Cooper v. Pullar, 237620.
| Decision Date | 23 June 2015 |
| Docket Number | No. 237620.,237620. |
| Citation | 48 N.Y.S.3d 265 (Table) |
| Parties | Russell E. COOPER, Plaintiff, v. James E. PULLAR, Doris E. Pullar, Samuel J. Barr, Bank of America, N.A., First Niagara Bank, N.A. f/k/a First Niagara Bank s/b/m Hudson River Bank and Trust, New York State Department of Taxation and Finance and United States of America and Discover Bank, Defendants. |
| Court | New York Supreme Court |
Gregory E. Schaaf, Esq., Englert, Coffey, McHugh & Fantauzzi, LLP, Schenectady, for the plaintiff.
Gary A. Lefkowitz, Esq., Schiller & Knapp, LLP, Latham, for the defendant First Niagara Bank, N.A.
Plaintiff, Russell E. Cooper, moves for an order granting him summary judgment against Defendants James E. Pullar, Doris E. Pullar (hereinafter Defendants Pullar) and First Niagara Bank, N.A., (hereinafter Defendant First Niagara) and that Plaintiff be awarded the following relief: against Defendants Pullar, that Plaintiff be declared to be the title owner in fee simple of the subject real property located in the City of Troy, Rensselaer County, New York, and further directing Defendant Barr to deliver the deed to the property to Plaintiff; or in the alternative declare Plaintiff to be the title owner in fee simple of the property and directing the Sheriff of Rensselaer County to deliver to Plaintiff a Sheriff's deed to the property; and against Defendant First Niagara declaring the purported mortgage given to Defendant First Niagara by Defendant Samuel Barr to be null and void and of no effect.
Defendant, First Niagara, seeks an order denying Plaintiff's motion and has filed a cross-motion for summary judgment dismissing the complaint against it, with prejudice, and on the merits, with costs, disbursements and expenses.
Plaintiff commenced the underlying action against the Defendants by way of a Summons and Complaint, and Notice of Pendency dated September 20, 2012. The essence of Plaintiff's claim is as follows: that in October 1995, he entered into a 15 year Lease with Option to Buy (hereinafter Lease) for the subject property (hereinafter property) with the Defendants Pullar; that Defendants Pullar sold the premises to Defendant Barr, in December 2003; that Defendant Barr mortgaged the premises with Defendant First Niagara in December 2003 and with Defendant Bank of America in February 2008; that Plaintiff has fully complied with the terms of the Lease and made all the required payments; that since Plaintiff has fully complied with the Lease, Defendant Barr should be ordered to deed the premises to the Plaintiff; that since Barr's interest in the premises was subject to defeasance, the mortgages of Defendants First Niagara and Bank of America are null and void, and that since Barr's interest in the premises was subject to defeasance, the liens of the Defendants, New York State Department of Taxation and Finance, United States of America, and Discover Bank against the premises should be declared to be invalid.1
In support of his motion, Plaintiff provides an Affidavit from himself and his wife, Pamela Cooper. Plaintiff asserts that he fully complied with the terms and obligations of the Lease and is therefore entitled to a deed to the property. Plaintiff states that he and his family began occupying the property in November of 1995, and that his full occupancy of the house was pursuant to the Lease he entered with Defendants Pullar. Plaintiff acknowledges that he did get behind in the lease payment to the Defendants Pullar but states that was due to extensive renovations that he and his wife undertook at the property. Plaintiff states that from 1997 to 1998 they spent approximately $40,000.00 remodeling the house. Plaintiff asserts that Schedule B attached to Defendants' Pullar Notice of Request for Dismissal of Motion for Summary Judgment shows that he made all payments to them. Plaintiff further states that the entry for 7–Dec–98, when Defendants Pullar state they sent a notice to terminate lease, shows that he paid the sum due within two days of the notice. Plaintiff states that he and his family have now lived in the house continuously for approximately 19 years.
Plaintiff asserts that he has been informed by his attorneys that on December 29, 2003, Defendants Pullar sold the property to Defendant Barr. At that time, Defendant Barr obtained a mortgage from Defendant First Niagara dated December 29, 2003, and recorded in the Rensselaer County Clerk's Office in 2003. Plaintiff states that at the time of the sale he didn't know who to make his payments to and continued making them to Defendants Pullar until they received notice to send the payment to Defendant Barr. Plaintiff asserts that he made every single payment to Defendant Barr. Plaintiff states that in December, 2003, a man came to the property to look inside and take pictures, but that his wife denied the man entry. Plaintiff states that his wife let the man in when he mentioned insurance, that he took a picture and left, and made no inquiry as to their occupancy.
In her Affidavit, Pamela Cooper, states that in December, 2003, a person came to the house to inspect it. She states that she refused him entry, but did eventually let him in. Pamela Cooper states he took a picture and left and never inquired as to the nature of their occupation of the property or their living arrangements.
Plaintiff states that pursuant to the attached to the Lease, the last payment was due on October 1, 2010. Plaintiff asserts that he contacted Defendant Barr on the phone and informed him that he was exercising his option under the Lease and that upon making the final payment he wanted the deed. Plaintiff states that he called Defendant Barr on three occasions and that each time he had an excuse and kept putting Plaintiff off. Plaintiff states that he properly notified Defendant Barr of his intent to exercise his position under the Lease pursuant to paragraph 20 of the Lease. Plaintiff asserts that to date Defendant Barr has failed and refused to execute the deed called for in the Lease.
Plaintiff's Counsel argues that Defendants' Pullar Answer did not raise any affirmative defenses to the action but set forth several objections. Plaintiff's Counsel asserts that the objections involve the Plaintiff's failure to make payments under the Lease for certain months and that notices were sent by Defendants Pullar. Plaintiff's Counsel states that Exhibit B attached to Defendants' Pullar Notice of Request for Dismissal of Motion for Summary Judgment contradicts their claim as it shows that Plaintiff made all payments to them, even if some were made late. Plaintiff's Counsel further points out that Defendants Pullar stated in their papers that they have had nothing to do with the property since December 29, 2003. He argues that Defendants Pullar have no standing in this matter.
Plaintiff's Counsel asserts that Defendants Pullar's claims that Plaintiff failed to perform according to the terms of the Lease were based on minor failures and are inconsequential. Plaintiff's Counsel states that on two occasions the Defendants Pullar sent out notices of terminations when Plaintiff's payments were late. However, he asserts that Plaintiff ultimately made the payments, usually within two or three days of the notice, which Plaintiff accepted. Plaintiff's Counsel states that acceptance of the late payments after the notice constitutes waiver.
Plaintiff's Counsel argues that a tenant with an option to purchase is entitled to commence an action for specific performance. Plaintiff's Counsel states that Plaintiff seeks specific performance from Defendants Pullar's grantee, Defendant Barr. Plaintiff's Counsel asserts that Plaintiff is entitled to specific performance as he properly exercised his option to purchase under the Lease and was ready, willing and able to proceed with the sale.
Plaintiff's Counsel further argues that Defendant First Niagara is not a good faith purchaser for value and is therefore not entitled to protection under Real Property Law § 291. Plaintiff's Counsel asserts that since Defendant First Niagara acquired its interest in the property subsequent to Plaintiff's interest, Plaintiff's interest must prevail.
Plaintiff's Counsel recognizes that the issue here is that Defendant First Niagara is relying on the fact that its interest was recorded and the interest of Plaintiff was not recorded. Plaintiff's Counsel cites three pieces of case law to support his argument based on the facts and circumstances in this action. He asserts that Defendant First Niagara failed to investigate and make a reasonable inquiry as to the title of the tenant (Plaintiff) to the property, who was in possession of the property at the time of the mortgage, and is therefore not a good faith purchaser. (see, Williamson v. Brown, 15 N.Y. 354 (1857), Booth v. Ameriquest Mortgage Co., 63 AD3d 769 [2d Dept.2009], Vitale v. Pinto, 118 A.D.2d 774 [2d Dept.1986] ). Plaintiff's ounsel argues that the Lease states that the Landlord will not obtain further financing or further encumber the property as it may impair the title to be transferred to the tenant. Plaintiff's Counsel asserts that had Defendant First Niagara sufficiently inquired of the tenants as it was required to do, it would have determined Plaintiff's rights under the Lease and that the mortgage was prohibited and that Plaintiff's claim to title was superior.
Plaintiff's Counsel asserts that as of the January, 1999, payment made by Plaintiff, he was not simply just an owner of the equitable title, but a holder of an equitable mortgage in the property. He argues that Plaintiff was already a contract vendee with equitable title when Defendant First Niagara obtained its interest in the property. Plaintiff's Counsel states that Defendant First Niagara is not a good faith purchaser under Real Property Law § 291, not entitled to protection under the...
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