Glover v Ashman

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Glover v Ashman 2023 NY Slip Op 34204(U) November 1, 2023 Supreme Court, Kings County Docket Number: Index No. 518655/2017 Judge: Lisa S. Ottley 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. INDEX NO. 518655/2017 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 11/29/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS-, PART 24 ---- . ----- .------------------ .------------------------- . --- . --- .--------x BERNICE GLOVER as ADMINISTRATOR OF THE ESTATE OF STEPHEN GLOVER, Plaintiff, Index No.: 518655/2017 -against"' BENCH TRIAL DECISION DAVID ASHMAN, Defendant. ---- .--------. ---- : -· -----------. --- ·--- ... ·-- .-.. --- .-----. -· .-----. -· ·:x HON. LISA S. OTTLEY, J.S.C. Plaintiff commenced this action pursuant to Article 15 of the Real Property Action and Proceedings Law for declaratory relief againstthe defendant, David Ashman who is alleged to have transferred the subject property known as 1976 Bergen ·street located in Brooklyn, New York by knowingly filing and recording false documentswiththe NewYorkCity Register: A bench trial of this matter was held on October 31 and Novemberl,2022. Plaintiff alleges that the defendant obtained plaintiff's signature on relevant documents through misrepresentation and seeks to have the deed, Which is dated December 8, 2005, and recorded by defendant on July 13, 2006, deemed void; and award plaintiff damages due to the alleged improper taking of title ofthe subject property. Plaintiff'.s Case. The adrninistrator of the estate of Stephen Glover, Jennie Glover, was called to testify on behalfofthe plaintiffs case. Jennie Glover is the sister of the decedent, Stephen Glover who was the owner of the subject propertyknown 1976 Bergen Street. The case was commenced by Stephen Glover's mother, Bernice Glover~ who was the previous administrator of the estate ofStephen Glover. Upori Bernice Glover's passing,Jennie Glover became the administrator of Stephen Glover's· estate. Jennie Glover testified that Stephen Glover purchased '1976 Bergen Str.e.et in 2005. She further testified.that to. date; monthly mortgage statements fro in the serviti ng company are received indicating that mortgage payments are due, owing and have not been paid for the subject property. Ms, Glover also testified that the statements a.Isa. show that the b.ank is wi Iii ng to assist With bri ngi rig. the mortgage up to date. ri addition lo reteivi iig nio rtgage statements th ere was t e:st iin o ny th at ins ura nee not ites received vi a ma iI are addressed to· the 1. 1 ,.,,.,_,_.._.,.,._.._,,,,.,,,, ,.,.,._, •• _,,......,._..-,__ _ _ 1:..:i.::;;,.,,;,_....,,__..,_~,,••"•" , ,,,, ,, , ,,.,,,.,.,,,.M....., _ __ [* 1] 1 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 estate of Stephen Glover, and neither the mortgage nor insurance state·ments were addressed to the defendant, David Ashman. On cross-examination, Ms. Glover testified that while she has never physically Visited the subject property, she has driven by the property and seen it on-line, She further testified that from the time the property was conveyed in 2005, that shewas: unaware of any action her brother, Stephen Glover took to get the property back from the defendant, David Ashman, nor did she knowwho was personally living at the subject premises from 2005 to the present time. Oh re-direct,Jennie Glover testified that Stephen Glover, while sick was unable to care for himself and was on medication and being taken care of by his mother~ who he eventually moved in with before his passing. Thereafter, the plaintiff rested, and the defendant moved to dismiss the complaint on the grounds that the plaintiff failed to establish its prima fadecase. 1 Defendant's Case Defendant called Cynthia Francis totestify oh his behalf. Ms. Frahcistestifiedthatshe met Stephen Glover in .or about 2001 or 2002, who she em ployed at her place of business, a restaurant, for approximately two years. Ms. Francis further testified that Stephen Glover told her he hadproperty on Bergen Street that he Wanted to sell. She testified that she knew customers from her business: who she asked if they were interested in purchasing the property, but only one had the money, "Roy/' also known c1s David Ashman, who said he would buythe property. Cynthia Francis testified that she introduced Stephen Glover to the defendant, David· Ashman, Ms. Francis a Isa testified that she was present when David Ashman met w:ithStephen Glover at her restaurant and gave Mr. Glover a folder with $11,000.00 cash that she personally counted. She further testified that she acted as a m idd lernan for the transaction and that David Ashman came with the prepared paperwork for the sale of the property. On cross-examination, Ms: Francis testified about the real estate transactions that she was involved in which related to various properties 1 including the subject property, and the relationship She had with those parties who she deemed were interested in the "American Dream" of home ownership. Asto the subject property, Ms. Francis testified that neither Stephen Glover nor David Ash man trusted one another, and that her involvement as the middleman Only resulted in her receiving a bottle of Moet that Stephen Glover did not want and gave to her. She further testified that she wanted to receive but did not receive$1,000 as the middleman whodid the introduction. Ms. Francis also testified that no monies were received to pay off the outstanding mortgages. She testified that the only·rnoney r.eceived was t~e $11i000 in cash Whi.ch was given to Stephen Glover. When asked whether there was a to ht tact between· Glover and Ashman, Ms. Fra nci s testified th at no contract .existed. Next, defendant, David Ashman testified, Hetestified that he was introduced fo Stephen Glover by Ms. Cynthia Francis which was the. extent of his involvement with Ms. 1 . The motion .was denied. Wit.h leave to. renew at .the close of the tria!; 2 [* 2] 2 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 Frahcis. On cross-examination, Mr. Ashman testified that he owns four-properties, one>of wh ith is the subject of th is lawsuit and described as a legal two-:-fam ily home with five units ancl a basement. He furthertestified that all five units have leases and are occupied with a total rent roll of $6,750.00 collected per month. Mr. Ashman testified that two of the tenants are not paying rent, which brings the rent collected to $5,800,00 per month. He also testified th at he stayed at the subject property for a year when the property was vacant in 2009; in addition to family members Who stayed atthe subject premises in or about 2008. Mr. Ashman further testified th at before being introduced to Stephen Glover, he wou Id see him around the block and when Glover asked for two or five dollars, he would give it to him to buy c:1 beer or single dgarettes, He testified that Ms. Francis told hirn that Stephen Glover was interested in selling . . his property and learned that Mr. Glover was employed by Cynthia Francis. David Ashman further testified that he was not aware of the mortgages on the subject property because Mr. Glover did not mention anything about the mortgages. However, Mr. Ashman testified that he learned Mr. Glover wanted to sell the property because he could not afford the mortgages. He further testified that he "got both mortgagf::!s after the deed was transferred to me." He testified that the first mortgage oh the property was for $460,000.00, which was secured by Stephen Glover and that he is not liable for any debts associated with the mortgage, and he did not know the terms of the mortgage. Mr. Ashman further testified thatthe mortgages on the subject property have not been satisfied and he has never paid taxes associated with the first mortgage .. He also testified he was not a party of the second mortgage with Credit Suisse, First Boston Fin an cia I Corporation; never signed any documents concerning the second mortgage, is not liable for the second mortgage, nor subjectto a personal judgment if the property is lost due to foreclosure. When asked what the month Iy mortgage payments we re, Mr. Ashman testified th at he ni a de quite a few monthly payments on the second mortgage in the amount of$1,200. He could not recall who currently services the mortgage and testified that the second mortgage has not b,een satisfied and he has not paid recorded taxes associated with the second mortgage for the purchase of 1976 Bergen Street. Mr; Ashman further testified that the documents that were in the folder concerning 1976 Bergen Street when he met with Mr. Glover for the purchase of the property, included the note for the mortgage, pages with Stephen Glover's social security and identification and other doc::uments that he could not recall. He testified that he did not know who prepared the deed for the sale of the property and that he did not know Bruce Feinstein, andthanhe documents he and Glover signed on December 8, 2005, were notarized by a gentleman, named Hubert Ray, and only could recall signing one or two documents, ·one of which was the deed. David Ash man further testified thatthe documents in the folder were already prepared and signed by Stephen Glover before they were brought to him, excepJ what was.signed when they went to the notary, Mr. Hubert Ray. . . . . . ,..... .. ,.~ ........... ,, .... _......,., ..... ,,,~ ..... ,,. ·,~·~ .................... _., .. , .. •' . , [* 3] 3 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 When asked about the sale price for the subject property and referred to Exhibit. S, page 5, line 12, Mr. Ashman testified that no amount for the full sale price was stated. He furthertestified that no sale price was filled iri on the document signed for the transfer of the subject property on December 8, 2005, nor was a title company or representative from a title company at Ms. Francis' restaurant when the documents were given to him in the folder. Mr. Ashman also testified that he did not know if Mr. Glover was represented by ah attorney or wh~ prepared the documents. Mr. Ashman testified that Stephen Glover was selling the deed to the subject property for $11,000.00. He further testified that he tried to assume the mortgageand·paid abouttwo ye:arsofrnortgage payments, butitbecame a burden in or around 2007, He testified that when he purchased the property no paymentswere being made on the property and believe it to be in foreclosure. In addition, he testified that he contim1esto col lectrents for the su bJect property and has Owned the property for thirteen (13) years without paying on the mortgages. Mr. Ashman testified that a foreclosure action was commenced on or a bout September 21, 2009, agajnst both himself and Stephen Glover. Discussion In reviewing the causes of a:ctiqn pleaded, relief sought by plaintiff, defendanfs affirmative defenses, documentary evidence, trial testimony and post-trial memoranda of law, the court finds as follows: There is no dispute as to the initial ownership of the property, which was held by StephenGlover, who was the person who secured the first and second mortgages on 1976 Bergen Street, Brooklyn, New York. The dispute a rises due to the t rah sfer of the property from Stephen Gloverto David Ashman. Plaintiffalleges that defendant deceived Stephen Glover by making misrepresentations to Glover concerning Mr, Glover being relieved of his mortgage obligations,which did not occur, .causingthe property mortgage to go into defalllt anda foreclosure proceeding being commenced against Stephen Glover in 2009. Plaintiff contends . . that defendant's unlawful receipt Of title was accomplished by offering a false instrument for filing, i.e., the Real Property Transfer Report which states the purported deed transfer was zero the dollars as opposed to the $11,000 defend,mt alleges to have given in consideration subject property. Plaintiff argues that the Real Property Transfer document is evidence that conclusively proves, as a matter of law, that the defendant did not actually pay any lawful consideration when taking title to the property'. This court disagrees. The document alone does not conclusively establish th at defendant did not pay consideration for the pro p·e rty. In fact, the defend~nt's testimony, as well a.$the testimony of Cynthia Francis, the person who intro.duced oefendant, David Ashman, es.tc1blished that Mr. Glover vvas . Stephen Glover to the . given $11,000whith was counted, held 1 and IG1ter given to Mr. Glover when the for 4 [* 4] 4 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 two returned from getting the transfer documents signed. The court finds the testimony of both witnesses' as to the consideration paid credible. Ms. Gennie Glover, the only witness called to testify in plaintiffs case had no knowledge as to the transaction between her brother, Stephen Glover, and David Ashman. Plaintiff raises the issue of the documents bearing a signature purporting to have authenticated Mr. Glover's signature, which plaintiff claims is illegible and unknown and therefore invalidates the deed and related transfer documents. In an action to determine title pursuant to Real Property Actions Proceedings Law Article 15, the plaintiff has an affirmative duty to show that title lies in it, which is not satisfied merely by pointing out weaknesses in defendant's title. See, Lasala v. Terstieqe, 276 A.D.2d 529, 713 N.Y.S.Zd 767 (2 nd Dept., 2000). More importantly, a conveyance ofreal estate, as between parties themselves; is effective even iftheinstrumerit is improperly acknowledged or unacknowledged. See, Bernatdv. Citibank, N.A, 195AD.3d 783, 151 N.YS.3d 87 (2 nd Dept., 2021). Plaintiff fails to meet the burden of proof under the standard of clear and convincing evidence as tot he falsity of the transfer documents filed by the defendant; See, 80 P2L LLC v. U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, 194 A.D.3d 593, 150N.Y.S.3d 23 (2 nd Dept,, 2021). Next, this court wi II address the issue of whet her the p la intiffesta b Ii shed the existence of a tonstructiVe trust for plaintiff's benefit regarding the subject property. First, the court notes that a constructive trust over real property Cari be imposed even Where ari underlying agreement is notln writing. See, Thomas v. Thomas, 70 A.D.3d 588, 89 N.Y;S.3d (P1 D:ept., 2010). The complaint alleges that the defendarit,David Ashman promised that hewould assist Stephen Glover with the mortgages Which would be to Mr. Glover's benefit, and Jhose misrepresentations were relied upon by Mr. Glover; to his detriment resulting in Oavid Ashman's unjust e nrkh merit. A constructive trust has bee Ii d efi Ii ed as "the form u Ia through which the conscience of equity finds expression," and as a remedyto he erected whenever necessary to satisfy the demands of justice. See, Coco v. Coco, 107 AD.2d 21,485 N.Y.S.2d 286 (2 nd Dept., 1985), citirig Latham v. Father Divine, 299 N.Y. 22,286 N.Y.S;2d 72 (1949}. The essential purpose of a constructive trust is to prevent unjust enrichment. See, Sharp v. Kasmalski, 40 N;Y.Zd 119, 386 N.Y.S.Zd 72 (19/'6). Where the property has been acquired in such circumstances that the holder of legal title may riot in good conscience retain the beneficial interest, equity converts him into a trustee. See, Coco v. Coco, supra. The testimony provided on plaintiffs case was limited <lnd the witness, Jennie Glover; as indicated. ea die r, had no ·know Iedge. as to the tr'a nsfe r of the subject property between GI over' and Ashntan; However; on cross-examination of the defendant, although the 1:ourtfinds defendant's testimony as to the amdtflit given to the plaintiff forthe transfer of the property credible, the coLlrt did not find the testirrtclhy credible as to the defendant's knowledge or lack of knowledge concerning the existing mo r:i:ga ges. Defend ant testified th at he was unaware of the amounts ofthe existing mo.rtgages when he signed off on the documents, and that he discovered the amount when he opened the folder with the docµments. He also testified that he learned that Mr, Glover wanted to sell the p.roperty because he could riot afford the mortgage. Defendant testified·that he·''.got both mortgages after the deed was :i:ransferre.d to 5 [* 5] 5 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 me." Mr. Ashman's testimony concerning his knowledge asto the mortgages was inconsistent and not credible. In addition, Mr. Ashman testified that he purchased the deed subject to the mortgages that were on the property. (See November 1,2022, Trial Transcript p51, lines 17- 20). In ascertc1ining whether a constructive trust should be imposed upon c1 property interest, four factors are considered: (1) the existence of a fiduciary or confidential relationship, (2} promise, express or implied, (3) a transfer ih reliance on the promise, and (4) unjust enrichment. See, Kissane v. Cashman, 217 A.D.3d 932, 191 N.Y.S.3d 727{2 rid Dept., 2023). However, these factors merely serve as a useful guide. ifa party holds property "under circumstances that in equity and good conscience he oughtnot retain it,I} a constructive trust will be imposed. See, CoCo v. CdCo, 1O7AD.2d 21,485 N.Y.S.2d 286 (2 nd Dept., 1985), citing Miller V. Schloss, 218 N.Y 400, Ptachewich V. Ptachewich, 96 A.D.2d 582, 45 N.Y.S.2d 277 (2 nd Dept., 1983). In the case at bar, while no fiduciary or confidential relationship existed between Stephen Glover and David Ash man; the court finds, based 1Jpoi1 the defendant's testimony, that there was an impliedpromise and a transfer in reliance on the promise to purchase the property subject to the mortgages; as well as unjust enrichment. Forthe defendant to claim that he did not promiseto make payments on the mortgage and at the same time testify that he made mortgage payments, lived in the subject property, as well as his family for at least a. year, if not more, collected and continues to collect rents from the subject property; stopped making mortgage payments; and thesubjectproperty going into foreclosure is sufficient evide nee to impose a con stru dive trust. A constructive trust wi 11 be imposed whenever necessary to satisfy the demands of justice and its applicability is limited only by the inventiveness of men who find new ways to enrich themselves unjustly by grasping what shou Id not belongto them. See, Latham v~ Father Divine, 299 N.Y. 22, 286 N.Y.S.2d 72 (1949). Moreover, "in deterrnin ing whether a conveyance was fraudulent, the court will consider "badges of fraud" which are ci rcu ni Stances th at accompany fra udu Ient tra h.Sfe rs th at their presence gives rise to an inference ofihtent See, Stout Street Fund I, L.P.• v. Halifax Group, LLC, 148 A.D.3d 744, 48 N.Y.S.3d 438 (2 nd Dept.,2017). Here,the lack of fair consideration can be considered a "badge of fraud." Fair consideration exists when .in exchange for such property or ohligation,as a fair equivalent therefor, and in good faith, property is. conveyed or an antecedent debt is satisfied or when such property, or obligation is received in good faith to secure a p rese rit advance or arite ced eht debt in an ah1 o u nt not dis pro po rt ion ately small a.s c:ompared with the value of the property or obligation obtained. See, Stout Street Fund I, L.P., v. Halifax Group; LLC., supra; Plaintiff allegedthat the transfer docL1ments state .a zero amount for consideration of the subject property, and testimony from defendc:int an.d his. witness state that $ l 1, ooci was pa id ,cash for consideration of the deed to the subJect property; Based upon the testimoriy.c1nd pro9fs, the.court finds thatthe plaintiff was not paid fair consideration for the sub jett pro petty. in 6 [* 6] 6 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 The problem here, is iri finding in favor of plaintiff, that a constructive trust be imposed, the defendant's affirmative defense is that plaintiff's cause of action for a Constructive trust is time barred. A cause of action for the imposition .of a constructive trust is governed by the sixyear statute of limitations of CPLR 213[1], which starts to.run upon the occurrence of the wrongful act giving rise to a duty of restitution. See, Stathards v. Statharos, 219 A. 0.3d 651, 194 N.Y.S.3d 530 (2 nd Dept., 2023). A determination of when the wrongful act triggerihgthe running of the statute of limitations occurs depends upon Whether the constructive trustee acquired the property wrongfu Ily, in which case the property wou Id be held adversely from the date of acquisition, or whether the· constructive trustee wrongfully withholds: propertyacquired Jawfully from the beneficiary, in which case the property would be held adversely from the date the trustee breaches or repudiates the agreement to transfer the property. See, Statharos v; Statharos, 219 A.D.3d 651, 194 N.Y.S.3d 530 (2 nd Dept., 2023). In the case at bar, the gravamen of the cause of action for the imposition of a constructive trust occurred When the deed transfer took place in 2005. Plaintiff did not commence this action until 2017, twelve years after the property was acquired by the defendant Even tc:1king into consideration when the subject property went into foreclosure, and a case was commenced against Stephen Glover, the statute of limitations would have begun to run when the breach of the promise to make mortgage payments occurred; Therefore, plaintiff's cause of action for the imposition of a constructive trust is time barred. As to the plaintiff's cause of action for a declaratoryjudgment, the court must examine the substanq:! ofthe action to determine the applicable statute of limitations to the cause of action for a declaratory judgment. Where it is determined that the parties' dispute can be or could have been resolved in an action or proceeding for which a specific limitation period is statutorily required, that limitation period governs. See, Stathatos v. Stathatos, supra; Here; the statute of limitations is governed by a six-year limitation andtherefote, it applies to the declarafory judgment cause of action and having accrued in 2005, this cause of action is time barred. Plaintiff's fourth cause of action allegeda conversion of the subject property. A cause of action alleging conversion is subject to a three~year statute of limitation. See, CLR 214[3],[4]; Seidenfeld v. Zaltz, 162 A.D.3d 929, 80 N.y.S.3d 311 (2 nd Dept.,2018). Plaintiff's cause of action in this case would have accrued in 2005, upon the transfer of the property or the latest; in 2009 when defendant resided in the subject property. Thus, plaintiff's cause of action, which was asserted in 2017, is time barred. Plaintiff's fifth cause of action is for fraud. The elements of a cause of action to recover damages for fraud a re material misrepresentations of fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages. The plaintiff's: case relies oh the allegation that Mr. Glover transferred the subject property to David Ashman in 2005 due to Mr. Ashman's misrepresentatiOnoffacts concerning what could be referred to as a "mortgage rescue." Since the alleged fraudulent statementsWere made ih 2005, the cause of action asserted in a 2017 com plaint would be time barred. Similarly, the sixth and seventh causes of action for unjust enrichment arid promissory estoppel are time barre:d, 7 [* 7] 7 of 8 FILED: KINGS COUNTY CLERK 11/16/2023 NYSCEF DOC. NO. 125 INDEX NO. 518655/2017 RECEIVED NYSCEF: 11/29/2023 Plaintiff's eight cause of action for slander of title is also dismissed as time barred. The statute of limitations for slander of title is one year. See, CPLR 215[3]. It has generally been held that the cause of action to recover damages for slander of title based upon the recording of an unfounded claim to property of another does not rise until damages actually result, so the period of limitations begins to run, not from the date of the initial recording, but from the time the prospective sale is lost because of the cloud on plaintiff's title . See, Hanbidqe v. Hunt, 183 A.D.2d 700, 583 N.Y.S.2d 288 (2 nd Dept., 1992). Therefore, the 2006 date of the recording is not the starting date of accrual. However, the latest date of accrual would be 2009, when the foreclosure action was filed against Stephen Glover, long after the expiration of the statute of limitations for a cause of action sounding in slander oftitle. Based upon the foregoing, the plaintiff's complaint is dismissed in the entirety. Defendant's request for legal fees is denied. This constitutes the decision of this court. Dated : November 1, 2023 Brooklyn, New York r-=> r-=> C.,.J t.._1 ... .... . , ., -.. N co 8 [* 8] 8 of 8

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