Jopseh v Express Auction N.E., LLC

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Jopseh v Express Auction N.E., LLC 2015 NY Slip Op 32461(U) December 23, 2015 Supreme Court, Kings County Docket Number: 507129/13 Judge: Johnny Lee Baynes 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. [*FILED: KINGS COUNTY CLERK 01/08/2016 03:50 PM 1] NYSCEF DOC. NO. 104 INDEX NO. 507129/2013 RECEIVED NYSCEF: 01/08/2016 At a(11) !AS Part 68 ofthe Supreme (~our( of the State of New York, held in and I Or the County ofKi11gs at the Courtl1ousc thereof, at 360 Adan1s S1rce(, Brooklyn, NY 11201, on the 23"' day ofDccen1ber, 2015. PRESEN1': fION. JOHNNY L. RA YNF.S, JSC. --------------------------,---------------------------------------------]{ Index Nu. 507129113 {lLlJWAFEMf J(lSFPH, Plai11tifl; -agai11st- DECTSJON AND ORDER EXPRES.<; AUCfTON NORTH EAS1", f.lC, and if they be di~solved t!1en to their legal representatives or heirs-at-! aw, nex! ofki11, distrihut<'es, legutees, devisees, their husband.~. widowers, ;;ssignec, inortgagees, crc<litors, lien or" and successors in interest, and genera[) y aU jJart\es ha>•ing or claiming to l1avc an interest i.ti or lie11 upon the premises desc1ibc<l in the eo1npl11int herein, either vested or contingent, by through, under or against ai1y of the Defendants herci11 specially 11amed or named as a Class, all of w]10 and wl1osc places or residences are Unknow11 to Plaintiff and cannot ufter diligent inquiry be ascertained, (JR£N KLE!N, 'fflli NEW Y{lRK CITY RFG!Sl"F-R, KlNGS C{lUNTY, FJFTH AVENUF'JTTT,1<;, .--, ' "' Defendar1ts, ------------------------------------------··----------------------------x Dclio11dants, F..xprcss Auction North East, LLC, an<l Oren Klein (hereinaller collectively referred 10 as "Defenda11ts"') move by Notice ofMoti\>n dated June 22, 2015, Ji>r an Order pursuant to CPl,R ~ 321 i(a)(l), (3), (7), and (8) dismi~sing Plaintiffs Second A1ncnded C-omplai11t. P!aintiffherein brings suit al!egi11g !hat the n1ortgage forining the b<lsis of the instant [* 2] Actio11 sho11ld be discharged 1fom the Kings County Register and for the re tum of escrow ftinds held by Oefcndant Fifth Avenue Title. All claims have been disconlinuer.I as against the New York City Register's Office, Kings County, and Defendant Express Auction Northeast has waived a11y claims to the n1ortgage sub Judice. T'he sole remaining Defendant& are Ore11 Klein (hereinafter "Klein"), who hold& the mortgage at issue, personally, and f'itlh A vt:nue 1'itle (l1creinafter "Fifth A \•enue"). It sl1otild be 11oted that on April 23, 2015, this Conrt issued an Order denying d"'fendants' Motio11 to Disn1iss and granting Plaintiffs Motion fOr leave to lile and serve a Second Amended Co1npluint. Tiiat Order was entered on April 27, 2015. Plaintiffallegt:s that Plaintiff signed an Auction Agreement with Exprc.1s Auction North Easl, LLC (hereinafter "Express), perinitting Express to u11ctlon his home (hereinafter "the Agrecn1ent"). The Agreement required that Plaintiff exec11le a proinissory note 'vi th the Agreen1cnt. Plaintifl"neverdid so and canceled the Agrecme11t. 1'hereafler, a mortgage lien was pluccd on the properly in Klein's nan1e despite there beir1g no agrccn1ent between plaintiff and Klein. Defe11dants contend !hat tl1c Second An1ended Complaint herein docs not C<>illpllrl with that which was proposed in Plaintiff's prior !\,lotion. Plainti[J" asserts that !he Second Amended Co1nplaint simply fleshes out all causes of action de~'t'l"ib ed in Plui11ti rrs earlier movi11g papers and >mY differences <1rc purely stylistic. Defendants further assert that service upon !hem \Vas improper. Plaintiff" is corrt:ct in noting that this issue was fiilly adjudicated before the Court prior to issuunce of the April 23, 2015, OrdeI and is resjudicata. The doctrine of re;·judicafa "operates to preclude the renewal of issues actually litigated and resolved in a prior 11roceeding as \Veil as ~lairns for diJiercnt relief which arise out oft he [* 3] srune factual grouping or transaction and \Vhich should have or could have been rc~\>lvcd in tl1e prior proceeding". ,\'ee, !.uscher v A1711a, 21 AD3d 1005, 1006-07 f2d Dept 2005], quoting, Koether v Genera/oiv, 231 AD2d 379 [2d Dcp! I 995j. In this instance, plaiutilfhas the burden of proving that rcsjudicala applies. The party seeking t(> invoke the doctrine of res judicata must demonstrate that the critical iss11e in the instant action was decided in lhc prior actio1i mid that the 1iarty again.~l whtnn estopµel is songht \vas afforded a full and fair opportunity to contest such iss11e. 21 AD2d at !007. As plaintiff poi11ts 011!, in ll1eir previous Mt>tion to Dismiss, defei1danfs raised the issue of improper sen' ice. '!"his ('.onrt did, in fact, deny defendants' motio11 inaking that claim on April 2 3, 2015, and will 1101 relitigate that issue. Defcnd.u1ts further claim that plainliffhas no standing to bring the instant action. That, too, \vas litigated by this Court whe11 it issued its prior Order. Defendants, however, are eon·cet i.t1 pointing out !hat plaintiff is not a party t<> tlie mortgage at issue and, therefore, has no sta11ding to move to disn1iss same. Saratoga (;oun1y C'haniber ofC'o1nmerce, Inc. v Pataki, JOO NY2d 801, 812 12003], whercJOre plaintiff's cause of action to dismiss the subject mortgage is disn1issed. Detendants additionally con1plain that the pl;iintiff ne\'Cf specifically asked that he he al!o\ved lo raise his p11rported ca1ises of actio11 against defendants for forgery, u.~u1y and fraud. Plaintiff responds by saying that the fuels related to said causes ofaclio11 were fully plead and put defendrn1ts on notice of same. WJtile tl1c Court believes that plaintiff did, in fact, fully set 011! facts, due lo the complexity of the issues \\'hi ch \vi!! he litigated a11d the seriousness oft he allegations contained in th.is action, t11e Conrt lmlieve~ it wonld he prudent for pl<iinliff to seiYc [* 4] a11d Jilc a Third Amended Complaint containing the causes of action for forgery, usury ;ind rraud already factt.ta!Jy <lescrihed in the existing amended con1plaint. WHEREl'ORE, it is l1erehy ORDERED and ADJUDGE!) that Defe11dants' Motion to Dismiss is granted lo the extent that plaintiffs cause of uctio11 for disinissa! of the subject mortgage is b'l"anted; and it is tU1ther ORDERED and ADJUDGED tlial Dcfe11dm1ts' Motion to Dismiss all clain1s as to defendant Express Auctio11 North East, /LC, \\'ith prejudi'e per Plaint.Cf's voluntary discontin11ance of said cl<iirns is granted; and it is further ORDERED and ADJUDGED tl1at defendants' Mallon is denied in all other respects; and it is further ORDERED a11d ADJUDGED that pl,.intilfis to file and sen•c a Third Amended c:oinplaint containing causes of action tbr forgery, usury and fi<iud within fort y-f1ve (4 5) days of the date of lhis Order; and it i & fttrtl1cr ORDERED that t"iftl1 A\'enuc Title c:on1pany shall co11tinue to !1old the c.1crowcd funds herein in accordance \Vilh the escrow agreernei1t. 1"he forcg<.>ing constitutes tl1c Decision and Order oftl1c Court. F,NTER h"1 __JcefNNY L~A'-'j_ __ _ II YNES, JSC !"fON. JOHNNY LEE BAYNES '·" f.

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