Opinion
No. 2012–24238.
09-19-2014
Carmen STAHL as Administratrix of the Estate of Antonia Stulzaft, Plaintiff, v. SPEC HOMES INC., Selwyn E. Farber, Selwyn Farber d/b/a Spec Homes, Gayle Stulzaft as Administratrix of the Estate of George Stulzaft and “JOHN DOE No.1” through “JANE DOE # 10” the last 10 names being fictitious and unknown to the Plaintiff, the persons or parties intended being the occupants, tenants, persons or entities, if any, having or claiming an interest in or lien upon the premises, Defendants.
Jacqueline M. Kelly, Esq., Feldman Kramer & Monaco P.C., Hauppauge, for Plaintiff. William J. Eppig, Esq., Babylon, for Defendants.
Jacqueline M. Kelly, Esq., Feldman Kramer & Monaco P.C., Hauppauge, for Plaintiff.
William J. Eppig, Esq., Babylon, for Defendants.
Opinion
JEFFREY ARLEN SPINNER, J.
This is an action sounding in equity wherein the Plaintiff sues for the reconveyance of certain residential real property, claiming that the property was conveyed as security for an indebtedness. Before the Court is Plaintiff's application (seq.001) for entry of a judgment by default against Defendants along with Defendants' cross-application (seq.002) for dismissal.
On April 5, 1965, Abe Farber Associates Inc., in consideration of $ 20,900.00, conveyed to George and Antonia Stulzaft, residential real property known as 76 Oceanside Street, Islip Terrace, New York. The deed therefor was recorded with the Clerk of Suffolk County in Liber 5731 of Conveyances at Page 395. Contemporaneously therewith, the Stulzafts mortgaged the property to the extent of $17,000.00 in favor of Long Island City Savings Bank. On July 21, 1965, the Stulzafts, for consideration of $2,200.00 conveyed the property to Spec Homes Inc. by Deed recorded with the Clerk of Suffolk County in Liber 5792 of Conveyances at Page 59. It is alleged that Spec Homes Inc. was a body corporate that was, like the original grantor, owned and controlled by Abe Farber. Thereafter, on October 12, 1971, Spec Homes Inc., for no consideration, conveyed the property to Defendant Selwyn E. Farber.
According to Plaintiff, the conveyance to Spec Homes Inc. was for the express purpose of securing repayment of the sum of $2,200.00, advanced to the Stulzafts by Abe Farber, in order to enable them to cure the default on the Long Island City Savings Bank. It is alleged that Abe Farber “required” the conveyance as security for repayment of the monies that he advanced on behalf of the Stulzafts. It is further claimed that it was agreed between Farber and the Stulzafts that the property was being held by him, in effect, as a trustee for their benefit and that it would be reconveyed to the Stulzafts upon repayment of the loan. It is asserted that the loan made by Abe Farber to the Stulzafts was repaid in full as was the mortgage in favor of Long Island City Savings Bank. To complicate matters, the Stulzafts had their marriage dissolved in 1985 with Antonia remaining in the Islip Terrace property while George relocated to California, thereafter remarrying and subsequently dying in 1997, survived by his spouse, defendant Gayle Stulzaft. Antonia died in 2007, Plaintiff having been appointed as the fiduciary of her estate. The Islip Terrace property continues to be occupied by Todd Stulzaft, the son of George and Antonia Stulzaft, who asserts that it has been exclusively used and occupied by members of the Stulzaft family since April of 1965.
Following commencement of this action, Defendant Selwyn E. Farber, a resident of the State of Florida, purported to appear Pro Se and oppose Plaintiff's application. His filings with the Court were executed by one Harold Davidoff, who described himself as “Attorney in Fact for Selwyn Farber Defendant, Pro Se.” No power of attorney has been provided and there is no attorney at law, admitted in New York by the name of Harold Davidoff. Indeed the verification appended to the opposing papers recites that Mr. Davidoff is doing so due to “... time constraints and ... out of state domicile” of Mr. Farber. The acknowledgment thereon purports to be that of Mr. Farber but instead has been executed by Mr. Davidoff. While CPLR § 3020(d) permits an agent to verify pleadings on behalf of the principal, the agent may do so only to the extent of the agent's actual knowledge; no such knowledge has been articulated herein. This is legally inefficacious under New York law and indeed Defendant Farber's submissions to this Court contravene the express provisions of New York General Obligations Law § 5–1501, Matter of Perosi v. LiGreci 98 AD3d 230 (2nd Dept.2013), Cymbol v. Cymbol 122 A.D.2d 771 (2nd Dept.1986). Therefore, the Court is unable accord any substantial weight to the submissions on behalf of Defendant Selwyn E. Farber. It should be noted that following submission of Plaintiff's motion, Defendants retained local counsel who only moved to dismiss this proceeding.
Plaintiff's application demands equitable relief, viz., to set aside a deed, absolute on its face, which recites that it is a conveyance of a fee simple interest, without conditions. While the recorded instrument is a bargain & sale deed, the allegations in Plaintiff's complaint assert that it is actually a security device for a loan. No competent evidence to the contrary has been advanced.
Where a deed purporting conveying a fee interest is actually delivered as security for a debt, equity will regard the instrument as a mortgage, irrespective of its express language, Peterson v. Clark 15 Johns 205 (Supreme Court Of Judicature Of New York, 1818). The true character of the conveyance, whether it be a deed or a mortgage, may be established through the introduction of extrinsic evidence. Indeed, it has long been established that parol evidence is admissible for the purpose of demonstrating that a deed, while absolute on its face, was actually intended to secure repayment of a debt, Clark v. Henry 2 Cow 324 (Court For The Correction Of Errors Of New York, 1823), Gilchrist v. Cunningham 8 Wend 641 (Supreme Court Of Judicature Of New York, 1832). Based upon the sworn contents of Plaintiff's application, this Court finds that the deed dated July 21, 1965 running from the Stulzafts to Spec Homes Inc. was actually in the character of a mortgage, given for the express purpose of securing repayment of a sum of money.
Since this is a proceeding in equity, the Court must do that which ought to be done under the circumstances. Accordingly, it will be necessary for the Court to determine the rights and responsibilities of Plaintiff and Defendants, including but not limited to the amounts of money attributable to or recoverable by each party to this action. The same shall be determined by inquest.As to Defendants' application to dismiss (seq.002), the same is facially defective in that it fails to comply with the requirements of 22 NYCRR § 130–1.1 –a, thus mandating the denial thereof.
It is, therefore,
ORDERED, ADJUDGED AND DECREED that the Deed dated July 21, 1965, given by George Stulzaft & Antonia Stulzaft as Grantors to Spec Homes Inc. as Grantee, which was recorded with the Clerk of Suffolk County in Liber 5792 of Conveyances at Page 59 is determined to be in the nature of a mortgage, given to secure an indebtedness, to the extent of $2,200.00; and it is further
ORDERED, ADJUDGED AND DECREED that the Deed dated July 21, 1965 purporting to convey property known as 76 Oceanside Street, Islip Terrace, Town of Islip, New York, District 0500, Section 230.00, Block 01.00, Lot 017.00, which was recorded with the Clerk of Suffolk County in Liber 5792 of Conveyances at Page 59 is determined to be , void ab initio and of no force and effect, in fact or in law, insofar as it purports to convey a fee simple interest; and it is further
ORDERED, ADJUDGED AND DECREED that each of the Defendants, their successors, heirs, assigns and any and all persons or entities claiming any interest by, under or through said Defendants, and any persons or entities claiming an interest thereunder subsequent to the filing of this action shall be and are hereby forever barred, estopped and foreclosed from and of any and all claims to any estate or interest in or to the real property described herein; and it is further
ORDERED, ADJUDGED AND DECREED that the THE ESTATE OF ANTONIA STULZAFT is the owner, in fee simple absolute, of the real property described herein and is entitled to exclusive use, possession and occupancy thereof, subject to encumbrances of record; and it is further
ORDERED, ADJUDGED AND DECREED that Defendants are deemed to be in default of pleading herein and Plaintiff's application for a default judgment as to liability, as demanded in the Verified Complaint is granted pursuant to CPLR § 3215 ; and it is further
ORDERED, ADJUDGED AND DECREED that Plaintiff shall file a Note of Issue and this matter shall be set down for inquest on November 5, 2014 at 2:30 p.m., Courtroom 229–A, Supreme Court of the State of New York, 1 Court Street, Riverhead, New York 11901, for the purpose of determining damages, costs, fees, setoffs and all other matters with respect to the real property at issue herein.
The real property affected by this determination is bounded and described as follows:
ALL that certain plot, piece or parcel of land with the buildings and improvements thereon erected, situate, lying and being in the Town of Islip, County of Suffolk and State of New York, known and designated as and by easterly half of Lot Number 17 on Block 40 on a certain map entitled, “Map of Great River Estates, Section 2, situated at Great River, Suffolk County, New York,” belonging to the House and Home Company, surveyed by Eugene L. Smith, C.E. and Surveyor, filed in the
Suffolk County Clerk's Office on May 1910, bounded and described as follows:
BEGINNING at a point on the southerly side of Oceanside Street distant 450.00 feet westerly from the corner formed by the intersection of the southerly side of Oceanside Street and the westerly side of North Greenlawn Avenue; RUNNING THENCE southerly and at right angles to the southerly side of Oceanside Street 300.00 feet; THENCE westerly and parallel to the southerly side of Oceanside Street 75.00 feet; THENCE northerly and at right angles to the southerly side of Oceanside Street 300.00 feet; THENCE easterly along the southerly side of Oceanside Street 75.00 feet to the point or place of BEGINNING.
Said real property is commonly known as and by the street address of 76 Oceanside Street, Islip Terrace, Town of Islip, New York 11752, District 0500, Section 230.00, Block 01.00, Lot 017.000.
Counsel for the Plaintiff is directed to settle a Judgment consistent with this determination upon fourteen days' notice to all parties and the Calendar Clerk of the Supreme Court.
This shall constitute the decision, judgment and order of this Court.