Opinion
15813/06.
Decided November 22, 2006.
Ronald Paul Hart, Esq., NY NY, for Plaintiff.
John S. James, Esq., Brooklyn NY, for Defendant.
In this real estate dispute regarding the ownership of 363 Monroe Street, Brooklyn, New York and plaintiff's status relative to this property, plaintiff moves by order to show cause for three branches of relief. First, plaintiff moves to stay or vacate the thirty-day notice of termination dated April 27, 2006, that defendant Hines served on plaintiff by certified mail, postmarked April 29, 2006, for failure to comply with statutory notice requirements for terminating a tenancy, pending the outcome of plaintiff's application for a preliminary injunction, pursuant to CPLR § 6301. Second, plaintiff moves for a declaratory judgment, pursuant to CPLR § 3001, that the April 27, 2006 thirty-day notice of termination is a nullity, because there is no lease agreement or landlord/tenant relationship between the parties and that plaintiff owns the premises. Third, plaintiff requests, pursuant to CPLR § 6313, that the Court issue a temporary restraining order (TRO) to stay all actions and proceedings on behalf of defendants Myers and Hines, with respect to rent collection and transfer of the subject property, pending the outcome of plaintiff's underlying action to recover her interest in the subject property by rescission of deeds dated December 28, 1999 and March 31, 2006.
The Court notes that all exhibits and documents show that the surname "Myers," in this action, is spelled with one "e," but plaintiff's counsel, whose papers are replete with numerous typographic errors, continually misspells "Myers" as "Meyers" in the caption and throughout his papers. Further, despite the hyphen used by plaintiff's counsel in the caption and moving papers, all exhibits and documents show that the name of Eddie Myers' late wife is correctly spelled "Dessie Ree Myers." While I do not want to appear hypercritical of plaintiff's counsel, I am reminded that in many years as a teacher I continually had to admonish my students that "spelling counts." This applies equally to attorneys.
For the reasons that follow, the Court finds that: the April 27, 2006 30-day notice of termination is defective and void for its failure to comply with statutory notice requirements; plaintiff, a former owner of the premises is currently not the owner of the premises and has been a tenant there since December 1999; and, the Court will not issue a TRO to stay any actions or proceedings by defendants Myers and Hines. Plaintiff has failed to demonstrate a probability of success on the merits in the underlying action, since key facts are in sharp dispute, and she has also failed to demonstrate that she will suffer immediate and irreparable harm.
Background
Plaintiff, in her verified complaint in the underlying action, her affidavit in support of the order to show cause, and by her attorney in his affirmation in support of the order to show cause, claims that she was defrauded on December 28, 1999, when she and her niece Dessie Ree Myers, as joint tenants with right of a survivorship, deeded 363 Monroe Street to Dessie Ree Myers and Eddie Myers, her husband [exhibit C of order to show cause — December 28, 1999-deed]. Harold Hall, Esq. signed the Deed as the witness. Plaintiff, in paragraph 11 of her affidavit in support of her order to show cause, states that "I have a third grade education which I received in the 1930's in rural Mississippi and have no experience in legal/financial affairs." Her attorney, in his affirmation in support and in the verified complaint, states that plaintiff is 83 years old. Paragraph 11 of plaintiff's verified complaint states that with the December 28, 1999 transfer of ownership:
Plaintiff didn't know she was signing away her rights to her property a life-ling investment, her home, and sole asset the income from which she purchased for her support and maintenance in retirement and ill-health.
The only legal/professional representations made to her at the December 1999 closing were by Dessie Ree Meyers' attorney, co-Defendant Harold A. Hall Esq., who assured her that she was not giving up her property [sic].
Plaintiff claims, in paragraph 15 of her affidavit in support, that "I did not have legal representation for this transaction but trusted all parties because they were family. Defendant Hall is not related to me but because I knew my niece had been meeting with him during her entreaties to me on this issue, I felt I could trust him through her [sic]."
Plaintiff initially bought the premises in 1960 with her late husband, Pedro. According to the November 30, 1992 Deed, that transferred ownership from plaintiff as the surviving spouse of a tenancy by the entirety, to plaintiff and Dessie Ree Myers as joint tenants with the right of survivorship [exhibit B of affidavits in opposition], Mr. Sosa died on April 29, 1989. Plaintiff, in paragraph 16 her verified complaint, alleges that she made the 1992 transfer because she and Mrs. Myers were raised together and she was "desirous to share the property with a close relative" whom she thought she could trust. Plaintiff did not attach a copy of this Deed to her moving papers, but defendants attached it to their opposition papers. It demonstrates that Attorney Harold Hall was then plaintiff's attorney and the witness to the 1992 Deed. Thus, it appears that plaintiff suffers from a memory lapse. Attorney Hall represented her in the 1992 transaction, despite plaintiff's assertion that she did not know Mr. Hall until 1999.
Mr. Myers, in his affidavit in opposition, presents numerous cancelled checks, bills and related documents to demonstrate that after December 1999, he and his wife acted in their capacity as the owners of the premises and that plaintiff's claim of ownership is without merit. They paid real estate taxes and he presented copies of real estate tax bills and cancelled checks of real estate tax payments [exhibit F of opposing affidavits]. Mr. and Mrs. Myers paid the water charges and he exhibited copies of bills from the New York City Water Board and cancelled checks of payments [exhibit G of opposing affidavits]. Also, they paid the property insurance for the premises and he provided copies of insurance bills and cancelled checks for insurance payments [exhibit H of opposing affidavits].
Dessie Ree Myers died on March 10, 2006, at age 79 [exhibit E of order to show cause — death certificate]. Defendant Lorenzo Hines is listed on the death certificate as the informant and Dessie Ree Myers' nephew. Several weeks later, on March 31, 2006, Mr. Myers, as the surviving spouse, deeded the premises to Mr. Hines [exhibit F of order to show cause and Court's search of ACRIS (Automated City Register Information System)]. Mr. Myers, in his affidavit in opposition, states that he is 90 years old and in ill health. He claims in paragraph 7 of his affidavit that "[a]t my age of 90, I did not want to own and take care of the subject property. So I gave it to Hines for no consideration."
Mr. Hines served plaintiff with a thirty-day notice to terminate her tenancy, dated April 27, 2006 [exhibit A of order to show cause], by certified mail on April 29, 2006 [exhibit B of order to show cause]. Mr. Hines put the other tenants in the building on notice, in a letter dated April 24, 2006 [exhibit D of order to show cause], that "all section No. 8 and Jiggetts checks to be put in my name [sic]."
In paragraph 7 of his affirmation in support of the order to show cause, plaintiff's counsel states "there is no month-to-month tenancy herein to terminate as the Plaintiff has never signed any lease to reside in her own property with Defendant Lorenzo Hines. Nor has Plaintiff ever paid rent to Defendant or anyone else." Plaintiff, in paragraph 6 of her affidavit in support, states that "I have never signed any lease to resided in my own property with Defendant Lorenso Hines. Nor have I ever paid him, or anyone else for that matter any rent [sic]."
Despite plaintiff's denial of having a tenancy at the subject premises, defendants presented to the Court an executed lease, dated December 1, 1999 [exhibit D of opposing papers], for a three-year term from December 1, 1999 to November 30, 2002, signed by Dessie Ree Myers as "Landlord" and Willie B. Sosa as "Tenant." The lease was for the entire premises and renewable for a three-year term from December 1, 2002 to November 30, 2005. Attorney Hall is a witness to the lease and notarized the rider. Plaintiff's signature on the lease and the rider is identical to her signatures on the November 30, 1992 and December 28, 1999 deeds. Plaintiff is correct that "I have never signed any lease . . . with Defendant . . . Hines." She signed the lease with Mrs. Myers. While defendants Myers and Hines admit in their affidavits that plaintiff never paid rent to Mr. and Mrs. Myers, the signed lease is documentary proof of plaintiff's tenancy.
Thirty-day Notice of TerminationRPL § 232-a provides that a holdover monthly tenant in the City of New York cannot be removed from the tenancy's premises unless the tenant is served by the landlord or his agent with a thirty-day notice "in the same manner in which a notice of petition in a summary proceedings is now allowed to be served by law." The notice must provide that if the tenant does not vacate in a timely manner" the landlord will commence summary proceedings."
RPAPL § 735 describes the manner of service in a summary proceeding. It provides in subsection (1) that:
Service of the notice of petition and petition shall be made by personally delivering them to the respondent; or by delivering to and leaving personally with a person of suitable age and discretion who resides or is employed at the property sought to be recovered, a copy of the notice of petition and petition, if upon reasonable application admittance can be obtained and such person found who will receive it; or if admittance cannot be obtained and such person found, by affixing a copy of the notice and petition upon a conspicuous part of the property sought to be recovered or placing a copy under the entrance door of such premises; and in addition, within one day after such delivering to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail, Defendant Hines' April 27, 2006 thirty-day notice of termination [exhibit A of order to show cause] to plaintiff included the statutory language of RPL § 232-a, that the landlord will commence summary proceedings if Ms. Sosa did not leave the premises by June 1, 2006. However, Mr. Hines failed to comply with the strict procedural requirements for service as set forth above in RPAPL § 735 (1). The statute is clear that the termination notice must be served upon a tenant by personal delivery, or by delivering it and leaving it personally with a person of suitable age and discretion. Further, if the landlord is unable to gain admission to the premises and the tenant cannot be found, the notice may be affixed upon a conspicuous part of the property or placed under the entrance door, and then within one day of delivery "to such suitable person or such affixing or placement, by mailing to the respondent both by registered or certified mail and by regular first class mail."
It is clear that defendant Hines served the thirty-day notice by certified mail, postmarked April 29, 2006 [exhibit B of order to show cause]. In her affidavit in support of the order to show cause, plaintiff denies receiving the thirty-day notice of termination by personal service of any other form of substituted service. She claims she was only served with the thirty-day notice by certified mail. Defendants' opposition papers are silent with respect to the issue of service of the thirty-day notice. There is no question of fact that plaintiff's averment of service by certified mail is uncontroverted. Therefore, for failure to strictly comply with the requirements of RPL § 232-a and RPAPL § 735 (1), the April 27, 2006 thirty-day notice of termination served by certified mail is void and vacated for defective service. See FPTK, LLC v. Paradise Pillows, Inc., 9 Misc 3d 1125 (A) (Civ Ct, Kings County 2005); Ressa Family, LLC v. Dorfman, 193 Misc 2d 315 (Dist Ct, Nassau County 2002); Zamir v. Fair, 153 Misc 2d 913 (Civ Ct, Bronx County 1991); Lorenzo v. Rivera, 132 Misc 2d 591 (Civ Ct, Kings County 1986); Siegel, NY Prac, § 575, at 992 [4th ed].
Declaratory judgment re: ownership of premises
With respect to the ownership of 363 Monroe Street, it is clear that plaintiff signed the November 30, 1992 Deed [exhibit B of affidavits in opposition] and the December 29, 1999 Deed [exhibit C of order to show cause]. In Pimpinello v. Swift Co., 253 NY 159, 162-163 (1930), the Court of Appeals instructed that:
Ordinarily, the signer of a deed or other instrument, expressive of a jural act, is conclusively bound thereby. That his mind never gave assent to the terms expressed is not material. (Wigmore on Evidence, § 2415). If the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him.
Further, the Pimpinello Court, at 163, explained that a deed or other instrument can be void "[i]f the signer is illiterate, or blind, or ignorant of the alien language of the writing, and the contents thereof are misread or misrepresented to him by the other party, or even by a stranger . . ."
Thus, plaintiff is bound by her signature on the deeds, unless plaintiff can demonstrate fraud, or illiteracy, or mental incompetency, or blindness, or lack of fluency in the English language. While plaintiff claims only a third-grade Mississippi education and a lack of experience in financial and legal matters, she never claims to be illiterate, or incompetent, or blind, or lacking fluency in English. She claims that she was fraudulently induced into signing the 1999 Deed by Dessie Ree Myers and defendant Hall. Plaintiff conveniently failed to inform the Court that Mr. Hall represented her in the execution of the 1992 Deed. Plaintiff's self-serving, conclusory statements in her affidavit in support of the order to show cause are the only evidence presented in support of her various fraud claims. She states in paragraph 12 of her affidavit in support that "[u]nder the guise of helping me with my personal finances and as I was mentally weakened and recovering from several surgeries Defendant Meyers, using cunning, deception, or artifice to circumvent, cheat, or deceive me, convinced me to transfer my home . . . [sic]." No evidence is presented to support plaintiff's claim of being "mentally weakened." Further, an action based upon fraud is subject to a six-year statute of limitations from the "time the plaintiff . . . discovered the fraud or could with reasonable diligence have discovered it." CPLR §§ 213 (8) and 203 (g). Siler v. Lutheran Social Services of Metropolitan NY, 19 AD3d 646 (2rd Dept 1004); Board of Managers of Soc. Hill II at Westchester Condominium Ass'n. Inc. v. K. Hovanian Companies of NY, Inc., 271 AD2d 388 (2nd Dept 1004). The Court, in Shannon v. Gordon, 249 AD2d 291, 292 (2nd Dept 1998), instructed that:
The issue of when a plaintiff could have discovered an alleged fraud turns upon whether the plaintiff possessed knowledge of facts from which he or she could reasonably have inferred that fraud had occurred.
A plaintiff may not shut his or her eyes to facts which call for investigation ( see, K E Trading Shipping v. Radmar Trading Corp., supra [ 174 AD2d 346], citing Schmidt v. McKay, 555 F 2d 30, 37; Trepuk v. Frank, 44 NY2d 723, 724-725).
A plaintiff claiming fraud or undue influence has to establish that this occurred. Matter of Connelly, 193 AD2d 602 (2nd Dept 1993); Gordon v. Bialystoker Center and Bikur Cholim, Inc., 45 NY2d 692, 698-699 (1978); Allen v. La Vaud, 213 NY 322 (1915); Cowee v. Cornell, 75 NY 91, 99-100 (1878). In Gervasio v. Di Napoli, 134 AD2d 235 (2nd Dept 1987), plaintiff alleged that she had been fraudulently induced at a real estate closing to sign a deed. Summary judgment was granted by Supreme Court, Westchester County to defendant and the complaint was dismissed. The Appellate Division, Second Department affirmed. Just as in the instant case, plaintiff in Gervasio made conclusory allegations of fraud. The Court's conclusion, at 237, could apply equally to the facts of the instant action:
the plaintiff's principal contention . . . is a conclusory allegation that the defendant fraudulently caused her to unknowingly execute a deed conveying the premises to him. The specific circumstances underlying the perpetration of this alleged fraud are not recounted in the plaintiff's affidavit nor are there set forth evidentiary facts by which it is contended that the defendant in any sense misrepresented the nature or identity of the deed the plaintiff executed at the closing. At best, the plaintiff's allegations amount to little more than a contention that she executed the deed in question without reading it. However, [a]s a general rule, the signer of a written agreement is conclusively bound by its terms unless there is a showing of fraud, duress or some other wrongful act on the part of any party to the contract' (Columbus Trust Co. v. Campolo, supra., at 617 [ 110 AD2d 616, affd 66 NY2d 701]). The plaintiff's allegations of fraud are unsubstantiated by evidentiary facts . . .
More than six years have elapsed from December 28, 1999 to May 23, 2006, when the instant order to show cause and verified complaint were filed with the Kings County Clerk. In Freda v. McNamara, 254 AD2d 251, 252 (2nd Dept 1998), the Court held that:
It is well settled that under CPLR 213 (8) an action to recover damages "based on actual fraud must generally be commenced within six years of the commission of the fraud" (Piedra v. Vanover, 174 AD2d 191). However, "this provision must be read with subdivision (f) [now subdivision (g)] of CPLR 203, which provides that an action may be commenced within two years after actual or imputed discovery of the fraud, even though more than six years has elapsed from the commission of the wrong" (Piedra v. Vanover, supra, at 194; see also, Barristers Abstract Corp. v. Caulfield, 203 AD2d 406).
Further, a plaintiff alleging fraud and relying upon the two-year discovery rule is under a duty to have exercised reasonable diligence to have discovered the fraud. Ricca v. Valenti, 24 AD2d 647 (2nd Dept 2005); Prestandrea v. Stein, 262 AD2d 621 (2nd Dept 1999). In the instant case, after the 1999 Deed was executed, plaintiff did not collect rents, or pay taxes, water bills and insurance bills for the premises. Plaintiff signed a lease as a tenant for her apartment. It appears that plaintiff's fraud allegations are a smoke-screen to void the 1999 Deed. If fraud occurred, plaintiff has not presented any evidence to the Court of its proof, let alone any due diligence to have discovered fraud.In Higgins v. Crouse, 147 NY 411, 416 (1895), the Court held that "where the circumstances are such as to suggest to a person of ordinary intelligence the probability that he has been defrauded, a duty of inquiry arises, and if he omits that inquiry when it would have developed the truth, and shuts his eyes to the facts which call for investigation, knowledge of the fraud will be imputed to him."
Plaintiff's conclusory evidence in the instant action is insufficient for the Court to declare, pursuant to CPLR § 3001, that plaintiff is the lawful owner of the premises at 363 Monroe Street. Plaintiff conveyed, by two duly recorded deed in 1992 and 1999, her interests in the subject property. Further, plaintiff is a tenant under the terms of a written lease, executed in December 1999.
Plaintiff's application for a Temporary Restraining Order
The Court of Appeals, in Doe v. Axelrod, 73 NY2d 748, 750 (1988) instructed that a preliminary injunction, pursuant to CPLR § 6301, "may be granted . . . when the party seeking such relief demonstrates: (1) a likelihood of ultimate success on the merits; (2) the prospect of irreparable injury if the provisional relief is withheld; and (3) a balance of equities tipping in the moving party's favor (Grant Co. v. Srogi, 52 NY2d 496, 517)." See Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839 (2005); Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 (1990); Lattingtown Harbor Property Owners Ass'n. Inc. v. Agostino, ___ AD3d ___, 2006 NY Slip Op 08219 (2nd Dept Nov. 14, 2006); McNeil v. Mohammed, 32 AD3d 829 (2nd Dept 2006); Coinmach Corp. v. Alley Pond Owners Corp., 25 AD3d 642 (2nd Dept 2006); Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 (2nd Dept 2004); Milbrandt Co., Inc. v. Griffin, 1 AD3d 327 (2nd Dept 2003); JDOC Const. LLC v. Balabanow, 306 AD2d 318 (2nd Dept 2003); Seven Acre Wood Street Associates, Inc. v. Town of Bedford, 302 AD2d 511 (2nd Dept 2003); Fried v. Mosseri, 289 AD2d 545 (2nd Dept 2001).
In Related Properties, Inc. v. Town Bd. of Town/Village of Harrison, 22 AD3d 587, 590 (2nd Dept 2005), the Court instructed that:
Since a preliminary injunction prevents litigants from taking actions that they would otherwise be legally entitled to take in advance of an adjudication on the merits, it is considered a drastic remedy which should be issued cautiously ( see Uniformed Firefighters Assn. of Greater N.Y.v City of New York, 79 NY2d 236, 241 [1992]; Gagnon Bus Co. Inc. v. Vallo Transp. Ltd., 13 AD3d 334 [2004]; Bonnieview Holdings v. Allinger, 263 AD2d 933). [ Emphasis added]
Because injunctive relief is drastic, the Court in Gagnon Bus Co. Inc. , supra at 335, held that the party seeking "a preliminary injunction must establish a clear right to that relief under the law and the undisputed facts upon the moving papers ( see William M. Blake Agency, Inc. v. Leon, 283 AD2d 423 [2nd Dept 2001])." See Peterson v. Corbin, 275 AD2d 35 (2nd Dept 2000); Brand v. Bartlett, 52 AD2d 272 (3rd Dept 1976).
An injunction is a provisional remedy to maintain the status quo until a full hearing can be held on the merits of an action. As such "[t]he decision to grant or deny a preliminary injunction rests on the sound discretion of the Supreme Court." Ruiz v. Meloney, 26 AD3d 485 (2nd Dept 2006). See Pouncy v. Dudley, 27 AD3d 633 (2nd Dept 2006); Coinmach Corp. v. Alley Pond Owners Corp., supra; First Franklin Square Associates, LLC v. Franklin Square Property Account, 15 AD3d 529 (2nd Dept 2005); Ying Fung Moy v. Hohi Umeki, supra; Fried v. Mosseri, supra.
The movant for injunctive relief "must demonstrate a clear right to relief which is plain from the undisputed facts ( see Blueberries Gourmet v. Aris Realty Corp., 255 AD2d 348, 350, citing Family Haircutters v. Detling, 110 AD2d 745, 747)." JDOC Construction, LLC v. Balabanow, supra at 319. See Dental Health Associates v. Zangeneh, 267 AD2d 421 (2nd Dept 1999).
The claims of a plaintiff that harm is imminent and irreparable must be clearly demonstrated to the Court. When claims "are wholly speculative and conclusory," they "are insufficient to satisfy the burden of demonstrating irreparable injury." Khan v. State University of New York Health Science Center at Brooklyn, 271 AD2d 656 (2nd Dept 2000). In Golden v. Steam Heat, Inc., 216 AD2d 440, 442 (2nd Dept 1995), the Court instructed that "the irreparable harm must be shown by the moving party to be imminent, not remote or speculative." See Village/Town of Mount Kisco v. Rene Dubos Center for Human Environments, Inc., 12 AD3d 501 (2nd Dept 2004); Neos v. Lacey, 291 AD2d 434 (2nd Dept 2002).
In the instant action it is highly unlikely that plaintiff will succeed on the merits. She signed deeds in 1992 and 1999 with respect to 363 Monroe Street. The only evidence of fraud in the inducement are speculative and conclusory statements by plaintiff. Her claim that she is not a tenant is refuted by defendants' presentation of the signed December 1999 lease.
Plaintiff's claims of immediate and irreparable injury are speculative. A holdover proceeding will take at least several months to proceed. If defendants proceed in the Housing Part of Civil Court to evict plaintiff, the appropriate protective agency for senior citizens will be involved. Further, in paragraph 34 of his affidavit in opposition, defendant Hines states he is willing to give plaintiff five months to vacate if she pays him two months use and occupancy.
The balance of the equities is not in plaintiff's favor. Plaintiff signed the two deeds and the lease for her apartment. Plaintiff, although a tenant, probably paid no rent to Mr. and Mrs. Myers, while Mr. and Mrs. Myers paid real estate taxes, water charges, and insurance from 1999 to 2006. To grant a TRO and permit plaintiff to remain rent-free while the underlying action is pending would injure defendant Hines, who would not be able to collect rent and has his financial ability to maintain the premises and provide services to the other tenants impaired. Therefore, this Court, in its sound discretion, denies injunctive relief to plaintiff. She has failed to demonstrate a clear right to this drastic relief from undisputed facts. All stays are vacated forthwith.
Conclusion
ORDERED, that the branch of plaintiff Willie B. Sosa's order to show cause to vacate the thirty-day notice of termination dated April 27, 2006, and served by certified mail on April 29, 2006, is granted, as the instant notice of termination failed to comply with the statutory requirements of RPL § 232-a and RPAPL § 735 (1); and it is further
ORDERED, that the branch of plaintiff Willie B. Sosa's order to show cause for a declaratory judgment, pursuant to CPLR § 3001, that she is the lawful owner of the premises at 363 Monroe Street, Brooklyn, New York, is denied; and it is further
ORDERED, that the branch of plaintiff Willie B. Sosa's order to show cause for a temporary restraining order, pursuant to CPLR § 6313, to stay all actions and proceedings by defendants Myers and Hines, with respect to the property at 363 Monroe Street, Brooklyn, New York, pending the outcome of plaintiff's underlying action to recover her interest in the property at 363 Monroe Street, Brooklyn, New York, by rescission of deeds dated December 28, 1999 and March 31, 2006, is denied; and it is further
ORDERED, that all previous stays are vacated forthwith.
This constitutes the Decision and Order of the Court.