Lucky of 195 Madison St. Roofing & Contr. Inc. v Creif 109 LLC

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Lucky of 195 Madison St. Roofing & Contr. Inc. v Creif 109 LLC 2019 NY Slip Op 33320(U) November 7, 2019 Supreme Court, New York County Docket Number: 153437/2017 Judge: Robert R. Reed 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: 1] NEW YORK COUNTY CLERK 11/08/2019 03:11 PM NYSCEF DOC. NO. 104 INDEX NO. 153437/2017 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ROBERT R. REED IAS MOTION 43EFM Justice ---------------------------------------------------------------------------------X LUCKY OF 195 MADISON STREET ROOFING & CONTRACTING INC, INDEX NO. MOTION DATE Plaintiff, 153437/2017 12/3112017, 10/27/2018 MOTION SEQ. NO. _ _ 0_01_0_0_3_ _ -vGREIF 109 LLC,BIL-MAN ASSET MANAGEMENT, LLC,PROPERTY RESEARCH, GOLDBERG WEPRIN FINKEL GOLDSTEIN LLP, ROBERT LO SCHIAVO, ASK ABSTRACT, BALLON STOLL BADER & NADLER, VANO HAROUTUNIAN, OLD REPUBLIC TITLE INSURANCEE CO., MAIN STREET TITLE AGENCY INC., DOES 1-100 INCLUSIVE DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20,21,22,23,24,25,26,27,28,29,30,31,33, 34,53,54, 55, 56, 57, 58, 59,62,63,64,65 DISMISSAL were read on this motion for The following e-filed documents, listed by NYSCEF document number (Motion 003) 81, 82, 83, 84, 85, 86,87,88,89, 90, 91,92,93,94,95,96,97,99, 101 CONSOLIDATE/JOIN FOR TRIAL were read on this motion to Motion sequence numbers 001 and 003 are hereby consolidated for disposition. This action arises out of plaintiffs attempt to dispute the legitimacy of various mortgages and liens placed upon four lots of property. Plaintiff asserts four causes of action against defendant Crief 109 LLC (Crief): (1) lack of standing; (2) quiet title; (3) declaratory relief (4) set aside mortgage. In motion sequence number 001, Creif moves for dismissal pursuant to CPLR 3211 (a)(l), (7) and (10), 3013, 308(b) and 3024(a), as to the first, second, third and fourth causes of action. Plaintiff cross-moves for relief pursuant to CPLR 3025(b) for leave to amend the complaint to add additional defendants. 153437/2017 LUCKY OF 195 MADISON STREET vs. CREIF 109 LLC Motion No. 001 003 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 11/08/2019 03:11 PM NYSCEF DOC. NO. 104 INDEX NO. 153437/2017 RECEIVED NYSCEF: 11/08/2019 In motion sequence number 003, plaintiff moves for consolidation pursuant to CPLR 602 of this action with a foreclosure action pending in this county, specifically Index No. 850028/2018. BACKGROUND Crief is one of the original mortgage lenders, having lent $4 7.55 million to plaintiff pursuant to a mortgage dated August 19, 2016, which was executed by a duly authorized signatory of plaintiff. Crief is also the assignee of a $3 .5 million mortgage and a $5 million mortgage, originated by defendant Bil-Man Asset Management (Bil-Man). Both of these mortgages were allegedly executed on behalf of plaintiff by Allen James Stevo, secretary of plaintiff. DISCUSSION "The scope of a court's inquiry on a motion to dismiss under CPLR 3211 is narrowly circumscribed" (P. T Bank Cent. Asia, N. Y Branch v ABN AMRO Bank N. V., 301 AD2d 3 73, 375[151 Dept 2003]). Thus, on a "motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction" (Leon v Martinez, 84 NY2d 83, 87 [1994]). The court "must accept as true the facts alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts a s alleged fit within any cognizable legal theory" (Sokoloff v Harriman Estates Dev. Corp, 96 NY2d 409, 414 [200ll Under CPLR 3211 (a)(l), a dismissal is warranted only ifthe documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. Plaintiff's four causes of action against Creif all allege that Stevo fraudulently executed the mortgages on behalf of plaintiff. Where a cause of action is based upon fraud, CPLR 3016(b) 15343712017 LUCKY OF 195 MADISON STREET vs. CREIF 109 LLC Motion No. 002 003 2 of 5 Page 2of 5 [*FILED: 3] NEW YORK COUNTY CLERK 11/08/2019 03:11 PM NYSCEF DOC. NO. 104 INDEX NO. 153437/2017 RECEIVED NYSCEF: 11/08/2019 provides "the circumstances constituting the wrong shall be stated in detail" (see CPLR 3016[b]). The pleading requirements of CPLR 30 l 6(b) are a matter of procedure, governed by the law of the forum ( Westdeutsche Landesbank Girozentrale v. Learsy, 284 AD2d 251, 252 [1st Dep't 2001 ]). Plaintiff must plead facts sufficient for the fact-finder to make a reasonable inference of fraud (see Pludeman v. N. Leasing Sys., Inc., 10 NY3d 486, 493 [2008]). "A cause of action for fraud requires plaintiff to plead: (I) a material misrepresentation of a fact, (2) knowledge of its falsity, (3) an intent to induce reliance, (4) justifiable reliance and (5) damages" (Nicosia v Board of Mgrs. of Weber House Condominium, 77 AD3d 455, 456 [1st Dept 20 I 0]). The complaint does not allege that Creif knew or should have known that Stevo was not, in fact, an authorized signatory of plaintiff, empowered to enter into the mortgages. Plaintiff fails to plead any alleged fraudulent conduct by Criefwith any particularity. The conclusory allegations of fraud do not meet the pleading requirements for a claim based on fraud under CPLR 3016(b) or CPLR 3013 In opposition, plaintiff files a cross-motion to amend the complaint. Pursuant to CPLR 3025 (b), "[a] party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties." As a general proposition, leave to amend pleadings "should be freely granted" (RBP of 400 W 42 St., Inc. v400 W 42nd St. Realty Assoc., 27 AD3d 250, 250 [1st Dept 2006]), although the court retains the sound discretion over whether to permit the amendment (see Pellegrino v New York City Transit Auth., 177 AD2d 554, 557 [2d Dept 1991]). When the court . is presented with a motion to amend the pleadings, "in order to conserve judicial resources, an examination of the underlying merits of the proposed causes of action is warranted" (Eighth Ave. Garage Corp. v HK.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009]). A motion for leave to 153437/2017 LUCKY OF 195 MADISON STREET vs. CREIF 109 LLC Motion No. 002 003 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 11/08/2019 03:11 PM NYSCEF DOC. NO. 104 INDEX NO. 153437/2017 RECEIVED NYSCEF: 11/08/2019 amend in response to a motion to dismiss the complaint is "futile" and should be denied where "the defects [in the complaint] are [not] cured by the proposed ... amended complaint" (see Meimeteas v Carter Ledyard & Millburn LLP, 105 AD3d 643, 643 [1st Dept 2013]). Plaintiff contend that the proposed amended complaint addresses all of the problems inherent in the original complaint. However, plaintiffs proposed amended complaint does not remedy the pleading deficiencies in the complaint as against Crief. Thus, because the proposed amendments are legally insufficient, plaintiffs cross-motion for leave to amend is futile and must be denied (see 41 Carol v Madison Plaza Assoc, LLC, 95 AD3d 735 [1st Dept 2012]). Plaintiff's motion to consolidate this matter with the foreclosure action pending in this county, specifically Index No. 850028/2018, is denied. The issues in each matter are sufficiently different and do not warrant consolidation. Accordingly, it is ORDERED that the motion of defendant Crief 109 LLC (motion sequence no. 001) to dismiss the complaint herein is granted and the complaint is dismissed in its entirety as against said defendant, with costs and disbursements to said defendant as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General 153437/2017 LUCKY OF 195 MADISON STREET vs. CREIF 109 LLC Motion No. 002 003 4 of 5 Page4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 11/08/2019 03:11 PM NYSCEF DOC. NO. 104 INDEX NO. 153437/2017 RECEIVED NYSCEF: 11/08/2019 Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the '"EFiling" page on the court's website at the address www.nycourts.gov/supctmanh)]; and it is further ORDERED that plaintiffs cross-motion for leave to amend the complaint herein is denied; and it is further ORDERED that plaintiffs motion to consolidation (motion sequence no. 003) is denied; and it is further ORDERED that counsel are directed to appear for a status conference in Part 43, Room 412, 60 Centre Street, New York, New York, on December 12, 2019 at 9:30 a.m. 1117/2019 DATE CHECK ONE: CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 153437/2017 LUCKY OF 195 MADISON STREET vs. CREIF 109 LLC Motion No. 002 003 5 of 5 D D OTHER REFERENCE Page 5of 5

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