Franklin v Marques

[*1] Franklin v Marques 2018 NY Slip Op 50438(U) Decided on April 2, 2018 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 2, 2018
Supreme Court, Kings County

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

against

Michael Marques, Defendant.



501437/15



Attorney for Plaintiff

Adam Kalish, Esq.

The Law Offices of Adam Kalish, PC

9306 Flatlands Avenue

Brooklyn, NY 11236

Attorney for Defendant

Jerome E. Goldman

1216 48th Street

Brooklyn, NY 11219

(917) 699-1028
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on defendant Michael Marques' (hereinafter M. Marques or the defendant) notice of motion, filed on December 20, 2017, under motion sequence number seven, for an order: (1) seeking leave to reargue the stay of the action, and thereafter (2) lifting the stay; and (3) granting defendant's pending motion for summary judgment motion; (4) vacating the stay previously issued by the [*2]court on May 30, 2017 [FN1] , and (5) granting an award of costs and disbursements.

The motion was jointly opposed by Muriel Franklin, Richard Marques, Donna Marques, Clairmont Marques and Anthony Marques (hereinafter the Franklins).

Notice of motion to reargue

Affirmation in support

Exhibits A1 to G1

Affirmation in opposition

Affirmation in reply

MOTION PAPERS

Defendant's motion papers consist of an affirmation of counsel and seven annexed exhibits labeled A1 through G1. Exhibit A1 is a copy of defendant's motion for summary judgment and to vacate the stay of the matter, with exhibits dated November 25, 2016 (hereinafter defendant's pending motion). Exhibit B1 is a copy of plaintiffs' cross motion dated December 1, 2016 (hereinafter the Franklins' pending motion). Exhibit C1 is a copy of defendant's opposition to Franklin's pending motion. Exhibit D1 is a copy of defendant's reply in further support of defendant's pending motion. Exhibit E1 is a copy of a letter submitted by defendant's former counsel Jon Lefkowitz to inform the court of his suspension from the practice of law dated April 3, 2017. Exhibit F1 is a copy of the notice of appearance filed by defendant's current counsel Jerome Goldman dated May 18, 2017. Exhibit G1 is an order of this Court issued on June 7, 2017.

Plaintiffs have opposed the motion with an affirmation of counsel dated December 29, 2017.

Defendant has replied with an affirmation of counsel dated January 8, 2018.

BACKGROUND

On February 9, 2015, Muriel Franklin, Richard Marques, Donna Marques, Clairmont Marques and Anthony Marques (hereinafter the Franklins) commenced the instant action seeking, inter alia, a declaratory judgment by filing a summons and complaint with the Kings County Clerk's Office. On March 19, 2015, the defendant joined issue. On September 30, 2016, a note of issue was filed.

The Franklins' 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 constructive trust [FN2] , the third for an injunction, the fourth for unjust enrichment and the fifth for breach of fiduciary duty.The action pertains to cooperative unit 2G located at 10 East 43rd Street, Brooklyn, New York (hereinafter the subject property).

The Franklins allege the following salient facts, among other. In 1995, the Franklins contributed $7,000.00 toward the $32,000.00 purchase price for the subject property. The Franklins followed the cooperative corporation's requests that the cooperative stock shares and proprietary lease be held in the name of defendant M. Marques, Muriel Franklin's son. The Franklins paid all maintenance on the subject property except for a few months in 1997. Sometime in 2014, Muriel Franklin's relationship with M. Marques began to deteriorate. Thereafter M. Marques began a proceeding in Housing Court to evict Muriel Franklin from the premises. The instant action seeks, inter alia, a declaration that Muriel Franklin is the co-owner of the subject property, as well as, money damages [FN3] .

Defendant's answer raised six affirmative defenses. The affirmative defenses allege that the complaint (1) is barred by the statue to limitations, (2) is barred by the statute of frauds, (3) is defective under RPAPL 1515, (4) is unable to be proven on the cause of action for breach of duty, (5) is barred by the Franklin's unclean hands, (6) fails to state a cause of action.

On November 25, 2016, defendant M. Marques filed the pending motion pursuant to CPLR 3212 for an order granting summary judgment in his favor on liability and dismissing the complaint on the basis that the claims are barred by the statute of frauds, or, in the alternative, vacating and modifying the injunction.

On November 30, 2016, the Franklins filed the pending cross motion pursuant to CPLR 3212 for an order granting summary judgment in their favor on the causes of action for declaratory judgment and permanent injunction, dismissing the defendant's affirmative defenses, and granting cost and disbursements.

By order of the Appellate Division Second Department, dated March 23, 2017, Lefkowitz was suspended from the practice of law (see Matter of Lefkowitz, Jon A., 2017 WL 1096998, 2017 NY Slip Op 68079 [u]). On April 3, 2017, Jon A. Lefkowitz, defendant's prior attorney, electronically filed a letter notifying the Court that he had been suspended from the practice of law. The Court issued an order dated May 30, 2017, advising the parties that their pending summary judgment motions were stayed in accordance with CPLR 321 (c) based on the suspension of Muriel Marques' counsel. Sometime on or after May 18, 2017, defendant's current counsel Jerome Goldman filed a notice of appearance.

LAW AND APPLICATION

The CPLR 321 (c) Stay

Michael Marques instant motion seeks, among other thing, to vacate the CPLR 321 (c) stay, the stay of eviction action against Muriel Franklin, and to reargue the parties' pending motions filed in November of 2016.

The CPLR 321 (c) stay was effective with the suspension of defendant's counsel by operation of law. However, once the defendant had new counsel appear in the action, there was no longer any basis for continuing the stay. Accordingly, the Court issued an order dated January 26, 2018, lifting the stay.

Defendant's Motion for Re-argument

CPLR 2221 pertains to motions seeking re-argument or renewal of a prior motion. The parties' pending summary judgment motions were not decided while the CPLR 321 (c) stay was [*3]in effect. There is therefore no factual basis to grant re-argument pursuant to CPLR 2221 on the parties pending summary judgment motions. Pursuant to CPLR 2001, the Court will disregard the defendant's request for re-argument and simply decide the pending motion and cross motion.

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v. Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

"Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dep 2008]).

Defendant's CPLR 3212 Motion

Defendant had made a prior motion for summary judgment seeking dismissal of the complaint.[FN4] By decision and order dated July 31, 2015, the court granted defendant's motion for summary judgment only as to the second cause of action for a constructive trust and denied summary judgment as to all other causes of action. The defendant then filed the pending summary judgment seeking dismissal of the complaint. "Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or sufficient cause" (see Vinar v Litman, 110 AD3d 867, 868 [2nd Dept 2013]). "Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment" (Id. at 869). "Although, in this context, newly discovered evidence may consist of deposition testimony which was not elicited until after the date of a prior order denying an earlier motion for summary judgment, such evidence is not "newly discovered" simply because it was not submitted on the previous motion" (see Vinar v Litman, 110 AD3d 867, 868—869 [2nd Dept 2013] internal quotes omitted). "Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means" (Id.). The defendant has failed to show any new evidence or provide any sufficient cause for the court to entertain the pending summary judgment motion (see Id.) It is, therefore, denied as an impermissible successive summary judgment motion.

The Franklins' CPLR 3212 Cross Motion

[*4]We now to turn to the Franklins' cross motion for summary judgment. The Franklins have moved for summary judgment declaring that Muriel Franklin is a life occupant or co-owner of the subject property and also seeks a permanent injunction. CPLR 3001 provides that "[t]he supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed" (see Peters v Smolian, 154 AD3d 980, 983 [2nd Dept 2017] citing CPLR 3001). "The 'justiciable controversy' upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs" (Tomasulo v Vill. of Freeport, 151 AD3d 1100, 1102 [2nd Dept 2017]).

The Franklins have not established their prima facie entitlement to summary judgment as a matter of law. They have not produced evidence of a contract, writing, or agreement which demonstrates entitlement to the requested relief. Rather, they have annexed as exhibit C, an occupancy agreement between the defendant and the subject premises' cooperative board that does not on its face involve the Franklins.

Furthermore, "the substance of a life estate consists in the life tenant's right to exclude all others from the possession of the subject property for the duration of his or her own life" (Torre v Giorgio, 51 AD3d 1010 [2nd Dept 2008]). "Even the color of a triable issue forecloses the remedy" (see Fairlane Fin. Corp. v Longspaugh, 144 AD3d 858, 859 [2nd Dept 2016], quoting Rudnitsky v Robbins, 191 AD2d 488, 489 [2nd Dept 1993]).

"[A] motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from evidence, or where there are issues of credibility" (see Disa Realty, Inc. v Rao, 137 AD3d 740, 741 [2nd Dept 2016] citing LeBlanc v Skinner, 103 AD3d 202, 212 [2nd Dept 2016]). Here, the factual claims of the parties regarding the subject property are sharply disputed, therefore an accelerated judgment is not an appropriate remedy.

To establish entitlement to an injunction, a movant must establish (1) a likelihood or probability of success on the merits, (2) irreparable harm in the absence of an injunction, and (3) balance of the equities in favor of granting the injunction (see CPLR 6301; Doe v Axelrod, 73 NY2d 748, 750 [1988]; W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]). Here, in light of the previous discussion, the Franklins have not established a likelihood or probability of success on the merits. Therefore, their application for an order pursuant to CPLR 3212 granting a permanent injunction is denied.

The Franklins' Cross Motion to Dismiss Defendant's Affirmative Defenses

The Franklins have also cross moved for summary judgment dismissing the defendant's affirmative defenses. CPLR 2214 (a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor (see Abizadeh v Abizadeh, —- NYS3d —- , 2018 NY Slip Op 01892 [2018]). Relief in the alternative or of several different types may be demanded. Other than requesting that the affirmative defenses be dismissed, the Franklins have not offered any grounds for the relief requested.

The Franklins' Cross Motion for an Award of Cost and Disbursements

The Franklins have also requested an order granting an award for cost and disbursements. [*5]CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8101 provides that the party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances (CPLR 8001). The party to whom costs are awarded is entitled to recover reasonable and necessary expenses as are taxable according to course and practice of the court, by express provision of law or by order of the court (CPLR 8301 [a]). Here, the Franklins have not received a judgment in their favor, therefore, an award of cost and disbursements is not appropriate.

CONCLUSION

Michael Marques' motion for an order granting summary judgment in its favor and dismissing the complaint is denied.

Muriel Franklin, Richard Marques, Donna Marques, Clairmont Marques and Anthony Marques' cross motion for an order granting summary judgment in their favor is denied.

Muriel Franklin, Richard Marques, Donna Marques, Clairmont Marques and Anthony Marques' cross motion for an order dismissing the defendant's affirmative defenses is denied.

Muriel Franklin, Richard Marques, Donna Marques, Clairmont Marques and Anthony Marques' cross motion for an order awarding cost and disbursements is denied.The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C. Footnotes

Footnote 1:This is the same stay referenced in the first and second branch of defendant Michael Marques' motion, all of which were resolved by an order dated January 26, 2018 which lifted the stay.

Footnote 2:By order dated July 31, 2015, the defendant was granted summary judgment dismissing the cause of action seeking a constructive trust.

Footnote 3:This information was taken from the Court's Decision and Order dated May 30, 2017.

Footnote 4:This Court takes judicial notice of the court records of filings under Index No. 501437/2015.