Maynard v Walker
Annotate this CaseDecided on July 26, 2019
Supreme Court, Kings County
Shaunder Maynard, Plaintiff,
against
Patresha Walker & BX Group LLC, Defendants.
18068/13
Pro Se Movant
Shaunder Maynard
Brooklyn, New York 11210
Attorney for Defendant Walker
Yariv Katz Michael
543 Main Street, Suite 301
New Rochelle, New York 10801
Attorney for Defendant BX Group LLC
Herskowitz, Esq.
1999 Flatbush Avenue, Suite 201
Brooklyn, New York 11229
MASS5518 LLC (proposed defendant)
1552 East 27th Street
Brooklyn, New York 11229
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on May 10, 2019, under motion sequence number seven, by plaintiff Shaunder Maynard (hereinafter plaintiff or Maynard) for an order: (1) pursuant to CPLR 3025 (b) granting plaintiff leave to amend her complaint to add a defendant to the action; (2) amending the caption to reflect the addition of the defendant; and (3) granting leave to amend a notice of pendency. [*2]The defendants did not submit opposition to Maynard's instant motion.
Notice of motion
Plaintiff's affidavit in support
Exhibits 1-6
Exhibits A-I
Affidavit of service
BACKGROUND
On October 10, 2013, plaintiff, proceeding pro se, commenced the instant action for, among other things, imposition of a constructive trust on real property located at 1170 East 42nd street, Brooklyn, New York (Block 7789 Lot 58) (hereinafter the subject property), by filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On October 17, 2013, plaintiff filed a notice of pendency affecting the subject property.
On January 23, 2014, BX Group LLC filed a verified answer. On February 11, 2014, Patresha Walker (hereinafter Walker) filed a verified answer.
The original verified complaint contained fifty-eight allegations of fact in support of four causes of action. The first cause of action is for the imposition of a constructive trust. The second cause of action asserts a claim for unjust enrichment. The third cause of action asserts a claim of fraud. The fourth cause of action asserts a claim for interference with contractual relations.
The original complaint alleged the following salient facts. On or about January 27, 2004, Maynard acquired legal title to the subject property. On or about November 2005, Maynard received notice from her lender that the subject property was at risk of the commencement of a foreclosure action. In response, Maynard sought the assistance of Maxine Housen, to take title to the subject property temporarily. On or about February 28, 2006, Maynard transferred title to subject property to said Maxine Housen. Based on the understanding Maynard had with Maxine Housen, Maynard was supposed to seek financing and relive Maxine Housen of the financial obligations by taking title to subject property back, and paying off the current mortgage. On October 5, 2006, heeding the advice of mortgage broker, plaintiff and Maxine Housen transferred title to subject property to defendant Patresha Walker (hereinafter "Walker"). On June 3, 2013, Walker, in her capacity as a "strawperson", allegedly committed an act of fraud by executing a memorandum of contract (hereinafter MOC) for the sale of the subject property with BX Group LLC.
Maynard alleges that she has resided in the subject property since purchasing it in January 2004. Maynard further alleges sole responsibility for paying the mortgage and maintainting the subject property. Maynard contends that she has been the sole possessor of the subject property and Walker has never resided int eh subject property.
Plaintiff's proposed amended complaint contains sixty-eight allegations of fact in support of the same four causes of action asserted in the original complaint. The proposed amended complaint, however, reflects the addition of defendant MASS5518 LLC and sets forth, among other things, some of the tortious acts of defendant MASS5518 LLC. Plaintiff alleges that Walker and MASS5518 LLC, executed another MOC for the sale and purchase of the subject property dated June 19, 2017 for an undisclosed amount of money. On July 3, 2017, the MOC by Walker and MASS5518 LLC was recorded in the Office of the City of New York. The proposed amended complaint further alleges, inter alia, that the MOC reflects that MASS5518 LLC is in negotiations with the bank for a short sale of the subject property. Plaintiff's [*3]complaint seeks, among other things, a return of the subject property or the imposition of a constructive trust.
LAW AND APPLICATION
Leave to Amend Complaint
Maynard seeks leave to amend the complaint to add MASS5518 LLC as a defendant and to file an amended notice of pendency.
CPLR 3025 (b) provides that a party may amend his 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. It is well settled that leave to amend a pleading rests within the court's discretion and should be freely granted provided that the amendment is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit (see CPLR 3025 [b]; Tabak v Shaw Indus., Inc., 149 AD3d 1132, 1133 [2nd Dept 2017], citing Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828 [2nd Dept 2008]).
A court shall not examine the legal sufficiency or merits of a pleading unless the insufficiency or lack of merit is clear and free from doubt (Krakovski v Stavros Assocs., LLC, 173 AD3d 1146 [2nd Dept 2019], citing United Fairness, Inc. v Town of Woodbury, 113 AD3d 754, 755 [2nd Dept 2014]). "No evidentiary showing of merit is required under CPLR 3025(b)" (Krakovski v Stavros Assocs., LLC, 173 AD3d 1146 [2nd Dept 2019], citing Favia v Harley—Davidson Motor Co., Inc., 119 AD3d 836, 836 [2nd Dept 2014]). Rather, the appropriate standard to be applied on a motion for leave to amend a pleading is that, in the absence of prejudice or surprise resulting directly from the delay in seeking leave, such applications are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit (Gallagher v 109-02 Development, LLC, 137 AD3d 1073 [2nd Dept 2016] citing Maspeth Fed. Sav. & Loan Assn. v Simon—Erdan, 67 AD3d 750, 751 [2nd Dept 2009]).
The burden of establishing prejudice or surprise precluding the amendment of the pleading is on the party opposing the amendment (Krakovski, 173 AD3d 1146). Inasmuch as the defendants have not opposed plaintiff's motion there is no claim of prejudice or surprise by the amendment.
Plaintiff submitted, among other things, a proposed amended complaint. The changes consist of the addition of MASS5518 LLC as a new defendant and certain allegations of fact regarding MASS5518 LLC's involvement in the proposed contract of sale of the subject property. The Court finds that the proposed amended complaint, on its face, is not palpably insufficient nor patently devoid of merit. Therefore, plaintiff's motion for an order granting leave to amend the complaint pursuant to CPLR 3025 (b) should be granted.
Leave to Amend the Notice of Pendency
Plaintiff also seeks leave of the court to file an amended notice of pendency to preclude any attempts by defendants Walker or MASS5518 LLC to transfer title to the subject property. Plaintiff has also submitted a proposed amended notice of pendency.
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" (Abizadeh v Abizadeh, 159 AD3d 856, 857 [2nd Dept 2018]). With regard to this branch of Maynard's motion, Maynard did not cite any law in support of the relief requested to meet the requirements of CPLR 2214 (a). Therefore, this branch of Maynard's motion may be denied without prejudice based on the deficiency of the [*4]moving papers.
For the reasons set forth below, however, the motion is denied on the merits. The notice of pendency "puts the world on notice of the plaintiff's potential rights in the action and thereby warning all comers that if they then buy the property . . . they do so subject to whatever the action may establish to be the plaintiff's rights" (In re Sako, 97 NY2d 436, 440 [2002], citing Siegel, New York Practice § 334, at 509 [3d ed.]; see also CPLR 6501).
A litigant's ability to file a notice of pendency is an extraordinary privilege because of the relative ease by which it can be obtained and because it permits a party to effectively retard the alienability of real property without any prior judicial review (Delidimitopoulos v Karantinidis, 142 AD3d 1038 [2nd Dept 2016]). A notice of pendency may be filed only when the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property (Delidimitopoulos 142 AD3d at 1039, citing CPLR 6501 and Ewart v Ewart, 78 AD3d 992 [2nd Dept 2010]).
The original verified complaint demanded a judgment which would affect the title to, or the possession, use or enjoyment of, real property. Therefore, the filing of the original notice of pendency was proper. However, inasmuch as the original complaint has been amended by the instant decision and order, the amended complaint supersedes the original complaint and is now the operative pleading in this action (see Taub v Schon, 148 AD3d 1200, 1201 [2nd Dept 2017]). The amended verified complaint also demands a judgment which would affect the title to, or the possession, use or enjoyment of, real property. Therefore, the complaint as amended does not impair the validity of the original notice of pendency.
While there is ample authority permitting a plaintiff to amend a notice of pendency to correct typographical or scrivener's errors in the legal description of the affected real property (see Beltway Capital, LLC v Gutierrez,140 AD3d 998 [2nd Dept 2016]; see also Bank of New York v Stein, 130 AD3d 552 [2nd Dept 2015]), there is no statutory or case law authority for amending the notice of pendency simply to add a party to the caption. As previously stated, a properly filed notice of pendency affects the subject real property and puts the whole world on notice to plaintiff's claims asserted in the action. There is therefore nor legal or practical basis to amend the notice of pendency to add a defendant to the caption. It is a legally unsupported, unnecessary and superfluous act.
CONCLUSION
That branch of Shaunder Maynard's motion for an order granting leave to amend the summons and complaint to add MASS5518 LLC as a defendant pursuant to CPLR 3025 (b) is granted.
Shaunder Maynard must serve the amended complaint and the instant decision and order on MASS5518 LLC within twenty days. Defendant MASS5518 LLC has thirty days from the date of service of the amended complaint and the instant decision and order upon it to interpose and answer to the amended complaint.
Shaunder Maynard must serve the instant decision and order on defendants Patresha Walker & Bx Group LLC within twenty days. Defendants Patresha Walker & Bx Group LLC are deemed served with the amended complaint. Defendants Patresha Walker & Bx Group LLC have thirty days from the date of service of the instant decision and order to interpose and answer to the amended complaint.
That branch of Shaunder Maynard's motion for an order granting leave to amend the caption to reflect the addition of MASS5518 LLC as a defendant is granted.
That branch of Shaunder Maynard's motion for an order granting leave to amend the notice of pendency to reflect the addition of MASS5518 LLC as a defendant is denied.
The foregoing constitutes the decision and order of this Court.
Dated: July 26, 2019
Hon. Francois A. Rivera
J.S.C.
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