Weisinger v. Rae

• Decision Date: 18 May 1959
• Citation: 19 Misc.2d 341,188 N.Y.S.2d 10
• Parties: Fereard WEISINGER, Plaintiff, v. Joseph RAE et al., Defendants.
• Court: New York Supreme Court

Page 10

188 N.Y.S.2d 10

19 Misc.2d 341

Fereard WEISINGER, Plaintiff, v. Joseph RAE et al., Defendants.

Supreme Court, Special Term, Queens County, Part I.

May 18, 1959.

Joseph L. Forscher, New York City, for plaintiff.

Charles Wilson, Brooklyn, for defendants. John MacCrate, Brooklyn, of counsel.

NICHOLAS M. PETTE, Justice.

Defendants move for an Order vacating notices of lis pendens filed by plaintiff in the Office of the Clerk of Queens County, on July 10, 1958 and November 20, 1958 respectively, and any and all notices of the pendency of this action filed by plaintiff against real property owned by Weinrose Associates, a copartnership comprised of Morris Weintraub, Hyman Weintraub and Louis Rosenberg. The Weintraubs have a 50% interest in said partnership and the other 50% interest therein is owned by Louis Rosenberg.

This action was originally instituted by plaintiff by service of a summons and complaint on July 11, 1948, in which he joined as party dedefendants, 'Joseph Rae, Hyman Weintraub, Morris Weintraub and Louis Rosenberg, individually, and as copartners doing business under the firm name and style of Weinrose Associates, Jacob Morrow and Lee Rae'. There is no dispute that said Weinrose Associates was comprised of the individual partners, Morris Weintraub, Hyman Weintraub and Louis Rosenberg. It appears that this copartnership owned approximately 2,000 lots of vacant land located in Rosedale, Queens County, New York, approximately 700 of which have been completely tied up by plaintiff's lis pendens since July 10, 1958, and approximately 1,500 thereof also tied up since November 20, 1958.

Defendants contend, that to provide a pretext for a lis pendens against such a large area of valuable property belonging to said partnership, the plaintiff in his original complaint herein, included serious charges of fraud and conspiracy against the copartnership, Weinrose Associates and all its members; that the original complaint falsely alleged that Morris Weintraub and Hyman Weintraub, with the defendant, Joseph Rae, and others, had 'conspired, connived, and confederated together to cause the defendant, Joseph Rae * * * to defraud and cheat plaintiff of his interest * * * in the lots and parcels of land more particularly described in Schedule A hereto annexed; and in the acquisition of the additional lots, parcels and pieces of land in Area, without paying plaintiff even a semblance of the real and true value thereof.' (Par. 24 of Orig. Complt.); that the remainder of the original complaint, to support the lis pendens herein, was replete with further allegations of fraud against the copartnership and all its members. (Pars. 23 to 36, inclusive).

Defendants further contend, that subsequently plaintiff was forced to completely withdraw all such charges against the copartnership, by an amended complaint which limits the plaintiff's alleged claim solely to the defendant, Joseph Rae, and his alleged nominees, the defendants, Louis Rosenberg and Lee Rae; that nevertheless, the plaintiff failed to withdraw his lis pendens against the copartnership property, although it was filed on the basis of said false and completely retracted allegations against the copartnership.

This motion to vacate the lis pendens is predicated upon two separate and distinct grounds:

'1. The lis pendens is invalid as a matter of law since it is filed against property owned by the copartnership, Weinrose Associates, although plaintiff's amended complaint herein fails to allege any cause of action whatever against the said copartnership, to owner of the property;

'2. This action was neither commenced nor prosecuted in good faith; and the plaintiff has unreasonably neglected to proceed herein. He has wrongfully used his lis pendens as a device to obtain large sums of money from a purchaser of the copartnership's property, and he has been guilty of deliberately protracting delays in this action in order to prolong the strangulating effect of his lis pendens against the copartnership property.'

In his amended complaint, plaintiff alleges, that prior to August 19, 1957, he had an agreement of joint venture with the defendant, Joseph Rae, to assemble as much 'as they could' of land lying in a certain area of Rosedale, Queens County, New York, the plaintiff to have a 40% interest and Joseph Rae a 60% interest therein (Pars. 12, 13, 14 of amended complt.), and that pursuant thereto they had assembled the 700 lots (approximately) listed in Schedule A of the amended complaint. (Par. 14). Plaintiff, not having annexed a copy of any writing containing the same nor given any precise date thereof, it must be assumed that the aforesaid alleged agreement apparently was oral. However, on August 19, 1957, plaintiff and defendant, Joseph Rae, actually did enter into a written agreement, a copy of which is annexed to the answer herein, which on its face seems to cover the full extent of the relationship between plaintiff and Joseph Rae, concerning property in Rosedale, Queens County, New York, which consisted only of the 700 lots listed in that written agreement. Said written agreement is devoid of any mention of any requirement by the parties thereto (plaintiff and defendant, Joseph Rae) to purchase together all the property obtainable in the area referred to in the aforesaid alleged oral agreement, and is limited solely to the purchase of the 700 lots listed in said written agreement.

The Court is of the opinion that, if on August 19, 1957 plaintiff had, as he now claims, a pre-existing oral agreement of joint ventrue with Joseph Rae pursuant to which they acquired the 700 lots listed in the written agreement, and which oral agreement required them to purchase together all the property obtainable in that area, the said written agreement would have so provided, and plaintiff, experienced real estate operator that he was, would undoubtedly have insisted that the written agreement so state. In the absence of any mention thereof in the comprehensive written instrument of August 19, 1957, the inference is inescapable that there was no such prior oral agreement.

Plaintiff, in his amended complaint, alleges that he was induced to sell his 40% interest in the said 700 lots to the defendant, Joseph Rae, by reason of the alleged fraud on the part of the latter, in representing that the property was 'valueless' (Pars. 22, 24), and that Rae concealed from plaintiff the transaction between Joseph Rae and the copartnership, Weinrose Associates, whereby the latter acquired the property from Joseph Rae (Pars. 25, 27, 28).

In the light of plaintiff's undoubted experience and sagacity in real estate transactions, plaintiff's claim of misrepresentation as to the 'value' of land, is ostensibly so very unlikely, as to be a very unstable basis for an action for fraud. In this connection, it appears that plaintiff testified in a recent proceeding in the Supreme Court in Suffolk County, that he was a 'Real Estate broker, investor in mortgage financing, G. I. and F. H. A. loans', and that he had been in that business, 'About 15, 10 years'. In that proceeding he also testified, that he, with certain associates, acquired two parcels of land owned by the County of Suffolk, for slightly less than $50,000, and turned around and resold the same for $275,000. That testimony by the plaintiff was given very shortly before the transaction involved in the case at bar, and to be specific, on May 8, 1958. To claim, as he does in his amended complaint, that he was the victim of a misrepresentation as to land value, is patently absurd and utterly lacking in merit. (See Galley Proof of transcript of minutes in aforesaid proceeding, annexed to defendants' papers as a Special Exhibit.)

To further demonstrate the fallacy in plaintiff's claim that he was fraudulently induced to sell out his interest concerning the 700 lots at less than its true value, the defendants urge that before he sold the same to Joseph Rae, he had offered to sell the same to the defendants Weintraub at plaintiff's actual cost, and that he pressed them to buy the same on that basis, which was less than the consideration he obtained from the defendant, Joseph Rae.

With respect to plaintiff's charge that Joseph Rae, concealed his transaction with Weinrose Associates for their acquisition of the property from Joseph Rae, the defendants contend that such charge is false, since said transaction was closed at the very same time and in the very same room as the closing of plaintiff's transaction with Joseph Rae; that plaintiff, personally, was present and actively participated in the very details of the simultaneous closing of both transactions, and was fully cognizant of the terms of the copartnership's transaction with Joseph Rae, and he examined the papers which were then and there signed with Joseph Rae; that in fact both closings constituted in effect a single tripartite transaction, with Joseph Rae simultaneously transferring to the copartnership the 700 lots in which he was acquiring plaintiff's 40% interest, and also approximately 1,500 additional lots in which plaintiff never had any interest.

In this Court's opinion, plaintiff's claim that the defendant, Joseph Rae, defrauded him into selling his 40% interest in the 700 lots, is obviously so specious and unstable as to be without merit. It appears to be an undisputed fact, that at the time of the commencement of this action and when the lis pendens affecting said 700 lots was filed on July 10, 1958, the owner of said lots was and still is the copartnership, Weinrose Associates, and not the defendant, Joseph Rae. Moreover, there can be no dispute that Weinrose Associates was in no way a party to the alleged perpetration of the alleged fraud, since the amended complaint affirmatively shows that the copartnership had no complicity in the alleged fraud.

Plaintiff, apparently not content with tying up said 700 lots, after serving his amended...