Frater v. Lawson-Calder

• Court: New York Supreme Court
• Writing for the Court: HON. JULIANNE T. CAPETOLA Justice of the Supreme Court
• Citation: Frater v. Lawson-Calder, 2018 NY Slip Op 33964(U), INDEX NO. 603324/2017 (N.Y. Sup. Ct. Mar 14, 2018)
• Decision Date: 14 March 2018
• Docket Number: INDEX NO. 603324/2017
• Parties: NORMAN FRATER, Plaintiff, v. JANET LAWSON-CALDER, Defendant.

2018 NY Slip Op 33964(U)

NORMAN FRATER, Plaintiff, v. JANET LAWSON-CALDER, Defendant.

INDEX NO. 603324/2017

New York Supreme Court

FILED: March 23, 2018

RECEIVED: March 26, 2018

March 14, 2018

NYSCEF DOC. NO. 82

At a Term of the Supreme Court of the State of New York held in and for the County of Nassau, 100 Supreme Court Drive, Mineola, New York, on the 14^th day of March 2018

PRESENT: HON. JULIANNE T. CAPETOLA Justice of the Supreme Court

DECISION AND ORDER ON MOTION

Motion Sequence: 002

The following papers were read on this Motion:

Plaintiff's Notice of Motion and Supporting Documents and Memorandum of Law

Defendant's Affirmation in Opposition

Plaintiff's Reply Affirmation

Plaintff in this civil action has moved by notice of motion for an order pursuant to CPLR §3211(a)(1), (5), and (7) dismissing Defendant's counterclaims and pursuant to CPLR §3211(b) dismissing the affirmative defenses. Defendant has opposed the motion, Plaintiff has replied, and the motion was deemed submitted February 20, 2018.

The underlying action was commenced by the Plaintiff by Summons and Complaint, and relates to a series of deed transfers. In 2007, Defendant owned a residential property (hereinafter the "Subject Property") subject to a mortgage which was in foreclosure. Plaintiff purchased the property subject to said mortgage and Defendant executed a deed to Plaintiff dated October 2, 2007 which was recorded October 23, 2007 (hereinafter the "2007 Deed"). Defendant claims that the parties simultaneously executed a contract tilled a "Sales Agreement, Hold Harmless and Indemnification". Though Plaintiff refers to same as an "alleged contract", Plaintiff does not dispute the existence thereof nor his signature thereon. In that document (hereinafter the "Sales Agreement") Plaintiff agreed, amongst other things, to pay off the mortgage within two years from the date of closing and to keep the Subject Property "in good order including repairs, necessary improvements, lawn care, etc." and that "in the event purchaser fails or refuses to comply with any of the terms and conditions herein, he represents, warrants and covenants that he will immediately re-transfer the property back to the seller or her successors and/or assigns for no consideration". Defendant further claims that, in 2009 the parties entered into an Amendment to Agreement (hereinafter the "2009 Amendment") wherein the time for Plaintiff to payoff the mortgage was extended to October 19, 2012. Plaintiff denies the validity of the 2009 Amendment, which is neither dated nor notarized, based on his allegation that his signature thereon is a forgery.

Plaintiff claims that, on June 6, 2016, Defendant, through a fraudulently executed deed bearing his forged signature, conveyed the Subject Property back to herself (hereinafter the "2016 Deed") and thereafter rented the Subject Property for profit. Plaintiff commenced the underlying action alleging six causes of action. Plaintiff claims the 2016 Deed is void ab initio, he claims conversion, that he is entitled to an accounting of the rents and profits Defendant has accrued since the unlawful conveyance, unjust enrichment, and seeks punitive damages and attorney's fees.

Defendant has counter-claimed for the following relief: a declaratory judgment declaring the 2007 Deed defective and void ab initio, or, in the alternative, declaring that Plaintiff held the Subject Property in a constructive trust for Defendant and fraudulently induced Defendant to execute the 2007 Deed in Plaintiff's favor, breach of contract with regard to the Sales Agreement and 2009 Amendment, specific performance in the form of the return of the re-conveyance of the property to Plaintiff, and fraud.

It must be noted that this is the second motion seeking the same relief. The first was denied with leave to renew inasmuch as Plaintiff had failed to name necessary parties, and that defect has now been corrected. Therefore, the Court entertains the instant motion anew.

In determining a motion for dismissal pursuant to CPLR §3211(a)(7), "the court must determine whether, accepting as true the factual averments of the complaint and according the plaintiff the benefits of all favorable inferences which may be drawn therefrom, the plaintiff can succeed upon any reasonable view of the facts stated". Board of Education v. County of Westchester, 282 A.D.2d 561 (2d. Dept. 2001). A motion to dismiss for failure to state a cause of action "cannot be sustained simply by showing that facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that material facts are only argumentatively averred. The pleading may be deficient in technical language or in logical statement, but, as against a demurrer or a motion of this character at the trial, the pleading will be deemed to allege whatever canbe implied from its statements by fair and reasonable intendment". Kain v. Larkin, 141 N.Y. 144 (N.Y.C.A. 1894).

The underlying complaint alleges five causes of action, which will be addressed individually:

First and Second Causes of Action: Declaratory Judgments

"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, ... the defendant might make." A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Matter of Marini, 119 A.D.3d 584, 585, 989 N.Y.S.2d 487; Jiles v. Archer, 116 A.D.3d 664, 666, 983 N.Y.S.2d 283; ABN AMRO Mtge. Group, Inc. v. Stephens, 91 A.D.3d 801, 803, 939 N.Y.S.2d 70; First Natl. Bank of Nev. v. Williams, 74 A.D.3d 740, 742, 904 N.Y.S.2d 707; GMAC Mtge. Corp. v. Chan, 56 A.D.3d 521, 522, 867 N.Y.S.2d 204; Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217)". Deramo v. Laffey, 149 A.D.3d 800 (2d. Dept. 2017).

With regard to the first cause of action which seeks a declaratory judgment declaring the 2007 Deed void ab initio, Plaintiff first argues that he has a defense predicated upon documentary evidence to refute these counterclaims inasmuch as the 2007 Deed exists and Defendant does not claim same to be a forgery, negating any claim that said deed is void at its inception. He further argues that, by contrast, the allegation that same was procured by fraudulent inducement or fraudulent means would render the 2007 Deed voidable, not void, which gives the deed legal effect until it is set aside, and even if the deed were determined to be voidable, the statute of limitations has run requiring the dismissal of the first counterclaim.

Pursuant to CPLR §213(8), as it relates to a cause of action based upon fraud, "the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it".

As it relates to the second counterclaim which seeks a declaratory judgment that the subject property was held in constructive trust by Plaintiff, Plaintiff argues that Defendant has failed to set forth the elements of such a claim and, in any event, the statute of limitations has run on that cause of action as well.

Plaintiff cited the matter of Sharp v. Kosmalski in support of their argument that Defendant has failed to set forth the elements of a cause of action for constructive trust, which states in relevant part,

"In the development of the doctrine of constructive trust as a remedy available to courts of equity, the following four requirements were posited: (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment (see Janke v. Janke, 47 A.D.2d 445, 366 N.Y.S.2d 910, affd. 39 N.Y.2d 786, 385 N.Y.S.2d 286, 350 N.E.2d 617; Vassel v. Vassel, 40 A.D.2d 713, 336 N.Y.S.2d 887, affd. 33 N.Y.2d 533, 347 N.Y.S.2d 434, 301 N.E.2d 422; Foreman v. Foreman, 251 N.Y. 237, 167 N.E. 428; Sinclair v. Purdy, 235 N.Y. 245, 139 N.E. 255; Ahrens v. Jones, 169 N.Y. 555, 62 N.E. 666; Matter of O'Hara, 95 N.Y. 403)". Most frequently, it is the existence of a confidential relationship which triggers the equitable considerations leading to the imposition of a constructive trust (see Bogert, Trusts and Trustees (2d ed.), s 482, p. 132; 61 N.Y.Jur., Trusts, s 146, pp. 303—304)". 40 N.Y.2d 119 (1976).

Plaintiff argues that Defendant has not alleged a confidential or fiduciary relationship of any kind between the parties, and that the transaction was nothing more than arms length in nature.

Further, Plaintiff argues that the same six year statute of limitations applies to an action to impose a constructive trust.

"An action to impose a constructive trust is governed by the six-year Statute of Limitations provided by CPLR 213(1), which 'commences to run upon the occurrence of the wrongful act giving rise to a duty of restitution and not from the time the facts constituting the fraud are discovered' (Mattera v. Mattera, 125 A.D.2d 555, 556-557, 509 N.Y.S.2d 831)". Mazzone v. Mazzone, 269 A.D.2d 574 (2d. Dept. 2000).

Defendant, in her opposition, which includes an affirmation from counsel, and the same affidavit she submitted in connection with original motion on this matter which was dated July 27, 2017, contains no arguments whatsoever as it relates to the causes ofaction which seek declaratory judgments. Accordingly, those counterclaims shall be dismissed.

Third Cause of Action: Breach of Contract

Fourth Cause of Action: Specific Performance

"The essential elements for pleading a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of his or her contractual obligations, and damages resulting from...