Haider v. Mashriqi

• Decision Date: 13 January 2022
• Docket Number: Index No. 710592/2017,Motion Seq. Nos. 16,17,18,& 19
• Citation: 2022 NY Slip Op 32452 (U)
• Parties: RENUKA HAIDER, as Administrator of the Estate of MOHAMMED HAIDER a/k/a MOHAMMED HAROON HAIDER, and RENUKA HAIDER, Plaintiffs, v. KHALID MASHRIQI; PHILIP W. LEE ESQ.: KAPLAN, KAPLAN, DITRIPANI, LLP; FAIRWAY INDEPENDENT MORTGAGE CORPORATION; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendant(s).
• Court: New York Supreme Court

2022 NY Slip Op 32452(U)

RENUKA HAIDER, as Administrator of the Estate of MOHAMMED HAIDER a/k/a MOHAMMED HAROON HAIDER, and RENUKA HAIDER, Plaintiffs,
v.
KHALID MASHRIQI; PHILIP W. LEE ESQ.: KAPLAN, KAPLAN, DITRIPANI, LLP; FAIRWAY INDEPENDENT MORTGAGE CORPORATION; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendant(s).

Index No. 710592/2017, Motion Seq. Nos. 16, 17, 18, & 19

Supreme Court, Queens County

January 13, 2022

Unpublished Opinion

Motion Dated: September 21, 2021

FILED: 01/18/2022

HONORABLE MARGUERITE A. GRAYS, J.S.C.

The following papers numbered EF 339-497 read on this motion (sequence #16) by plaintiffs Renuka Haider, as Administrator of the Estate of Mohammed Haider a/k/a Mohammed Haroon Haider, and Renuka Haider (collectively referred to as plaintiffs), for dismissal of the defenses and counterclaims interposed by defendants in their respective answers, striking those Answers, and for summary judgment on the Complaint pursuant to CPLR §3212, against defendants Khalid Mashriqi (Mashriqi), Kaplan, Kaplan, Ditripani, LLP (Kaplan), Fairway Mortgage Independent Mortgage Corporation (Fairway), and Mortgage Electronic Registration Systems, Inc. (MERS). and to set this matter down for an assessment of damages; separate motion (sequence number 17) by defendants Fairway and MERS for summary judgment pursuant to CPLR §3212 as against plaintiff for dismissal of plaintiffs' remaining causes of action against Fairway and MERS, and for entry of judgment as a matter of law on Fairway's and MERS' First, Second and Third counterclaims; separate motion (sequence #18) by Kaplan for summary judgment pursuant to CPLR §3212, dismissing plaintiffs' Complaint; and separate motion (sequence #19) by Mashriqi for dismissal of the Complaint pursuant to CPLR §3211(a)(7), for failure to state a cause of action, and for summary judgment pursuant to CPLR §3212, dismissing plaintiffs' Complaint.

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PAPERS NUMBERED
Notices of Motion - Affidavits - Exhibits................	EF 339-425
Answering Affidavits - Exhibits..............................	EF 426-480, EF488-490
Reply Affidavits.......................................................	EF 481-487, EF491-497

Upon the foregoing papers it is ordered that the motions are consolidated for purposes of this decision and determined as follows:

Deceased plaintiff Mohammed Haroon Haider (the decedent), and plaintiff Renuka Haider (Haider), who were husband and wife, were the owners of premises located at 73-06 164 Street, in the County of Queens. As is relevant upon the instant motions, plaintiffs commenced the instant action alleging, among other things, that Mashriqi, Kaplan, Fairway and MERS deprived plaintiffs of their ownership interest in the subject premises for no consideration. Plaintiffs have alleged that MERS acted as a nominee for Fairway, that Mashriqi borrowed $598,200.00 from Fairway against the subject premises, that Fairway and MERS claim an interest in the premises, that Kaplan acted as Mashriqi's settlement agent and that Kaplan undertook to represent plaintiffs in all matters relating to the instant Complaint and failed to protect plaintiffs' interests.

Following commencement of the instant action, in their respective answers, Mashriqi has alleged fifteen affirmative defenses and two counterclaims, Kaplan has alleged twelve affirmative defenses, and Fairway and MERS have alleged sixteen affirmative defense and three counterclaims. The parties have all now moved for various relief.

The Court will first address the branches of the parties' motions for summary judgment. Plaintiffs have moved for summary' judgment on the Complaint pursuant to CPLR §3212, against Mashriqi, Kaplan, Fairway, and MERS, and to set this matter down for an assessment of damages. Fairway and MERS have moved for summary judgment pursuant to CPLR § 3212, for dismissal of plaintiffs' remaining causes of action as against them. Kaplan has moved for summary judgment pursuant to CPLR § 3212, dismissing plaintiffs Complaint. Mashriqi has moved for summary judgment pursuant to CPLR § 3212, dismissing plaintiffs' Complaint.

Although Fairway and MERS have previously moved for summary judgment, a motion which this Court denied for their failure to satisfy their prima facie burden in a decision dated June 1, 2020, and entered on June 2, 2020, upon this instant motion, they have argued that disclosure has since been completed, which provided additional grounds for relief and elicited new testimony, which were not available and could not have been submitted with their prior

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application. As such, on the basis of new evidence, the Court will consider Fairway's and MERS' instant motion for summary judgment (see Cocciav Liotti, 101 A.D.3d 664, 666 [2012]; cf Hillrich Holding Corp, v BMSL Mgt., LLC, 175 A.D.3d 474, 475 [2019]).

In order "'[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented'" (Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25 [2019], quoting Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968]). '"Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable'" (Matter of New York City Asbestos Litig., 33 N.Y.3d at 25, quoting Forrest v Jewish Guildfor the Blind, 3 N.Y.3d 295,315 [2004]). On summary judgment, "facts must be viewed in the light most favorable to the non-moving party" (Matter of New York City Asbestos Litig., 33 N.Y.3d at 25), and "the proponent of a summary' judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (id., at 25-26, quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).

In support of this branch of their motion, plaintiffs have argued that Mashriqi defrauded plaintiffs, that Mashriqi paid no consideration to plaintiffs, and that Kaplan, Fairway and MERS failed to exercise due diligence. Plaintiffs have argued that all defendants were aware of defendants' failure to comply with Real Property Law 265-a and the Home Ownership and Equity Protection Act. Plaintiffs have argued that a copy of a Deed dated May 6, 2016, the transfer documents, copies of a Contract of Sale and a deed dated April 21,2017, and a copy of a Promissory Note dated December 23, 2015, have demonstrated that the Promissory Note dated December 23, 2015, is a covered agreement under Real Property Law § 265-a, that no disclosures and notices in regard to Real Property Law § 265-a, were given to plaintiffs, in violation of those sections, and that plaintiffs were fraudulently induced by Mashriqi to transfer title to their home. Plaintiffs have further argued that Mashriqi, Fairway and MERS are not bona fide purchases for value under Real Property Law § 266, since Mashriqi executed a loan under fraudulent circumstances.

As an initial matter, to the extent that plaintiffs have argued that certain provisions of The Home Equity Theft Prevention Act (HELP A), The Truth In Lending Act (TIL A), Banking Law §595-a, as amended by Real Property Law 265-a, and Regulation Z, which is also known as TILA, were violated, inasmuch as this Court has previously determined that those sections are inapplicable in this matter and has dismissed claims arising out of those provisions and sections, based upon the doctrine of law of the case, any contentions plaintiffs have advanced in regards to those provisions are not a ground for relief (see Matter of Chung Li, 165 A.D.3d 1105, 1106 [2018], lv to appeal denied 32 N.Y.3d 915 [2019]).

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In opposition to plaintiffs' motion, Fairway and MERS have argued, among other things, that plaintiffs have failed to submit admissible evidence in support of this branch of their motion since Haider lacks personal knowledge of the facts sufficient to provide admissible testimony regarding the sale of the subject premises to Mashriqi, that Haider testi Tied that she did not recall events relating to the transaction and that her deceased husband, the decedent, was the only one who negotiated the transaction with Mashriqi, and that Haider's affidavit should be stricken because it contradicts her earlier sworn deposition testimony.

Similarly, in opposition, Kaplan has argued, among other things, that plaintiffs have failed to satisfy their burden on their motion inasmuch as Haider's affidavit is inadmissible since it is conclusory, self-serving, and contradicts her prior sworn deposition testimony. Kaplan has further argued that, despite plaintiffs' request in her motion papers, plaintiffs' verified Complaint may not be used as an affidavit to support plaintiffs' motion for summary' judgment since it contradicts Haider's sworn deposition testimony and was verified by the decedent, who was not deposed in the action and cannot be cross-examined by any party and the affidavit of a deceased plaintiff cannot be considered testimony. In opposition. Mashriqi has argued that plaintiffs have failed to satisfy their burden on this branch of their motion because Haider's deposition testimony reflected that Haider never spoke to Mashriqi and did not know what the alleged transaction between the decedent and Mashriqi involved.

The record in this matter contains, among other things, copies of the pleadings, Haider's affidavit and deposition testimony, Mashriqi's deposition testimony, the affidavit of non-party' Jared Kaplan, a copy of a mortgage agreement dated October 20, 2005, a copy of an Assignment of Mortgage dated April 26, 2006, a copy of an Assignment of Mortgage dated January 16, 2008, a copy of an "Agreement, Promissory Note" made between the decedent, Haider and Mashriqi dated December 23, 2015, a copy of a Deed dated May 6. 2016. a copy of a Deed...