George v 1429 Pac. Inc.

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George v 1429 Pac. Inc. 2020 NY Slip Op 33241(U) September 25, 2020 Supreme Court, Kings County Docket Number: 3109/14 Judge: Lawrence S. Knipel 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] KINGS COUNTY CLERK 10/02/2020 01:16 PM NYSCEF DOC. NO. 57 INDEX NO. 518845/2018 RECEIVED NYSCEF: 10/02/2020 At a11 IAS Tenn, Part Con1m 6 of tl1e Supren1e Court of the State of New York, held in and for tl1e County of Ki11gs, at the Courtl1ousc, at Civic Center, Brociklyn, New York, on the 25th day of September, 2020. PRESENT: HON. LAWRENCE KNIPEL, .Tustive. ANIL GEORGE, Plaintiff, - against - Action No. I Index No. 3109114 1429 PACIFIC INC, Defendant :; ---------------------------------_,,x BANK OF AMERICA, N.A., Plai11tiff, - against 1429 PACIFIC INC, ANlL GEORGE, NEW YORK .. STATE DEPARTMENT OF TAXATION AND FJNANC~; PORTFOLIO RECOVERY ASSOCIATES LLC, NEW ;, YORI( CITY ENVIRONMENTAL CONTROL BOARD, i: NEW YORI< C11·y PARI<ING VIOLATIONS BUREAU,;; STATE OF NEW YORI< and "John Doe" and/or "Jane Doe" # 1-10 inclusive, tl1e last ten na1nes being fictitious and u11known to plaintiff, the persons or parties i11tended being the tenants, occupants, persons, corporations or heirs at law, if any, havii1g or claiming an interest in or lien upon the premises described in the co1nplaint, Defendants.). -- - - - - - - -- -- -- -- - -- - - - - - - - - -- -- - -- 'X 1 of 6 Action No. 2 Index No. 518845118 [*FILED: 2] KINGS COUNTY CLERK 10/02/2020 01:16 PM NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 10/02/2020 The followiI1g e-:Q.led papers read 11erein: NYSCEF Doc. Nos. Notice of Motion/Order to Sl1ow Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed,_ _ __ !' 32-39 Opposition (Affirmations) Annexed._ _ _~ Upon the foregoing papers, INDEX NO. 518845/2018 43-48. 52-55 defendan~Anil George (George) moves, in Action No. 2 (in motion sequenGe [mot. seq.] two) for ai;i order: (l) consolidating Action Nos. 1 and r 2, pursuant to CPLR 602 (a), and (2) exten\ling his time within which to file a note of issue in Action No. 1. Backgtound ;· Actio11 No. I On or about February 28, 2014, Gedrge commenced Action No. 1, a quiet title :: action, seeking co1npensatory and punitive tjamages and a declaratory judgment that the Nov.ember 21, 2013 transfer of George's titl:e to his residential property at 1429 Pacific !~ Street in Brooklyn (Property) to defendanti 1429 Pacific Inc. (1429 Pacific) is void. :; Essentially, George seeks to recover his Prdperty from 1429 Pacific on the ground that the Prope1ty was fraudulently conveyed with kforged power of attorney. Actio11 No. 2 On or about September 18, 2018, Action No. 2 against George and others B~k of America, N.A. (BOA) commenced see~ing to foreclose on the Property. George allegedly executed an April 22, 2008 promisJory note in favor of BOA's predecessor for 2 of 6 [*FILED: 3] KINGS COUNTY CLERK 10/02/2020 01:16 PM NYSCEF DOC. NO. 57 INDEX NO. 518845/2018 RECEIVED NYSCEF: 10/02/2020 $801,000.00, which was secured by a m\)rtgage on the Property. The foreclosure complaint in Action No. 2 alleges that Geor$e defaulted by failing to make the mortgage payments due on June 1, 2008 and monthly thereafter. ' On or about February 28, 2019, George answered the complaint in Action No. 2, denied the material allegations therein and a~serted several affirmative defenses. George also asserted two counterclaims for an ay.rard of attorney's fees and a declaratory i/ judgment "canceling and discharging" the rtjOrtgage as time-barred. On or about March 20, 2019, BOA replied to George's countercl~ims and asserted affirmative defenses. George)s Motio11 to Consolidate George novv 1noves, in Action No. ~. for an order, pursuant to CPI,R 602 (a), consolidating Action Nos. 1 and 2 on the giounds that ''[b]oth actions involve common questions of law and fact, the same parties ~nd the sa1ne real property and both actions beg the question, who is the owner of [the Pr~perty]?" George's counsel also asserts that "[b]oth actions involve common witnessel and testimony" and "[t]he time of the witnesses, jurors, parties and the 'Court will 1;';be used more efficiently if the actions are consolidated.'' George argues that "[tJhe po'iential for inconsiste11t results, the waste of scarce judicial resources and the added bur~en on tl1e litigants that would result fro1n failing to consolidate these actions all 1nilitate'.: it1 favor of granting tl1e instant 1notion. ,. U.S. Bank National Association, not ir{its individual 3: 3 of 6 capacit~y b11t solely as Trustee [*FILED: 4] KINGS COUNTY CLERK 10/02/2020 01:16 PM NYSCEF DOC. NO. 57 INDEX NO. 518845/2018 RECEIVED NYSCEF: 10/02/2020 1' for the RMAC Trust, Series 2016-CTT (U$ Bank), successor in interest to BOA', in opposition, argues tl1at George's motion toiiconsolidate Action Nos. l and 2 should be denied because "[d]efendant's Quiet Title i.A-ction has no bearing on this foreclosure action or Defendant's default under the ~ote and Mortgage." US Bank notes that i: "[d]efendant's allegations in the Quiet '):itle Action relate solely to Defendant's allegations that the Premises was fraudulerjtly conveyed to 1429 Pacific ... after the i,:. origination of [BOA's] Mortgage" and "[B()AJ is not even a named party in the Quiet Title Action as its interest i[s] unaffected liy the allegations regarding the Deed to the Premises" (emphasis added). US Bank frniher notes that "[a]ny disfovery in both actions is fi.111her unrelated as discovery in the Foreclosure will center afound Defendant's default and the alleged !: defenses contained in the defendant[']s Ansfver[ ], whereas discovery in the Quiet Title Action will center around Defendant's all~gations of fraud against [1429] Pacific." i: Essentially, US Ban!( contends that there afe no corrunon questions of law or fact in " Action Nos. 1 and 2 that warrant consolidat\on, pursuant to CPLR 602 (a), since "[the] Note and Mortgage were originated well Jrior to the alleged fraudulent Deed of the :: Premises to [1429] Pacific." US Bank furth~r argues that BOA would be prejudiced by any delay caused by consolidation of Action hos. I and 2 because "Defendant has been in i: default since 2008 and [BOA] wishes to pr~peed to discovery and with the Foreclosure 1According to US Bank's.counsel, the note and rriortgage were ultimately transferred and assigned to US Bank on Ja11uary 2, 2020. 4 4 of 6 [*FILED: 5] KINGS COUNTY CLERK 10/02/2020 01:16 PM NYSCEF DOC. NO. 57 INDEX NO. 518845/2018 RECEIVED NYSCEF: 10/02/2020 :; action expeditiously(,]" since it "contin11es tQ advance carrying charges 011 tl1e Premises i: ,, :; Defendant 1429 Pacific, in oppositiotj;, si1nilarly argues that the foreclosure action and the quiet title action do not involve cb1nm_on questions of law or fact, since the foreclosure action (Action No. 2) "does not!'concern who is the owner of the 1nortgaged pre1nises" and the quiet title action (Action N,fo. l) "does not concern the. issue of whether George defaulted under the Note and Mortg~ge." that there is no danger of inconsistent deter1n~nations. For this reason, 1429 Pacific contends !' Disc1i'ssio11 • "A motio11 for consolidation is addres'sed to the sound discretion of the court. and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are co1nrnon questio11s Bank, NA., 34 AD3d 776, 777 [2006]). :or law and fact" (RCN Constr. Corp. v Fleet .. "~ motion to consolidate should be granted :: absent a showing of prejudice to a substa~lial right by a party opposing the motion" " (Hanover Ins. Group v Mezansky, 105 AD3dilOOO, 1001 [2013]). r Here, consolidation is not warranted ;:because George has not detnonstratcd that i: Action Nos. l and 2 involve common ques~ions of law .and fact. The validity of the November 21, 1013 deed to the Property at issue in Action No. l has absolutely nothing i: to do with George's alleged payment default ~nder the April 22, 2008 note and mortgage. i 5: 5 of 6 [*FILED: 6] KINGS COUNTY CLERK 10/02/2020 01:16 PM INDEX NO. 518845/2018 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 10/02/2020 !' Consequently, George's n1otion to consolida~b Action Nos. 1and2 is denied. In addition, George has failed to provide any basis to extend the time within which to 'file a note of issue in Action No. I. Accor~ingly, it is hereby i.:. ORDERED that George's motion in jl>.ction No. 2 (in mot. seq. two) is denied in its entirety. !' Thi's constitutes the decision and order!!ofthe court. ENTER, 1. S. C. Justice L 6 6 of 6 I! i . renoe Krnpel

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