Opinion
15956/05.
Decided May 18, 2010.
David Perlman, James K Noonan, Plaintiff Attorney.
Neil Miller — Miller, Rosado, Algios, LLP, Caruso, Caruso Branda, Defendant Attorney.
The defendant, Enterprise Bay Ridge, LLC (Enterprise) moves for an order, pursuant to CPLR 3212, granting summary judgment on its first, second and third counterclaims and cross claims as asserted against additional counterclaim defendants Siegreich Realty Corp. (Siegreich) and Sergio Morales.
This action was commenced to quiet title to the subject property at 459 Bay Ridge Avenue in Brooklyn. The property was formerly owned by plaintiff 461 Bay Ridge Avenue Realty Corp. (461 BRARC). By deed dated August 9, 1999 and recorded August 10, 1999, the property was purportedly transferred from 461 BRARC to plaintiff Sycamore Realty Corp. (Sycamore). This deed was signed on behalf of 461 BRARC by plaintiff James K. Noonan. On or about June 10, 2003, John Matone and Kathleen Matone (the Matones), who alleged to be the sole shareholders and the officers of 461 BRARC, commenced an action ( John Matone, et al. v Sycamore Realty Corp, et al., Kings County Index No. 21270/03) to set aside the deed to Sycamore executed by Noonan, claiming that Noonan had no interest in 461 BRARC and had no authority to execute a deed on behalf of the corporation. By decision and order dated January 9, 2007, this court granted the Matones' motion for a default judgment based on the untimely appearance of Sycamore. In the decision, this court noted: "Although the defendant's (Mr. Noonan's) affidavit of merit provides support by one with personal knowledge of the facts herein concerned, and would ordinarily be enough to raise issues of fact to rebut the plaintiffs' position vis-a-vis Sycamore's lack of a meritorious defense, the problem here is that the defendant (Mr. Noonan) now contradicts his earlier sworn representations, as contained in his answer to the plaintiffs' complaint; to wit, that he has never been a shareholder or officer of [461 BRARC], and wherein he never denied the allegation that the Matones were the sole shareholders of said corporation. This change in position is critical and appears to this court to be nothing short of a feigned attempt to create false issues of fact with regard to matters of corporate ownership, shareholder and officer stati, and therefore fails to adequately give rise to the existence of any credible material questions of fact sufficient to rebut the plaintiffs' prima facie showing with regards thereto."
The January 9, 2007 order was affirmed by the Appellate Division, Second Department ( Matone v Sycamore Realty Corp. , 50 AD3d 978 ). Previously, in 2004, Sycamore and Noonan filed an action ( Sycamore Realty Corp., et al. v John Matone, et ano., Kings County Index No. 24354/04.) against the Matones to validate the August 9, 1999 deed from 461 BRARC to Sycamore, claiming that Noonan was the sole shareholder of 461 BRARC since its inception. The Matones moved to dismiss the 2004 action on res judicata and collateral estoppel grounds based upon an order of this court in the 2003 action which granted leave to the Matones to enter a default judgment against Sycamore. [This order was reversed on appeal with leave to renew ( Matone v Sycamore Realty Corp. , 31 AD3d 721 ), leading to a second motion for a default judgment by the Matones and the issuance of the January 9, 2007 order.] The Matones' motion was granted by order of this court dated December 10, 2004 and the action was dismissed pursuant to CPLR 3211(a)(1), (3), (4) (5). In the meantime, Noonan signed a deed dated August 27, 2004 purporting to transfer the subject property from 461 BRARC to Siegreich.
On May 18, 2005, the Matones executed a deed on behalf of 461 BRARC to Enterprise in conjunction with the sale of the property for $2,260,000.00. Several days later, on May 24, 2005, the deed from 461 BRARC to Siegreich that had been executed by Noonan was recorded. The deed to Enterprise was subsequently recorded on June 7, 2005.
On May 24, 2005, the instant action was commenced by Sycamore, Noonan and 461 BRARC against the Matones and Enterprise seeking, inter alia, to void the deed to Enterprise and restore title to 461 BRARC and/or Sycamore. In its answer, Enterprise interposed counterclaims/cross claims against Siegreich, Maria Noonan and Morales (alleged to be an officer of Siegreich), seeking 1) a judgment declaring that Enterprise is the sole owner of the subject property, 2) a judgment declaring that John Matone was and is the sole owner and officer of 461 BRARC and had the authority to convey the property to Enterprise while Noonan had and has no interest in 461 BRARC and never had the authority to act on behalf of the corporation and 3) a permanent injunction barring plaintiffs, the Matones and the additional counterclaim defendants from taking any further action with respect to the property other than to confirm Enterprise's ownership. Additionally, Enterprise interposed a counterclaim for monetary damages. Enterprise subsequently brought a motion seeking, among other things, an order granting summary judgment dismissing plaintiffs' complaint and a default judgment against additional counterclaims defendants Seigreich, Maria Noonan and Morales. By order dated May 9, 2008, this court granted Enterprise's motion for summary judgment and dismissed plaintiffs' complaint. Nonetheless, for reasons explained in this court's memorandum decision dated September 26, 2007 (under which the May 9, 2008 order was settled), this court denied that part of Enterprise's motion for a default judgment as against Seigreich and Morales and further declined to grant summary judgment to Enterprise on its counterclaims/cross claims sua sponte.
Enterprise now brings a formal motion for summary judgment on its first three counterclaims/cross claims against Seigreich and Morales, which is hereby granted in all respects.
Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity ( Buechel v Bain, 97 NY2d 295, 303). "Pursuant to the doctrine of law of the case, judicial determinations made during the course of litigation before final judgment is entered may have preclusive effect provided that the parties had a full and fair opportunity to litigate the initial determination" ( Sterngass v Town Bd. of Town of Clarkstown , 43 AD3d 1037 , 1037). The previous decisions and orders of this court in this action and the related actions have firmly put to rest any question as to the Matones' ownership of 461 BRARC and the lack of any power or authority in Noonan to convey the subject property or act on the corporation's behalf. Throughout the course of this litigation, Noonan had a full and fair opportunity to argue this ownership issue.
Accordingly, based on the principals of collateral estoppel and law of the case, Seigreich and Morales are precluded from challenging the exclusive ownership rights of Enterprise in the subject property.
The foregoing constitutes the decision and order of the court.