Polite v 1st Am. Homes LLC

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Polite v 1st Am. Homes LLC 2018 NY Slip Op 30183(U) February 5, 2018 Supreme Court, Queens County Docket Number: 007028/2015 Judge: Cheree A. Buggs Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Short Fonn Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE CHEREE A. BUGGS Justice LATOYA POLITE, IA Part 30 -~-- Index Number 007028/ 2015 Plaintiff, -againstMotion Dates: December 5. 2017 & January 18.2018 1ST AMERICAN HOMES LLC, Defendants. Motion Seq. No. 6 &7 The following papers numbered 1-7; 1-7 submitted and considered on this motion by defendant pt American Homes LLC on the 211d and 3rd causes of action seeking an Order vacating all stays previously issued by the Court, as a result of the plaintiffs willful and continuous violation of the "So-Ordered" Stipulation dated May I 0, 2016 and enforcing the tenns of said stipulation, compelling plaintiff Latoya Polite to immediately pay the sum of $ 19,200.00 to Andrew M. Tilem, Esq. as the escrow agent for her continued use and occupancy of the subject premises as set forth in said stipulation and restoring the bond hearing and compelling the plaintiff to post a security bond due to plaintiffs failure to comply with the Court's Order dated May 10, 2016 (Seq. "6"), and the Order to Show Cause, of 1st American Homes LLC seeking an Order lifting the stay imposed in this matter pursuant to CPLR 220 I, and pursuant to CPLR 2221 ( d) to reargue the undersigned's decision dated May 17, 2017, and upon reargument granting defendant's motion to dismiss or in the alternative summary judgment; staying the trial of this matter until after the determination of the instant motion to reargue; and staying the matter until movants appeal can be heard (or withdrawn) (Seq. "7"). [* 2] Motion Seq. 6 Notice of Motion - Affidavits - Exhibits .................................... . Affidavits in Opposition - Exhibits ............ .................................. . Papers Numbered 1-5 6-7 Motion Seq. 7 Order to Show Cause- Affidavits - Exhibits ................................. . Affidavits in Opposition - Exhibits .............................................. . Papers Numbered 1-5 6-7 Upon the foregoing papers it is ordered that the motion and Order to Show Cause are determined as follows: This is an action to quiet title to premises located at 114-25 21 Olh Street, in Cambria Heights, New York 11411. Plaintiff, Latoya Polite asserted causes of action for fraudulent misrepresentation, declaratory judgment and constructive trust against defendant 1st American Homes. LLC. Plaintiff alleges that she never intended to convey her ownership interest in the subject premises to defendant and that defendant 1st American I Iomes. LLC. defrauded her into doing so. By Order of the undersigned dated May 17, 20 17, defendant' s motion pursuant to CPLR 32 11 (a) (7) to dismi ss the action for failure to state a cause of action and. alternatively, for summary judgment in its favor pursuant to CPLR 3212 was granted in part and denied in part. The branches of the motion which were to dismiss the fraudulent misrepresentation and declaratory judgment causes of action, were denied. however, the branch of the motion to dismiss the cause of action for a constructive trust was granted. Now. F' American Homes, counsel for defendant on the 2°0 and 3r<.1 causes of action. seeks an Order vacating all stays previously issued by the Court. as a result of the plaintiffs willful and continuous violation of the ·'So-Ordered'" Stipulation dated May 10, 2016 and enforcing the terms of said stipulation. compelling plaintiff Latoya Polite to immediately pay the sum of$1-9.200.00 to Andrew M. Tilem, Esq. as the escrow agent for her continued use and occupancy of the subject premises as set forth in said stipulation and restoring the bond hearing and compelling the plaintiff to post a security bond due to plaintiffs fai lure to comply with the Court's Order dated May 10, 2016. The parties stipulated that plaintiff would pay into escrow the amount of $1200.00 per month beginning June I, 2016. to continue until the case was settled or disposed at trial. According to movant. plaintiff made 2 [* 3] one payment which was received on July 2016, however. plaintiffs check was dishonored and she failed to cure her default from July 20 16 to present. Defendant P 1 American Homes, moves by Order to Show Cause, seeking an Order lifting the stay imposed in this matter pursuant to CPLR 220 1. and pursuant to CPLR 2221 (d) to reargue the undersigned 's decision dated May 17, 20 17, and upon rearg ument granting defendant's motion to dismiss or in the alternative summary judgment; staying the trial of this matter until after the determination of the instant moti on to reargue: and staying the matter until movants appeal can be heard (or withdrawn). Address ing first the merits of the defendant's motion seeking an Order lifting the stay and to enforce the So-Ordered Stipulation of Honorable Howard G. Lane dated May 10, 2016, and compelling the plaintiff to immediately pay the sum of$ 19,200.00 to Andrew M. Tilem, Esq. as escrow agent, restoring the bond hearing and compelling the plaintiff to post a security bond due to her failure to comply with the Court's Order dated May 10, 20 16, the motion is granted to the extent that this matter shall be restored to active status and set down for a bond hearing. Address ing next the merits of the Order to Show Cause to reargue the undersigned 's deci sion dated May 17, 20 17, the motion is denied in its entirety. Pursuant to CPLR 222 1 ( d) (2), a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the Court in determining the prior motion, but shal l not include any matters of fact not offered on the prior motion ... (See generally HSBC Bank USA. NA . v Halls, 98 AD3d 7 18 (2d Dept 20121.) The Court has reviewed the papers, arguments of the parties and adheres to its prior determination. Therefore it is ORDERED. that the motion of 151 American Homes' counsel for the 2"d and 3rd ca uses of action, seeking an Order vacating all stays previously issued by the Court, as a result of the plaintiff's w illful and continuous violati on of the "So-Ordered" Stipulation dated May 10, 20 16 and enforcing the tenns of said stipulation, compelling plaintiff Latoya Polite to immed iately pay the s um of$ I 9,200.00 to Andrew M. Ti Iem, Esq. as the escrow agent for her continued use and occupancy of the subject premises as set forth in said stipulation and restoring the bond hearing and compelling the plaintiff to post a security bond due to plaintiff's failure to comply with the Court 's Order dated May 10. 20 16 is granted to the extent that thi s matter shall be restored to active status and set down for a bond hearing on Thursday, March 22, 2018 at I 0:00 A.M. in Part 30, Courtroom 67 of the Suprem e Court, Queens County, located at 88-11 Sutph in Boulevard. New York 11435 (Seq. "6"): and it is further 3 [* 4] ORDERED. that the Order to Show Cause of 1>l American Homes seeking an Order lifting the stay imposed in this matter pursuant to CPLR 220 l, and pursuant to CPLR 2221 (d) to reargue the undersigned's decision dated May J 7, 2017, and upon reargument granting defendant's motion to dismiss or in the alternative summary judgment; staying the trial of this matter until after the determination of the instant motion to reargue; and staying the matter until movants appeal can be heard (or withdrawn) (Seq. ·'7") is granted to the extent that the stay in this matter is lifted. and the remaining portions of the Order to Show Cause arc denied. A copy of this Order shall be mailed to the parties. Dated: February 5, 2018 4

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