendant Jericho Homes, Inc. (Jericho) summary judgment dismissing the complaint herein as against it. Jericho cross-moves, pursuant to CPLR 6514, to cancel plaintiff's [*2]notice of pendency, filed against the Property January 10, 2012 with the Kings County Clerk's Office, and also seeks associated costs and expenses.

Background

This case started after Guy-Marks initiated a divorce action against plaintiff in New York County Supreme Court (Guy-Marks v Marks, New York County index No. 309880/10), which resulted in Justice Matthew F. Cooper's August 5, 2011 injunction (the Injunction) temporarily restraining Guy-Marks from selling, transferring, mortgaging or otherwise affecting title of any marital property including the Property. An October 5, 2011 stipulation between plaintiff and Guy-Marks extended these restrictions pending Justice Cooper's determination of equitable distribution issues.

Nevertheless, plaintiff discovered defendant Kobi Nagar (Nagar) "scouting" the Property on November 15, 2011 in preparation for its sale.[FN1] Plaintiff purportedly informed Nagar that the Property could not be sold.[FN2] In addition, plaintiff's counsel alleges that he subsequently telephoned Nagar to explain the Injunction and sent Nagar a letter containing the same information.[FN3] Plaintiff claims that Nagar gave assurances that he would cease any efforts to bring about a sale of the Property. Plaintiff's counsel additionally wrote to Guy-Marks's attorney, Jacqueline Chin Quee (Chin Quee), on November 15, 2011 to notify her that it appeared Guy-Marks was attempting to sell the Property. Chin Quee responded the [*3]following day that Guy-Marks had confirmed that she was not trying to sell the Property and had mentioned the Property's foreclosure status.

Nonetheless, Guy-Marks sold the Property to Jericho on December 9, 2011. Plaintiff learned about the sale on December 14, 2011, and the next day plaintiff's counsel notified Jericho, by letter, that the sale violated a court order and directed it not to record the title. Jericho, however, recorded the Property's title on December 28, 2011.

The Ensuing Litigation

(1)

Plaintiff, in his capacity as proposed receiver of Guy-Marks's interest in the Property,[FN4] commenced this action on January 10, 2012 against Jericho, Guy-Marks and Nagar. The action has sought a judgment (1) declaring Guy-Marks's conveyance to Jericho fraudulent, and thus null and void, and (2) declaring plaintiff as sole owner of the Property. Plaintiff filed a notice of pendency the same day against the Property with the Kings County Clerk's Office.

Jericho, in subsequently seeking summary judgment, asserted that it had no knowledge of the restraining order when it purchased the Property. This court's July 3, 2012 short form order granted that motion amid concluding that Jericho is a bona fide purchaser for value.[FN5] Jericho's counsel served plaintiff with the order with notice of entry on July 20, 2012.[FN6]

(2)

Plaintiff brought this motion to renew and reargue the summary judgment motion and claims that the court overlooked a triable issue of fact, namely whether Jericho had actual, constructive or imputed notice of the Injunction at the time of the sale. Plaintiff alleges that Nagar (1) had actual notice of the Injunction and (2) stated in the divorce action that he did not represent Guy-Marks in the sale. These factors, in plaintiff's view, indicate that Nagar represented Jericho, and therefore allow imputing Nagar's knowledge of the Injunction to Jericho, which, in turn, would bar Jericho from being protected as a bona fide purchaser. Plaintiff also argues that his actual, open and visible occupation of the Property for over five years should have put Jericho on inquiry notice of plaintiff's interest in the Property. [*4]

Jericho opposes plaintiff's motion as procedurally defective under CPLR 2221 in failing to constitute either one for renewal or reargument. Jericho asserts that the motion merely and impermissibly reiterates arguments plaintiff previously made and fails to identify any new facts or matters of fact or law that the court overlooked in rendering its decision. Nagar's knowledge of the Injunction, argues Jericho, is unclear, and Jericho characterizes plaintiff's claim of an agency relationship between Jericho and Nagar as purely speculative. Jericho in this regard (1) cites an affidavit from its principal owner who therein denies that an agency relationship existed between Jericho and Nagar and (2) stresses that Nagar stated that he was not employed by Jericho (see n 2 above). Furthermore, Jericho asserts that the HUD-1 Settlement Statement regarding the conveyance of the Property suggests that Guy-Marks paid a seller's commission to Nagar. Jericho also argues against imputing Nagar's knowledge of the Injunction to Jericho, even if Nagar had been Jericho's agent, because revealing such knowledge would have adversely affected Nagar's interest in bringing about the transaction.

Jericho separately argues that plaintiff did not actually reside at the Property, and that such residence, even if it occurred, would fail to put Jericho on inquiry notice of plaintiff's potential interest as a husband may often reside on his wife's property. Finally, Jericho reiterates that it deserves protection as a bona fide purchaser for value in acquiring the Property, as it had no actual or constructive knowledge of the stay restraining transfer and had paid $235,000 for the Property.[FN7]

Discussion

Plaintiff's Motion To Renew And Reargue

CPLR 2221 (f) requires that a motion to renew and reargue separately identify and support each item of relief sought, and that a court shall decide each part of such combined motion as if separately made. A motion to renew must present facts not offered on the underlying motion or demonstrate a subsequent change in law, and must provide a reasonable justification for the prior failure to present such facts (CPLR 2221 [e] [1]-[3]). No renewal lies on facts available to the movant at the time of the original motion unless the movant explains the prior omission (see Singh v Mohamed, 54 AD3d 933, 935 [2008], lv dismissed in part, denied in part 12 NY3d 900 [2009]; Pena v New York Mexicana Car & Limousine Serv. Corp., 31 AD3d 407, 408 [2006]). Here, plaintiff presents no new facts, nor has he indicated what, if any, portion of his motion to consider as a motion to renew, which therefore requires treating the motion solely as one to reargue. [*5]

A motion to reargue must allege that the court, in deciding the original motion, overlooked or misapprehended a matter of fact or law and must only utilize facts offered in the original motion (CPLR 2221 [d] [2]). A court may exercise discretion in determining whether it overlooked matters, but reargument is not intended as an opportunity for a party to advance a new theory of law (see Woody's Lbr. Co., Inc. v Jayram Realty Corp., 30 AD3d 590, 592-93 [2006]; Gellert & Rodner v Gem Community Mgt., Inc., 20 AD3d 388, 388 [2005]; Spatola v Tarcher, 293 AD2d 523, 524 [2002]).

Hence, the court must examine whether plaintiff has identified some matter of fact or law overlooked in granting Jericho summary judgment. Summary judgment requires the movant show a prima facie entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material factual issue (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The opposing party must then introduce "evidentiary proof in admissible form sufficient to require a trial of material questions," (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" to defeat a motion for summary judgment (id.). "The court's function on a motion for summary judgment is to determine whether material factual issues exist, not to resolve such issues" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2010] [internal citation and quotation marks omitted]).

Here, plaintiff appears to advance two factual questions allegedly overlooked by the court: (1) whether Nagar, whom plaintiff told about the Injunction, was Jericho's agent, thus giving Jericho imputed notice, if not actual notice, of the Injunction and (2) whether Jericho should have had constructive notice of plaintiff's interest in the Property in view of his alleged long-term, open and visible residence there.

Plaintiff cannot viably assert that the court overlooked his claim of openly and visibly having occupied the Property for over five years as his original affidavit opposing Jericho's summary judgment motion omitted this contention. Hence, such contention represents a new legal theory and falls outside the court's purview on a motion to reargue (see Spatola, 293 AD2d at 524).[FN8]

Plaintiff argues that Nagar acted as Jericho's agent, thereby giving Jericho imputed notice of the restraining order, but fails to present a triable question of fact. Afshin Dilmanian, Jericho's principal owner and officer, asserts in an affidavit that Nagar was not Jericho's agent, broker or representative and that no one at Jericho had met or spoken to Nagar before the sale itself. Nagar simply averred in an affidavit submitted in the divorce action that he was a real estate investor sent by an agent to "scout" the property, and that he did not know Guy-Marks. Plaintiff references this affidavit to allege that "the only reasonable conclusion to be drawn" is that Jericho sent Nagar to broker the sale. This conclusion disregards Nagar's further statements, in the same affidavit, that he is not a [*6]broker, but a private investor, and not an employee of Jericho. It also represents a false equivalency. Evidence that Nagar was not Guy-Marks's agent is not the same as evidence that he was Jericho's agent. Indeed, the court has received no evidence of any role by Nagar in the contested sale of the Property and only received information that plaintiff met Nagar when he was "scouting" the Property in connection with its imminent foreclosure.

Such conclusory allegations and expressions of opinion fail to present a triable issue of fact sufficient to overcome a prima facie showing on a summary judgment motion (see Judith M. v Sisters of Charity Hosp., 93 NY2d 932, 934 [1999]; A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 33 [1998], rearg denied 92 NY2d 920 [1998]). Therefore, the court properly granted summary judgment, plaintiff has failed to introduce any matters of fact or law overlooked by the court in reaching its decision and the motion to reargue thus fails.

Defendant Jericho's Cross Motion To Cancel The Notice Of Pendency

CPLR 6514 (a) requires a court direct any county clerk to cancel a notice of pendency when the time to appeal from a final judgment against the filing plaintiff has expired. Parties must take an appeal as of right within 30 days of service of the order, with notice of entry, with an additional five days if service occurs by mail, or one day if service occurs by overnight delivery (CPLR 5513 [b], [d]; CPLR 2103 [b] [2], [6]). No appeal lies from denial of a motion for reargument (see Begum v Kallon, 77 AD3d 866, 866 [2010]).

The order with notice of entry granting Jericho summary judgment was served upon plaintiff on July 20, 2012 by either overnight delivery service or regular mail. The time to appeal properly ran for 31 or 35 days, plaintiff indisputably did not appeal the original order within that time and, therefore, no appeal exists from denial of reargument herein. Therefore, the court must direct the county clerk to cancel the notice of pendency that plaintiff filed against the Property.

CPLR 6514 (c) also permits a court, in conjunction with directing cancellation of a notice of pendency, to award costs and expenses arising from the filing and cancelling of that notice. Such award can include expenses beyond costs of the action and attorney's fees (see No.1 Funding Ctr., Inc. v H & G Operating Corp., 48 AD3d 908, 911 [2008]; Josefsson v Keller, 141 AD2d 700, 701 [1988]). Here, Jericho shall only recover costs, not attorney's fees (see Rabinowitz v Larkfield Bldg. Corp., 231 AD2d 703, 704 [1996]). Accordingly, it is

ORDERED that plaintiff's motion to renew and reargue is treated solely as a motion to reargue and denied in its entirety; and it is further

ORDERED that Jericho's cross motion is granted with costs and not attorney's fees, and the King's County Clerk is directed to cancel the notice of pendency that plaintiff filed against 131 Lewis Avenue in Brooklyn.

This constitutes the decision and order of the court.

E N T E R, [*7]

J. S. C. Footnotes

Footnote 1: Plaintiff stated in paragraph 8 of his complaint, filed January 10, 2010, that Nagar claimed to represent Jericho. Plaintiff, however, later stated, in paragraph 14 of his April 19, 2011 Affidavit in Opposition to Jericho's Pre-Answer Motion to Dismiss, that Nagar simply said he represented "someone who wanted to buy the property," and that Nagar then called Guy-Marks's attorney, Jacqueline Chin Quee. Plaintiff also stated in paragraph 6 of his June 25, 2012 Opposition to Jericho's Motion for Summary Judgment that Nagar only claimed to represent an undisclosed interested purchaser. Nagar has not appeared in this action but collectively stated, in paragraphs 6, 8 and 11 of a May 23, 2012 affidavit submitted in the divorce action, that he is not a Jericho employee, that he had never met Guy-Marks or her matrimonial attorney and that Guy-Marks did not send him to the property.

Footnote 2: Plaintiff states in paragraph 10 of his complaint that he told Nagar that the property "could not be sold, and that the Supreme Court New York County had issued a stay preventing ESTHER GUY-MARKS from selling the premises." Nagar, on the other hand, stated in paragraph 9 of his affidavit in the divorce action that "[a]t no point in the short conversation . . . did [plaintiff] state that there was a court order barring the sale [but] just kept on saying that this was his property and that he wasn't selling."

Footnote 3: Nagar asserted in paragraph 12 of his affidavit in the divorce action that he did not receive the letter from plaintiff's counsel, as it was wrongly addressed, though plaintiff's counsel states in paragraph 7 of his opposing affirmation to Jericho's summary judgment motion that the letter was subsequently sent to the correct address.

Footnote 4: Plaintiff stated in his Affidavit in Opposition to Jericho's Motion for Summary Judgment that he was going to be appointed receiver of Guy-Marks's interest in the Property in accord with a June 6, 2012 decision by Justice Cooper, but this court has not, as yet, received such decision.

Footnote 5: The short form order in this regard focused on the time of sale and mentioned in such context that "[n]o lis pendens was ever filed."

Footnote 6: The affidavit of service specifies overnight delivery, but the affirmation in support of Jericho's present cross motion alleges service by regular mail.

Footnote 7: Jericho additionally argues that an injunction is not binding on a non-party without actual notice, and both plaintiff and Jericho argue about whether plaintiff could, hypothetically, have filed a notice of pendency or some other notice with the county clerk when the Injunction was issued. These arguments are purely academic as the issue is whether Jericho had notice (actual or constructive). Whether plaintiff could potentially have made a greater effort to notify prospective purchasers of his interest in the Property is of no moment.

Footnote 8: In addition, plaintiff's complaint allegation (in paragraph 3) that he resided, at all relevant times, at 736 Prospect Place in Brooklyn undercuts plaintiff's new contention herein.