Opinion
Index No. TS-300201-19/KI
02-18-2022
Samuel GARCIA, Plaintiff, v. ROCK N G HOMES LLC; Larry "Doe" aka Larry Brown ; Eitan Itah; 715 Chauncey LLC; 715 Chauncey Management Corp., Defendants.
Plaintiff Pro-Se. Subhana Amatur Rahim, 17 N Oxford St., Brooklyn, NY 11205, (347) 731-7263, Counsel for Defendant Rock N G Homes, and Defendant Larry "Doe" Law Offices of Michael B. Wolk, P.C., 31 West 34th Street, Suite 7040, New York, New York 10001, Counsel for Defendant 715 Chauncey, and Defendant 715 Chauncey Management Corp. Woods Lonergan PLLC, 280 Madison Avenue, Suite 300, New York, NY 10016, (212) 684-2500, Relieved, Counsel for Plaintiff
Plaintiff Pro-Se. Subhana Amatur Rahim, 17 N Oxford St., Brooklyn, NY 11205, (347) 731-7263, Counsel for Defendant Rock N G Homes, and Defendant Larry "Doe"
Law Offices of Michael B. Wolk, P.C., 31 West 34th Street, Suite 7040, New York, New York 10001, Counsel for Defendant 715 Chauncey, and Defendant 715 Chauncey Management Corp.
Woods Lonergan PLLC, 280 Madison Avenue, Suite 300, New York, NY 10016, (212) 684-2500, Relieved, Counsel for Plaintiff
Sandra E. Roper, J.
RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION
ORDER TO SHOW CAUSE & EXH. ANNEXED 1-2
AFFIRMATION IN PARTIAL OPPOSITION & EXH. ANNEXED 3-4
INTRODUCTION
Defendants Rock N G Homes LLC and Larry Brown moves This Honorable Court by Order to Show Cause pursuant to CPLR 2221 (d) for an Order granting Plaintiff Leave to Reargue and/or pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated July 30, 2020, Denying Defendant's Motion to Dismiss Plaintiff's claims of fraud, misrepresentation, breach of contract and violation of Home Equity Theft Act in Deed Conveyance, and for the reasons set forth below, Defendants’ Leave to Reargue and/or Renew is hereby DENIED .
ORDERED , Plaintiff's Counsel of Record, Woods Lonergan PLLC is Relieved from representation.
ORDERED, pursuant to CPLR 325 (b), This Civil Court Sua Sponte duly requests removal by Supreme Court, Kings County possessing, unlike This Civil Court, jurisdiction to grant relief as to deed conveyances to which the parties may be entitled to in this matter.
Otherwise, this case would be relegated to jurisdictional limbo. "The Civil Court is a court of limited jurisdiction, possessing only that subject matter jurisdiction as is provided by law (see NY Const, art VI, § 15 ; Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d 16, 914 NYS 2d 855 [App Term, 2d Dept, 2d, 11th and 13th Jud Dists 2010]). An order "transferring down" an action from Supreme Court to Civil Court pursuant to CPLR 325 (d) does not confer subject matter jurisdiction on the Civil Court (see Priel v Linarello , 7 Misc 3d 64, 66, 794 NYS 2d 775 [App Term, 2d Dept, 2d & 11th Jud Dists 2005], affd 44 AD3d 835, 843 NYS 2d 436 [2007] ) other than permitting a monetary award greater than the limit set by the New York City Civil Court Act (see CCA 202 ; Green v Lakeside Manor Home for Adults, Inc., 30 Misc 3d at 18 ). This court's authority is merely to rule on the validity of the Civil Court's amended final judgment, not to reverse the Supreme Court's CPLR 325 (d) transfer order in the event the Civil Court lacks subject matter jurisdiction to grant the relief sought (Parker v Parker , 2021 NY Misc LEXIS 2677, *2-3, 2021 NY Slip Op 50489 [U], 1-2, 71 Misc 3d 140 [A], 145 NYS 3d 757, 2021 WL 2127190, citing see Green v Lakeside Manor Home for Adults, Inc. , 30 Misc 3d at 18 ; Rivera v Buck , 25 Misc 3d 27, 887 NYS 2d 747 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Briscoe v White , 8 Misc 3d 1, 797 NYS 2d 240 [App Term, 2d Dept, 9th & 10th Jud Dists 2004]; Priel v Linarello, 7 Misc 3d 64, 794 NYS 2d 775 ; but see Kaminsky v Connolly , 73 Misc 2d 789, 342 NYS 2d 394 [App Term, 1st Dept 1972] ).
PROCEDURAL AND FACTUAL HISTORY
Plaintiff commenced this action on or about June 19, 2015 in New York State Supreme Court Kings County under Index No. 507631/2015, seeking to void a Deed dated February 11, 2015 that purported to transfer Plaintiff's interest in the property located at 715 Chauncey St., Brooklyn New York. Henry M. Graham, Esq, Plaintiff's counsel of record at the initiation of the lawsuit, was substituted on or about February 24, 2017 by Woods Lonergan PLLC. Deposition held of Plaintiff with two alternating Spanish interpreters on March 1, 2019, elicited, inter alia: an alleged $10,000.00 cash was not given over to Plaintiff by Defendants on the day that he signed the deed conveyance documents; Plaintiff believed that by signing the documents it would not be to sign over his ownership to the property but rather to give Defendant Brown as well as Co-Defendant Eitan Itah the authority to sell the property, pay off mortgage and then pay to Plaintiff the remaining proceeds; and Plaintiff by mere happenstance met Defendant Brown at a pizza restaurant at lunchtime near his job as a custodian in Manhattan . After Plaintiff's deposition on March 1, 2019, Plaintiff's counsel stated that there had been no further responses from Plaintiff. While Defendants still being represented by counsel and without Plaintiff receiving any advice nor consult from his counsel of record on or about March 19, 2019, parties allegedly entered into a stipulation of settlement in which Plaintiff's execution was notarized by Virginia notary public.
Whereas Defendant testified under oath at underlying hearing that parties first met in Brooklyn neighborhood where a family member of Defendant Brown lived. At underlying hearing, Defendants did not include Plaintiff's March 1, 2019 Deposition.
It is questionable whether Plaintiff was still represented by Counsel, but it is clear and uncontested on the record that Plaintiff's counsel of record was not aware nor involved in the alleged March 9, 2019 stipulation of settlement.
At underlying hearing, Defendant Brown offered conflicting versions of how this stipulation was entered into as well as to where it was executed - in Brooklyn at a table, but when queried by Court how is that possible when the Stipulation was notarized by a Virginia notary, Defendant Brown testified that was done in Virginia by his family member but that he could not remember that family member's name. Further, Defendant Brown testified that the very legally-well drafted settlement documents were drafted by him, Court does not find this credible.
Louis M. Brown, Esq, Defendants’ counsel of record was substituted by Subhana Rahim, Esq. on or about May 31, 2019. At Pre-Trial Conference in Supreme Court Kings County held on June 3, 2019, Defendants claimed that Plaintiff and Defendants had settled the matter and in furtherance thereto, Plaintiff executed certain legal documents, without advice or consult from Plaintiff's counsel. Plaintiff's counsel filed an emergency order to show cause seeking to be relieved as counsel for the Plaintiff pursuant to CPLR § 321 (b) (2) and Rule 1.16 (c) (7) of the New York Rules of Professional Responsibility on June 7, 2019. Shortly thereafter, Supreme Court, County of Kings removed this action on June 13, 2019, to the Civil Court of the City of New York, County of Kings pursuant to CPLR 325 (d) and marked Plaintiff counsel's order to show cause to be relieved as counsel as withdrawn. A second order to show cause to be relieved of counsel was refiled by Plaintiff's counsel on July 24, 2019, which was also withdrawn on August 15, 2019.
Defendants filed underlying motion to dismiss on January 16, 2020, alleging that Plaintiff and Defendants had settled. Plaintiff's counsel served affirmation in opposition on June 13, 2020, arguing that although their office had not been able to communicate with Plaintiff, it is concerned as to the further victimization of Plaintiff by Defendants in that it cannot confirm that Plaintiff, not being proficient in English, knew what he was signing or that he received payment of the alleged settlement funds . Evidentiary Hearing was ordered and held on the record for Defendants’ Motion to Dismiss on July 30, 2020 in which Defendant Brown was placed under oath and testimony elicited by Court as well as oral argument by counselors. Defendants’ overarching argument to dismiss was based upon alleged March 19, 2019 out of court stipulation of settlement. Plaintiff's counsel argued that it found out of court settlement suspect and perhaps further victimized Plaintiff who was not fluent in English, particularly where it had not heard from Plaintiff in 2 years. Defendant Brown's Testimony under oath elicited by Court was found not credible. Motion for Dismissal Denied. Thereafter, on or about September 27, 2020, Defendant Brown allegedly received a Virginia-notarized handwritten letter from Plaintiff, which was USPS postmarked on December 2, 2020 to Plaintiff's counsel as well, stating:
Particularly of note, where Defendants allege that $10,000.00 cash had been given to Plaintiff, which he testified that he never received.
"This letter is to the judge and Larry Brown because someone is lying to the judge the Lawyer is lying because he don't represent me. I can't speak English. I haven't spoken to anybody about my case. No attorney called me. I fired the attorneys a long time ago. I signed the paperwork to sell the property, 715 Chauncey Street in Brooklyn to Larry Brown. I did not higher any lawyer. The last lawyer I spoke to was a lady and I spoke to her more than two years ago for the last time. I don't remember her name. Whoever say they represent me now is lying. "
(defendant's affidavit in support of order to show cause, Garcia Letter). Additionally, Plaintiff filed pro se via EDDS his own motion to dismiss on December 2, 2020. Plaintiff's Counsel, Woods Lonergan, allegedly received this pro se Motion to Dismiss on December 14, 2020, signed by Plaintiff and notarized in Virginia. This motion is still pending on the Civil Court Calendar Part 30.
This instant Order to Show Cause by Defendants to Reargue and/or Renew was filed November 16, 2020 and oral arguments held on January 20, 2022, with Plaintiff appearing for the first time before This Court, as well as appearance by Defendant Brown and Plaintiff's counsel of record Woods Lonergan appearing solely to defend itself against Defendants’ allegations and characterizations of its actions and statements as unethical for the purposes to mislead Court. Plaintiff's September 7, 2020 handwritten letter accused his counsel of record of lying and stated that he fired counsel a long time ago, and apparently although Plaintiff had been in communication with Defendants, he failed to respond to his counsel's bilingual letters and calls in 2 years. There was an obvious irreparable disintegration of the attorney-client relationship in such an action as this in equity. Consequently, This Court relieved Woods Lonergan as Plaintiff's Counsel of Record. Based upon all the papers provided and transcripts of both Defendants Brown and Plaintiff, This Court held that in a case such as this, concerning alleged predatory deed conveyance, an alleged out of court settlement under these circumstances must be approved by a Court of Competent Jurisdiction, which This Civil Court is not, with the power and jurisdiction in equity to rescind the alleged predatory deed conveyance. Court reasoned that since this case of alleged predatory deed conveyance was brought in a period of much heightened legislative scrutiny and as a matter of public policy, any settlement of civil matters such as this, with an awareness of the potentiality of morphing into the criminal realm, must be duly examined by Court for Approval . Thus, Court held that there would be a scheduled Court Settlement Approval Hearing in furtherance of the public policy and legislative intent underlying homeownership protections in these type of civil cases involving fraudulent, predatory, victimization, and misrepresentation in deed conveyances, particularly occurring in targeted cash poor and house rich minority Black and Latino communities that are in the midst of explosive gentrification , as within the area in which the relevant property is located. Although, on its face it appears that there was an attempt of an out of court settlement , This Court finds it reviewable, Plaintiff, not proficient in English, was unrepresented without advice nor consult with his counsel, whereas Defendants were still represented, and court did not find Defendant Brown's testimony that he prepared such legally-well drafted settlement documents on his own credible. Therefore, this alleged out of court settlement is more so suspect as to further victimization of Plaintiff as aptly argued by relieved Plaintiff's counsel at the underlying hearing. Upon further reflection and due deliberation, This Court determined that it did not possess the jurisdiction in equity to provide the relief sought , particularly where this matter is fraught with significant divergent inconsistent and not credible significant facts elicited from Defendant Brown's testimony at underlying hearing. Consequently, Supreme Court as court of competent jurisdiction in equity possesses such authority to render Decision and Order for relief as to this alleged predatory deed conveyance. Civil Court does not.
This Court opines that Court Settlement Approval Hearing should be a standard practice and procedure for all such cases, whether pro se or where both parties are represented by counsel under similarly situated circumstances as here.
Although Home Equity Theft Protection Act requires residency of complainant owner, with one of its intents to deter displacements, in minority house rich cash poor communities that had historically been the subject of de jure discriminatory redlining, regardless of residency there is also the legislative public policy intent to protect generational wealth preservation through real property ownership which had been historically denied.
(Home Equity Theft Prevention Act, as added by L 2006, ch 308, § 3, eff Feb 1, 2007, as amended by L 2011, ch 62, § 104 [Part A], eff Oct 3, 2011 [wherever the terms "insurance department" or "department of insurance" appear in the insurance law, such terms are hereby changed to "department of financial services"]; id. as added by L 2019, ch 167, §§ 1–3, eff Aug 14, 2019; see also 2021 Bill Text NY SB 5553; see Kimiko de Freytas-Tamura, Why Black Homeowners in Brooklyn Are Being Victimized by Fraud , The New York Times, Oct. 21, 2019).
It does appear from his actions that Plaintiff desires to settle this matter perhaps out of sheer desperation that may not be in his best interest. However, This Court opines that once Plaintiff availed himself of the due process and equitable powers accorded by court, as a matter of public policy and legislative intent of protections against predatory deed conveyances, court of competent jurisdiction in its exercise of powers in equity should oversee any settlements to protect desperate complainant owners from their own potentially detrimental decisions not in their best interest under the circumstances as presented.
See n 1, supra.
DISCUSSION
LEAVE TO REARGUE: CPLR 2221 (d)
Movant for leave to reargue underlying motion must persuade court that "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion " is reversible error ( CPLR 2221 [d] ; Matter of Miness v Deegan , 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399 ; Bolos v Staten Island Hosp. , 217 AD2d 643, 629 NYS 2d 809 [2d Dept 1995] ; Schneider v Solowey , 141 AD2d 813, 529 NYS 2d 1017 [2d Dept 1988] ). It has been held that proper practice requires that motion for relief to reargue must be brought by order to show cause in lieu of by notice of motion for judicial economy and failure to do so may be sufficient basis for denial ( Application of Central States Paper & Bag Co., Inc. , 132 NYS 2d 69, 72 [Sup Ct, NY County 1954], aff'd mem 284 AD 841, 134 NYS 2d 271 [1st Dept 1954] ; Rubin v Dondysh , 147 Misc 2d 221, 222, 555 NYS 2d 1004 [Civ Ct, Queens County 1990] ). Nevertheless, it has also been held that CPLR 2221 (a) allows that said motions to reargue "shall be made, on notice, to the judge who signed the order " ( Alta Apartments LLC v Wainwright, 4 Misc 3d 1009 [A], 791 NYS 2d 867, 2004 NY Slip Op 50797 [U], 2004 WL 1717573 [Civ Ct, NY County 2004]. "A Motion to reargue is not an aggrieved party's second bite of the apple to present new or divergent arguments from its original failed arguments" ( 819 Realty Group LLC v Beast Fitness Evolved LLC , 2019 NY Misc. LEXIS 5038, *14, 2019 NY Slip Op 51496 [U], 8, 65 Misc 3d 1204 [A], 118 NYS 3d 367, citing Giovanniello v Carolina Wholesale Off. Mach. Co., Inc. , 29 AD3d 737, 815 NYS 2d 248 [2d Dept 2006] ; Gellert & Rodner v Gem Community Mgt., Inc. , 20 AD3d 388, 797 NYS 2d 316 [2d Dept 2005] ; Pryor v Commonwealth Land Tit. Ins. Co. , 17 AD3d 434, 793 NYS 2d 452 [2d Dept 2005] ; Amato v Lord & Taylor, Inc. , 10 AD3d 374, 781 NYS 2d 125 [2d Dept 2004] ; Frisenda v X Large Enters. , 280 AD2d 514, 720 NYS 2d 187 [2d Dept 2001] ; Foley v Roche , 68 AD2d 558, 418 NYS 2d 588 [1st Dept 1979] ), nor does it allow aggrieved party to reargue the same issues already previously considered and decided by the court (id., citing William P. Pahl Equip. Corp. v Kassis , 182 AD2d 22, 588 NYS 2d 8 [1st Dept 1992] ; Pro Brokerage v Home Ins. Co. , 99 AD2d 971, 472 NYS 2d 661 [1st Dept 1984] ).
In this instant matter properly brought by Order to Show Cause assigned to Judge who signed the underlying Decision on Order dated July 30, 2020, at first blush, Defendants failed to state any misapprehension of fact or law nor any fact or law that had been overlooked by This Court in the underlying hearing to dismiss. However, Defendants argued erroneously that This Court was misled by Plaintiff counsel's misrepresentation of the material contents of Plaintiff's prior deposition as to his residing in the relevant property and that the court relied upon this misrepresentation for the truth of the statement in making its determination to deny dismissal. On the contrary, This Court did not rely on Plaintiff counsel's alleged misstatement that Plaintiff resided in the relevant property. It is opined that Plaintiff counsel's alleged misstatement may have been a benign mistake in its zealous advocacy under the circumstances of a missing client in which they have not received responses from within two years, which was further corroborated by Plaintiff counsel's unawareness of the various divergent addresses that Defendants mentioned for Plaintiff at underlying hearing on the record. Moreover, Court in much detail acknowledged Defendants’ argument as to residency of Plaintiff being a potential bar to its cause of action pursuant to the Home Equity Theft Protection Act. Nevertheless, Court reasoned that there were other causes of actions that were not dependent on Plaintiff's residence. Obviously, Defendants made this very same argument at underlying hearing. Therefore, This Court was not misled by Plaintiff counsel's alleged mistaken misstatement as to residency nor is there a misapprehension of any fact or law, nor is any fact or law overlooked by This Court. Defendants’ argument herein is an attempt at a second bite of the apple to relitigate its very same arguments as made in the underlying hearing, which is in direct contravention to CPLR 2221 (d). Thus, Defendants failed to establish basis for leave to reargue. Rather, Defendants further argue a new fact not available at the time of underlying hearing, to wit, that Plaintiff had terminated its representation by Plaintiff's counsel a long time ago by Plaintiff's representation at Court argument on January 20, 2022 as well as by Plaintiff's notarized handwritten letter dated September 27, 2020 sent after the underlying hearing. Introduction of this new fact renders this matter beyond the statutory scope of a motion to reargue and rather for a leave to renew.
Plaintiff's deposition was not provided at the underlying hearing but was proffered here by Defendant.
It is reasonable under the circumstances of so many dying or hospitalized during the Pandemic, that Plaintiff's counsel may not have been sure as to failure of any responses from Plaintiff even if silence predated Pandemic by a matter of months. Further, This Court aptly opined that Defendants’ overly harsh argument as to unethical conduct by Plaintiff's counsel was misplaced and Plaintiff's counsel as attorney of record performed as ethically mandated to so do, by appearing and zealously advocating on behalf of its, albeit missing, client.
LEAVE TO RENEW: CPLR 2221 (e)
CPLR 2221 (e) (2) requires that a leave to renew, "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination. " Here, court finds it necessary to repeat its findings, supra for this branch of its Decision: Plaintiff counsel conceded that it had not received any responses from its client for two years in its argument at the underlying hearing. In Defendants-Movants’ failure to present such fact, which should have been within its ken from the alleged out of court settlement it attempts to now uphold, renders this a new fact being proffered for the first time not previously offered at the prior underlying hearing pursuant to the first prong of CPLR 2221 (e) (2). In addition, CPLR 2221 (e) (3) requires that leave to renew "shall contain reasonable justification for the failure to present such facts on the prior motion. The Second Department has repeatedly held that the additional evidence offered on a motion to renew must be either newly discovered or have been unavailable to the movant at the time of the prior application" (Matter of Miness v Deegan 41 Misc 3d 1206 [A], 977 NYS 2d 668, 2013 NY Misc LEXIS 4359, 2013 NY Slip Op 51601 [U], 2013 WL 5480399, citing Winograd v Neiman Marcus Group , 11 AD3d 455, 782 NYS 2d 753 [2d Dept 2004] ; Seltzer v City of New York , 288 AD2d 207, 732 NYS 2d 364 [2d Dept 2001] ; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle , 271 AD2d 636, 706 NYS 2d 724 [2d Dept 2000] ). The Second Department has also held, "a court, in its discretion may grant renewal where the additional facts were known to the party seeking renewal at the time of the original motion, provided the moving party offers a reasonable justification for the failure to submit the addition of facts on the original motion " or if the moving party offers a reasonable excuse for not having presented those facts ( Granato v Waldbaum's, Inc. , 289 AD2d 289, 734 NYS 2d 498, 2001 NY App Div LEXIS 11962 ; see also Doviak v Finkelstein & Partners, LLP. , 90 AD3d 696, at 700-01 [2d Dept 2011] ; Schenectady Steel Co. v Meyer Contracting Corp. , 73 AD3d 1013, at 1015 [2d Dept 2010] ; Smith v State, 71 AD3d 866, at 867-68 [2d Dept 2010] ; Surdio v Levittown Public School District, 41 AD3d 486, at 486-87 [2d Dept 2007] ). Moving Defendants should have known that Plaintiff which it had been in direct contact with had fired its counsel a long time ago. Therefore, although Plaintiff's counsel had not been in contact with its client-Plaintiff, Defendants apparently were. Plaintiff's notarized letter dated September 27, 2020 stating that his counsel was fired a long time ago while also contradictorily stating that he had not hired an attorney, was done after This Court's underlying decision denying dismissal and indeed calls into question whether Plaintiff truly understands what has been happening in this case overall as well as the alleged stipulation of settlement, in particular. There is no justification as to why Defendants did not provide said fact during argument or testimony by Defendant Brown, in contravention to CPLR 2221 (e) (3). Consequently, although Plaintiff's counsel zealously and compellingly advocated at underlying hearing, his lack of knowledge that his representation had been terminated by Plaintiff is a new fact not offered on the prior underlying motion pursuant to CPLR 2221 (e) (2). However, Court reiterates, this fact should have been readily known by Defendants during the prior underlying motion and did not find Defendant Brown's affidavit credible. Nevertheless, the introduction of this new fact proffered must also be deemed, as statutorily mandated by CPLR 2221 (e) (2), to change the prior underlying decision. Here it does not. Notwithstanding Plaintiff counsel's unbeknownst termination, This Court did not find Defendants’ overarching argument compelling at the underlying hearing, further bolstered by the lack of candor and contradictory testimony elicited by Court from Defendant Brown. This new fact would not have changed This Court's prior Decision.
For the foregoing reasons Defendants Rock N G Homes LLC and Larry Brown's Order to Show Cause moving pursuant to CPLR 2221 (d) for an Order granting Leave to Reargue and/or pursuant to CPLR 2221 (e) Leave to Renew Decision and Order of This Court dated July 30, 2020, Denying Defendant's Motion to Dismiss Plaintiff's claims of fraud, misrepresentation, breach of contract and violation of Home Equity Theft Act in Deed Conveyance, is hereby DENIED .
The foregoing constitutes the opinion, decision, and order of This Honorable Court.
SO ORDERED.