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Miriam MENDEZ, Plaintiff, v. Joseph MAKHANI and 106 Moore Street Corp., Defendants. Flushing Bank, Intervenor.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendant 106 Moore Street Corp. (hereinafter the movant), filed on September 23, 2021, under motion sequence number four, for an order pursuant to CPLR 3212 granting summary judgment in its favor and dismissing plaintiff Miriam Mendez's (hereinafter plaintiff) complaint and cancelling a notice of pendency pursuant CPLR 6513. The motion is opposed by the plaintiff.
Notice of Motion
Statement of Material Facts
Joseph Makhani Affidavit in Support
Memorandum of Law
Exhibits A to W
Plaintiff's Affidavit in Opposition
Exhibits A to K
Joseph Makhani Affidavit in Reply
On June 15, 2018, plaintiff commenced the instant action by electronically filing a summons, verified complaint, and a notice of pendency with the Kings County Clerk's Office.
The verified complaint contains thirty-seven allegations of fact in support of two causes of action. The first cause of action alleges fraud and misrepresentation. The second cause of action is for unjust enrichment.
Plaintiff's complaint alleges the following salient facts. Plaintiff is a resident of Pennsylvania. In 2014, plaintiff's father, Cesar Almodowar, died intestate. As Cesar Almodowar's sole surviving heir, plaintiff inherited a parcel of real property located at 106 Moore Street, Brooklyn, New York (hereinafter the subject property).
On or before, April 15, 2015, plaintiff was approached by Joseph Makhani (hereinafter Makhani) who expressed his desire to purchase the subject property. Makhani informed plaintiff that she would need to finalize matters relating to the estate of Cesar Almodowar to sell the subject property. Makhani offered to handle the estate matters on her behalf and agreed to pay $500,000.00 for the subject property.
Makhani presented plaintiff with a set of papers to sign and informed her that once he filed the papers with the court, she would have legal title to convey the property as the legal representative of her father's estate.
In January 2018, plaintiff learned that one of the documents she signed was a deed that conveyed the subject property to 106 Moore Street Corp. without consideration. The deed was recorded with the office of the New York City Register.
Plaintiff alleges that the statements made by Makhani were false and were made to fraudulently induce plaintiff to convey title to the subject property. Plaintiff further alleges that she signed the documents presented to her because she relied on Makhani's statements to be truthful to her detriment.
Plaintiff alleges that she later learned that Makhani has a criminal history involving real estate crimes. Plaintiff contends that the defendants have made sporadic payments to her in the amount of $70,000.00 notwithstanding the agreement to pay her $500,000.00.
On March 15, 2019, plaintiff moved for an order granting a default judgment against defendant 106 Moore Street Corp. The affirmation of plaintiff's counsel averred that plaintiff was unable to effectuate service upon defendant Makhani and requested that the Court permit the plaintiff to discontinue the action against Makhani without prejudice. By Order, dated, December 17, 2019, the Court granted the plaintiff's application for a default judgment against 106 Moore Street Corp. The order was silent as to plaintiff's application to discontinue against Makhani.
On January 17, 2020, 106 Moore Street Corp. moved by order to show cause for an order to, among other things, vacate the Default Judgment Order dated December 17, 2019.
On February 18, 2020, Flushing Bank moved for an order granting it leave to intervene in the action pursuant to CPLR 1012 (a) (3) and 1013.
By Order, dated October 28, 2020, the Court granted 106 Moore Street Corp.’s motion to vacate the default judgment. The Court also granted Flushing Bank's motion to intervene.
On November 23, 2020, 106 Moore Street Corp. interposed a verified answer with counterclaims.
On January 5, 2021, Flushing Bank interposed a second verified answer asserting three counterclaims against the plaintiff and three crossclaims against Makhani and 106 Moore Street Corp.
On March 24, 2021, plaintiff interposed two separate replies to the verified answer and counterclaims of 106 Moore Street Corp. and Flushing Bank.
In the instant motion, 106 Moore Street Corp. seeks an order pursuant to CPLR 3212 dismissing plaintiff's complaint and cancelling the notice of pendency pursuant to CPLR 6513.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 ). The burden is upon the moving party to make prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72 ).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 ). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).
A party opposing a motion for summary judgment is obligated to sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 ). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 ).
In order to establish a prima facie case of fraud, the plaintiff must establish (1) that the defendant made material representations that were false, (2) that the defendant knew the representations were false and made them with the intent to deceive the plaintiff, (3) that the plaintiff justifiably relied on the defendant's representations, and (4) that the plaintiff was injured as a result of the defendant's representations (Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788 [2nd Dept 2009]).
The elements of a cause of action to recover for unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (Financial Assistance, Inc. v Graham, 191 AD3d 952, 956 [2nd Dept 2021]).
The movant submitted an affidavit of facts in accordance with Uniform Court Rule 202.8-g (a). The plaintiff did not submit a response to the movant's asserted facts contrary to the requirements of Uniform Court Rule 202.8-g (c). Consequently, the facts asserted in the movant's statement of material facts are deemed admitted in accordance with Uniform Court Rule 202.8-g (c). Although the statement of material facts is deemed admitted, the movant has not made a prima facie showing of entitlement to summary judgment in its favor on liability for the reasons set forth below.
The complaint was verified by the plaintiff and may be treated as an affidavit pursuant to CPLR 105 (u). It alleged the following salient facts. On or before, April 15, 2015, plaintiff was approached by Makhani, who expressed his desire to purchase the subject property. Makhani informed plaintiff that she would need to finalize matters relating to the estate of Cesar Almodowar to sell the subject property. Makhani offered to handle the estate matters on her behalf and agreed to pay $500,000.00 for the subject property. Makhani presented plaintiff with a set of papers to sign and informed her that once he filed the papers with the court, she would have legal title to convey the property as the legal representative of her father's estate. Plaintiff later discovered that she was duped into signing a deed conveying the subject property to Makhani for little or no consideration.
By affidavit in opposition to the motion, plaintiff averred that she had no written contract with Makhani or the movant. She pointed out that the deed which Makhani fraudulently obtained from her dated April 16, 2015, was obtained for no consideration and was not recorded until August 5, 2016. Makhani claimed in his affidavit in support of the motion that he paid a $5,000.00 deposit toward the purchase of the subject property to plaintiff's lawyer, Jack A. Harari. He then annexed a copy of the check with the motion.
Plaintiff averred that she had no lawyer, that she did not know who Jack A. Harari was, that the purported $5,000.00 deposit was drawn on the account of a company called “The Construction Account LLC”, and that she never received the annexed check.
The movant's evidentiary submissions did not address the plaintiff's claim that she had no written contract with either Makhani or the movant. Nor did it address her contention that she had no attorney representing her in any transaction with Makhani. Nor did it address her claim that she never heard of Jack A. Harari and that she never saw the $5,000.00 check purported to be a deposit toward the purchase of the subject property. Nor did it address her claim that Makhani was convicted of fraud related to theft of real property. In sum, the movants provided many documents showing several transactions but nothing showing the surrounding circumstances which addressed or refuted plaintiff's claim of fraud by Makhani. Accordingly, the motion is denied without regard the plaintiff's opposition papers (Winegrad v New York University Medical Center,64 NY2d 851 ).
The motion of defendant 106 Moore Street Corp., for an order pursuant to CPLR 3212 granting summary judgment in its favor and dismissing plaintiff Miriam Mendez's verified complaint and cancelling plaintiff's notice of pendency pursuant is denied.
The foregoing constitutes the decision and order of this Court.
Francois A. Rivera, J.
Response sent, thank you
Docket No: Index No. 513020/2018
Decided: March 28, 2022
Court: Supreme Court, Kings County, New York.
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