Choi Chiu v. Winston Chiu

• Decision Date: 13 March 2007
• Docket Number: 2006-00455.
• Citation: 2007 NY Slip Op 02083,38 A.D.3d 619,832 N.Y.S.2d 89
• Parties: MAN CHOI CHIU et al., Respondents, v. WINSTON CHIU et al., Appellants.
• Court: New York Supreme Court — Appellate Division

38 A.D.3d 619

832 N.Y.S.2d 89

2007 NY Slip Op 02083

MAN CHOI CHIU et al., Respondents, v. WINSTON CHIU et al., Appellants.

2006-00455.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided March 13, 2007.

In an action to cancel a deed and set aside a conveyance of real property and to recover damages for unjust enrichment, the defendants appeal from an order and judgment (one paper) of the Supreme Court, Queens County (Blackburne, J.), which, after a nonjury trial, inter alia, determined that the defendant Winston Chiu "was never a member of the [plaintiff 42-52 Northern Blvd.] LLC" and that the plaintiff Man Choi Chiu is the "sole member" thereof, granted the plaintiffs' application to conform the pleadings to the proof by amending paragraphs 50 and 51 of the complaint and paragraph 2 of the ad damnum clause, determined that the deed and title to the subject premises held by the defendants is null and void, precluded the

defendants from any financial involvement, participation, management, membership, rights, privileges, interest, or emoluments of membership in the plaintiff 42-52 Northern Blvd., LLC, and the premises known as 42-52 Northern Blvd., and awarded the plaintiffs an attorney's fee.

Ordered that the order and judgment is modified, on law and on the facts, by (1) deleting the provisions thereof which determined that the defendant Winston Chiu "was never a member of the [plaintiff 42-52 Northern Blvd.] LLC" and that the plaintiff Man Choi Chiu is the "sole member" thereof, (2) deleting the provisions thereof which granted the plaintiffs' application to conform the pleadings to the proof by amending paragraphs 50 and 51 of the complaint and paragraph 2 of the ad damnum clause, and (3) deleting the provision thereof precluding the defendants from any financial involvement, participation, management, membership, rights, privileges, interest, or emoluments of membership in the plaintiff 42-52 Northern Blvd., LLC, and the premises known as 42-52 Northern Blvd.; as so modified, the order and judgment is affirmed, without costs or disbursements.

In reviewing a trial court's findings of fact following a nonjury trial, this Court's authority "is as broad as that of the trial court" and includes the power to "render the judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses" (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983] [citations and internal quotation marks omitted]; see Hall v Sinclaire, 35 AD3d 660 [2006]; Matter of Fasano v State of New York, 113 AD2d 885, 888 [1985]).

Here, the trial court's determination that the defendant Winston Chiu "was never a member of the [plaintiff 42-52 Northern Blvd.] LLC" was against the weight of the documentary and testimonial evidence relating to the original purchase and financing of the subject premises by the plaintiff 42-52 Northern Blvd., LLC (hereinafter the LLC), in September 1999. Among other things, the LLC's counsel in connection with those transactions, Wander & Golden, LLP (hereinafter Wander & Golden), provided an opinion letter representing, in relevant part, that certain loan documents executed by Winston Chiu, as member of the LLC, were "duly authorized, validly and duly executed and delivered by the [LLC] ... and constitute the valid, binding and enforceable obligation of the [LLC]."

Moreover, ...