604 Willoughby LLC v. Clayton
| Decision Date | 27 March 2023 |
| Docket Number | Index No. 515171/2020 |
| Parties | 604 WILLOUGHBY LLC, Plaintiff(s) v. OZENER CLAYTON and WILLOUGHBY 604 CORP., Defendant(s) |
| Court | New York Supreme Court |
HON INGRID JOSEPH JUDGE
The following e-filed papers considered herein: NYSCEF E-filed docs
Notice of Motion/ Affirmation in Support/Exhibits Annexed ........... 21-38
Plaintiff 604 Willoughby LLC ("Plaintiff') commenced this action, to quiet title against Ozener Clayton and Willoughby 604 Corp. (Defendants"), by Summons and Complaint filed August 18, 2020. Thereafter, a:Supplemental Summons and Verified Amended Complaint were served on Defendant Clayton o:n February 25 2022, and on Defendant Willoughby 604 on February 28, 2022. Defendants have failed to appear or answer and the relevant time to file a responsive pleading, and/or otherwise move with respect to Plaintiffs Verified Supplemental Complaint has expired.
Plaintiff now moves (Motion Seq. 2) for an Order pursuant to CPLR § 3215(a) directing the entry of a default judgment in favor of Plaintiff and against Defendants cancelling discharging, and/or declaring deed to be fraudulent and a memorandum of contract to be unenforceable. Plaintiff also moves for an Order declaring that Plaintiff holds absolute legal title to 604 Willoughby Avenue Brooklyn New York 11206 Block No. 1768 Lot No. 18 ("Subject Premises") free and clear form' any estate, encumbrance, trust or other interest of Defendants and all persons or entitles claiming under and/or acting in concert with the Defendants. Additionally, Plaintiff seeks to permanently enjoining Defendants, and/or any of their agents, affiliates representatives, partners, members, employees, and anyone else acting on their behalf or under their control, from selling, transferring, encumbering, entering into leases or otherwise disposing of the Premises.
In its attorney's affirmation, Plaintiff states that by deed dated April 26,1966 and recorded April 28, 1966, in the Office of the City Register. Lula Bell Woodberry, William Clayton and Carrie Clayton (nee Woodberry) held title to the parcel of real property at issue, with Woodberry owning one-half interest (50%), and the Claytons owning the other one-half interest (50%). Plaintiff claims that on June 2 2014, a deed dated May 28, 2014, was recorded in the Office of the City Register, wherein non-party Phyllis A. Smith purportedly transferred the Subject Premises to nonparty 604 Willoughby Realty LLC. for consideration of $15,000.00.
Plaintiff alleges that after the death of Lula Bell Woodberry and William and Carrie Clayton, non-party Horace Barnes, as sole heir of Lula Bell Woodberry, held interest in one-half of the Subject Premises, and Defendant Ozener Clayton, as sole heir of William and Carrie Clayton, was entitled to the other half interest. Plaintiff maintains that on or about March 7, 2017, Defendant Clayton and non-party Barnes entered into a signed Letter of Agreement wherein the parties agreed to sell any and all interest they possessed in the Subject Premises to non-party Myrnissa A. Stone-Sumair for the sum of $400,000.00. Pursuant to the Letter of Agreement, Plaintiff states that on or about March 7, 2017, Barnes executed a deed which was recorded on March 28, 2017, in the Office of the City Register. Plaintiff claims that this deed transfers his one-half interest in the Subject Premises to Stone-Sumair in consideration of "$1.00 and other good and valuable consideration." Plaintiff further states that on June 12, 2017, Defendant Clayton executed a deed and recorded it on June 26, 2017, in the Office of the City Register, transferring his one-half interest in the Subject Premises to Stone-Sumair in consideration of $10.00. Plaintiff states that to ensure that full title was transferred to Plaintiff, on June 13, 2017, Stone-Sumair and non-party 604 Willoughby Realty LLC executed a deed to Plaintiff in consideration of $10.00. The deed was recorded on June 26, 2017, in the Office of the City Register. It is this transference that plaintiff claims accorded him full title to the property.
Plaintiff argues that despite the March 17, 2017, Letter of Agreement, Defendant Clayton has refused to accept payment of the amounts that would have been due to him and has also refused to remove himself or any of his belongings from the property. Plaintiff claims that on or about May 8, 2018, Defendant Clayton executed a fraudulent deed and recorded it in the Office of the City Register on May 21, 2018. In the deed, Defendant Clayton purportedly transferred one-half ownership of the Subject Premises from himself, as sole heir of William and Came Clayton, to himself as an individual in consideration of $10.00. That same day, May 8, 2018, Plaintiff alleges that Defendant Clayton executed a Memorandum of Contract, with Defendant Willoughby 604 Corp., which indicated that Defendant Clayton had sold the Subject Premises to Defendant Willoughby 604 Corp, for an unspecified valuable consideration. The Memorandum of Contract was recorded in the Office of the City Register on August 9, 2018. Plaintiff argues that based on the transfer history of the property and by virtue of the deed dated June 13, 2017, and recorded on June 26, 2017, Plaintiff became and remains the sole and exclusive owner of the Subject Premises and that Defendant Clayton's conveyances and Memorandum of Contract are fraudulent. In support of its motion, Plaintiff submits an affirmation from Leah Bloom, a member of Plaintiff 604 Willoughby LLC who gives a recounting of events almost identical to what was stated by Plaintiff s attorney.
Pursuant to CPLR § 3215(a), a party may obtain a default judgment against another if the defaulting party fails to plead in a timely manner. In order to establish entitlement to a default judgment, a plaintiff is required to submit proof of (1) valid service of the summons and the complaint, (2) the facts constituting the claim and (3) the default (see CPLR § 3215(f); Woodson v Mendon Leasing Corp., 100 N.Y.2d 62 [2003]; Atlantic Cas., Ins. Co. v RJNJ Services, Inc., 89 A.D.3d 649 [2d Dept. 2011]; Allstate Ins. Co. v Austin, 48 A.D.3d 720 [2d Dept. 2008]). To demonstrate facts constituting the claim, the movant need only to submit sufficient proof to enable a court to determine that a viable cause of action exists (Woodson at 71). This may be accomplished by the filing of an affidavit by the moving party detailing the facts constituting the claim or a verified complaint may be submitted instead of the affidavit when the complaint has been properly served (see CPLR 3215(f); Deutsche Bank National Trust Company v Hossain, 196 A.D.3d 631 [2d Dept. 2021]; Hazim v Winter, 234 A.D.3d 422 [2d Dept. 1996]). An affidavit asserting personal knowledge based on an inspection of business records that fails to attach said business records constitutes as inadmissible hearsay and is insufficient to demonstrate proof of the facts constituting the claim (Deutsche Bank National Trust Company v Hossain, 196 A.D.3d 631 [2d Dept. 2021; Deutsche Bank National Trust Company v Elshiekh, 179 A.D.3d 1017 [2d Dept. 2020]; Deutsche Bank National Trust Company v Gulati, 188 A.D.3d 999 [2d Dept. 2020]).
While a default judgment constitutes an admission of the factual allegations of the complaint and the reasonable inferences which may be made therefrom, where a valid cause of action is not stated, the moving party is not entitled to the requested relief, even on default (see Woodson; Cree v Cree, 142 A.D.2d 538 [2d Dept. 1986]; Gagen v Kipany Productions Ltd, 289 A.D.2d 844 [3d Dept. 2001]; citing Dyno v Rose, 260 A.D.2d 694 [3d Dept. 1999]). Moreover, courts have held, that a default judgment in a declaratory judgment action will not be granted on the default and pleads alone, as the moving party must establish a right to a declaration (JBBNY, LLC v Dedvukaj, 171 A.D.3d 898; Dole Food Co., Inc. v Lincoln Gen. Ins. Co., 66 A.D.3d 1493 [4th Dept. 2009]; quoting Merchants Ins. Co. of New Hampshire, Inc. v Long Island Pet Cemetery, Inc., 206 A.D.2d 827 [4th Dept. 1994]).
RPAPL 1501(1) provides that any person who claims an estate or interest in real property "may maintain an action against any other person... to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records that the defendant might make." RPL 329 permits in relevant part, that "an owner of real property.. .may maintain an action to have any recorded instrument in writing relating to such real property or interest therein ...canceled of record as to said real property."
To maintain an equitable quiet title claim, a plaintiff must allege actual or constructive possession of the property and the existence of a removeable cloud on the property, which is an apparent title, such as a deed or other instrument, that is actually invalid or inoperative (see RPAPL 1515; Carbone v Deutsche Bank Nat. Trust Co., 145 A.D.3d 848 [2d Dept. 2016] Acocella v Wells Fargo Bank N.A., 139 A.D.3d 647 [2d Dept. 2016]). The New York Recording Act inter alia, protects a good faith purchaser for value from an unrecorded interest in a...
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