Opinion
711266/2017
04-13-2018
Terry VOYIATGIS, et al., Plaintiff, v. Elaine LELEKAKIS, Defendants.
Papers Numbered NYSCEF Doc. Nos. 12–70, and this Court's Order in Voyiatgis v. Lelakakis , Index Number 6583/2016, dated March 17, 2017, and entered on March 23, 2017, and the entire file in Kalergios v. Lelakakis , Index Number 712736/2017, including the decision and order dated January 19, 2018, and entered on January 29, 2018 by another Justice of the Supreme Court.
This order concerns, discusses, and disposes of Motion Sequence Numbers 2, 3, and 4, concerning the ownership of real property or a portion thereof.
This Court has read all of the motion papers and has also thoroughly read and reviewed the above enumerated papers including papers submitted in related actions pending in this Court that are not only helpful, but vital and essential to the understanding of the prior procedure and history of the circumstances in the litigation.
In an action entitled Kalergios v. Lelakakis , Index Number 712736/2017, including a decision and order dated January 19, 2018, and entered on January 29, 2018, by another Justice of the Supreme Court, the plaintiff in that action, George Kalergios, informed that Justice that he had a contract to buy a portion or percentage of real property located at 20–53 29th Street, Astoria, in Queens County, New York from the defendant Elaine Lelekakis. Kalergios then moved for a default judgment against defendant Elaine Lelekakis, which was granted. The order specifically directed Lelekakis to transfer to Kalergios one-quarter of her interest in the real property located at 20–53 29th Street, Astoria
The action under Index Number 712736/2017, however, appeared to be a fraudulent scheme to obtain a legal order with respect to the subject property. Neither Kalergios or Lelekakis informed that Justice in their litigation under Index Number 712736/2017, that in a related action, Voyiatgis v. Lelakakis , Index Number 6583/2016, dated March 17, 2017, and entered on March 23, 2017, this Court granted the plaintiffs Voyiatgis a preliminary injunction concerning the same property in Astoria, Queens, and also stated: "The Court immediately directs defendant [Elaine Lelekakis] to take no further [action] with regard to the subject property as of the date of this order." Aside from an obvious typographical error, the Court's order, by the undersigned, could not have been clearer.
Yet, despite the express language and its plain intent, Lelekakis actively defied the Court by attempting to sell the property. Even worse, she engaged in deception and manipulation by concealment in not informing that Judge of this Court's decision and order of March, 2017, and the litigation that surrounded it. That Justice, who is highly regarded and respected by both the bar and bench, would absolutely not have issued the order of January, 2018 had the true circumstances been disclosed by Lelekakis and Kalergios. This Court has read all the pleadings in Kalergios v. Lelakakis , Index Number 712736/2017, including the decision and order dated January 19, 2018, and entered on January 29, 2018, since they are available on NYSCEF. Kalergios did not advise that Justice of the undersigned's prior order—and thus governing order—or of the fact of the Voyiatgis's existence and litigation against Lelekakis.
NYSCEF is a program that permits the filing of legal papers by electronic means with the County Clerk and offers electronic service of papers in those cases. Litigation papers can be read by the public at large at "WebCivil Supreme" at nycourts.gov.
Both Kalergios and his counsel also conveniently avoid discussing the sentence of this Court's March, 2017 order that stated: "This Court will level steep sanctions against defendant [Elaine Lelekakis] and any person or entity acting at her behest or on her behalf for each violation of this order." Indeed, the Voyiatgis plaintiffs reasonably contend that both Kalergios and Lelekakis, in their joint collaboration and conduct before the Judge who issued the January 29, 2018 order, acted in concert and colluded in an attempt to subvert, violate, and defy the March, 2017 order of this Court.
This Court is simply unable to indulge in the belief that the attorney representing George Kalergios, was unaware of the Voyiatgis litigations under the present Index Number and that of Index Number 6583/2016. In short, the Court is hard-pressed to reconcile that belief of innocent intent with counsel's statement in his motion papers seeking to grant Kalergios intervenor status in the present litigation stating, of and concerning the undersigned's prior orders: "These Orders were clearly vague and did not restrict Lelekakis from transferring her interest in the Property to the Proposed Intervenor, and your affirmant upon discussion with Lelakakis's attorney, that they restricted Lelekakis from having any role whatsoever in the operation, maintenance, upkeep and care of the Property." See ECF Doc. No. 64. Not only were the undersigned's orders not "clearly vague," but the cold record of this action reveals that the undersigned's orders were "as clear as a mountain lake in springtime." See, In re IBM Corp. , 618 F.2d 923, 933 (2d Cir. 1980).
Putting aside that brazen contention aside by Kalergios and his counsel, the Court notes that Elaine Lelekakis cannot claim that she is a novice or neophyte to real estate transactions and real estate litigations. She was the principal litigant in a vigorously fought and contentious litigation on real property in Lelekakis v. Kamamis that also occupied the time and energies of several Justices of this Court and was visited by multiple panels of the Appellate Division, Second Judicial Department, during, at least, a ten-year period from 2003 to 2013. See, e.g., 303 AD2d 380 (2003) ; 41 AD3d 662 (2007), and 103 AD3d 693 (2013).
The above recitation is essential for a true foundation for the motion practice now before the Court.
First, under Motion Sequence Number 2, the Court grants the motion by George Kalergios to grant him the status of Intervenor in the present action. Although the plaintiffs Voyiatgis contend that the motion should be denied, it would be unfair to deprive Kalergios of making his points. See, Osarczuk v. Associated Universities, Inc. , 130 AD3d 592, 595 (2nd Dept. 2015), lv. to appeal dismissed , 26 NY3d 1126 (2016) (proposed intervenors satisfied the requirement of CPLR 1013 that their causes of action involve common questions). Indeed, in Lelekakis v. Kamamis , 41 AD3d 662 (2nd Dept. 2007), in affirming in part the order under review in that litigation, the Appellate Division, Second Department, criticized the lower court for severing a counterclaim finding that "severance would serve neither the interests of judicial economy, nor the convenience of the parties." Lelekakis v. Kamamis, 41 AD3d at 666.
The Court, while granting intervenor status to Kalergios, does not deem Kalergios's proposed intervenor pleading to be acceptable for two distinct reasons: it is neither signed nor verified. See, Farfan v. Rivera , 33 AD3d 755 (2nd Dept. 2006) (denial of motion for leave to intervene in action to declare plaintiffs' interest in real property was justified on ground that it was not accompanied by proposed pleading, under CPLR 1014 ). The complaint in this action was verified. See ECF Doc. No. 1. Intervenor Kalergios's counsel shall, therefore, serve and file within 20 days of this order a signed intervenor pleading that is to be verified by Kalergios personally.
In the spirit of that pronouncement by the Second Department, in addition to granting Kalergios Intervenor status, the Court, sua sponte , is ordering a joint trial of this action under Index Number 711266/2017 with Kalergios v. Lelakakis , Index Number 712736/2017. The above-captioned two actions shall be tried jointly in this Court. Separate Index Numbers, Requests for Judicial intervention, and Notes of Issue shall be filed for each action. Each party shall be entitled to enter a separate Bill of Costs, if costs are allowed.
The trial shall proceed in the following order listed as follows: 711266/2017, followed by 712736/2017. The actions combined for joint trial are reflected in the above-stated caption. The Court further orders that counsel for Kalergios immediately shall serve a copy of this order bearing the Clerk's dated stamp of its entry together with Notice of Entry be served on ALL PARTIES to the actions combined for joint trial, and, at the time of filing the Notes of Issue, on the Clerk of Queens County.
On Motion Sequence Number 3, the Court grants the motion by plaintiffs Voyiatgis for an Order of a preliminary injunction. The Court finds that plaintiffs have established all the requirements for the issuance of preliminary injunctive relief, including a likelihood of success on the merits, irreparable harm, and a balancing of equities in their favor, and harm. See, 91–54 Gold Rd., LLC v. Cross–Deegan Realty Corp ., 93 AD3d 649 (2nd Dept. 2012) ; see, e.g., Astoria Equities 200 LLC v. Halletts A Dev. Co. , LLC, 47 Misc 3d 171 (Sup. Ct. Queens County 2014) (Ritholtz, J.) (preliminary injunction in aid of arbitration was warranted in dispute arising from real estate transaction to enjoin prospective vendor from conveying any interest in subject real property, except for purpose of refinancing its existing mortgage).
Regarding the likelihood of success on the merits, aside from the facts favorable to the Voyiatgis plaintiffs, the dishonesty and manipulation employed by either Kalergios and/or Lelekakis, or by both of them, in not informing that other Judge of the present, earlier litigation, concerning the same real property, speaks volumes.
Concerning the balancing of the equities and irreparable harm, the Court observes that an interest in real property is unique and money damages may not be an adequate remedy. See the recent decision in Suttongate Holdings Ltd. v. Laconm Mgmt. N.V. , ––– AD3d ––––, 2018 WL 1320237, 2018 NY Slip Op. 01654 (1st Dept. Mar. 15, 2018). Accordingly, the Court, once again, prohibits, enjoins, and interdicts Elaine Lelekakis, her agents, and anyone else from transferring her ownership interest in certain investment real property known as 20–53 29th Street, Astoria, Queens County to any third party, including, but not limited to, George Kalergios, and from receiving any monies in payment for same.
This Court further continues the TROs contained in the Order to Show Cause issued on February 21, 2018 by yet another Judge of the Supreme Court. On that date, all counsel, including that for Kalergios appeared before that Judge, who was serving as the Emergency Judge. This Judge, who is also highly regarded and respected for his wide knowledge of the law and fairness, heard extensive oral argument on all issues, including the requests by the Voyiatgis plaintiffs for embracing temporary restraining order relief. Ultimately, this Judge wisely ordered such relief, and this Court continues all restraints ordered by that Judge imposed, stated, and contained in the Feb. 21, 2018 order. Specifically, this Court:
1. Stays application and enforcement of the aforementioned order of January, 2018;
2. Prohibits, restrains, and enjoins any party, agent, or any person from taking any action that would effect, enforce, and apply the January, 2018 order;
3. Prohibits, restrains, and enjoins Lelakakis, personally, or by any agent, employee, or representative, from transferring, alienating, mortgaging, or hypothecating her ownership interest in the aforementioned Astoria, Queens, property, including, but not limited to, Kalergios; and
4. Prohibits, restrains, and enjoins Lelakakis personally, or by any agent, employee, or representative, from transferring or paying out any interest in the aforementioned property or discharging any supposed debt to Lelekakis.
The Voyiatgis plaintiffs shall prepare and settle an order, on notice, to be sent directly to the undersigned's Chambers, concerning the injunctive relief and ordering a bond and undertaking in a suitable amount that is " ‘rationally related to defendants' potential damages should the preliminary injunction later prove to have been unwarranted.’ " Suttongate Holdings Ltd. v. Laconm Mgmt. N.V. , ––– AD3d ––––, 2018 WL 1320237, 2018 NY Slip Op. 01654, supra , citing Peyton v. PWV Acquisition LLC , 101 AD3d 446, 447 (1st Dept. 2012) ; accord , CPLR 6312(b) ; Olympic Ice Cream Co. v. Sussman, 151 AD3d 872, 874 (2nd Dept. 2017) ("Since the estate did not submit any evidence as to the amount of damages which it might sustain in that event, and the plaintiffs suggested an amount which was not rationally related to the potential damages the estate might sustain if the preliminary injunction was improvidently granted, we remit the matter to the Supreme Court, Queens County, for a new determination as to the amount of the undertaking reflective of the amount of potential damages to the estate in the event that the preliminary injunction was improvidently granted."); 91–54 Gold Rd., LLC v. Cross–Deegan Realty Corp. , 93 AD3d 649, supra.
Since Kalergios and his counsel claim, albeit incorrectly, that this Court's prior order of March, 29017 was vague, including the leveling of sanctions and other remedies under 22 NYCRR Part 130, let there be no mistake: any violation of this Order will result in the Court convening a hearing for the attorneys fees accrued by the Voyiatgis plaintiffs in this litigation against both the violating litigant and his and/or her counsel.
On Motion Sequence Number 4, the Court grants the unopposed motion by plaintiffs Voyiatgis for an amendment of the caption to reflect that Terry Voyiatgis has individual claims. The Court, despite the opposition of the Voyiatgis on the intervention motion by Kalergios, believes intervention is warranted. The new, amended caption shall, therefore, include the fact that Terry Voyiatgis is bringing this action in his individual capacity and that Kalergios has been granted intervenor status.
The Clerk, therefore, shall amend the records of this Court to reflect the new caption as:
Index Number 711266/2017
TERRY VOYIATGIS and JOHN JAMES VOYIATGIS,
as Executor of the Estate of GEORGE VOYIATGIS,
Plaintiffs,
against
ELAINE LELEKAKIS,
Defendant,
and
GEORGE KALERGIOS,
Intervenor.
Finally, to the extent that Lelekakis, Kalergios, and his attorney believe that this decision and order ends the inquiry into what is almost-certain fraud and/or misconduct on their part, they would be sorely mistaken. The conduct in this case, if true, amounts to a fraud upon the court. See CDR Creances SAS v. Cohen, 23 NY3d 307 (2007). For this reason, this Court is considering taking some type of action to punish these individuals for their misconduct. For example, the Court may refer this matter to the Queens District Attorney's Office. The Court is also considering whether or not it would be appropriate to file a Criminal Contempt petition against this trio. With respect to the attorney representing Kalergios, whose name has not been disclosed in this opinion, the Court is mulling over whether or not his conduct in this case warrants sending the decisions and orders that have been issued under Index Numbers 711266/2017 and 712736/2017, as well as the underlying motion papers, to the grievance committee, which has discretion to investigate his conduct in this matter.
In the alternative, the Court may, upon application by a plaintiff or sua sponte, order an evidentiary hearing pursuant to CDR Creances SAS v. Cohen, for the purpose of determining if the alleged misconduct by defendants, Lelekakis and Kalergios, can be established by clear and convincing evidence, whereupon a court would be authorized to strike their pleadings and enter default judgments against them. See CDR Creances SAS v. Cohen, supra, 23 NY3d at 320.
Finally, to protect their interest in the subject property, it may behoove the Voyiatgis plaintiffs to file a notice of pendency pursuant to Article 65 of the CPLR. See Matter of Sakow , 97 NY2d 436, 440 (2002). In the words of the late Professor David Siegel, such notice puts the "world on notice of the plaintiff's potential rights in the action and thereby warn[s] all comers that if they then buy the realty or lend on the strength of it or otherwise rely on the defendant's right, they do so subject to whatever the action may establish as the plaintiff's right." Siegel, New York Practice § 334, at 509 [3d ed]; see also Matter of Sakow, supra 97 NY2d at 440 ; CPLR 6501.
Admittedly, a notice of pendency may not have prevented the strong indicia of fraud that appears to be perpetrated in these actions; nevertheless, it might provide a mechanism in which to prevent Lelekakis and Kalergios from attempting to sell the subject property to unsuspecting third parties.
Finally, in response to a letter of counsel, the Court orders the Clerk of the Court to change the track of this case from simple to complex. The Court, in addition, orders the Clerk to extend the date of filing the Note of Issue from March 30, 2018, to October 26, 2018. To help effect the change in tracking, the Court has also signed and so-ordered the accompanying stipulation.
The foregoing constitutes the decision, order, and opinion of the Court.