Opinion
LT-002345-18NA
08-01-2018
Thomas MCMANUS and Jennifer Merslich, Petitioners, v. Brenda MARTE, Anna Marte, Briana Alvarez, and any "John Does" or "Jane Does", undertenants being unknown to Petitioners, persons intended being in possession of the premises herein, Respondents.
John R. Lewis, Jr., Esq., P.C., attorneys for Petitioners, 4 West Gate Road, Farmingdale, New York 11735, (516) 501-9000 J.A. Sanchez-Dorta, P.C., attorneys for Respondent Brenda Marte, 225 Broadway, Suite 1901, New York, NY 10007, (646) 657-5345 Anna Marte, respondent Briana Marte, respondent.
John R. Lewis, Jr., Esq., P.C., attorneys for Petitioners, 4 West Gate Road, Farmingdale, New York 11735, (516) 501-9000
J.A. Sanchez-Dorta, P.C., attorneys for Respondent Brenda Marte, 225 Broadway, Suite 1901, New York, NY 10007, (646) 657-5345
Anna Marte, respondent
Briana Marte, respondent.
Scott Fairgrieve, J.
The following named papers numbered 1 to 3 submitted on this Motion & Cross Motion on June 15, 2018
papers/numbered
Respondent's Notice of Motion and Supporting Documents 1
Petitioner's Notice of Cross Motion and Supporting Documents 2
Respondent's Reply in Support of Motion & Opposition to Cross Motion 3
This is a holdover proceeding in which Petitioners seek to evict Respondents. The property in question is 1144 Palermo Court in Franklin Square, New York. Respondent Brenda Marte is a former owner of the home, which went into foreclosure and was sold at auction. Petitioners obtained title of the property from the foreclosure. Respondents have refused to vacate the property.
Petitioners request possession of the premises, a warrant of eviction, judgment for fair value of use and occupancy in the amount of $19,200.00 plus interest, and costs and disbursements herein.
At bar is Respondent Brenda Marte's motion to dismiss. Petitioners cross-move for summary judgment. The motions are determined as provided herein.
Respondent's Motion to Dismiss
Brenda Marte (herein after referred to as "Respondent") is the only respondent to appear in this action. Respondent now moves for dismissal on the ground that Petitioners have violated section 713 of the Real Property Actions and Proceedings Law ("RPAPL") which requires a prior action to be properly withdrawn before a new action can be filed.
Respondent was served with a 10-Day Notice to Quit on April 9, 2018. The following day, on April 10, 2018, Petitioners' attorney sent a letter withdrawing the prior proceeding (Index No. LT-006166-17) then pending before this Court. The prior action was officially withdrawn on April 24, 2018. As such, Respondent maintains Petitioners violated section 713 of RPAPL, requiring dismissal of the present action.
Under paragraph 4 of CPLR 3211(a), the court is permitted to "dismiss the action whenever it is shown that another action between the same parties on the same cause is pending elsewhere" (David D. Siegel, New York Practice § 262 at 458 [5th ed 1978] ). The purpose of this rule is to avoid duplicate litigation.
In 152 W. Realty, LLC v. N & G Luggages, Inc , 15 Misc 3d 1121(A), *2, 2007 NY Slip Op 50789(U) (Civ Ct, NY County 2007), the petitioner served a new Notice of Termination while the prior proceeding was still pending but did not commence the new proceeding until after the prior proceeding had been discontinued. The court held that there was only one proceeding pending at any given time, and that even if two actions were pending concurrently at some point, the respondent had failed to allege any prejudice as a result of the Notice of Termination being served prior to the discontinuance of the prior proceeding (id ).
Based upon the foregoing, service here of the Notice to Quit on Respondent prior to withdrawing the prior action, did not violate RPAPL section 713. The instant proceeding was not commenced until April 25, 2018, the day after the prior proceeding had been discontinued. Additionally, Respondent has failed allege any prejudice as a result. The motion to dismiss is denied.
Turning to Petitioners' cross motion, the "drastic remedy" of summary judgment is appropriate where there is no doubt as to the existence of a triable issue of fact (see Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact ( Winegrad v. New York Univ Med Cen. , 64 NY2d 851 [1985] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id ). Once the movant has shown its entitlement to summary judgment, the burden then shifts to the opposing party to produce evidentiary proof in admissible form demonstrating the existence of material issues of fact which necessitate a trial ( Zuckerman v. City of New York , 49 NY2d 557 [1980] ).
Initially, Petitioners allege that since Respondent did not claim an interest in the property in question in her recent bankruptcy proceeding, she is judicially estopped from doing so now. Furthermore, it is asserted that Respondent is collaterally estopped from claiming said interest due to the Judgment of Foreclosure and Sale of the subject property.
Judicial estoppel, or the doctrine of inconsistent positions, "precludes a party from framing his pleadings in a manner inconsistent with a position taken in a prior proceeding" Envtl. Concern v. Larchwood Constr. Corp. , 101 AD2d 591, 593 [2d Dept 1984] ). When a party succeeds in maintaining a certain position in a legal proceeding, he or she may not thereafter assume a contrary position, even if his or her interests have changed ( id at 593, quoting Davis v. Wakelee , 156 U.S. 680, 689 [1895] ).
This doctrine applies when "1) a party's later position is clearly inconsistent with its earlier position; 2) the party's former position has been adopted in some way by the court in the earlier proceeding; and 3) the party asserting the two positions would derive an unfair advantage against the party seeking estoppel" ( Oklahoma Firefighters Pension & Retirement System v. Student Loan Corp. , 951 F Supp 2d 479 [SDNY 2013], quoting DeRosa v. Nat'l Envelope Corp. , 595 F3d 99, 103 [2d Cir 2010] ).
"Judicial estoppel prevents a party from prosecuting claims not disclosed in a bankruptcy proceeding that resulted in the party's discharge" ( McIntosh Builder Inc. v. Ball , 264 AD2d 869, 870 [3d Dept 1999] ; see also Azuike v. Mellon , 962 F Supp 2d 591, 598 [SDNY 2013] ). There must have been a final determination in the bankruptcy proceeding endorsing the party's inconsistent position concerning his or her assets in order for the doctrine to apply ( McIntosh Builder Inc. , 264 AD2d at 870 ).
The evidence here, demonstrates that Respondent denied ownership of any legal or equitable interest in any residence, building, land, or similar property on Official Form 106A/B page 1 in the bankruptcy proceeding, reproduced as part of Petitioners' Exhibit 8. Respondent obtained an Order of Discharge dated February 27, 2018 in that same proceeding (id ). Thus, Petitioners' have shown the elements necessary to invoke the doctrine of judicial estoppel, and Respondent is barred from claiming interest in the property.
Collateral estoppel, or issue preclusion, is "applied against a party to the first action who ‘had a fair chance to have the issue determined in his favor there, and failed’ " ( Envtl. Concern , 101 AD2d at 593, quoting David D. Siegel, New York Practice § 457 at 605). "The two elements that must be satisfied to invoke the doctrine of collateral estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue" ( Curley v. Bon Aire Props, Inc. , 124 AD3d 820, 822 [2d Dept 2015] ; quoting Luscher v. Arrua , 21 AD3d 1005, 1007 [2005] ).
In this case, Respondent's interest in the property was previously determined by Nassau County Supreme Court Justice Thomas A. Adams, in denying Respondent's motion to vacate the judgment of foreclosure (Petitioners' Exhibit 6). Consequently, Respondent is also collaterally estopped from claiming interest in the property in question.
Next, Petitioners claim that Respondent's affirmative defenses are in violation of CPLR section 3013, which provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." "Defenses which merely plead conclusions of law without supporting facts are insufficient" ( Bentivegna v. Meenan Oil Co. , 126 AD2d 506, 508 [2d Dept 1987], quoting Glenesk v. Guidance Realty Corp. , 36 AD2d 852, 853 [2d Dept 1971] ). The court agrees that Respondent's six defenses are purely conclusory in nature, do not contain any factual basis, and should be dismissed.
In her Answer, Respondent claims that Petitioners lack the legal capacity and standing to initiate a holdover proceeding because they obtained the deed of the property through fraud. Petitioners contend that these defenses are pled in violation of CPLR 3016(b), which provides that "[w]here a cause of action or defense is based upon misrepresentation, fraud, mistake, willful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail."
The elements of a claim for fraud require "a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff, and damages" ( Carlson v. American Intl. Group, Inc. , 30 NY3d 288, 310 [2017] ). Allegations that are purely conclusory in nature are insufficient to support a claim of fraud (id ). Such is the case here, where Respondent's allegations that Petitioners have engaged in fraud are purely conclusory and lack any factual support. Accordingly, Respondent's claims that Petitioners lack capacity and standing to bring this action due to fraud, are rejected.
In response to Respondent's above-mentioned claims that Petitioners lack capacity and standing, Petitioners allege the same against Respondent. Petitioners assert that Respondent lacks the capacity and standing to contest the validity of the Referee's Deed due to her estoppel from claiming interest in the property, based upon the bankruptcy proceeding and Justice Adams' denial of her motion to vacate the foreclosure sale.
The two-part test for standing requires that a party show an "injury in fact" and demonstrate that the injury is in the "zone of interests" sought to be protected by the provisions that are the basis for the action ( NY State Ass'n of Nurse Anesthetists v. Novello , 2 NY3d 207, 211 [2004] ). However, Respondent has not alleged any injury as a result of the "fraud" she claims that took place during the transfer of the deed to Petitioners. Respondent's allegations that Petitioners do not have the standing or capacity to initiate a holdover proceeding are pled as conclusory sentences without any factual support. That said, the second prong need not be addressed, and Respondent does not have standing to challenge the validity of the Referee's Deed.
Respondent also asserts that neither subject matter nor personal jurisdiction have been obtained. In support, Respondent claims that service was improper due to defects in the 10-day Notice to Quit, Notice of Petition, and Petition, namely typographical errors of the address of the property in question.
The property in question is a house with the address of "1144 Palermo Court." The incorrect address used in the 10-day Notice was "114 Palermo Court" (emphasis added). The erroneous address used in the Notice of Petition was "1144 Palmero Court" (emphasis added). Contrary to Respondent's contentions, the address is correctly stated throughout the entirety of the Petition.
Petitioners counter Respondent's allegations by citing the standard of sufficiency for a predicate notice as set forth in Hughes v. Lenox Hill Hosp. , 226 AD2d 4, 18 (1st Dept 1996), that "the appropriate test is one of reasonableness in view of the attendant circumstances."
The court agrees that subject matter jurisdiction and personal jurisdiction have been obtained. The ministerial errors in the 10-Day Notice to Quit and the Notice of Petition do not render service defective. The Appellate Term, Second Department has stated that "a misdescription in a petition of the premises [which] deprives the court of ‘subject matter jurisdiction,’ must be limited to the facts" ( 17th Holding LCC v. Rivera , 195 Misc 2d 531, 533 [2002] ).
The misstated address is not one for a different property; rather, it is nonexistent. In 190 Riverside Dr. v. Nosei , 185 Misc 2d 696, 697 (App Term, 1st Dept 2000), the nonrenewal notice concerning tenant's apartment incorrectly described the premises as "6E" rather than "6C." The court determined that because the notice referred to an apartment that did not exist, the notice could not have "materially misled or confused this sixth-floor tenant or hindered the preparation of her defense" (id ). The facts in the present case are virtually the same. There is no prejudice alleged by the Respondent, and no need to dismiss the action based upon such insignificant errors.
Similarly, in 601 W. Realty, LLC v. Zheng , 54 Misc 3d 145(A), 2017 NY Slip Op 50257(U), *1 (App Term, 1st Dept 2017), the premises was incorrectly stated in the petition as "3847 Broadway" instead of "3845 Broadway." The court held that the incorrect description "did not rise to the level of a jurisdictional defect and in this instance was amenable" (id , see also Marine Terrace Associates v. Kesoglides , 24 Misc 3d 35, pin [App Term, 2d Dept 2009] [defects in the predicate notice regarding occupant's name and address were "de minimis and do not invalidate the notice"] ).
Likewise, the errors made by the Petitioners in the 10-Day Notice to Quit and the Notice of Petition do not render service defective. Respondent was served both documents with personal in-hand service by a process server. Respondent's bald statement that she has been prejudiced by those errors is without explanation and flatly rejected.
Respondent also complains that she was not served with a 90-day Notice to Quit under RPAPL section 1305. However, in the circumstances presented, such notice was not required by law. Same would have been required if Respondent had never owned the subject property and she or any co-occupancy residents maintained a lease which paid "not substantially less than the fair market rent" ( GMAC Mtge., LLC v. Taylor , 27 Misc 3d 550, 555 [Suffolk Dist Ct 2010] quoting RPAPL § 1305 [2018 ] ). As the prior owner of the property in question who never held a lease, Respondent was only entitled to a 10-Day Notice to Quit in accordance with RPAPL section 713.
Respondent also insists that Petitioners have failed to meet the requirements of RPAPL section 741 by failing to allege the Respondent's interest in the property and her relationship to the Petitioners. Petitioners point out that the Petition states the following:
"3. Respondent, BRENDA MARTE, is the former sole owner of the real property commonly known as 1144 Palermo Court, Franklin Square, New York, 11010 and identified as Section 35, Block 496, Lot 71."
"16. Brenda Marte has no right to possession or interests in the subject Property and has refused to vacate same for more than six (6) months as of the writing of this Petition."
In Boll v. Shanly , 34 AD2d 875, 876 (3d Dept 1970), the same position now taken by Respondent was found to be without merit, when the petition set forth the material facts as to the appellant's occupation of the premises. In the case at bar, as in Boll , the petition is "sufficiently particular to give the court adequate notice of the transaction, and the material elements of the proceeding and, therefore, sufficiently complied with section 741 of the Real Property Actions and Proceedings Law" (id ).
Based upon all of the foregoing, there are no issues requiring a trial, and Petitioners are entitled to summary judgment.
Conclusion
Accordingly, Respondent's motion to dismiss is denied, in its entirety. Petitioners' cross motion for summary judgment is granted. Petitioners are awarded a judgment of possession with a warrant stayed until September 15, 2018. Finally, as to Petitioners' request for judgment in the amount of $19,200.00 for use and occupancy, the matter is set down for an inquest on September 17, 2018 at 10:00 a.m.
So Ordered: