Patterson v Raquette Realty, LLC

Annotate this Case

Download PDF

Patterson v Raquette Realty, LLC 2018 NY Slip Op 30857(U) March 22, 2018 Supreme Court, Kings County Docket Number: 508154/14 Judge: Daniel Martin 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. [*fILE~: KINGS COUNTY CLERK 05/02/2018) 1] INDEX NO. 508154/2014 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/03/2018 At an IAS Term~ Part 41 of the Supreme Court of the State of New York. held in and for the County of Kings. at the Counhouse .... !~J-"'ivic Center. Brooklyn. New York. on thc~y of March. 2018. PRESENT: HON. LARRY D. MARTIN. Justice. --------------------------------··X MARC.US PATTERSO~. Plaintiff. [ndex No: 508l54/14 - against RAQUETTE REAi.TY. I ,I,(. Defendant. -- ---- .......... - -·· .. . ,. __ ---- ......... - -- - --- - --X The following papers are numbered and read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motion and AftidaviL'i ( Affinnations) Annexed_ _ _ _ _ __ NYSCEF 42-44: 11: 56-5 7: 59-68; 70- 72: 106-108 Opposing AtTidavits (Affinnations)_ _ _ _ _ __ 74: 75-76; 109- 113 Reply Affidavits (A ffinnations) _ _ _ _ _ _ __ 80-81: 114 _ _ _ _ Affidavit (Allinnation)_ _ _ _ _ __ 45; 69: 77- 79~ 82 Other Papers Memoranda of l.-aw Upon the foregoing papers, motion sequence numbers 3, 4, 5. 6 and 8 arc consolidated for disposition. In motion sequence number 3. plaintitTMarcus Patterson moves for an order. pursuant to CPLR 3212. granting him summary judgment on his first cause of action. In motion sequence number4. defendant Raqucuc Realty. LLC (Raquette). moves for an order, pursuant to CPLR 3215, granting it a default judgment on its counterclaim and scheduling an inquest for an assessment of damages. In motion sequence number 5. Raquette crossmoves for an ord~r: ( l) pursuant lo CPLR 3212. granting summary judgment dismissing the complaint in its entirely~ (2) pursuant to CPI.R 3211(a)(7) and 3016(b). dismissing the complaint for the failure to meet the hdghtened pleading requirement of fraud: and 1 of 21 [*[FILED: KINGS COUNTY CLERK 05/02/2018) 2] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 (3) pursuant to CPLR 32 l 6, dismissing the complaint with prejudice for failure to prosecute. In motion sequence number 6. pJaintiff cross-moves for an order granting him leave to me a late pleading or accepting his late plcadjng. Jn motion sequence number 8. Raquette moves f(.n an order marking the notice of pendency filed by p1aintiff cancel kd and discharged as of n!..:Ord. Facts And Procedural Background This action seeks W determine ownership of property located at 1084 Madison St reel in Hrooklyn (the Propeny). The deeds herein indicate that plaintiff purchased the Property from Michael C. Engel on Ju]y 8. 2008. which deed was recorded on July 30. 2008 (the Engel-Patterson Lleed ). lly deed dated November 6, 2012 and recorded on December 21 . 2012. plaintiff transferred title to Raquettc (the Raquette-Pattcrson Dee<l). PJaintiff commt!"nccd this action on September 5. 2014. pursuant to Real Property Action and Proceedings Law. Article l 5. seeking a judgment declaring that defendant and every person cl.aiming under it are barred from all claims to an estate or interest in Che Property: that it be adjudged and finally delennined that plaintiff i:-; vc~tcd with an absolute and unencumbered title in tee to the Property~ that possession nfthc Property be awarded him~ co and that defendant immediate]y remove itself from the Property. On the sarnc day. p Iai mi ff filed a not i cc of pcndency. After defendant failed to appear, plaintiff was granted ajudgm~nt and order of default on May 13, 2015. Ry order dated JuJy 15, 20 l 5. that judgment \Vas vacated and defendant \Vas directed to file an answer on or before August 2 l. 2015. The order lurther provided thac defendant shalJ maintain and operate the premises and account for all income and expenses. Defendant fiJed an an~wcr on August 2I,2015 that interposed 16 aninnative defenses and a counterclaim seeking damages premised upon p!ainti ff s aJ leged fraud. 2 2 of 21 [*[j'ILE:P: KINGS COUNTY CLERK 05/02/2018) 3] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 Dismissal Of The Complt1int Pursuant Tn CPLR 32 l 6 The court will first address defendant"s claim that this .action should be dismissed pursuant to CPLR 3216~ since dismissal on this ground would render a detennination on the merits moot. Defendant~.~ Contentions In support ofits demand for dismissal. dcfondant alleges that on April 22. 2016. it sent a 90-day notice to plaintiff pursuant to CPLR 3216. As of the date the cross motion was madej September 2j 2016~ plaintiff had not responded to the outstanding discovery requests and had no[ tiled a note of issue. Plaintiffs C ontention.t In opposition. plaintiff alJeges that after defendanf.s dcfaull was vacated, he failed to submit any further pJeadings. allegedly as the rcsu1t of legal issues laced by his then attorney, who was arrested and subsequently incarcerated. On May9. 2016. plaintifTfiled the pending motion for summary judgment. Accordingly. plaintiffargues that he has a reasonable excuse for his de rault. i.e .. law office failure~ that his moving and oppo·sition papers med on the pending demands for relief establish that he has a meritorious cause of action~ and that defendant will not be prejudiced by having [his action decided on the merits. Discu.'i:'iion ln addressing this demand for relief. the court first notes that it is wel I settled rhat: n•CPLR 32 [6 is an •Tcxtremely forgi\'ing·· statute (&1czkou·.r;;ki v Collins Consfr_ Co .. 89 NY2d 499. 503 [ 1997]}. \Vhkh ·"never requires. but merely authori:t.t!~. the Supreme Coun co dismiss a plaintiffs action based on tht': plaintiffs unreasonable negJect lo proceed"' ( Kadyimov v Mackinnon, 82 AD3d 93B. 93 8 l 2d Dept 2011 ], quoting Davis v Goodsell. 6 AD3d 382. 383 l 2d Dept 2004 ]). ICl'LR 3216] prohibits the Supreme Court from dismissing a complaint based on failure to prosccu[e whenever a plaintiff has shown a justi tiable excuse for the delay and the txistence of a potentially meritorious cause of actim1 .... , (Gordon v Ratner. 97 AD3d 634. 635 f2d Dept 2012]}. 3 3 of 21 [*[FILED: KINGS COUNTY CLERK 05/02/2018) 4] INDEX NO. 508154/2014 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/03/2018 The determination of what constitutes a reasonable excuse lies within the court's discretion (see e.g. Pollock v Meltzer. 78 AD3d 677. 677 [2d Dept 2010]~ Santiago v New York City Health & Hosps. Corp .. 10 AD3d 393, 394 [2d Dept 20041). Under the circumstances presented here. the court finds that plaintitrs explanation regarding his prior attorney's legal problems and subsequent incarceration constitutes excusable law office failure ($ee Di Simone v Good Samaritan Hosp .. 100 NY2d 632. 633-634 (2003] Iplaintiff demonstrated a justifiable excuse for the delay. i.e .. it was caused by disbarment of counsel and was not wi 11 ful or made with intent to abandon the action. but rather was the result of neglect on lhe part of the previous attorneys]: see generally Bischoff v Hoffman, 112 AD3d 659. 660 [2d Dept 2013); las Palmeras De Ossining Rest. v Alidway Ctr.t 107 AD3d 853. 854 [2d Dept 20131). Such a finding is particularly appropriate herein. where a default judgment had previously been entered against defendant for its default in answering the complaint and later vacated. The court farther finds, as is more fully discussed hereinafter, that the papers submitted on the pending applications sufficiently demonstrate that plaintiff has a potentially meritorious cause of action. hnplicit 1n this ho1ding is the finding that plaintiff's failure to file a note of issue in the requisite 90-day period does not mandate dismissal. In this regard. plaintiffs filing of a motion for summaJ)•judgment approximately one month after being served \Vith the 90-day notice demonstrates that he did not intend to abandon the action (see gl!neraiiy lee v Rad. 132 AD3d 643, 644 l2d Dept 2015] [plaintiffs cross motion to strike defendant's answer filr his willful failure to appear for a court-ordered deposition estabJished that she was unable to timely file a note of issue]~ Ramon v Zangari. 116 AD3d 753. 754 (2d Dept 2014) [the record demonstrated affirmative steps taken by p1aintiff to continue the prosecution of this action that were inconsistent with an intent to abandon 4 4 of 21 it)~ Davis v Goodsell. 6 AD3d 382. [*~ILEp: KINGS COUNTY CLERK 05/02/2018) 5] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 384 f2d Dept 20041 lthc pendency of plaintiffs timdy motion to compel discovery from the defendant negated any inference that plaintiff intended to abandon her action)). Finally. defendant fails to demonstrate that plaintiffs delay in prosecuting this action works to its prejudice (see e.g. US Bank vSaraceno. 147 AD3d 1005. 1006 [2d Dept 2017}: Belson v Dix Hills A.C.. 119 AD3d 623, 624 [2d Dept 2014]). Raquette's Request For Default On lt~s Counterclaim The court will next address defendant's motion for the entl)' of a default judgment on its counterclaim, since granting defendant this relief wnuld similarly require denia1 of plaintiff's motion for summary judgment. Defendant•s Contentions Raquette argues that since it served its answer with counterclaim on August 21. 2015. pJaintifTs reply was due hy September IO, 2015. Raquette goes on to argue that plaintiffs counsel's subsequent legal prob1ems and his indictment on May 25. 2016 do noc excuse the failure to serve a timely reply. In fact, defendant notes that plaintiffs counsel filed a Notice of Appeal on August 20, 2015. Raquette again argues that plaintiff fails to suhmit an affidavit establishing that he has a meritorious defense to the counterclaim. In addition. Raquctte argues that it has been severely prejudiced by plaintiffs pattern ofu·iJlful delay and refusal to prosecute this action for over a year. Finally. defendant argues that plaintiff exhibited a pattern of wil1ful default and neglect in that he also fai1ed to respond to interrogatories and to submit to a deposition. Plaintiffs Contentions In opposition. as discussed above. plaintiff argues that he did not submit an answer to defendant's counterclaims because his attorney fai1ed to move this action fonvard as a result of his own legal problems and subsequent incarceration. Plaintiff al~o argues that he 5 5 of 21 [*WILED: KINGS COUNTY CLERK 05/02/2018) 6] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 has a meritorious defense to defondant's counterclaim. Discussion It is well settled that: .. In order to successfully oppose a motion for leave to enter a default judgment based upon the plaintiffs failure to serve a reply to a counterclaim~ a plaintiff must c:stablish a rcasonab1e excuse for the delav and demonstrate a meritorious defense (see Bemimon v Fishman. 242 AD2d 55 l [2d Dept 1997 j). It is generally left to the sound discretion of the Supreme Court to determine \vhat constitutes a rca<.;onahlc excuse (see Scarlett v McCarrhy. 2 AD3d 623 12d Dept 20031) and a meritorious defense (see Fidelity & Deposit Co. of Md. v Andersen & Co.. 60 NY2d 693. 695 [ ?983 }). ·• (Beizer v Funk. 5 AD3d 619, 620 [2d Dept 2004 ]). It is equally ~1 ell settled that: "In exercising its discretion in this regard. the Supreme Court ·may accept law office failure as an excuse· (Star Indus .. Inc. v Innovative Beverage.~. Inc.. 55 AD3d 903. 904 [2d Dept 20081: see CPLR 2005~ Papandrea v Acevedo, 54 AD3d 915, 916 [2d Dept 20081~ Goldstein v Meadol1-'.t Redevelopment Co o.._mers Corp. /, 46 AD3d 509, 511 [2d Dept 2007); Chiarello v Alessandro. 38 AD3d 823, 824 [2d Dept 2007)). "However. law office failure should not he excused ... where allegations of law office failure are conclusory and unsubstantiated' (Star Indus .. Inc. v Innovative Beverages, Inc., 55 AD3d at 904; see Pelersen v Lysaght, Lysaght & Kramer. P.C., 47 AD3d 783, 784 [2d Dept 2008 ]; Wechsler v First Unum life Ins. Co .. 295 AD2d 340. 341 [2d Dept 2002]).'' (Wells Fargo Bank v Cervini. 84 AD3d 789. 789-790 [2d Dept 2011]; accord Whire v Daimler Chrysler. 44 AD3d 651. 651 12d Dept 20071). For the reasons discussc-d above in den)·ing defendant's request for dismissal of this action pursuant to CPLR 3216. its request for a judgment of default on its c;:ounterclaim is also denied. From this it follows that plaintiffs request for an order accepting his late filing of his reply to the counterclaim is granted. 6 6 of 21 [*~ILEp: KINGS COUNTY CLERK 05/02/2018) 7] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 Raquette's Request For Dismissal Pursuant To CPLR 31/ l(a){7) And 3016(b) Defendant •s Contentions In support of this demand for relief. defendant argues that plaintiff fails to meet the heightened pleading requirements of fraud. Plaintiff.~ Contentions In opposition. plaintiff argues that he pleads his case ''"'ith sufficient particularity to meet the statutory requirements. Discuss ion ·"As a general rule ·[pleadings] should be liberally construed and a complaint should not be dismissed for failure to s[ate a cause of action when a cause can be discerned in the facts alleged. no matter hO\v poorly those facts are stated··· (Lapis Enters v International Blimpie, 84 AD2d 286, 292 [2d Dept 1981 l. quoting Greschler v Greschler, 7 l AD2d 322. 325 rzd Dept 1979]. mod on other grounds 51 NY2d 368 tI 980]). Pursuant to CPLR 3016(b). hO\\-ever...[w]here a cause of action or defense is based upon misrepresentation. fraud. mistake, \\rilful default. breach of trust or undue influence. the circumstances constituting the wrong shall be stated in detail.,. To meet these requirements. a pleading must ·•idcntil)' the exact misrepresentation made, the person who made it. or when or \vhere it was made·· (Westdeutsche Landesbank Girozenrrale v learsy, 284 AD2d 251. 252 f lst Dept 2001 ]). Herein. the court finds that plaintiff adequately states a cause of action fi.>r fraud by alleging that Joshua Dardashian. who is affiliated with Raquette. represented that if plaintiff transferred the Propcn)' to his company. title would be returned to him afier the encumbrances and liens were satisfied. 7 7 of 21 [*(FILEJ:): KINGS COUNTY CLERK 05/02/2018) 8] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 Summary Judgment Plaintiff's Contentions In support of his motion for summary judgment. plaintiff claims that the RaquettePatterson Deed fails to convey any interest in the Property to defendant. since it was obtained by fraud and is accordingly voidab]c. Plaintiff also contends that the transfer is unconscionable because it was made without consideration. More specifically. plaintiff alleges that as a first time home buyer, he retained Benjamin J. Turner to act as his attorney to purchase the Property. Plaintiffsubsequently obtained a mortgage through Mr. Turner and used the proceeds to improve the Property and to convert it into a two-family house, where he and his common law wire. Ebonice Thomas. and a tenant could reside. Plaintiff goes on to allege that by the end of 2010. he had missed at least two paymcnls and the mortgage was in dcfau]t. Plaintiff further alleges that in May of2012, he began to receive telephone calls from people claiming that he was responsible to pay off mortgages in an amount of more than $500,000 that were taken out against the Property before Mr. Engel purchased it. Mr. Turner then contacted Mr. Dardashian~ who claimed to be a licensed rea] estate agent who owned a company called Promax. to assisl plaintiff in defending against foreclosure. Plaintiff a.Ciserts that Mr. Dardashian convinced him to convey title to Lhe Property to Promax so that the company could negotiate on plaintiffs behalf. Accordingly, plaintiff signed the Raquette-Patterson Deed on November 6. 2012; plaintiff was not represented by counsel at that time and he contends that he received no consideration for the transfor. Plaintjff goes on to exp Jain that the parties agreed that during the period of negotiating payment of the outstanding debt. which \\ras estimated to take one to two years. Mr. Dardashian would collect the rental proceeds to pay expenses on the Property and his tee. 8 8 of 21 [*[FILED: KINGS COUNTY CLERK 05/02/2018) 9] INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 NYSCEF DOC. NO. 115 Plaintiff also contends that Mr. Dardashian agreed to lend Ms. Thomas $8.000 that would be deducted from future rent to help them meet their expenses. Plaintiff thus signed a document acknowledging this advance. Plaintiff also contends that Mr. Dardashian instructed him to move out of the Property because the bank would not negotiate directly with Mr. Dardashian if plaintiff was residing at the premises. Plaintiff thus claims that he moved out in early 2013. Plaintiff goes on to aver that Mr. Dardashian aJlcgedly represented that once the mortgages and/or liens were satisfied~ title would be returned. In exchange. Raquette would rent the Property and collect an ongoing management fee. When plaintiff demanded the return of the Property in the summer of 2014, however. Mr. Dardashian contended that he had purchased the Property from plaintiff for $8.(){)() and paid over $500.000 to satisty a mortgage: plaintiff estimates the value of the Property to be approximately $400,000 as of November 2012. Plaintiff also contends that he later learned that there had not been a foreclosure proceeding commenced against the Property. In addition. plaintiff emphasi1.es that no mortgage was recorded against the Properly. Defendant's Contentions In opposition to plaintitrs motion for summary judgment and in support of its cross motion. Raquette argues that plaintiff" s story is fabricated, he cannot demonstrate justifiable reliance upon Raquene·s alleged misrepresentations and he waived any fraud claim he may have had when he executed a sworn statement acknowledging the tenns of the agreement between the parties. More specifically, Raquette argues that it is the lawlu] owner of the Property~ contending that the transfer was valid, proper and in accordance with the tcnns agreed to bet\a.'ecn the parties. Raquctte also argues that although plaintiff first denied that he obtained a mortgage on the Property, he later admitted that he took out a mortgage in the 9 9 of 21 [*WILEP: KINGS COUNTY CLERK 05/02/2018) 10] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 amount of$533.850 and executed a note and mortgage so indicating. The note was assigned to CitiMongage and the assignment was similarly signed by plaintiff. For unexplained reasons, the mortgage was never recorded. In his affidavit. Mr. Dardashian alleges that contrary to plaintiff's assertions. plaintiff approached him seeking to sell the Property because he was unable to pay the mortgage. In this regard. defendant also a~~rts that although plaintiff claimed to have been current in his mortgage payments through the end of 2010: documentary evidence establishes that he received a notice of default on December 15. 2008. Mr. Dardashian also claims that plaintiff was not residing at the Property. a~ is allegedly evidenced by a copy of his drivers license, which was issued on December 21, 2011, and by certain employment records. Thereafter. because plaintiff was in default, the parties agreed that plaintiff would sell the Property to Raquette for $8,000. plus the payment of the outstanding mortgage. On November 6. 20 I 2. Mr. Engel executed a corrected deed because the original deed was unsigned and wa~ not notarized. In addition. it was plaintiff who introduced Mr. Dardashian to Mr. Turner. who acted as a notary on the corrected deed. On the same day. plaintiff swore in an affidavit that he had consulted with his attorney and had chosen to move forward with the transfer to Raquctte without his attorney being presenc simultaneous with the transfer, Mr. Dardashian personally delivered a cashier's check in the sum of S8.000 to plaintiff, payable to Ms. Thoma~, as directed by plain[iff. In accordance with the parties• agreement, Mr. Dardashian negotiated a payoff with CitiMortgage to satisl}' plaintiffs unrecorded mortgage and note. By letter dated October 18. 2013, CitiMortgage 's loan servicer advised plaintiff that the subjed mortgage would be satisfied for the sum of not less than$ 118,800, plus expenses. ln this regard. on October 19, 2013~ plaintiff executed an affidavit that states: 10 10 of 21 [*[FILE:Q: KINGS COUNTY CLERK 05/02/2018) 11] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 "'Once the short sale is approved and funds arc transferred from Raquette Realty LLC to CitiMortgage and Raquette RcaJty LLC receives a payoff letter from CitiMortgage. Marcus Patterson will no ~onger be obligated under the tenns ofCitiMortgagc loan#: (2005482197). Marcus Patterson ,,.. ill be released from all obligations pertaining to the loan on 1084 Madison Street. Brooklyn. New York. "'I, Marcus Patterso~ did sign over the deed to Raqueuc Rea1ty LI .C on 11f6112. I did have an opportunity to consult '''ith an attorney. and chose not to use an attorney. I do understand that I gave up all rights to the property at the time of the deed transfer.'' Mr. Dardashian further alleges that on October22. 2013. Raquettc paid off the mortgage hy wire transfer to CitiMortgage in the sum of$) 21.457.54. By letter dated October 22. 2013 from G.C. Services. pJaintiffwas advised that the outstanding mortgage. with a balance of $530, 718.54, \\'as settled for the sum of$ 118,800. Mr. Dardashian also contends that following transfer of the Property to Raquette, defendant took over full management and control of rhe Property and plaintiff did not perform or pay for any construction or maintenance. Because the Property had been illegally rented as a two-family building. there was no rent being paid by either existing tenant and defendant \Vas forced to take both tenants to Housing Court to evict them. On August 18. 2014, defendant's cngirn:cr filed to reopen an old application to convert the Property from a one-family home to a legal two-family dweJJing. Mr. Dardashian goes on to allege that at no point did he or anyone from Raquctte ever represent to pJainti ff. or anyone else. that following the transfer of the Property from plain ti ff to Raquette. the Property would be transferred back to plaintiff once the mortgage was satisfied. Mr. Dardashian opines that such an allegation makes no sense, since there is no reason ,,,.hy Raqueue would negotiate with the bank and spend significant sums of money to pay off the mortgage and then transfer the Propert)· back to plaintiff without any 11 11 of 21 [*WILED: KINGS COUNTY CLERK 05/02/2018) 12] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 compensation. In specifical1y addressing plaintiffs claim of fraud. defendant asserts that since plaintiff was able to contact CitiMortgage and ascertain the va1idity of the underlying claims, he is unable to establish reliance. In addition. Raquene alleges that plainti IT cannot rely upon any statement by Raquette that the Property would be returned to him after the mortgage ...... as satisfied, since it is well established that an a11eged oral promise to transfer property is unenforceable and cannot be reasonably relied upon where a complete and integra1cd written agreement exists. Similarly. any such oral agreement would be bam:d by the Statute of Frauds. Finally. Raquettt! argues that plaintiff ratified any fraudulent agreement by accepting benefits of the agreement. having knowledge of the fraud. Defendant accordingly concludes that based upon thc..-se facts and documentary evidence. plaintiffs motion for summary judgment should be denied and its cross motion fi.1r summary judgment should be granted. Summary Judgment It is well establish(d that summary judgment may he granted only when it is dear that no triable issues of fact exist (Alvarez v Prospecl Hosp .. 68 NY2d 320 [ 1986]). The party moving for summary judgment ''bears the initial burden of making a prima fade showing of its entitlemenl to judgment as a matter of law·· (Holtz v Niagara Mohawk Power. l 4 7 AD2d 857, 858 [3d Dept 1989]). Failure to mak~ such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see e.g. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851. 853 [19851: DisputedAreavCityofNew York. 271AD2d635,635 [2d Dept 2000}). Once such a showing has been established, "'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible fonn sufficient 12 12 of 21 [*(.FILEl>: KINGS COUNTY CLERK 05/02/2018) 13] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 to establish the existence of material issues of fact which require a trial of the action .. {A/varez.68NY2dat 324. citing Zuckerman vCiryofNcw York. 49 NY2d 557.562 (1980]). It is equally well settled that in making the determination of whether a movant has satisfied the requisite burden of proof, the nonmovant is entitled to the benefit of every favorable inference (see e.g. NegrivStop& Shop. 65 NY2d 625 [ 1985]: Louniakov v MR.OD. Realty. 282 AD2d 657 [2d Dept 200 l ]). Further. ""the motion should not be granted where the facts are m dispute. where conflicting inferences may be dra\\on from the evidence~ or where there are issues of credibility" (Scott v Long Is. Power Auth., 294 AD2d 348, 348 r2d Dept 2002]. citing Dolitsky v Bay Isle Oil Co .• 111 AD2d 366 r2d Depl 1985]). Thus. ···(r]esolving questions of credibility, delennining the accuracy of witnesses. and reconciling the testimony of witnesses are for the trier of face·· (Torres v Saint Vincent's Catholic Madison Esrares Downtown. Ctrs .• l l 7 AD3d 717.718- 719 {2d Dept 2014 ], quoting Kahan v Spira. 88 AD3d 964, 966 [2d Dept 2011 J~ see also Cape/in Assoc. v Globe Mfg .. 34 NY2d 338 [ 19731). Fraud ···A deed based on forgery or obtained hy false pretenses is void ab initio··· (First Nari. Bank of Nevada v Williams. 74 AD3d 740. 742 [2d Dept 2010]. quoting Cruz v Cruz. 37 AD3d 754, 754 [2d Dept 2007]). Further, ·•[iln the case of fraud in the factum. the maker is induced to sign something entirely different than what he thought he was signing. 'lbe instrument is 'void ab initio"' (Dalessio v Kressler, 6 AD3d 57. 61 [2d Dept 2004j, citing First Natl. Bank ofOdessa v Fazzari. lO NY2d 394. 397 [ 1961 ]; Mix v Neff. 99 A02d 182~ 183 [Jd Dept 1984 J). In contrast, ••fraud in the inducement renders the obligation voidable based upon facts occurring prior or subsequent to its execution·· (Dalessio. 6 AD3d at 61. citing Mix, 99 A02d at 183 }. In this case. plaintiff admits that he signed a deed convey]ng the Property to 13 13 of 21 [*lj'ILED: KINGS COUNTY CLERK 05/02/2018) 14] INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 NYSCEF DOC. NO. 115 defendant as well as other documents stating that he knowingly transferred the Property. Accordingly. plaintiffhimsclfestablishes that he was aware of the meaning ofthe documents that he signed. From this it follows that he is alleging fraud in the inducement. The elements of this cause of action are '"'representation of a material existing fact. falsity, scienter, deception and injury" (Channel Master v Aluminum Ltd. Sales. 4 NY2d 403. 407 l 19581~ Orlando v Kukielka, 40 AD3d 829. 831 [2d Dept 20071). Herein. plaintiff a11eges that Mr. Dardashian represented that he would negotiate to satisfy plaintiffs outstanding mortgages and that once the encumbrances were cleared, he would transfer the Propen}· back to plaintiff. Plaintiff further explains that the payment of the $8,000 that Mr. Dardashian no\\' claims was part of the purchase price was actually an advance of rent received so that plainti IT could meet his expenses while Mr. Dardashian was negotiating with the bank. Similarly. plaintiff explains that Mr. lJardashian told him that he (plainti fl) would have to vacate the premises or the bank with not negotiate with his company. P1aintiff contends that Mr. Dardashian made these representations knowing that he did not intend to reconvey the Property to plaintiff. Accordingly. based upon these aJlegations, plaintiff makes a prima facie showing of fraud. In opposition. however. delendant relies upon Mr. Dardashian~s version of lhe facts and the documents that plaintiff executed. Thus, issues of fact are raised that cannot be resolved on the papers no\v before lhc court. From this it follov.:s that neither plaintiff nor defendant is entitled to summary judgment on plaintiffs claim of fraud or defendant's counterclaim (see generallr .Johnson v Melnikoff, 65 AD3d 5 J 9. 520-521 [2d Dept 2009-1 [the court properly granted that branch of plaintiffs motion for summary judgment declaring that the mortgage on the su~ject property was null and void. and denied that branch of the mortgagee's cross motion for 14 14 of 21 [*WILEC: KINGS COUNTY CLERK 05/02/2018) 15] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 summary judgment declaring that its mortgage was valid. under circumstances where after financing her purchase with a mongage, plaintiff had discussions \vith representatives of a company and believing that she was signing docwnents that would effectuate a refinancing of her mortgage loan. she unwittingly executed a deed conveying title to the subject property to the defendant}~ Betz v NYC. Premier Props .• 38 AD3d 8 l 5. 81 S [2d Dept 2007] ]the court properly denied defendant's motion for summary judgment dismissing the complaint as premature prior to discovery under circumstances where p1aintiffs commenced the action alleging that defendants fraudulently induced them into executing the sale and lease of their property by misrepresenting that the arrangement was a means of refinancing the property]). Real Property Law § 265-a Plaintiffs Contentions Plaintiff also argues that, in the alternative~ he is entitled to summary judgment on his complaint on the ground that the agreement between him and Raquettc violates the requirements of Real Propert)' Law (RPL} ~ 265-a. the Home E4uity Theft Prevention Act (the Act). Defendant's Contentions T opposition, defendant argues that plaintitr s reliance on RPL 265-a is misp1aced. n since the Property was not his residence. To suppon this claim. defendant alleges that CitiMortgagc flagged plaintiffs account for fraud when his tax records. employment records and driver's license indicated that he did not claim the Property as his primary residence. In this regard~ defendant alleges that at the time of the transfer, plaintiff was in the process of converting the Property to a legal lwo family home where he intended tu live. although he was actualJy renting out t\vo illegal units. 15 15 of 21 [*WILEI>: KINGS COUNTY CLERK 05/02/2018) 16] INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 NYSCEF DOC. NO. 115 The Law lne Home Equity Theft Prevention Act (the Act). New York Real Property Law § 265-a, became effective on February J, 2007. \vith the intention of preventing abusive and fraudulent practices by purchasers of distressed properties who falsely promise to save properties and to reconvey them to the homeowners at a future date (see generally (U.S. Bank v Mar. 2008 NY Slip Op 32 I 74[U] [Sup Ct. NY County 2008]). The Act is intended to save homeowners from losing homes which are in foreclosure or default (RPL 265-al I l[a]). The court has further noted that ""the 1lome Equity Theil Prevention Act is a remedial statute. designed to stem an anticipated rise in so·called ·mortgage rescue' schemes, and its provisions should be liberally construed in favor of equity sellers.. (Lucia v Goldman. 68 AD3d 1064. 1066 [2d Dept 20091). As is also relevant herein. RPL 265-a(2 )( e) defines an equity purcha.~er as ..any person who acquires title to any residence in foreclosure or, where applicable. default. or his or her representative as defined in this subdivision." RPL 265-a(2)(j) defines an equity seller as ''a natural person who is a property owner or homeowner at the time of the equity sale:· RPL 265-a(2)(h) defines "property owner" or ""homeowner" as "any or all record title owners of the residential real property in foreclosure or. where applicable. default at the time of the equity sale:' RPL 265-a(2)(k) defines "residence" and ••residential real property" as ..residential real property consisting of one· to four-family dwelling units, one of which lhc equity seller occupies or occupied at a time immediately prior to the equity sale as his or her primary residence:· RPL 265~a(3) provides the font of the type that must be used in any agreement and (a)(4) goes on to provide. in detail. the terms that must be included in a contract su~)ect to the Act, including a statement that the contract is subject to cancellation~ the tenns of pa)ment or other consideration including. but not limited to. any services of any 16 16 of 21 [*WILEl>: KINGS COUNTY CLERK 05/02/2018) 17] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 nature which the equity purchaser represents he or she will perform for the equity seller before or after the sale: the time. if any. at which physical possession of the residence is to be transferred to the equity purchaser and the residence vacated by the equity seller~ and the tenns of any reconvc)·ance arrangement. Jn addition. RPI. 265-a( 5) and (6) provide rhat any contract subject to the Act may be rescinded within five days and must contain a notice of cancellation. RPL 265-a(7) Jimits the actions that the equity purchaser can engage in during this period. including prohibiting the purchaser from accepting from any equity seller an execution of. or inducing any equity seller to execute. any instrument of conveyance of any interest in the residence in foreclosure or default; payjng the equity seller any consideration: making any false or misleading statement n:garding the va1ue of the residence: and assisting the equity l'ieller in saving the house or preventing a completed foreclosure. RPL 265-a(8) also provides that any transaction subject to the Act that is in violation of its provisions is voidable and the transaction may be rescinded by the equity sel1er within two years of the date of the recording of the conveyance of the property in foreclosure or default. Discussion Herein, the ahove .discussed documents reveal that pJaintiff and defendant did not execute a contract of sale prior to the transfer of the Property as is required by the Act. In addition, plaintiff alleges that Mr. Dardashian engaged in conduct that is prohibited pursuant to RPL 265-a(7). According1y. if the Act applies, plain1iff may weU be entitled to have the deed rescinded. Plaintin: however. fai1s to make a prirna facie showing that the Act is applicable in that he foils to establish that he resided at the Property as his primary residence al the time that he deeded the Property to defendant. Jn this regard. the court notes that plaintiff aJJeges that when he entered into the agreement with Mr. Dardashian. he was in the process of 17 17 of 21 [*OCILEE: KINGS COUNTY CLERK 05/02/2018) 18] NYSCEF DOC. NO. 115 INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 converting the Property from a one-family home to a two-family and had spent tens of thousands of do1lars to make it habitabJe. He also a11eges. however, that he needt!d the renta1 income from the Property to pay his expenses. Accordingly. since plaintiff attaches no documentary evidence to his papers that would prove that he resided at the Propcny and/or that he invested money to renovate it at the time of the transfer to Mr. Dardashian. plaintiff has not made a prima facie showing of entitlement to summary judgment. Simi1arly, however. defendant offers no evidence to establish that the Property was not occupied by plaintiff as his primary residence at the time of the transfer. but was instead occupied by two tenants. In this regard, the court notes that although defendant contends that eviction proceedings had to be brought against the tenants, no evidence regarding these alleged eviction proceedings is provided to the court. Accordingly, defendant similarly fails to make a prima facic showing of entitlement 10 summary judgment on its counterclaim. Notice Of PendenCJ' Defendant ~s Contentions In support of this motion. Raquette argues that the notice of pendency ti led by plaintiff on August 26) 2014 has been rendered invalid and ineffective because pursuant to CPLR 6315. such notices expire after three years from the date of filing by operation of law. Thus. the notice ofpendency at issue herein expired on August 26. 2017. because plaintiff did not make a timely motion to extend it. Defendant further argues that since a notict: of pendency may not be filed in any action in which a previously filed notice of pendency has been cancelled or vacated, the notice of pend ency cannot be reinstated. Plaintifjs Contentions In opposition. plaintiff argues that he tiled the notice of pendency in this action on September 5. 20 l4. so that it expired on September 5. 2017. Ile goes on to contend that the 18 18 of 21 [*[FILED: KINGS COUNTY CLERK 05/02/2018) 19] INDEX NO. 508154/2014 RECEIVED NYSCEF: 05/03/2018 NYSCEF DOC. NO. 115 motion to cancel the notice of pcndency should he denied as moot. given the fact that dispositive motions have been pending since this time. He also asserts 1hat since the commencement of this action, the Property has been conveyed to another company. which he believes is a shell company or a subsidiary of defendant. or that defendant has attempted to refinance or further encumber it. Pla)ntiff also argues that cancelling the notice of pcndency would cause irreparable hann to both plaintiff and third parties. He thus concludes that it is in the best interests of the an parties concerned that the matter be decided on the merits and that defendant be denied any ability to transfer. se11 or encumber the Propert)·. Plaintiff also now advises the court that he has discovered that AIC. a mortgage discharge company. submitted a settlement proposal to Citi Mortgage on March 28. 2013. By letter agreement dated October 18, 2013. G.C. Services agreed to accept $118.800. plus closing costs. in satisfaction of his mortgage. Plaintiff thus contends that had he known that he could have reduced the mortgage to this amount, he would have been able to keep up with the mortgage payments and would not have transferred the Property to defendant. Under the facts of this case, as discussed above. plaintiff also argues that the transfer of the Property to defendant a year earlier was made in violation of RPL 265-a and h. Defendant •s Reply In replyi defendant argues that plaintiff docs not deny that the strict statutory construction of CPI ,R 6513 provides that a notice of pendency is valid for only three years unless it is extended prior to its expiration. Defendant emphasizes that plaintiff does not dispute that he did not make a request to extend the notice of pendency before it expired. Jn this regard. defendant also points out that although the pending motions \Vere orally argued on October 24. 201 7. after the notice of pendcncy had expired. plaintiff made no mention of this. finally. de fondant notes that the additional issues raised b)' plaintiff in opposition to this 19 19 of 21 [*WILEE: KINGS COUNTY CLERK 05/02/2018) 20] INDEX NO. 508154/2014 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/03/2018 motion are relevant to the pending motions for summary judgment. and have no bearing on whether the notice of pendency should be cancelled. Discussion Pursuant to CPLR 6513: ··A notice of pendency shall be effective for a period of three years from the date of filing. Before expiration ofa period or extended period. the court. upon motion of the plaintiff and upon such notice as il may require. for good cause shown. may grant an extension for a like additional period. An extension order shall be filed. recorded and indexed before expiration of lhc prior period." In interpreting this provision, the Court of Appeals explained that: "A notice of pendency is valid for three years from the date of filing and may be extended for additional three-year periods upon a showing of good cause (see CPLR 65 J3). The extension. however, must be requested prior to the expiration of the prior notice (see id.). This is an exacting rule: a 'notice of pendency that has expired wi [hout extcnsi on is a nu 11 ity · ( 13 Weinstein-Korn-Miller; NY Civ Prac P 6513.04 (2000]; see Polish Natl. Alliance of Brooklyn v White Eagle Hall Co_, 98 AD2d 400. 405 [2d Dept 1983 ]: Robbins v Goldstein. 32 AD2d 1047 l2d Dept 1969]). For practical purposes~ there is no distinction between the effect of an expired or cancelled notice of pendency--both are void. Thus, the ·no second chance' rule we established in Jsraelso v Bradley. 308 NY 51 l. 516 [19551 for a cancelled notice of pendcncy applies with equal force to one that has expired. Because CPLR 6513 provides that a notice of pendency terminates automatically on the expiration of the pendcncy three-year period unless extended, a lapsed notice may not be revived (see Robbins v Goldstein, 32 AD2d 104 7~ In re Koda Props.. 63 BR 588. 590 [Bankruptcy Court. Ea~tem District of New York 19861~ Carvel~Dari Freeze Storej· v Lukon. 2 l 9 NYS2d 7 l 6 l City Ct; Ne\v York City 196 l J). " or (In re Sakow. 97 NY2d 436. 442 12002] ). Applying the above principles of law to the facts of this case. the court finds that the notice of pcndency was filed with the coun on September 5. 2014. Inasmuch as plaintiff made no timely application to extend it, the notice of pendency is no longer in effect. is 20 20 of 21 [*[i'I?iEe: KINGS COUNTY CLERK 05/02/2018) 21] INDEX NO. 508154/2014 NYSCEF DOC. NO. 115 RECEIVED NYSCEF: 05/03/2018 hereby cancelJed and cannot be reinstated or extended. Cone/ u.~ ion Plaintiffs reply to defendanc·s counterclaim shall be deemed served. nunc pro tune. upon service of a copy of this order ~·ith notice of enll")'. The notice of pend~ncy fi1ed against the Property on September 5. 2014 has expired punmant to CPLR 6513. D~fendant is directed to serve a copy of order and decision upon the County Clerk~ who is directed to cancel the notice or pendcncy forthwith. A 11 other reHef requested is dcnkd. 'Ille foregoing constitut~ the decision and order of the coun. E N TE R. -.; N 0 I ·.v 21 21 of 21 ...

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.