Matter of Sklavos v Oki-Do Ltd.

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Matter of Sklavos v Oki-Do Ltd. 2019 NY Slip Op 30254(U) January 28, 2019 Supreme Court, New York County Docket Number: 020698/2009 Judge: James Hudson 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] Alexander Sklcwos. et al. 11 Index No. :02069812009 OKI-DO. Ltd.. et al. Sho11 Form Order .$UJJremt C!ourt oftlie C!ounty of.$u.fJO!li $tate ofNeur 'Y'ora - J'at1 XL VI C0 ' 'Y, PRESENT: HON. JAMES H UDSON Acting Justice of tile Supreme Court x---------------------------------------------------------------x ALEXANDER SKLA VOS, as Executor of the Estate of EDWARD SKLAYOS . PRIME REAL EST J\ TE VENTURES. LLC. LfNDSEY LEIGH. LLC'. 40 I K PLAN, CJ IRlSTINJ\ SWIRNI a/k/a Cl lRlSTINI SMTRNI. MARK STYCZEN and EVE STYCZEN. Plaintiffs. INDEX N0.:020698/2009 MOT. SEQ. N0.:02 ..-MD SIEGEL & RE INER. LLP Attorneys fo r Plai ntiffs By: Richard 11. Del Valle. Esq . 900 Th ird Avenue New York. NY I 0022 -against- OKT-DO LTD., and ··JOHN DOE # I "through "JANE DOE # I0. the last I 0 names being fictitious and unknown to the Plaintiffs. the persons or parties intended being the occupants. tenants. persons or entities. if any. having or claiming an interest in or lien upon the mortgaged premi ses descri bed in the verifies complaint. Defendants. x----------------------------------------------------------------x SOLOMON & SIRJS, PC Co-Counsel to Plaintiffs By: tvlichacl J. Siris. faq. Garden City Center I 00 Quentin Roosevelt Boulevard. Suite 504 Garden C'i ty, NY 11530 ROSENBERG FELDMAN SM ITH, LLP Attorneys for De fendant By: Michael 1-1. Smith. Esq. Richard B. Feldman. F.sq. 551 Fifth A venue, 241" Floor New Y o rk, NY 10 176 llpon the fo llowing papers numbered lJQ.J!. read on this motion to Dismiss; Notice of Motion/ Order to Sito'' Cause and supporting papers l::!; Notice of Cross Motion and supporting papers_Q: Answering Affidavits and supporting papers 5-6; Repl ying Affidavits and supporting papers 7-8; Other Q; (.111d 11f1c1 liciu i11f, C\it111~cl i11 .n1ppo11 1md oppc1~cd to the 111otiC111) ir is. ORDERED that the Detendant's motion (seq. no.:024) pursuant to C PLR 4404 (b) for j udgment in its favor is deni ed: and it is further ORDERED that the Plaintiff is directed to submit an order of reference. In this commerc ial forec losure action. Pia inti ffs seek to ohtain a judgement of foreclosure on the prem ises located at 2835 Sh ipyard La ne. Eas1 Marion. New York. The Court's pri or O rder, dated June I 8111 • 201 8 (Hudson. J. ). rec ited the foll owing Cacts: Page I of 3 [* 2] Ale:wnder Sk/a l"(JS, er al. ,. 01\/-DO. Lid. , er al. Index No.:02069812009 In 2007 the Pia inti l'fs loaned the Defendants a total of one millio n dollnrs which was secured hy two mortgages for $500.000.00 each. T he mortgages were ori ginal ly executed on October 81h. 2007 and October 15 111 • 2007, and were consolidaled into a s ingle note and mortgae.e on the latter date .... v ia a Consoli dation, Extension and Modification Agreement ( .. CEMA .. ). Defenda nt 's principal. Dr. Kazuki Hill yer. executed a Power of Attorney to Mr. Edward Stein. who was present at the c losings. No payments were made on the CEMA and the Plaintiffs commenced thi s action tn foreclose upon the mortgage. ~ - A non-jury Lrial was conducted on March 8111 • 2017. March 9 1h. 2017. March 13 111 • 2017. March 161h. 20 17. March 171" . 2017 and March 23 rd. 2017 lo resoh·e issues of fact related to the July 3rd. 2007 Power of Attorney and s ubsequent Powers of Attorney dntcd October 3r<1. 2007 and October 4 1h. 2007. and whether Mr. Stein had authority to execute the mortgage documents. f n ils order. dated .June I 81h. 2018. this Court determined that Mr. Stein had actual authori ty to bind the Dercndant with the mortgage by the Power or Attorney dated July 3rd. 2007. and that the mortgage was valid. The Court directed the Pl aintiffs co proceed with the foreclosure and submit an order of reference and judgment of forec losure. Defendant novv moves purs uant to CPLR 4404 (b) for judgment in favor o f the Defendant. In s upport. the Defendant conten ds that the Power or Attorney. dated October 41" . 2007 revoked the July 3''1, 2007 Power of Attorney. thereby rendering the mortgage void. The Defendant also argues that the Court fai led to give deference to custom and practice of real estate attorneys to record the Po\\'er of Attorney and to have the o rigi nal Po\\'cr of Attorney at the closing. and fo r the Attorney in Fact to present an affidavit that the Power o f Attorney is in full fort:e and effect. Inas much as Mr. Stein presented a n aflidavit o f full force ~nd effect with regard w the invalid October 4'h. 2007 Power of A ttorney. the mortgage should he deemed void. The Defendant further di sputes that Dr. llillyer ratified the mortgage. Pursuant to CPLR 4404 (b). after a non-j ury tri al. a court may. on the motion of a party or its own motion. set aside its decis ion and make new findin gs of fact or conclus ions of law. Herc. the Court finds that the Defendant failed to present new evidence which would req uire the Court to set aside its decision . Defendant improperly relics upon ABN AMRO Mtge. Group, Inc. 11 Stephens 9 1 J\D3d 80 I , 939 NYS2d 70 [2d Dept 2012]) for the propos ition that the Lender·s interests in the property were inva lid after the Power o f Attorney was found to be a forgery. A BN A 1l IRO is inapposite to this matter inasmuch as no prior val id po"·er or attorney existed. In a ny event. the Plaint iff 1 Page 2 or 3 [* 3] ,. ..Jle.rnmler Sklams, et al. 1· Incle.\· .\'o. :020698 2009 OKI-DO. I.tel , l't 11/. demonstrate.xi by Dr. I Tillycr's testimony lhat she readily s igned the July 3'.i. 2007 Po\\'cr of Attorney before a notary public and acknowledged her signature. In add ition, despite the Court's tinding that portions or Dr. Hillyer's testimony lacked cred ibility. she consistently stated that she never signed the October 3"1 and October 41h . 2007 Po\\'ers of Attorney. Thus. the Defendant fails to show support for its claim that the invalid October 4 111 • 2007 Power of Attorney can revoke the prior valid July 3•u. 2007 Power of A ttorney. Having foiled to demonstrate that the October 41h . 2007 Power or Attorney- revoked .... the July 3'J. 2007 Power of Attorney. the Delendam presented no evidence that the July 3'd, 2007 Power of Attorney had hccn revoked by Dr. I Ii llycr. As stated in the prior Order, "revocation occurs when the princ ipal expresses · ... words or conduct which are inconsistent with the continuation !the agent" sl authority ... (111 Re /'Jle11delsol111. 2013 WL 3555690 (Surr.Ct. NY Co. 2013J. affd 116 A03d ~ 77 list Dept 20141). Tn addition . ..an agency by ratification will arise of it is proven that a principal ·knew or its agent's practice [andl accepted the benefits··· (New York S tate Med. Transporters Ass'n, Inc. v Perales. 77 NY2d 126. 131. 564 NYS2d I 007 [ 19901- citing 57 NYJur.2d, Estoppel. Ratification. and Waiver. § 76). In the absence of proof o f revocation. Plaintiffs were clearly authorized to rely upon the I.July 3"1• 2007] Power of Attorney (Mndiso11 Park lnvs. L LC l ' Atla11tic Lofts Corp .. 33 Misc. 3d 12 1S(A). 941 N.Y.S.2d 538 [N.Y. Sup.Ct .. October 18, 20 11]; see GOL §§ 5-1501. 5-1502A [2]; § 5-1504: Real Property Law§ 326). or Here, thi s Court found that Dr. Hillyer was aware of the mortgage by no later than February of 2008. when the recorded October 4 111, 2007 Power of Attorney was mai led to her by the Suffolk County Clerk. and the Defendant has presented no evidence to the contrary. Although Dr. I Till) er may have discussed a revocation with her accountant. Mr. Eletto, the Defendant presents no new evidence that a revocation occmTed. In addition. the Defendant failed to provide new evidence wh ich disputes Dr. Hillyer's testimony that she wanted Mr. Stein to get her a mortgage. The Defendant also failed to support Dr. I lillycr" s s tatcmenl thul the July 3'J. 2007 Power of Actorncy expired aflcr ninety days. The Defendant's remaining arguments are unpersuasive. Accordingly. the Defendant has fa iled to present grounds to set aside the Decision under the present circumstances. The motion is denied. The foregoing decision constitutes the decision and Order of the Court. DATED: JANUA RY 28'11 , 2018 RI VERHEAD, NY ,.. \ /~\____--- · --- •I HON. JAM ES HU DSON Acti ug l11$fice of tlte Supreme Court L Page 3 of' :1

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