Opinion
INDEX NO.: 621122/2017
04-02-2019
LONG ISLAND REAL PROPERTIES, LTD, Plaintiff, v. US BANK NATIONAL ASSOCIATION AS TRUSTEE FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., HOME EQUITY ASSET TRUST 2006-7, HOME EQUITY PASS THROUGH CERTIFICATES SERIES 2006-7, ROBERTS PREMIER DEVELOPMENT LLC, SUFFOLK COUNTY CLERK, Defendants.
LAW OFFICES OF CHRISTOPHER THOMPSON Plaintiff & Plaintiff's Attorney 33 Davidson Lane East West Islip, NY 11795 DAVIDSON FINK, LLP Attorneys for Defendant US Bank National Association 28 East Main Street, Suite 1700 Rochester, NY 14614 SOLOMON & SIRIUS, P.C. Attorneys for Defendant Roberts Premier Development, LLC 100 Quentin Roosevelt Boulevard Suite 504 Garden City, NY 11530
NYSCEF DOC. NO. 49
Memorandum Decision
PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court
MOT. SEQ. NO.:001-MG 002-MG
LAW OFFICES OF CHRISTOPHER THOMPSON
Plaintiff & Plaintiff's Attorney
33 Davidson Lane East
West Islip, NY 11795 DAVIDSON FINK, LLP
Attorneys for Defendant US Bank National
Association
28 East Main Street, Suite 1700
Rochester, NY 14614 SOLOMON & SIRIUS, P.C.
Attorneys for Defendant Roberts Premier
Development, LLC
100 Quentin Roosevelt Boulevard Suite 504
Garden City, NY 11530
Upon the following papers numbered 16 to 49 read on this Motion/Order to Show Cause for Summary Judgment; and Notice of Cross Motion and supporting papers for Dismissal; (and after hearing counsel in support and opposed to the motion) it is,
Multitudo Imperitorum Perdit Curiam.* The expressed fear of the learned Tribonian remains as relevant today as when it was uttered fifteen centuries ago. The Court's concern is that egregious errors of law and fact, put forward by Counsel pose a danger that if tolerated, will lead by example to repetition, thus undermining the forum itself.
The matter sub judice involves a claim which, as discussed below, has been found to be meritless.
Case History
Plaintiff Long Island Real Properties, Ltd. filed its summons and complaint on October 30th, 2017. Mr. Vincent Marzullo is the Company's principal and Mr. Christopher Thompson, Esq. is Counsel for same. Mr. Thompson also represents the Plaintiff in this litigation. The claim sounds as an action to Quiet Title to certain real property located at 205 Auborn Avenue, Shirley, Suffolk County, New York 11967, D: 0200, S: 746.00, B: 02.00, L: 025.000 ("Premises"). The premises had been the subject of a prior mortgage foreclosure action (Index Number:024179/2007). The Mortgagor/Owner in that earlier case was one Patricia Best. Ms. Best was represented in that case by Christopher Thompson, Esq.. The Premises were transferred by Referee's Deed at a foreclosure auction by Referee Donna England, Esq.. That Deed transferred ownership of the Premises to US Bank National Association as Trustee, Plaintiff/Mortgagee in the aforestated 2007 foreclosure case. US National Bank Association as Trustee deeded the Premises to Roberts Premier Development, LLC ("Roberts") for a consideration amount of $120,000.00. Roberts is a named Defendant in the instant Quiet Title action. Both Deeds were recorded April 13th, 2017.
The alleged basis for the instant Quiet Title case arises from a Deed dated May 19th, 2012, recorded in the chain of Title with the Suffolk County Clerk on October 24th, 2012. That Deed was executed during the earlier 2007 foreclosure action. The Deed in question transfers Title from Patricia Best to Long Island Real Property Holdings, LLC. The cover sheet states "Record and Return to: Christopher Thompson, Esq., 33 Davidson Lane East, West Islip, NY 11795." The Deed cover page records a transfer tax paid of ($0.00) and fails to record any monetary consideration paid in exchange for that Bargain & Sale Deed.
On October 30th, 2017, Mr. Thompson, as Counsel for Plaintiff, filed his summons and complaint in the instant case. The complaint is verified by "Vincent Marzullo, President." Mr. Marzullo's signature is notarized by Mr. Thompson. On February 21st, 2018, Defendant Roberts filed its verified answer with counter claims and cross-claims. On April 20th, 2018 Defendant US Bank National Association as trustee filed its motion to dismiss (seq. no.:001). On May 31st, 2018 Defendant Roberts Premier Development LLC also filed a motion to dismiss (seq. no.:002). In that motion, Defendant alleges, inter alia, that Plaintiff has filed a frivolous Quiet Title action.
Initially, it is incumbent upon the Court to consider the frivolous action contention prior to examining the other allegations contained in the Defendants' motions (seq. no.: 001 and seq. no.:002). The facts and applicable law which are the focus of the Court's discussion concerning sanctionable behavior are intertwined with the circumstances which give rise to the Defendant's entitlement to summary judgment.
22 NYCRR 130-1.1. Costs; sanctions
"(a) The court, in its discretion, may award to any party or attorney in any civil action of proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130-1.3 of this Subpart...;
(b) The court, as appropriate, may make such award of costs or impose such financial sanctions against either an attorney or a party to the litigation, or against both. Where the award or sanction is against an attorney, it may be against the attorney personally or upon a partnership, firm, corporation...with which the attorney is associated and that has appeared as attorney of record. The award or sanctions may be imposed upon any attorney appearing in the action or upon a partnership, firm or corporation with which the attorney is associated;
(c) For purposes of this Part, conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false. Frivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section. In determining whether the conduct undertaken was frivolous, the court shall consider, among other issues the circumstances under which the conduct took place,
including the time available for investigating the legal or factual basis of the conduct, and whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party.
(d) An award of costs or the imposition of sanctions may be made either upon motion in compliance with CPLR 2214 or 2215 or upon the court's own initiative, after a reasonable opportunity to be heard. The form of the hearing shall depend upon the nature of the conduct and the circumstances of the case."
As the Court stated in ( West Hempstead Water District v. Buckeye Pipeline Company , LP , 152 AD3d 558, 559, 58 NYS3d 121, 122 [2d Dept 2017]:
"Although the advancement of a meritless position may serve as the basis for a finding of frivolity, the standard for such a showing is high: the rule provides that a position will be deemed frivolous only where it is 'completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law.'" ( Id. at 559 quoting Stone Mtn. Holdings , LLC v. Spitzer , 119 AD3d 548, 550, 990 NYS2d 39 [2d Dept 2014]; see Mascia v . Maresco , 39 AD3d 504, 505, 833 NYS2d 207 [2d Dept 2007]; Kucker v. Kaminsky & Rich , 7 AD3d 491, 492, 776 NYS2d 72b [2d Dept 2004]).
"A court, 'in its discretion, may award to any party or attorney in any civil action or proceeding before the court...costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees resulting from frivolous conduct'" ( Stone Mtn. Holdings at 550). "The court rule set forth in 22 NYCRR 130-1.1, which is intended to limit frivolous and harassing behavior, authorizes a court...to award a party in a civil action reasonable attorney's fees resulting from frivolous conduct" ( Hutter v. Citibank , 142 AD3d 1049, 38 NYS3d 35 [2d Dept 2016]; see Doe v . Karpf , 58 AD3d 669, 873 NYS2d 323 [2d Dept 2009]). "In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct" [22 NYCRR 130-1-1(a)]. The decision whether to impose costs or sanctions under these circumstances, and the amount of any such costs or sanctions, is generally entrusted to the court's sound discretion ( Board of Managers of Foundry at Washington Park Condominium v. Foundry Development Co., Inc., 142 AD3d 1124, 1125, 38 NYS3d 60, 62 [2d Dept 2016]; see Strunk v. New York State Bd. of Elections , 126 AD3d 779, 781, 5 NYS3d 498 [2d Dept 2015]; Matter of Khan-Soleil v. Rashad , 111 AD3d 727, 728, 974 NYS2d 798 [2d Dept 2013]).
The Court of Appeals has defined the criteria for the assessment and reasonableness of an attorney's fee award:
"Long tradition and just about a universal one in American practice is for the fixation of lawyers' fees to be determined on the following factors: time and labor required; the difficulty of the questions involved, and the skill required to handle the problems presented; the lawyer's experience, ability and reputation; the amount involved and benefit resulting to the client from the services; the customary fee charged by the Bar for similar services; the contingency or certainty of compensation; the results obtained; and the responsibility involved" ( Matter of Freeman , 34 NY2d 1, 9, 355 NYS2d 336, 311 NE2d 480 [1974]); see also Matter of AG Ship Maintenance v . Lezak , 69 NY2d 1, 511 NYS2d 216, 503 NE2d 681 [1986]).
The imposition of sanctions is appropriate where "plaintiff knew or should have known that her claims lacked merit" ( Mitchell v. Herald Co., 137 AD2d 213, 219, 529 NYS2d 602 [4th Dept 1988]). "Enforcement of the sanctions rule is essential to deter conduct that wastes judicial resources and inhibits the proper administration of the court system" ( 150 Centreville , LLC v. Lin Associates Architects , PC , 39 Misc3d 513, 531, 963 NYS2d 819, 833 [Sup Ct Queens Cty 2013]; quoting Kaygreen Realty Co., LLC v. IG Second Generation Partners , L.P., 78 AD3d 1008, 1009, 913 NYS2d 663 [2d Dept 2010]; see, e.g. Sassower v . Signorelli , 99 AD2d 358, 359, 472 NYS2d 702 [2d Dept 1984]). Indeed, sanctions are mandatory after a court finds frivolous conduct ( Nyitray v. New York Athletic Club in City of New York , 274 AD2d 326, 712 NYS2d 89 [1st Dept 2000]). Mandatory sanctions are necessary to accomplish the legislature's intent in enacting the statute, to prevent the waste of judicial resources, and concomitantly reduce malpractice and other liability insurance costs by discouraging frivolous claims and defenses ( Mitchell v. Herald Co., 137 AD2d 213, 529 NYS2d 602 [4th Dept 1988]). Failure to pay Part 130 costs or sanctions may result in a finding of contempt ( Ferraro v. Ferraro , 272 AD2d 510, 708 NYS2d 438 [2d Dept 2000]). In the case of Valdez v. Cibulski , 248 AD2d 707, 670 NYS2d 328 [2d Dept 1998], the Appellate Division upheld the trial court's determination of frivolous conduct and sua sponte imposition of $10,000.00 sanctions on a defendant's attorney who proceeded to trial on liability with no evidence whatsoever.
We must also remind Counsel that the Rules of Professional Conduct (22 NYCRR Part 1200) also speak to the subject of frivolous behavior in litigation.
Rule 3.1. Non-Meritorious Claims and Contentions
"(a) A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous..
(b) A lawyer's conduct is "frivolous" for purposes of this Rule if:
(1) the lawyer knowingly advances case or defense that is unwarranted under existing law...;
(2) the conduct has no reasonable purpose other than to delay or prolong the resolution of litigation, in violation of Rule 3.2, or serves merely to harass or maliciously injures another; or
(3) the lawyer knowingly asserts material factual statements that are false.)
If it is shown that the frivolous behavior misled the Court and was offered for the purpose of deceiving same, the law provides a stern response. Judiciary Law §487 states in salient part that "...An attorney or Counselor who...[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party...is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action."
Liability for attorney deceit existed at New York common law before the first New York statute governing such behavior was enacted, and thus, is subject to the six year statute of limitation's for actions for which no limitation is specifically provided by law ( Melcher v. Greenberg Traurig , LLP , 23 NY3d 19, 988 NYS2d 101, 11 NE3d 174, reargument denied 23 NY3d 998, 992 NYS2d 763, 16 NE3d 1241 [2014]). Applicable case law interpreting Judiciary Law §487 demonstrates that the additional element "intent to deceive" is the factor elevating it in opprobrium as compared with 22 NYCRR 130-1.1. ( Tenore v. Kantrowitz , Goldhamer & Graifman , P.C., 121 A.D.3d 775, 776, 994 N.Y.S.2d 171 (2nd Dept. 2014); see Lawrence Ripak Co ., Inc. v. Gdanski , 143 AD3d 862, 39 NYS3d 223 [2d Dept 2016]).
Analysis of the Complaint
As noted above, the complaint herein sounds as a "Quiet Title" action. The complaint seeks, inter alia, to cancel the 2006 mortgage executed by Patricia Best as Mortgagor, declaring same unenforceable. It further seeks a declaration that the Deed transferring Title to US Bank National Association and the Deed transferring Title therefrom to Roberts are unenforceable. It is undisputed that Roberts is the bona fide third party purchaser for value. If successful, the instant action will result in unencumbered title in fee simple to Plaintiff Long Island Real Properties, Ltd.. It is uncontroverted that Mr. Thompson was Counsel for both Patricia Best in the 2007 foreclosure case and the instant 2017 action. Therefore, it is not unreasonable for the Court to presume that Mr. Thompson knows or should know any and all facts and circumstances complained of in the instant case as well as its predecessor.
The original blueback attached to that complaint contains the signature of Christopher Thompson, Esq., asserting, pursuant to the Rules of the Chief Administrator of the Courts, Part 130, §130-1.1-a, that, to the best of his knowledge, information and belief, formed after an inquiry that is reasonable under the circumstances, the presentation of that document-and the contentions contained therein-are not frivolous. Paragraph 13 of the complaint states: "On September 19, 2017, the Foreclosure Complaint was dismissed pursuant to CPLR 3216 and the Judgment of Foreclosure and Sale and Notice of Pendency were cancelled." This material factual statement is false. That Order is part of the 2007 case in which Mr. Thompson was Defense Counsel. The Order does not provide that the foreclosure complaint was dismissed for want of prosecution pursuant to CPLR Rule 3216.
Paragraph 16 of the Complaint states:
"That the expiration of the statute of limitations [CPLR §213(4)] prevents US Bank National Association, as Trustee for Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2006-7, Home Equity Pass Through Certificates Series 2006-7 from enforcing the mortgage."
This material factual statement is false. In the case at bar, the foreclosure judgment was granted October 16th, 2014. That Judgment of Foreclosure and Sale was vacated on September 19th, 2017 by Justice Heckman, after the premises were sold at foreclosure auction sale on February 10th, 2017. That Order is in fact, a nullity. Mr. Thompson, having been the attorney in the prior case, as well as Plaintiff's attorney in the case at bar, should be aware of these facts. Paragraph 16 of the Complaint is therefore incorrect. The Court notes that Paragraph 23 of the Complaint states: "A genuine controversy exists between the parties." There is no true controversy before this Court. The only basis for relief is predicated on incorrect assertions of fact and legal argument that so flies in the face of well settled law as to constitute frivolity.
The Answer of Defendant Roberts Premier
Premier and its Counsel are correct in their response to the complaint that the mortgage held by US Bank National Association as trustee ceased to exist upon the sale of the premises by Referee Donna England, Esq.. Premier and its Counsel are also correct that Plaintiff has no interest in the premises. Premier and its Counsel are also correct that the purported 2012 deed of the premises to Plaintiff was subject and subordinate to the mortgage of US BankNational Association as trustee and the foreclosure action. Any "rights" Plaintiff may have attempted to assert were mooted by the foreclosure auction sale.
In his answer, Defendant Premier contends that the motion to vacate presented by Defendant US Bank National Association as trustee, which led to the Justice Heckman's aforementioned September 17th, 2017 Order was based on false and misleading statements that the Premises had been sold at a "short sale."
The record of the prior related foreclosure action, entitled US Bank , National Association as Trustee for Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2006-7 , Home Equity Pass-Through Certificates , Series 2006-7 v. Patricia Best , Aames Funding Corporation D/B/A Aames Home Loan , Beau Meinke , Deana Lau , Debra Pinla under Index Number:24179/2007, contains a July 28th, 2017 notice of motion by Maisha M. Blakeney, Esq., an attorney at Davidson Fink LLP, Counsel to the Plaintiff therein, US Bank National Association ("The 2017 Motion"). The 2017 Motion requested an order discontinuing the action. The Affirmation of Attorney Blakeney attached thereto and made part thereof, states in paragraph 7: "This action is being discontinued because a short sale has been completed." Paragraph 6 of that Affirmation states:
"A judgment of foreclosure and sale was signed by Hon. Ralph T. Gazzillo, A.J.S.C. and was duly entered in the Suffolk County Clerk's Office on October 16th, 2014. In the Judgment, Donna England, Esq. was duly appointed as Referee to sell the mortgage premises at public auction. The sale has not and will not be held and said Referee is hereby relieved of all duties."
Paragraph 8 of that Affirmation requests: "Deponent therefore requests that an order be made herein Vacating the Judgment of Foreclosure and Sale, discontinuing the action and canceling the Notice of Pendency hereof." Based upon the foregoing motion of Plaintiff US Bank, Justice Heckman made his Order on September 9th, 2017.
The true state of affairs, however, was that the Premises had been sold at a foreclosure auction on February 10th, 2017. Defendant Roberts, the bona fide purchaser for value, purchased the Premises and received its Bargain & Sale Deed to the premises, which Deed was filed in the chain of title with the Office of the Suffolk County Clerk on April 13th, 2017. The motion to vacate was an error, granted upon erroneous information. It is most puzzling that Mr. Thompson, being the attorney in the prior action, appears to have been unaware of that error. Knowledge, or lack thereof, is critical since the Quiet Title action (filed October 30th, 2017) can only be predicated on the genuineness of the short sale. Since this has been established to have been a mistake, the only explanation for the filing of Quiet Title action is that it was to exploit this error.
The Court will examine the CPLR Rule 3212 motion (seq. no.:002) of Defendant Roberts, which contains an allegation that Plaintiff has filed a frivolous case. The pre-answer motion of Defendant US Bank National Association as trustee to dismiss (mot. seq. no.:001) pursuant to CPLR Rule 3211, contains several arguments identical to those made by Defendant Roberts in its motion (seq. no.:002). Defendant US Bank National Association as trustee, has not yet answered the complaint pursuant to terms of the March 23rd, 2018 Stipulation of all Parties to the instant case, attached to the e-filed record as Document 14. Where motion sequence numbers 001 and 002 support each other the Court will so note in the interest of brevity. Divergence between the motion sequence numbers (001 and 002) will also be noted.
Motion Paragraph 17, et. seq. (seq. no.:002) speak to Defendant Robert's allegations that the instant case brought by Plaintiff Long Island Real Properties, Ltd. ("LI Real Prop."), its principal officer, Vincent Marzullo, and its Counsel, Christopher Thompson, Esq. is frivolous. The Court will address the allegations made in support of a finding of frivolous conduct in the order presented.
Plaintiff's Misrepresentation of Capacity to Bring Suit
Plaintiff, L.I. Real Prop. in paragraph 2 of its complaint states that it "Is a New York Corporation." Defendant Roberts contends that LI Real Prop. is not a New York Corporation. Defendant US Bank in its motion (seq. no.:001) makes the same allegation, and attaches a record copy of the NYS Department of State, Division of Corporations as Exhibit "A". That entity information states: "Long Island Real Property Holdings, Ltd. - INACTIVE - Dissolution by Proclamation/Annulment of Authority (Aug 31, 2016)." Same New York State record also states: "The information contained in this database is current through April 16th, 2018." The instant Quiet Title action was filed October 30th, 2017.
The Court agrees with this contention. Plaintiff, Mr. Marzullo and Attorney Thompson were aware or should have known that Plaintiff lacked capacity to sue. Lack of standing was pled in the answer of Defendant Roberts and the pre-answer motion (seq. no.:001) of Defendant US Bank. "A plaintiff found to lack 'standing' is not involved in a controversy and the courts have no jurisdiction of the case when such a plaintiff purports to bring it'" (David D. Siegel , NY Prac §136, at 232 [4th ed]). "Capacity" concerns a plaintiff's power to appear and bring an action in court ( Community Board 7 of Borough of Manhattan v. Schaffer , 84 NY2d 148, 155, 615 NYS2d 644, 647, 639 NE2d 1, 4 [1994]). "Legal capacity to sue, or lack thereof, often depends purely on the [plaintiff's] status, such as that of...a business corporation" ( Security Pacific Nat. Bank v. Evans , 31 AD3d 278, 279, 820 NYS2d 2, 3 [1st Dept 2006]). Some situations where the capacity question may rear its head, where the plaintiff is an artificial entity [such as a corporation or an unincorporated association]... ( Community Board 7 at 154).
"The doctrines of capacity to sue and standing are not interchangeable. 'Standing' is an element of the larger question of justiciability, and relates to assurance that the party seeking relief has a sufficiently cognizable stake in the outcome so as to cast the dispute in a form traditionally capable of judicial resolution. 'Capacity,'in contrast, concerns a litigant's power to appear and bring the grievance before the court.'" ( Id. at 154, 155).
The law recognizes that a dissolved corporation has capacity to commence and maintain a lawsuit relating "...to the winding up of their corporate affairs" ( Singer v. Riskin , 137 A.D.3d 999, 1000, 27 N.Y.S.3d 209, 211 [2nd Dept. 2016]). The case at bar, however, does not fall under the purview of this corporate action ( Greater Bright Light Home Care Servs., Inc. v. Jeffries-El , 151 A.D.3d 818, 821, 58 N.Y.S.3d 68, 73 [2nd Dept. 2017]).
The issue of capacity was raised by Defendant Roberts in its answer, and by Defendant US Bank in its pre-answer motion to dismiss (mot. seq. no.:001). The Plaintiff lacked capacity to sue as required by law at the time it filed the instant case. The request of Defendant US Bank in its pre-answer notion (seq. no.:001) that the case be dismissed as a matter of law pursuant to CPLR Rule 3211(a) (3), is granted. In short, Plaintiff has filed a meritless action, misrepresenting its status and capacity to sue. Mr. Marzullo, as principal of the Plaintiff, is chargeable with the knowledge that his Corporation lacked capacity to sue. Mr. Thompson, as Counsel, must understand that his role in the assertion of capacity must be scrutinized under the purview of 22 NYCRR §130-1.1(a).
Defendant Roberts in its motion (seq. no.:002) argues that Plaintiff, Mr. Marzullo and Attorney Thompson were aware from the issuance of the September 19th, 2017 Order vacating the judgment of foreclosure and sale post-foreclosure auction on the erroneous basis that a "short sale" of the premises had occurred, that same Order was, as Defendant Roberts contends, "a complete mistake." Defendant Roberts correctly notes that Mr. Thompson had been Counsel for the Defendant/Mortgagor Patricia Best in the 2007 foreclosure case. The Court notes that the erroneous September 19th, 2017 Order was made in that 2007 case. Defendant Roberts further states that Mr. Thompson is the attorney for Plaintiff in the case at bar. It is uncontroverted that Plaintiff has filed the instant case in an attempt to Quiet Title and revive his October 24th, 2012 Deed, thereby gaining fee simple absolute to the subject premises. That 2012 Deed is from former Mortgagor Patricia Best to Plaintiff, drawn by and returnable to Attorney Thompson. Mr. Marzullo is Plaintiff's President. That Deed was executed during the pendency of the 2007 foreclosure action. That Deed records no consideration in exchange for a Bargain & Sale Deed. The Court takes judicial notice that same 2012 Deed is not a quit claim, rather it is a Bargain & Sale Deed. It is a long standing legal principle that one cannot convey greater title than that which one possesses (see Jackson ex dem . McCrea v. Mancius , 2 Wend. 357 [Supreme Court of Judicature of New York, January 1, 1829]). To support a Deed of Bargain & Sale, a pecuniary consideration is necessary...( Jackson ex dem. Howell v. Delancey , 4 Cow. 427 [Supreme Court of Judicature of New York, May 1, 1825]).
The October 24th, 2012 Deed complained of in the instant action, is itself invalid as it transfers by Bargain & Sale without the necessary consideration. Instead, it attempted to convey the realty with no transfer tax and without consideration. It is very troubling to the Court that, in addition to seeking to capitalize on the error involving the mistakenly vacated judgment of foreclosure, the Plaintiff moved ahead in an attempt to obtain the locus in quo through an improper Deed drawn by Attorney Thompson during the preceding 2007 mortgage foreclosure action. That Deed establishes that Plaintiff LI Real Prop. had knowledge of the 2007 case. Since the documentary proof before the Court shows that Mr. Thompson, in having that Deed marked returnable to him and signed by his then client, Mortgagor Patricia Best, it clearly demonstrates his personal knowledge of the facts and circumstances of both that 2007 case and the case at bar.
The foregoing uncontroverted facts indicate that Mr. Thompson may have engaged in frivolous conduct in the filing and prosecution of the instant case, which we find without merit in law and which cannot be supported by a reasonable argument for an extension, modification or reversal of existing law. The instant case asserts material factual statements that are false which, if they had been accepted by the Court, would have deprived Defendant Roberts of its rightful Title to the subject premises.
We now turn to the Defendants' motions for summary judgment and dismissal.
It has been established that a motion for summary judgment is an extreme request for relief. "Summary judgment is a drastic remedy and should not be granted where there is any doubt of a triable issue" ( Moskowitz v. Garlock , 23 AD2d 943, 259 NYS2d 1003 [3d Dept 1965]). Summary judgment is to be granted only when the court determines there is no clear triable issue of fact ( Benincasa v. Garrubbo , 141 AD2d 636, 529 NYS2d 797 [2d Dept 1988]). The granting of a summary judgment motion is "the procedural equivalent of a trial" ( Crowley's Milk Co. v. Klein , 24 AD2d 920, 264 NYS2d 680 [3d Dept 1965]). "...a party does not carry its burden in moving forward for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merits of its claim or defense" ( Red River Living Center , LLC v. ADL Data Systems , Inc., 98 AD3d 724, 725-26, 950 NYS2d 179, 181 [2d Dept 2012]). When a party seeks summary judgment it must affirmatively establish its entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Voss v . Netherlands Insurance Co., 22 NY3d 728, 98 NYS2d 448. 8 NE3d 828 [2014]; Vega v. Restani Construction Corp., 18 NY3d 499, 942 NYS2d 13, 965 NE2d 240 [2012]; Yun Tung Chow v. Reckitt & Coleman , Inc., 17 NY3d 29, 926 NYS2d 377, 950 NE2d 113 [2011]). Once a plaintiff has met its burden sufficiently for the court to warrant directing judgment as a matter of law in its favor, summary judgment will only be denied if the defendant shows an issue of fact sufficient to require a trial. Opposing papers must "...raise genuine factual issues" ( JP Morgan Chase Bank , N.A. v. Galt Group , Inc., 84 AD3d 1028, 1029, 923 NYS2d 643 [2d Dept 2011]; quoting Badische Bank v . Ronel Systems , Inc., 36 AD2d 763, 321 NYS2d 320 [2d Dept 1971]; Leumi Fin. Corp. v. Rickter , 24 AD2d 855, 264 NYS2d 707, aff'd. 17 NY2d 166, 269 NYS2d 409, 216 NE2d 579 [1st Dept 1965]; Stagg Tool & Die Corp. v. Weisman , 12 AD2d 99, 102, 208 NYS2d 585, 588 [1s Dept 1960]).
Defendant Roberts in its motion (seq. no.:002) has demonstrated that the Plaintiff's claim was based upon an error in an earlier Order of the Court which in turn acted upon a factual misrepresentation that the case had been resolved via a short sale. The Plaintiff's Deed has also been found to be an improper conveyance. Finally, the Plaintiff lacks capacity to bring or maintain this action. There are no triable issues of fact and Defendant Roberts will be awarded summary judgement in its favor and against the Plaintiff (CPLR 3212). Accordingly, the Plaintiff's complaint shall be dismissed.
Considering the Defendant's motion (seq. no.:001) for dismissal, the Court has applied the criteria of (1) accepting the facts alleged in the complaint as true; (2) accorded the Plaintiff every possible favorable inference; and (3) attempted to ascertain if the factual allegations fit within any cognizable legal theory ( Leon v. Martinez , 84 N.Y.2d 83, 638 N.E.2d 511, 513 (1994); citing Morone v . Morone , 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). All of these factors have been established in favor of the defense.
This constrains the Court to grant the motion (seq. no.:001) of Defendant US Bank that the instant action be dismissed for failure to state a cause of action (CPLR Rule 3211[a] [7]).
The sole issue remaining is whether the meritless claims of the Plaintiff warrant a tangible manifestation of the Court's disapproval (22 NYCRR Sec.130-1.1). It would be improvident to make this determination without giving Plaintiff, Long Island Real Property Holdings, Ltd., its principal Mr. Marzullo and Counsel, Mr. Thompson the opportunity to be heard on this question
Accordingly, it is
ORDERED , that the motion (seq. no.:001) of Defendant US Bank National Association ("US Bank") requesting an order dismissing the instant action pursuant to CPLR Rule 321(a)(1), (5), (7), and vacatur of the September 19th, 2017 Order is granted in its entirety; and it is further
ORDERED , that the motion (seq. no.:002) of Defendant Roberts Premier Development LLC ("Roberts, Roberts Premier") requesting an order of summary judgment pursuant to CPLR Rule 3212; dismissing as a matter of law, Plaintiff's complaint and notice of pendency; declaring Roberts Premier Development LLP the fee owner of 25 Auborn Avenue, Shirley, New York 11967, D: 0200, S: 746.00, B: 02.00, L: 025.000; severing the counterclaims against Plaintiff and the cross-claims against US Bank National Association pursuant to CPLR §603; determining Plaintiff's complaint to be frivolous pursuant to 22 NYCRR §130-1.1; and vacatur of the September 19th, 2017 Order pursuant to CPLR Rule 5015(a) (3) is also granted. And it is further
ORDERED that the Plaintiff's complaint (index number: 621122/2017) is dismissed in its entirety as a matter of law; and it is further
ORDERED that the May 19th, 2012 Bargain and Sale Deed to 205 Auborn Avenue, Shirley, NY 11967, known and designated as D: 0200 S: 746.00 B: 02.00 L: 025.000 from Patricia Best to Long Island Real Property Holdings, Ltd., recorded October 24th, 2012, in Liber D00012709 Page 380 be immediately struck from the chain of title to that premises and the Suffolk County Clerk is directed to record same; and it is further
ORDERED that the Parties are directed to appear before the New York State Supreme Court, One Court Street, Riverhead, NY, Part XL, on Wednesday, May 29th , 2019 at 11:30 am. for the purposes of a hearing to determine if Plaintiff Long Island Real Properties, Ltd., its principal Vincent Marzullo and its attorney, Christopher Thompson, Esq. have engaged in frivolous conduct and should be sanctioned pursuant to 22 NYCRR §130-1.1; and it is further
ORDERED that, at said hearing, Defendants US Bank National Association as trustee and Roberts Premier Development, LLC are requested to prepare detailed statements of Attorney's fees, costs, and disbursements incurred by said Defendants associated with their defense of the instant Quiet Title action.
This Memorandum also constitutes the Order of the Court DATED: APRIL 2nd , 2019
RIVERHEAD, NY
/s/ _________
HON. JAMES HUDSON
Acting Justice of the Supreme Court * A Great number of unskilled practitioners ruins a Court (2 Inst. 219).