Opinion
518321/2019
09-29-2020
Rena PACHTER and Carmi Lindenberg, Plaintiffs, v. 3063 BRIGHTON 8 PROPERTIES LLC, Defendant.
Attorney for Plaintiffs, Zachary David Kuperman, Esq., Goldberg Weprin Finkel Goldstein LLP, 1501 Broadway, New York, New York 10036 Attorney for Defendant 3063 Brighton 8 Properties LLC, Nativ Winiarsky, Esq., Kucker Marino Winiarsky & Bittens, LLP, 747 Third Avenue, New York, New York 10017
Attorney for Plaintiffs, Zachary David Kuperman, Esq., Goldberg Weprin Finkel Goldstein LLP, 1501 Broadway, New York, New York 10036
Attorney for Defendant 3063 Brighton 8 Properties LLC, Nativ Winiarsky, Esq., Kucker Marino Winiarsky & Bittens, LLP, 747 Third Avenue, New York, New York 10017
Pamela L. Fisher, J.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion/Order to Show Cause and
Affidavits (Affirmations) and Memoranda of Law Annexed 1-3, 4-6
Opposing Affidavits (Affirmations) and Memoranda of Law 5-6, 7-8
Reply Affidavits (Affirmations) and Memoranda of Law 7-8, 9
Upon the foregoing papers, plaintiffs move in motion sequence 3, for an order, pursuant to CPLR § 3212, granting them summary judgment on their amended complaint. Plaintiffs also move, pursuant to CPLR §§ 3211(a)(1), 3211(a)(7) and 3211(b), for an order dismissing defendant's counterclaim and affirmative defenses asserted in their second amended answer with prejudice. As an alternative to dismissal, plaintiffs move to sever defendant's counterclaim.
Defendant moves in motion sequence 4 (cross motion), for an order, granting defendant leave to serve an amended answer pursuant to CPLR § 3025(b). Upon leave being granted, pursuant to RPAPL § 993(3)(b), defendant moves for an order finding that the real property that is the subject of this action for partition (2169 Coney Island Avenue, Brooklyn, NY (Block 6817, Lot 68)) (hereinafter "property") constitutes "heirs property." Defendant also moves, pursuant to RPAPL § 993(7)(a), for an order notifying all parties of plaintiffs' one-third interest in the property, and of defendant's right of first refusal to plaintiffs' partition by sale. Defendant moves, pursuant to RPAPL § 993(5), for an order notifying the parties of the time and date of a settlement conference, the purpose of the conference, and the requirements of RPAPL § 993.
Background
Plaintiffs commenced this action to partition real property located at 2169 Coney Island Avenue, Brooklyn, NY on August 19, 2019 (Summons & Complaint, NYSCEF No.1). Ms. Judith Lindenberg, owner of one-third of the property passed away on May 8, 2018 (Amended Complaint ¶ 8, annexed as exhibit A to plaintiffs' motion papers). Plaintiffs are Ms. Lindenberg's brother and sister, and defendant is a part-owner of the property (Id. at ¶ 13, 27). The original complaint indicates that plaintiffs inherited decedent's interest in the property pursuant to her last will and testament (Complaint ¶ 12). On November 13, 2019, the Queens County Surrogate's Court revoked Judith Lindenberg's will (Queens County Surrogate's Court Order dated November 13, 2019, Exhibit I to plaintiffs' motion papers). On January 22, 2020, the Court granted plaintiffs' motion for leave to amend their complaint pursuant to CPLR § 3025(b) to delete any reference to a will, indicating that the laws of intestate succession govern whether the plaintiffs have any interest in the property (NYSCEF #28). The amended complaint states that upon her death, Ms. Lindenberg's interest in the property "vested by operation of law upon plaintiffs equally" (Amended Complaint ¶ 20; see also EPTL § 4-1.1(a)(5) ). The amended complaint contains three causes of action: (1) for a declaratory judgment that the plaintiffs are "jointly 1/3 owners of the property as tenants-in-common," (2) for partition and sale of the property, and (3) for an equitable accounting (Amended Complaint at 4-5). Defendant filed an answer claiming that it lacked knowledge as to whether the plaintiffs hold an interest in the property, and defendant also included affirmative defenses and a counterclaim for prima facie tort alleging that plaintiffs knew that the former executor was attempting to probate a fraudulent will (Answer to Amended Complaint with Counterclaim ¶¶ 8, 59, annexed as exhibit F to plaintiffs' motion papers). In its proposed amended answer, defendant has removed most of its affirmative defenses, but has added affirmative defenses for unclean hands, for contribution, set-off, and recoupment, and that the relief is barred by RPAPL § 993 (Proposed Amended Answer to Amended Complaint with Counterclaim ¶¶ 22-24, annexed as exhibit A to defendant's motion papers). Defendant's proposed amended answer also includes the counterclaim from the previous answer but does not label it as a prima facie tort (Id. at ¶¶ 25-55).
Parties' Contentions
In support of their motion for summary judgment, plaintiffs contend that there are no material issues of fact (Plaintiffs' Memorandum of Law in Support at 4). Plaintiffs point out that David Winiarski, the sole member of 3063 Brighton 8 Properties LLC admitted Ms. Lindenberg's ownership interest in the property in a sworn statement in the Surrogate's Court action, and that this statement is binding on the LLC (Id. at 6). Plaintiffs maintain that the property passed by operation of law to them, since they were decedent's sole heirs, and that a physical partition of the property would prejudice their rights, because the property has been improved by a mixed-use structure (Id. at 6-7). In support of their motion to dismiss the counterclaim and affirmative defenses, plaintiffs allege that defendant's counterclaim for prima facie tort is "categorically precluded," since it pleads injury from legal proceedings, and the counterclaim is also deficient, since defendants have failed to allege all of the required elements (Id. at 12, 13-16). Plaintiffs maintain that defendant's affirmative defenses lack merit (Id. at 18).
In opposition to plaintiffs' motion for summary judgment, and in support of its cross motion to amend defendant's answer, defendant alleges that plaintiffs cannot demonstrate any prejudice that would result from its proposed amendments to plead that the action is subject to RPAPL § 993, and to add the affirmative defense of unclean hands (Defendant's Memorandum of Law in Opposition at 8-9). Defendant contends that RPAPL § 993 is clearly applicable to this partition action, as the property "is held (i) by tenants in common with no agreement binding all co-tenants in the event of partition, (ii) by at least one co-tenant who acquired title from a relative, and (iii) 20% or more of the interests are held by co-tenants who are relatives" (Id. at 13). Defendant maintains that if RPAPL § 993 is inapplicable, plaintiffs' unclean hands "bar the equitable remedy of partition" (Id. at 16). Defendant also argues that plaintiffs' complaint should be dismissed since its verification was defective (Id. at 19).
In reply to defendant's opposition to plaintiffs' motion for summary judgment, and in opposition to defendant's motion to amend its answer, plaintiffs reiterate that summary judgment should be granted, as there are no material issues of fact (Plaintiffs' Reply Memorandum of Law at 2). Plaintiffs maintain that the counterclaim for prima facie tort should be dismissed, as defendant has failed to oppose this portion of the motion (Id. at 2-3). Regarding defendant's motion to amend to add the affirmative defense of unclean hands, and to apply RPAPL § 993 to this action, plaintiffs argue that defendant should not be allowed to add an affirmative defense for unclean hands since the allegations in their answer concern non-parties and are based on Judith Lindenberg's will (Id. at 6, 8). Plaintiffs claim that RPAPL § 993 is inapplicable to this action, because it was enacted on December 6, 2019, after this action was commenced (Id. at 3). Plaintiffs dispute that the complaint was not properly verified (Id. at 10).
In reply, defendant maintains that RPAPL § 993 applies to this action, stating that the action was commenced by the filing of the amended complaint on January 22, 2020, after the effective date of the statute (Defendant's Affirmation in Reply ¶¶ 4, 5). Defendant indicates that RPAPL § 993 should be applied retroactively, because the statute is remedial in nature (Id. at ¶ 10).
Law
Summary Judgment
A party moving for summary judgment bears the burden of establishing a prima facie showing of entitlement to judgment as a matter of law and must tender sufficient evidence in admissible form to demonstrate the absence of any material factual issues (see CPLR 3212 [b] ; Alvarez v. Prospect Hospital , 68 NY2d 320, 324 [1986] ; Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). Failure to adhere to this standard results in a denial of the motion (see Alvarez , 68 NY2d at 324 ; Winegrad v. New York University Medical Center , 64 NY2d 851, 853 [1985] ). Once this showing has been made, the burden shifts to the party opposing the motion to produce evidence in admissible form sufficient to establish a material factual issue requiring a trial (see CPLR 3212 ; Alvarez , 68 NY2d at 324 ; Zuckerman , 49 NY2d at 562 ). Courts must view the totality of evidence presented in the light most favorable to opposing parties and afford them the benefit of every favorable inference (see Fortune v. Raritan Bldg. Servs. Corp. , 175 AD3d 469, 470 [2d Dept 2019] ; Emigrant Bank v. Drimmer , 171 AD3d 1132, 1134 [2d Dept 2019] ).
Partition
A party who jointly owns property with another may "seek physical partition of the property or partition and sale when he or she no longer wishes to jointly use or own the property" ( RPAPL § 901(1) ; Manganiello v. Lipman , 74 AD3d 667, 668 [1st Dept. 2010] ). A court has discretion when determining whether partition is an appropriate remedy, and must consider the equities between the parties, as well as whether a physical partition would cause prejudice (Id. ; Lauriello v. Gallotta , 70 AD3d 1009, 1010 [2d. Dept. 2010] ). To allege a cause of action for partition, a party must plead: "(1) that the parties own the building as tenants in common and (2) that physical partition of the property would come at great prejudice to the owners" ( MurrayRayeDebbie, LLC v. Rosenphil LLC , 172 AD3d 615, 615 [1st. Dept. 2019] ). An accounting is "a necessary incident of almost every partition action and is had as a matter of right before the entry of either the interlocutory or final judgment" ( Giglio v. Giglio , 46 AD2d 921, 921 [2d. Dept. 1974] ; see also RPAPL § 945, indicating that the "court may adjust the rights of a party as against any other party by reason of the receipt by the latter of more than his proper proportion of the rents or profits of a share").
Real Property Interests of Decedent
When a person who holds an interest in real property dies intestate, his interest in the real property automatically vests by operation of law upon his heirs as tenants in common ( Kraker v. Roll , 100 AD2d 424, 429 [2d. Dept. 1984] ).
Intestate Succession
Pursuant to New York Estates, Powers, and Trusts Law § 4-1.1, if a decedent dies intestate, his property is distributed to his spouse and issue ( EPTL § 4-1.1(a)(1) ). If the decedent has no issue, all of his property is distributed to his spouse ( EPTL § 4-1.1(a)(2) ). If the decedent has no spouse, then his issue takes all of his property ( EPTL § 4-1.1(a)(3) ). If the decedent's parents are alive, but he has no spouse, nor issue, then the decedent's parents inherit all of his property ( EPTL § 4-1.1(a)(4) ). If decedent's parents predecease him, and he has no spouse, nor issue, then the property is distributed to "the issue of decedent's parents by representation" ( EPTL § 4-1.1(a)(5) ).
Motion to Dismiss
A court may dismiss a counterclaim, if it "may not properly be interposed in the action" ( CPLR § 3211(a)(6) ). Pursuant to CPLR § 3211(b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" ( CPLR § 3211(b) ). On a motion to dismiss, pursuant to CPLR § 3211(a)(7) for failure to state a cause of action, the court must "liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" ( Minovici, v. Belkin BV , 109 AD3d 520, 521 [2d. Dept 2013] ). Pursuant to CPLR § 3211(a)(1), a motion to dismiss may be granted if the "documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of New York , 98 NY2d 314, 326 [2002] ).
Leave to Amend Complaint
CPLR § 3025(b) provides that "[a] party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions, or occurrences, at any time by leave of court" ( CPLR § 3025(b) ). "In the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit" ( Pansini Stone Setting, Inc. v. Crow & Sutton Assoc., Inc. , 46 AD3d 784, 786 [2d. Dept. 2007] ).
Unclean Hands
"[U]nclean hands is a defense to the equitable remedy of partition" ( Kopsidas v. Krokos , 294 AD2d 406, 407 [2d. Dept. 2002] ). The defense applies when "the complaining party shows that the offending party is guilty of immoral, unconscionable conduct and even then only when the conduct relied on is directly related to the subject matter in litigation and the party seeking to invoke the doctrine was injured by such conduct" (Id. ).
Uniform Partition of Heirs Property Act
The Uniform Partition of Heirs Property Act, effective December 6, 2019, defines "heirs property" as "real property held in tenancy in common which satisfies all of the following requirements as of the filing of a partition action: (i) there is no agreement in a record binding all of the co-tenants which governs the partition of the property; (ii) any of the co-tenants acquired title from a relative, whether living or deceased; and (iii) any of the following applies: (A) twenty percent or more of the interests are held by co-tenants who are relatives; (B) twenty percent or more of the interests are held by an individual who acquired title from a relative, whether living or deceased; (C) twenty percent or more of the co-tenants are relatives of each-other; or (D) any co-tenant who acquired title from a relative resides in the property" ( RPAPL § 993(2)(e) ). The text of the statute indicates that it applies to "partition actions filed on or after the effective date of this section" ( RPAPL § 993(3)(a) ). The Uniform Partition of Heirs Property Act requires that the co-tenants who have not consented to the partition be given notice of "the owners of interests that have sought partition by sale, the percentage interests such owners allege to hold and of the right of the remaining co-tenants to avert partition by sale by exercising the right to purchase all of the interests of the co-tenants who requested partition by sale" ( RPAPL § 993(7)(b) ). The statute also requires a settlement conference to take place, "for the purpose of holding settlement discussions, pertaining to the relative rights and obligations of the parties with respect to the subject property" ( RPAPL § 993(5)(a) ).
Commencement of an Action/ Effect of Amendment to Complaint
CPLR § 304(a) provides that "[a]n action is commenced by filing a summons and complaint or summons with notice" ( CPLR § 304(a) ). Pursuant to CPLR § 203(c), when an action is commenced by filing, "a claim asserted in that complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced" ( CPLR § 203(c) ). When a pleading is amended, the claims in the amended pleading are interposed when the claims in the original pleading were interposed, "unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading" ( CPLR § 203(f) ).
Verification of Pleadings
Verification of a complaint is not mandatory (See CPLR § 3020 ; Joseph Durst Corp. v. Leader , 51 Misc 2d 72, 73 [Sup Ct, NY County 1966] ).
Analysis
Plaintiffs' Motion for Summary Judgment
To evaluate whether plaintiffs are entitled to summary judgment, the court must determine whether there are any material issues of fact with respect to the elements of a partition cause of action, as well as whether defendant's current and proposed affirmative defenses and counterclaim have merit. The first issue is whether plaintiffs have sufficiently established their entitlement to partition. In their amended complaint, plaintiffs have alleged the first element of a partition cause of action, that plaintiffs and the defendant are tenants in common (Amended Complaint ¶ 30). There is no issue of fact with respect to plaintiffs' ownership interest in the property. Defendant's principal, David Winiarski, the sole member of the LLC, admitted the decedent's ownership interest in the property in the Surrogate's Court action, and this admission is binding on the LLC (Amended and Restated Answers and Objections to Petitioner's First Interrogatories at 10, Exhibit B to plaintiffs' motion papers; New Greenwich Litig. Trustee, LLC v. Citco Fund Servs. (Europe) B.V. , 145 AD3d 16, 25 [1st Dept. 2016] ; Morgenthow & Latham v. Bank of NY Co. , 305 AD2d 74, 79-80 [1st Dept. 2003] ). In this action, the defendant has attested to the truth of Mr. Winiarski's prior admissions (Notice to Admit at 2, Exhibit C to plaintiffs' motion papers; Response to Plaintiff's Notice to Admit at 2, Exhibit D to defendant's motion papers). Since the Surrogate's Court invalidated the will, the laws of intestate succession govern who owns decedent's property upon her death (Queens County Surrogate's Court Order dated November 13, 2019). The affidavit of heirship from plaintiff Rena Pachter's husband, submitted by plaintiffs in support of their motion, affirms that plaintiffs are decedent's sole heirs, since decedent was never married, had no children, and her parents predeceased her (Affidavit of Heirship ¶¶ 4-8, Exhibit E to plaintiffs' motion papers). Decedent's real property passed to her siblings automatically upon her death ( EPTL § 4-1.1(a)(5) ; Kraker , 100 AD2d at 429 ). Although plaintiffs have not provided death certificates for their parents, the defendant does not dispute that plaintiffs are decedent's sole heirs and that they hold a one-third interest in the property (Defendant's Affirmation in Opposition ¶ 12). Therefore, plaintiffs have sufficiently established the first element of their partition cause of action, as well as their entitlement to judgment as a matter of law with respect to their first cause of action for a declaratory judgment that plaintiffs are "jointly 1/3 owners of the Property as tenants-in common" (Amended Complaint ¶ 36).
Plaintiffs have also sufficiently established the second element of their partition cause of action, since they have presented evidence that the property has been improved by a mixed-use structure (Certificate of Occupancy, Exhibit G to plaintiffs' motion papers, indicating that there is an apartment on the premises, as well as a daycare center), and this type of property cannot be divided without prejudicing the parties ( Hitech Homes , LLC v. Burke , 159 AD3d 489, 489 [1st Dept. 2018] ; Estate of Steingart v. Hoffman , 33 AD3d 465, 466 [1st Dept. 2006] ; Ferguson v. McLoughlin , 184 AD2d 294, 295 [1st Dept. 1992] ). Defendant, in opposition has not contested these facts. Therefore, unless defendant's affirmative defenses and counterclaim have merit, plaintiffs are entitled to summary judgment on their second cause of action for partition and sale. If the court grants summary judgment on plaintiffs' cause of action for partition, as a matter of law, the court must grant summary judgment on plaintiffs' third cause of action for an equitable accounting ( Giglio , 46 AD2d at 921 ) (holding that an accounting is a "necessary incident of almost every partition action")).
Dismissal of Counterclaim and Affirmative Defenses
In support of their motion for summary judgment, plaintiffs maintain that defendant's affirmative defenses and counterclaim for prima facie tort lack merit (Plaintiffs' Memorandum of Law in Support at 11-12, 18). Defendant in its cross motion for leave to amend its answer has submitted a proposed amended answer that has removed most of its affirmative defenses, as well as any reference to "prima facie tort" in its counterclaim (Proposed Amended Answer to Amended Complaint with Counterclaim ¶¶ 16-25). The sole remaining affirmative defenses include that plaintiffs' claims are barred by documentary evidence, defendant has provided plaintiff with the requested accounting, the verification in plaintiff's complaint is defective, plaintiffs' cause of action is barred by the doctrine of unclean hands (proposed amendment to answer), defendant has a right to reimbursement among co-tenants for money it spent on improving and maintaining the premises (proposed amendment), and RPAPL § 993 is applicable to plaintiffs' cause of action (proposed amendment) (Id. at ¶¶ 16-24). Excluding its affirmative defense for improper verification, defendant has failed to oppose plaintiffs' motion to dismiss the affirmative defenses in its current answer, so the affirmative defenses for documentary evidence and accounting are dismissed with prejudice (See Kronick v. L.P. Thebault Co. , 70 AD3d 648, 649 [2d. Dept. 2010] (indicating that plaintiff abandoned claim by "failing to oppose the branch of the defendant's motion which was to dismiss it"); Genovese v. Gambino , 309 AD2d 832, 833 [2d. Dept. 2003] ). Defendant has also failed to oppose the dismissal of its counterclaim for prima facie tort, but defendant, in support of its cross motion to amend its answer states that the counterclaim establishes plaintiffs' unclean hands (Defendant's Memorandum of Law in Opposition at 17). Therefore, whether the counterclaim should be dismissed will be discussed in conjunction with defendant's motion for leave to amend its answer.
Defendant's Cross Motion for Leave to Serve an Amended Answer
Defendant's cross motion for leave to serve an amended answer is denied, as the three proposed affirmative defenses (unclean hands, recoupment of costs, and RPAPL § 993 ) lack merit, will be addressed during the accounting, or are clearly inapplicable to plaintiffs' cause of action. Defendant's counterclaim does not establish that plaintiffs had "unclean hands." The equitable defense of unclean hands requires the complaining party to plead that (1) "the offending party is guilty of immoral, unconscionable conduct," (2) that "the conduct relied on is directly related to the subject matter in litigation," and (3) the complaining party was injured by the conduct ( Kopsidas , 294 AD2d at 407 ). In its counterclaim, defendant alleges that the will offered to the Surrogate's Court for probate was fraudulent, in that the notary backdated the will, and the decedent's nephew was listed as her executor, instead of her brother, who was named executor in the law firm's copy of the will (Proposed Amended Complaint ¶¶ 29, 35, 39). Defendant further alleges plaintiffs knew that the will that was admitted into probate was fraudulent, and defendant is claiming that it sustained damages in the form of legal fees from defending this and other actions based on the will, and that the notice of pendency filed on the property has disrupted defendant's business (Id. at ¶¶ 42, 45, 49, 51, 52). Although defendant may be able to establish the first element of the unclean hands defense, since defendant is claiming that the plaintiffs knew that the will was fraudulent, defendant has failed to plead the second and third elements. The conduct of admitting a fraudulent will into probate has no bearing on this partition action, since the will merely changed the executor, and the beneficiaries under the will are the same as decedent's intestate heirs. Therefore, the plaintiffs would have a one-third interest in the property, regardless of whether the will was valid. Defendant has also failed to establish that it suffered an injury, since the executor of the will has no effect on defendant since it was not a beneficiary under the will, and a notice of pendency was filed due to the partition action, based on plaintiffs' one-third interest in the property, which is unrelated to the validity of the will. Therefore, since the unclean hands defense has no merit in this case, the court will not grant defendant leave to amend its answer to plead it. Also, taking all the allegations in the counterclaim as true, defendant has failed to plead a cause of action for unclean hands, and therefore, the counterclaim is dismissed.
The court also declines to allow the defendant leave to amend its answer to assert an affirmative defense based on recoupment of costs associated with improving, repairing, and maintaining the premises, since these costs will be taken into account during the accounting (See RPAPL § 945 ; Manganiello , 74 AD3d at 669 ) (indicating that an accounting is necessary since defendant claims that she "has solely contributed to [the property's] maintenance and upkeep).
Defendant's motion for leave to amend its answer, to add an affirmative defense claiming that the Uniform Partition of Heirs Property Act ( RPAPL § 993 ) is applicable to plaintiffs' partition cause of action, is denied. The statute clearly states that it is effective as of December 6, 2019, and it "applies to partition actions filed on or after [December 6, 2019]" ( RPAPL § 993(3)(a) ). Defendant claims that the action was commenced when the amended complaint was filed on January 22, 2020 (Defendant's Affirmation in Reply ¶¶ 4, 5). However, plaintiff disagrees, indicating that the action was commenced on August 19, 2019, when the original complaint was filed (Plaintiffs' Reply Memorandum of Law at 3). CPLR § 304(a) states that an action is commenced by the filing of a summons and complaint ( CPLR § 304(a) ). CPLR § 203(f) indicates that claims in an amended complaint are "interposed" when the original complaint was filed, as long as the original complaint "give[s] notice of the transactions, occurrences, or series of transactions or occurrences to be proved pursuant to the amended [complaint]" ( CPLR § 203(f) ). The only difference between the original and amended complaint concerns the status of the plaintiffs as beneficiaries under the will in the original complaint, as opposed to intestate heirs in the amended complaint. The amendment is not material, since the amendment has no effect on the plaintiffs' right to partition the property. Therefore, the amended complaint has no effect on the date the action was commenced (See also Valladares v. Valladares , 55 NY2d 388, 391 [1982], indicating that the action was commenced as of the service of the original complaint). Since the action was commenced on August 19, 2019, the Uniform Partition of Heirs Property Act does not apply to this action.
The cases defendant cites in support of his contention that the action was commenced by the filing of the amended complaint are distinguishable. Perez v. Paramount Communications , 92 NY2d 749 [1999], concerned whether the filing of a motion for leave to amend a complaint to add a defendant tolled the statute of limitations. This case does not involve adding additional parties. Schlapa v. Consolidated Edison Co. of NY, Inc. , 174 AD3d 934 [2d. Dept. 2019], also involves the issue of adding additional defendants, indicating that the action was commenced against the additional defendants when the plaintiff "filed the supplemental summons and amended complaint with the Queens County Clerk's Office" ( Id. at 935 ). Long v. Sowande , 27 AD3d 247 [1st Dept. 2006], can also be differentiated, as the issue in that case was whether cross claims by newly added defendants were time-barred. Therefore, this action was commenced by the filing of the initial complaint on August 19, 2019. Although defendant argues that the statute should be applied retroactively, when a statute clearly states that it applies to actions commenced after its effective date, retroactive application is precluded ( Golston-Green v. City of New York , 184 AD3d 24, 24 n.1 [2d. Dept. 2020] ).
Improper Verification of Complaint
Defendant's affirmative defense that plaintiffs' complaint was improperly verified by an attorney should be dismissed with prejudice. Defendant, in its opposition papers, claims that plaintiffs' complaint was improperly verified by an attorney, pursuant to CPLR § 3020(d), because plaintiff Rena Pachter resides in New York County, the county in which plaintiffs' attorney is located (Defendant's Memorandum of Law in Opposition at 18-19). Plaintiffs, in opposition, dispute that plaintiff Rena Pachter resides in New York County, but maintain that even if the complaint were improperly verified, dismissal of this action would be inappropriate, since verification of a complaint is optional (Plaintiffs' Memorandum of Law in Reply at 10; CPLR § 3020 ; Joseph Durst Corp. , 51 Misc 2d at 73 (stating that verification of a complaint is optional); Shawn M.M. v. Jasmine L.L. , 180 AD3d 1186, 1187 [3d. Dept. 2020] (holding that dismissal was not necessary where a petition was not verified, since verification was optional)). Therefore, this affirmative defense should be dismissed with prejudice, since it does not preclude summary judgment.
Conclusion
Plaintiffs' motion for summary judgment is granted. Plaintiffs' motion to dismiss defendant's counterclaim and affirmative defenses with prejudice is also granted. Defendant's cross motion is denied in its entirety. This matter is referred to a referee to conduct an accounting and sale of the property.
This constitutes the decision and order of the Court.