Zucker Real Estate Corp. v Wilson

Annotate this Case

Download PDF

Zucker Real Estate Corp. v Wilson 2018 NY Slip Op 31712(U) March 26, 2018 Supreme Court, New York County Docket Number: 157614/16 Judge: Jennifer G. Schecter 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. [*FILED: NEW YORK COUNTY CLERK 03/29/2018 11:31 AM 1] NYSCEF DOC. NO. 47 INDEX NO. 157614/2016 RECEIVED NYSCEF: 03/29/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 57 ------------------------~---------------x ZUCKER REAL ESTATE CORP., DECISION AND ORDER Plaintiff, -against- Index No.157614/16 MILTON E. WILSON, ELIZABETH PEARSON, FRANKIE NEAL, and NEW YORK CITY DEPARTMENT OF FINANCE, Defendants. ----------------------------------------x JENNIFER G. SCHECTER, J.: Plaintiff Zucker Real Estate Corp. (Zucker) commenced this action to quiet title to property located at 245 West 131st Street in Manhattan Wilson (Wilson) CPLR 3211 (a) (1) (Property) . Defendant Milton E. moves to dismiss the complaint pursuant to and (a) (7) and to cancel Zucker filed against the Property. the lis pendens Because the documentary evidence does not compel dismissal and because the complaint states a cause of action, Wilson's motion is denied. Background On this motion to dismiss, the court must accept the facts alleged by Zucker in the complaint to be true. Susie Foote (Foote) owned the Property. Wilson has a November 9, 1978, deed from Foote conveying the Property to him [Supp] at ~ 11, (Wilson Deed) Ex B) . (Affirmation in Support It is undisputed that, 2 of 6 in November [*FILED: NEW YORK COUNTY CLERK 03/29/2018 11:31 AM 2] NYSCEF DOC. NO. 47 INDEX NO. 157614/2016 RECEIVED NYSCEF: 03/29/2018 Zucker Real Estate Corp. v Wilson Index No. 157614/16 Page 2 1978, the Wilson Deed was recorded but was improperly indexed against property at a different address with a different block and lot designation (Supp, Ex H [Complaint] at ~ 13). In 2016, Zucker purported to purchase the Property from Foote's heirs Frankie Neal (Neal) On April 14, 2016, (Pearson) . (Complaint at ~ 8). and Elizabeth Pearson Zucker's deeds were recorded A mere five days later, a Zucker representative went to the Property to "secure" it (Complaint at ~ 12) . Property Zucker then learned that Wilson was renting out the "and ownership" was first notified of Wilson's alleged (id. ) . On May 5, 2016, the New York City Department of Finance issued a "correction" and indexed the Wilson Deed in the right place along with a memorandum stating that the deed had been indexed incorrectly at the time it was recorded and the "entry in the index [was] to provide notice of the recorded document" (Supp, Ex G) . The memorandum further stated that one should "note the date of the document and its appropriate place in the chain of title" (id.). That same day, the Department of \ Finance also filed a satisfaction of mortgage from December 1980, reflecting that Wilson had been the borrower and Foote the lender. 3 of 6 [*FILED: NEW YORK COUNTY CLERK 03/29/2018 11:31 AM 3] INDEX NO. 157614/2016 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/29/2018 Zucker Real Estate Corp. v Wilson Index No. 157614/16 Page 3 Zucker subsequently commenced this action against Wilson I i seeking, among other things, to quiet' title t in its name. I Zucker maintains that it is the sole owner of the Property and l i I that Neal and Pearson had represented that they were Foote's ! I sole remaining heirs and that they were the owners of the Property (Complaint at ~~ 7, 9). I Wilson now moves to dismiss based on!documentary evidence I Wils6~ urges that dismissal and for failure to state a claim. is appropriate because: I (1) the improper indexing of his deed does not divest him of ownership (Supp at (2) ~~ 6, 23, 25, 41), Zucker's title company should have; identified Wilson's interest (Supp at ~~ 4, 19), (3) Zuck'.er was on notice of Wilson's interest through the May 2016 I ~epartment of Finance letter stating that the Wilson Deed wa~ indexed incorrectly I (Supp at~ 4), (4) Zucker had notice of ~ilson's "open use and maintenance of the Property for almost 42) and (5) 1o years" (Supp at ~ Zucker had notice of Wilson's ownership through settlement negotiations between the parties (Supp at ~ 42) .* • In his motion, Wilson does not argue that Zucker had notice of his ownership of the Property;based on Tax Lien Certificates that were filed listing him as the owner of the ' ' ' Property or based on a 2015 foreclosure I1 action in which Pearson, Neal and Wilson are named defe~dants. 4 of 6 [*FILED: NEW YORK COUNTY CLERK 03/29/2018 11:31 AM 4] INDEX NO. 157614/2016 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/29/2018 Zucker Real Estate Corp. v Wilson Index No. 157614/16 Page 4 Analysis On a motion to dismiss pursuant! to CPLR 3211, the complaint is afforded a liberal construc'tion and plaintiff is ! given the Martinez, determines benefit 84 every possible' NY2d 83, 87-88 whether the facts cognizable legal dismissal of is theory [1994]). as only (Leon The court fit within alleged , if the f documentary v only "Under CPLR 3211 (a) (1) (id.) warranted inference any I a evidence submitted conclusively establishes a defense to the asserted ' ' claims as a matter of law . . In assessing a motion under CPLR 3211(a) (7), however, . the 'criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one'" (id. at 88 citing Guggenheimer v Ginzburg, 43 NY2d 268 [1977] ) Zucker has a cause of action. It :alleges that it is a good-faith purchaser of the Property and;that it had no notice of the improperly-indexed Wilson Deed or:of Wilson's ownership interest. the None of the documentary motion papers establishes evid~nce anythi:r;ig that accompanies to the contrary. Wilson's evidence does not conclusively establish that Zucker I had notice of his ownership of the Property before making its purchase. Because movant' s definitively establish a documentary evidence does not defense 5 of 6 as a matter of law to [*FILED: NEW YORK COUNTY CLERK 03/29/2018 11:31 AM 5] NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 03/29/2018 Index No. 157614/16 Page 5 Zucker Real Estate Corp. v Wilson zucker's INDEX NO. 157614/2016 viable causes of action, defendant's motion is denied. Accordingly, it is ! ORDERED that defendant's motion i~ denied; and it is further i ORDERED .that defendant is to answer within 10 days of ' notice of entry of this decision and order (CPLR This is the decision and order of Dated: March 26, 2018 HON. 6 of 6

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.