Opinion
No. 12874 2007.
2010-08-13
George GLEZELIS, as Administrator of the Estate of Ioannis John Glezelis a/k/a Ioannis Glezelis a/k/a John Glezelis, Plaintiff, v. Nicole HALKIOPOULOS a/k/a Nicole Halkiopoulos Tzeremes a/k/a Nicole Tzeremes, Marcella Halkiopoulos, Defendants.
ROBERT J. McDONALD, J.
The following papers numbered 1 to 30 read on this motion by George Glezelis, as administrator of the Estate of Ioannis John Glezelis to vacate and void the deed dated April 20, 2010, purportedly transferring title of the real property known as 28–61 Corporal Kennedy Street, Bayside, New York from defendant Nicole Halkiopoulos a/k/a Nicole Halkiopoulos Tzeremes a/k/a Nicole Tzeremes to SG Realty Properties, LLC (SG Realty), to extend the duration of the notice of pendency pursuant to CPLR 6513 for a period of three years nunc pro tunc from May 4, 2010, and for such other and further relief as the court deems just, proper and equitable; and this motion by George Glezelis, as administrator of the Estate of Ioannis John Glezelis, to vacate and void the same deed purportedly transferring title to the same real property from defendant Nicole Halkiopoulos to Chris Papandrea, to extend the duration of the same notice of pendency pursuant to CPLR 6513 for a period of three years nunc pro tunc from May 4, 2010, and for such other and further relief as the court deems just, proper and equitable.
Upon the foregoing papers it is ordered that the motions numbered 15 and 16 on the motion calendar for June 10, 2010 are determined together as follows:
Ioannis John Glezelis commenced this action seeking, among other things, specific performance of a contract of sale of real property known as 28–61 Corporal Kennedy Street, Bayside, New York, whereby defendant Nicole Halkiopoulos agreed to sell the property to Ioannis John Glezelis for the purchase price of $699,999.00. Ioannis John Glezelis moved for, among other things, summary judgment against defendants on the issue of liability. By short form order dated July 14, 2009, Ioannis John Glezelis was granted summary judgment against defendants. The order, however, did not specifically direct closing of title.
Ioannis John Glezelis died on December 13, 2009, and limited letters of administration were issued to George Glezelis by decree dated March 1, 2010 of the Surrogate's Court, Queens County. By notice of motion dated March 15, 2010, George Glezelis, as administrator of the Estate of Ioannis John Glezelis moved for leave to be substituted as party plaintiff in this action. That motion was submitted on May 20, 2010, after plaintiff obtained the instant orders to show cause, but prior to May 27, 2010, the date originally set as their respective return date.
Meanwhile, defendant Nicole Halkiopoulos executed a deed dated April 20, 2010, conveying the subject property to SG Realty and Chris Papandrea, as tenants in common, with SG Realty vested in an undivided 90% ownership interest, and Papandrea vested in an undivided 10% ownership interest.
By order dated June 1, 2010, the motion for leave to substitute George Glezelis, as administrator of the Estate of Ioannis John Glezelis, as party plaintiff for Ioannis John Glezelis was granted without opposition, and the caption was directed to be amended to reflect the substitution.
In the interim, George Glezelis, as administrator, separately moved by the instant orders to show cause to set aside and cancel the April 20, 2010 deed recorded against the property, with each motion directed at the respective interests of the cotenants, SG Realty and Papandrea, and to extend the duration of the notice of pendency filed against the property for a period of three years, nunc pro tunc from May 4, 2010. Counsel for George Glezelis, as administrator, apparently believed it was necessary to make separate orders to show cause, insofar as the April 20, 2010 deed named two cotenants. Such procedure was unnecessary, however, insofar as complete relief could have been sought by means of one order to show cause to set aside and cancel the April 20, 2010 deed, and to extend the duration of the notice of pendency. The court, however, shall disregard this procedural error, and treat the motions together as one seeking to set aside and cancel the April 20, 2010 deed and to extend the duration of the notice of pendency. Defendant Nicole Halkiopoulos opposes the instant motions.
To the extent that defendant Nicole Halkiopoulos asserts the first motion (numbered 15) brought on by order to show cause dated May 5, 2010, is defective due to improper service upon her, such order to show cause directed that a copy of the order, along the supporting papers, be served upon defendant Nicole Halkiopoulos by “personal service” on or before May 13, 2010. Plaintiff offers an affidavit of service of a licensed process server, dated May 20, 2010, indicating that service of a copy of the order to show cause was made upon defendant Nicole Halkiopoulos on May 6, 2010 by delivery to “Mike Doe',” as a person of suitable age and discretion, at 166–19 25th Avenue, Whitestone, New York, the dwelling place, usual place of abode or place of business of defendant Nicole Halkiopoulos, and by a subsequent mailing of a copy of the order to show cause to defendant Nicole Halkiopoulos at the same address. This affidavit is sufficient to establish prima facie evidence of proper service upon defendant Nicole Halkiopoulos in accordance with CPLR 308(2) ( see Granite Mgt. & Disposition v. Sun, 221 A.D.2d 186, 186–187 [1995];Skyline Agency, Inc. v. Ambrose Coppotelli, Inc., 117 A.D.2d 135, 139 [1986] ).
Defendant Nicole Halkiopoulos submits an affidavit of Aristides Halkiopoulos in an effort to rebut the presumption of proper service created by the process server's affidavit. In his affidavit, Aristides Halkiopoulos admits he was served with a copy of the order to show cause and in response, called his sister to inform her about it. Aristides Halkiopoulos states that he resides at 69–17 Ditmars Blvd., East Elmhurst, New York, and his sister Nicole does not reside at his house, and has never resided there.
CPLR 308(2) does not require the person to whom the process is delivered be a person who resides at the same address as the defendant. Rather, it requires the person to whom delivery is made “must objectively be of sufficient maturity, understanding and responsibility under the circumstances so as to be reasonably likely to convey the summons to the defendant,” (City of New York v. Chemical Bank, 122 Misc.2d 104 [1983];see Roldan v. Thorpe, 117 A.D.2d 790,appeal dismissed68 N.Y.2d 663 [1986] ). Defendant Nicole Halkiopoulos makes no claim that “Mike Doe' “ does not exist, was not present at the 25th Avenue address on the date and time in question, or does not physically resemble the person described in the affidavit of service, or is not a person of suitable age and discretion. Nor does defendant Nicole Halkiopoulos swear to specific facts to rebut the statements in the process server's affidavit relative to the subsequent mailing of the copy of the summons and complaint ( see Engel v. Lichterman, 62 N.Y.2d 943 [1984],affg95 A.D.2d 536 [1983] ). Aristides Halkiopoulos, furthermore, has failed to indicate the location where he was served with a copy of the order to show cause. Thus, defendant Nicole Halkiopoulos's unsubstantiated claim of improper service of the copy of the order to show cause is insufficient to warrant a hearing on the issue of the propriety of the service ( see Remington Invs. Inc. v. Seiden, 240 A.D.2d 647 [1997];Sando Realty Corp. v. Aris, 209 A.D.2d 682 [1994] ).
Defendant Nicole Halkiopoulos asserts the instant motions are defective, having been made after the death of Ioannis John Glezelis, but in the absence of an order of substitution. The death of a party stays the proceedings in an action until a proper substitution has been made pursuant to CPLR 1015(a) ( see Singer v. Riskin, 32 AD3d 839 [2006] ). Although the motion for leave to substitute George Glezelis, as administrator of the Estate of Ioannis John Glezelis for plaintiff, had not been determined by May 10, 2010 (the date of the later of the two orders to show cause), it was granted by the time the instant motions were fully submitted on June 10, 2010, and therefore, any defect was cured. As a consequence, the court may consider the instant motions by George Glezelis, as administrator of the Estate of Ioannis John Glezelis. In addition, counsel who made the instant motions, represents George Glezelis, as administrator of the Estate of Ioannis John Glezelis, and thus had requisite authority to appear on George Glezelis's behalf in making the motions. (The same counsel also had appeared on behalf of Ioannis John Glezelis prior to his death.)
Defendant Nicole Halkiopoulos argues that plaintiff George Glezelis lacks authority to continue the prosecution of this action insofar as plaintiff George Glezelis's authority as administrator is limited pursuant to the March 1, 2006 decree of the Surrogate's Court. The limitations set forth in the Surrogate's Court decree dated March 1, 2010, however, do not prohibit George Glezelis from prosecuting this action as the personal representative of the Estate of Ioannis John Glezelis, including bringing the instant motions to set aside and cancel the April 20, 2010 deed. To the extent defendant Nicole Halkiopoulos argues the decree may be read to restrain plaintiff George Glezelis, as administrator of the Estate of Ioannis John Glezelis, from seeking enforcement of a judgment, or receiving any real property “of” plaintiff's decedent, neither motion seeks enforcement of any judgment herein. Rather, plaintiff's goal is to set aside and cancel the April 20, 2010 deed. In any event, the decree specifically allows for the administrator to seek further order of the Surrogate upon the filing of satisfactory security in order to seek such enforcement.
Defendant Nicole Halkiopoulos argues that the instant motions should not be entertained in the absence of joinder of “IndyMac Bank” as a necessary party defendant. Defendant Nicole Halkiopoulos, however, failed to raise the absence of a necessary party defendant as an affirmative answer in her amended answer, and summary judgment on the issue of liability already has been obtained against her. In the amended complaint, plaintiff alleged that defendant Nicole Halkiopoulos agreed to deliver title to the property free and clear of all liens filed against it as of May 15, 2006, through and including the date of transfer, including the mortgage lien held by “Indymac Bank, F.S.B.” Plaintiff also alleged that the purchase price has been paid in full. Moreover, defendant Nicole Halkiopoulos has failed to demonstrate the manner in which any interest held by “IndyMac Bank” in the property would be adversely affected by the setting aside and cancellation of the April 20, 2010 deed.
The transfer of the property to SG Realty and Chris Papandrea by deed dated April 20, 2010, was made following the issuance of the order granting summary judgment in favor of plaintiff against defendants. Because the notice of pendency filed against the property was then in effect, SG Realty and Chris Papandrea had constructive notice of plaintiff's claims herein, and are bound by all proceedings taken in this action after such filing to the same extent as a party (CPLR 6501). Thus, their title will be subject to the outcome of this action ( see generally Da Silva v. Musso, 76 N.Y.2d 436 [1990] ). However, because neither SG Realty nor Chris Papandrea are parties to this action, the court cannot set aside the April 20, 2010 deed in their absence ( cf. Spuches v. Royal View, Inc., 13 A.D.2d 815 [1961] ). That branch of the motions by plaintiff to set aside and the cancel the April 20, 2010 deed is denied.
The branch of the motions by plaintiff for leave to extend the duration of the notice of pendency pursuant to CPLR 6513 is denied, having been rendered academic by the expiration of the notice. A notice of pendency is effective for a period of three years measured from the date of its filing. It can be extended for like periods, but the plaintiff must demonstrate “good cause” for the extension, and each extension must be applied for within the prior three-year period so that any extension order can be filed and indexed before the existing notice expires (CPLR 6513; see Matter of Sakow, 97 N.Y.2d 436 [2002] ). The rationale for requiring the extension order be recorded and indexed prior to expiration of the existing notice of pendency is to “avoid a gap in the constructive notice afforded by the lis pendens and prevent some third person from slipping in and taking priority,” (David D. Siegel, New York Practice § 334, at 535 [4th ed 2005] ). Thus, as advised by one commentator, “[t]he prudent practitioner seeking to extend the life of a notice of pendency should take the directives of CPLR 6513 at face value and obtain the extension permitted by the statute well before expiration of the current three-year period” (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C6513).
Although plaintiff sought the extension of the notice of pendency prior to the expiration of the three-year period, neither order to show cause included a temporary extension pending the hearing and determination of the motion, a direction that the order to show cause be served on defendants by a date no later than the last day before the notice of pendency expires, or a further direction that the order to show cause be filed, recorded and indexed prior to the expiration date ( cf. RKO Properties, Ltd. v. Boymelgreen, 31 AD3d 625 [2006] ). Thus, the notice of pendency filed herein expired in the meantime, without having been extended in time, and under such circumstances, the court is powerless to extend it “nunc pro tunc” ( see Matter of Sakow, 97 N.Y.2d 436 [2002],supra ).