Franklin v Marques

[*1] Franklin v Marques 2017 NY Slip Op 50740(U) Decided on May 30, 2017 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 30, 2017
Supreme Court, Kings County

Muriel Franklin, RICHARD MARQUES, DONNA MARQUES, CLAIRMONT MARQUES, ANTHONY MARQUES, Plaintiffs,

against

Michael Marques, Defendant.



501437/2015



Attorney for Plaintiff

Adam Kalish, Esq.

9306 Flatlands Ave

Brooklyn, NY 11236

Attorney for Defendant

Jon A. Lefkowitz

1222 Ave M, Suite 204

Brooklyn, NY 11230

(718) 692-0459
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant Michael Marques filed on November 25, 2016 under motion sequence number five, for an order (1) pursuant to CPLR 3212 granting summary judgment in his favor and dismissing the complaint on the basis that the claims are barred by the statute of frauds, or (2) in the alternative vacating and modifying the injunction.

Notice of motion

Affirmation in support

Exhibits A-H

Affirmation in support

Affidavit of Michael Marques

Exhibits

Affirmation in opposition

Affirmation in reply

Exhibits A-B

Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of the joint cross motion of the plaintiffs, Muriel Franklin (hereinafter Franklin), Richard Marques (hereinafter R. Marques), Donna Marques (hereinafter D. Marques), Clairmont Marques (hereinafter C. Marques) and Anthony Marques (hereinafter A. Marques) (hereinafter jointly the plaintiffs) for an order (1) granting summary judgment on the cause of action for a declaratory judgment and permanent injunction; (2) dismissing the defendants affirmative defendants set forth in the answer of the defendant; and (3) granting plaintiff's costs and disbursements.

Notice of Cross Motion

Affirmation in support

Affidavit in support

Exhibit A-E

Affirmation in opposition

Exhibit A

BACKGROUND

On February 9, 2015, Muriel commenced the instant declaratory judgment action by filing a summons and complaint with the Kings County Clerk's Office. On March 19, 2015, issue was joined. On September 30, 2016, a note of issue was filed.

Plaintiff's complaint contains thirty-seven allegations of fact in support of five causes of action. The first cause of action is for a declaratory judgment, the second for unjust enrichment, the third for constructive trust and the fourth for an injunction.[FN1]

The instant action arises out of a property located at 10 East 43rd Street, Apt 2G, Brooklyn, New York (hereinafter the premises). Plaintiff alleges the following salient facts: The premises was purchased in 1997. Franklin and her children purchased the property. The property was put into her son Michael Marques's name because she would not have been approved by the board. Franklin paid all maintenance on the subject property except for a few months in 1997. Sometime in 2014, her relationship with Michael began to decline. Thereafter Michael began a hold over proceeding to evict Franklin from the premises. The instant action seeks, among other things, a declaration that Franklin is the owner, as well as, money damages.

On April 3, 2017, defendant's attorney, Jon A. Lefkowitz (hereinafter Lefkowitz), electronically filed a letter notifying the Court that he had been suspended from the practice of law. By order dated March 23, 2017, Lefkowitz was suspended from the practice of law (see Matter of Lefkowitz, Jon A., 2017 NY Slip Op 68079[u]).

LAW AND APPLICATION

CPLR 321 (c) provides that when an attorney is suspended "at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs."

Accordingly, the matter is stayed pending compliance with CPLR 321 (c) (see Moray v Koven & Krause, Esqs., 15 NY3d 384, 390 [2010]).

The foregoing constitutes the decision and order of this Court.

May 30, 2017

HON. FRANCOIS A. RIVERA Footnotes

Footnote 1:By order dated July 31, 2015, the defendant was granted summary as to the constructive trust cause of action.