Ali v. Ali

• Decision Date: 19 February 2013
• Docket Number: Index No.: 381035/11
• Citation: 2013 NY Slip Op 33234
• Parties: HAMAD ALI, 2591 REALTY, INC., 800 REALTY CORP., and RKAN REALTY, LLC., Plaintiffs, v. FARES ALI, SELIM ZHERKA, SILAS METRO HOLDINGS CORP., JAMES G. DIBBINI AND ASSOCIATES, P.C., JAMES G. DIBBINI, ESQ., SIGNATURE BANK, CUSTOM TITLE SERVICES, INC., Defendants.
• Court: New York Supreme Court

2013 NY Slip Op 33234

HAMAD ALI, 2591 REALTY, INC., 800 REALTY
CORP., and RKAN REALTY, LLC., Plaintiffs,
v.
FARES ALI, SELIM ZHERKA, SILAS METRO HOLDINGS
CORP., JAMES G. DIBBINI AND ASSOCIATES, P.C.,
JAMES G. DIBBINI, ESQ., SIGNATURE BANK, CUSTOM
TITLE SERVICES, INC., Defendants.

Index No.: 381035/11

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX TRIAL TERM - PART 15

Filed: March 20, 2013
February 19, 2013

Present: Hon. Mary Ann Brigantti-Hughes

DECISION/ORDER

The following papers numbered 1 to 28 read on the below motions noticed on May 10, May 15, May 24, October 11, and November 12, 2012 and duly submitted on the Part IA 15 Motion calendar of November 14, 2012 and December 3, 2012:

Papers Submitted	Numbered
Signature's motion to dismiss, memo of law, exhibits	1,2,3
Silas Metro's motion to dismiss, exhibits	4,5
Dibbini's motion to dismiss, exhibits	6,7
Pls.' cross-motion, opposition, exhibits	8,9,10
Custom's motion to dismiss, exhibits	11,12
Pls.' opposition, exhibits	13, 14
Pls.' motion to amend pleadings, exhibits	15, 16
Signature's cross-motion for sanctions, exhibits	17,18
Silas Metro's Aff. In Opposition, exhibits	19,20
Dibbini's Aff. In Opposition, exhibits	21,22
Zherka's Aff. In Opp., Exhibits	23,24
Custom Title's Aff. In Opp., Exhibits	25, 26
Pls' Aff. In Reply, exhibits	27,28

Upon the foregoing papers, the following motions are before the Court:

Defendants Signature Bank ("Signature"), James G. Dibbini and Associates, P.C. and James G. Dibbini, Esq. (collectively "Dibbini"), and Silas Metro Holdings Corp. ("Silas Metro")

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move for an order (a) pursuant to CPLR 3211(a)(7), 3016(b), and 3025(b), and 3013, dismissing Plaintiff's "Amended Complaint as to Signature" with prejudice. Plaintiffs Hamad Ali, 2591 Realty LLC, 800 Realty Corp., and Rkan Realty LLC ("Plaintiffs") oppose and cross-move to stay or deny the motions pending discovery pursuant to CPLR 3211(d) and 3212(f). The moving defendants oppose the cross-motion.

Defendant Custom Title Services, Inc. ("Custom Title") has also filed a motion to renew its previously filed motion to dismiss, pursuant to CPLR 2221(e), and upon renewal, for dismissal and/or summary judgment in its favor, dismissing Plaintiffs' complaint. Plaintiff opposes the motion.

Plaintiffs have filed a motion to amend the pleadings pursuant to CPLR 3025(b). Defendants Signature, Dibbini, and Silas Metro oppose the motion, and Signature cross-moves for sanctions pursuant to 22 NYCRR 130-1.1.

In the interest of judicial economy, the above motions are consolidated and disposed of in the following Decision and Order.

I. Background and Relevant Procedural History

This matter involves several parcels of real property in Manhattan and the Bronx: (1) 2691 Eighth Avenue, a/k/a 2591 Frederick Douglass Boulevard, a/k/a 301 West 138^th Street, New York, New York, shown as Block 2041, Lot 47 on the tax map of New York County ("2591 Eighth Avenue"); (2) 1480 Westchester Avenue, Bronx, New York, shown as Block 3738, Lot 38 on the tax map of Bronx County ("1480 Westchester Avenue"); and (3) 1531 and 1535 Westchester Avenue, Bronx, New York, shown as Block 3773, Lots 5 and 3, respectively, on the tax map of Bronx County ("1531/1535 Westchester Avenue"), the aforementioned properties collectively referred to as the "Properties").

In a summons and complaint dated August 30, 2011, plaintiff Hamad Fares Ali ("Ali") asserted that he was the rightful owner or co-owner of the Properties. Hamad asserted that (1) he is a managing member of co-plaintiff 2591 Realty LLC, which is the owner of 2591 Eighth Avenue; (2) he is managing member of co-plaintiff RKAN Realty LLC, which is the owner of 1480 Westchester Avenue, and (3) he is either a majority shareholder or one of two equal

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shareholders of co-plaintiff 800 Realty Corp., which owns 1531/1535 Westchester Avenue.

The August 2011 complaint alleged that Hamad's son, defendant Fares Ali ("Fares") and defendant Selim Zherka ("Zherka") fraudulently conveyed ownership of the Properties from its alleged rightful owners to Zherka, based upon fraudulent misrepresentations and/or circumstances that Fares allegedly made to and/or engaged in with Zherka. The original complaint further alleged that the Properties were thereafter fraudulently conveyed to defendant Silas Metro, which then refinanced the debt on the Properties with defendant Signature "by means of a spreader mortgage encumbering all the properties with a mortgage of Four Million Nine Hundred Thousand ($4,900,000) dollars."

The complaint alleged that defendants James G. Dibbini and Associates, P.C., and James G. Dibbini (collectively "Dibbini"), purportedly the attorneys for Fares or the entity Plaintiff's, "facilitated and participated in the fraudulent scheme" either through direct participation or negligence. The original complaint also alleges that Custom Title Services. Inc. ("Custom"), the title agent that allegedly "insured title to Silas and Signature" had"participated and furthered" the fraudulent scheme.

The complaint's Seventh. Eighth, and Ninth causes of action sought a determination as to each parties' claims to the Properties pursuant to Article 15 of the RPAPL. Specifically, Plaintiff's asserted that they are the rightful owners of the Properties and that Silas and Zherka's adverse claims to ownership of, and Signature's adverse claim to a mortgage lien on the Properties are wrongful as they are the product of the aforementioned fraudulent scheme and, thus, should be voided. Thus, the Article 15 Claims in the original complaint seek a determination that Plaintiffs' claims to ownership of the Properties are valid, and Signature, Silas Metro, and Zherka's adverse claims are invalid.

On or about November 23, 2011, Signature moved to dismiss the original complaint pursuant to CPLR 3211(a)(7), 3016(b), and/or 3013, for failing to plead the underlying fraudulent scheme with sufficient particularity. This Court issued a Decision and Order which agreed that the pleading of Article 15 claims was insufficient to allow Signature to be able to defend the allegations that its lien interest in the Properties is based upon fraud. This Court directed Plaintiff to "amend its complaint within 60 days of entry of the Order, so that the statements

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therein were sufficiently particular to give the Court and parties notice of the occurrences intended to be proved and the material elements of each cause of action."

On or about April 18, 2012, Plaintiffs served a pleading entitled "Amended Complaint as to Signature Bank." The amended pleading now identifies Plaintiffs as "Hamad Ali, individually and owner of RHAM Realty, 800 Realty, and 2591 Realty, LLC." The Amended Complaint purports to include "New paragraphs starting from Complaint #146" and thus only contains paragraphs numbered 147 though 159. The Amended Complaint does not contain any of the allegations previously contained in the original complaint, including an identification of the various parties, a description of the purported ownership of the Properties, any allegations describing the purported fraudulent scheme, and any causes of action, including the material elements thereto. The Amended Complaint does not include an ad damnum clause identifying the relief sought against any of the defendants, including Signature.

In response to service of this "Amended Complaint," Signature, Silas Metro, and Dibbini each moved to dismiss. Defendant Custom Title has also moved for dismissal and/or summary judgment, renewing and its earlier motion that had been denied without prejudice for failure to include a complete set of the pleadings.

Signature, Silas Metro, and Dibbini argue that, at the outset, the "Amended Complaint" supercedes that original complaint, rendering the initial complaint a legal nullity. Consequently, since the "Amended Complaint" does not assert any causes of action with sufficient particularity against any party, it must be dismissed. If the amended pleading is considered a...