Conti v Marino
2024 NY Slip Op 32868(U)
August 12, 2024
Supreme Court, Kings County Docket Number: Index No. 514326/2023 Judge: Ingrid Joseph
Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023 NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024
_,;:
At an IASlAS Term, Part 83 of Term, Part of the Supreme Supreme
Court Court ofof the State
State of New York,
of New York, held
held in and
for the
the County
County of
of Kings,
Kings, at the Courthouse, Courthouse, at
360 Ad~-Street, Brookly~w York, York, on
t
Ad~-Street,
theh~e ~ day of of ~1
Brookly~W. -frt½.J ·,
2024. -,2024.
PRESENT: PRE SEN T: HON. HaN. INGRID INGRID JOSEPH,
JOSEPH, J.S.C.
J.S.C.
SUPREME SUPREME COURT COURT OF THE STATE OF NEW THE STATE NEW YORK YORK COUNTY COUNTY OF KINGS KINGS ----------------------_._----------------------------------_._------~--)( .--X -------------------------------------------------------------------- MARIO MARIO CONTI,·
CONTI,
Plaintiff, Plaintiff,
-against- -against- Index No.: 514326/2023 Index No.: 514326/2023
ROSE ROSE MARINO,
MARINO,
DEUTSCHE DEUTSCHE BANK NATIONAL TRUST BANK NATIONAL TRUST COMPANY COMPANY
As INDENTURE
INDENTURE TRUSTEE
TRUSTEE FOR
FOR AMERICAN
AMERICAN HOME
HOME
MORTGAGE MORTGAGE TRUST
TRUST 2005-1,
2005-1, DECISION DECISION AND
AND ORDER
ORDER
Defendants. Defendants.
-----------------------------------------------------------------------X -----------------------------------------------------------------------)(
The following
following e-filed papers read e-filed papers read herein:
herein: NYSCEF Doc. Nos.:
NYSCEF Nos.:
Notice of Notice of Motion/
Motion/ Memorandum
Memorandum of of Law/ Affirmation/Exhibits .............. .
Law/Affirmation/Exhibits 7-24 7 -24
Affirmation Support ......................_..................................................... ... Affirmation in Support 34 Affirmation Affirmation in Opposition/Exhibits Opposition/Exhibits ......................................................... . 35-47 35 - 47
Reply Reply Affirmation
Affirmation .................................................................................... . 48
Defendant Defendant Deutsche
Deutsche Bank National Trust Bank National Trust Company Company as Indenture
Indenture Trustee
Trustee for American
American
Home Home Mortgage
Mortgage Investment
Investment Trust
Trust 2005-1 ("Defendant"
("Defendant" or "Deutsche "Deutsche Bank") moves for an order, Bank") moves order, pursuant CPLR 321 l(a), pursuant to CPLR 1(a), dismissing dismissing Plaintiff
Plaintiff Mario
Mario Conti's
Conti's complaint
complaint ("Plaintiff')
("Plaintiff') (Mot. Seq.
No. 1). Plaintiff No.1). Plaintiff opposes opposes the motion.
motion.
On or about
about April
April 25, 2023,
2023, Plaintifffileda summons and complain_t, Plaintiff filed a summons complaint, alleging alleging that
that he holds
holds
title title to real property
property located
located at 7402
7402 Colonial
Colonial Road
Road in Brooklyn, New York Brooklyn, New York (the "Property").
"Property").
Plaintiff Plaintiff asserts
asserts that
that the Property previously o:wned PropertY was previously owned by his father father Gaetano
Gaetano Conti
Conti ("Mr.
("Mr. Conti").
Conti").
Plaintiff Plaintiff alleges
alleges that
that he discovered
discovered that
that there
there are deeds
deeds of
of record
record reflecting
reflecting that
that the Property
Property was
,✓
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conveyed conveyed from
from Mr. Conti Amelio Marino!
Conti to Amelio Marino 1 ("Mr. Marino") and ("Mr. Marino") and defendant Rose Marino defendant Rose Marino (Mr.
Marino's Marino's daughter; hereinafter "Defendant daughter; hereinafter "Defendant Marino"), Marino"), as joint
joint tenants
tenants (the
(the "2005 Deed"),2 then
"2005 Deed"),2 then
from Mr. Marino
Marino and Defendant Marino to Mr. Marino Defendant Marino Marino and Plaintiff, Plaintiff, each
each with
with 50% ownership
ownership
interest interest as tenants
tenants in common
common (the
(the "2007
"2007 Deed"),3
Deed"),3 and then Marino conveyed then Mr. Marino conveyed his 50% interest interest
to Defendant
Defendant Marino
Marin044 (the "2013
"2013 Deed").
Deed"). In the complaint, Plaintiff asserts complaint, Plaintiff that neither asserts that neither he nor his deceased deceased father
father Mr. Conti
Conti ever
ever agreed
agreed to covey
covey any interest
interest in the Property
Property to either
either Mr. Marino
Marino
or Defendant
Defendant Marino
Marino and never received consideration.
never received consideration. Plaintiff further alleges Plaintiff further alleges that that the signatures
signatures
to the deed
deed to Mr. Marino
Marino and
and the purported
purported power
power of attorney are forgeries of attorney forgeries and are void void ab initio.
Plaintiff Plaintiff further
further alleges that Deutsche alleges that Deutsche Bank's Bank's mortgage
mortgage on the Property
Property is predicated
predicated upon
upon the
forged forged deed
deed to Mr. Marino. The complaint Marino. The complaint asserts asserts seven causes of
seven causes of action:
action: (1)
(l) declaratory judgment
declaratory judgment
declaring declaring that
that the deeds
deeds are nullities;
nullities; (2) fraud
fraud in the factum;
facturn; (3) fraud
fraud in the inducement;
inducement; (4)
determination of determination title under of title RPAPL Article under RPAPL Article 15; (5) declaratory judgment declaring declaratory judgment Deutsche declaring Deutsche
Bank's Bank's mortgage
mortgage null and void; (6) slander and void; slander of
of title;
title; and (7) constructive constructive trust.
trust.
Defendant Defendant asserts
asserts that
that after
after the Property
Property was conveyed Marino and Defendant conveyed to Mr. Marino Defendant Marino, Marino, they
they gave
gave a mortgage
mortgage to American
American Home
Horne Mortgage Acceptance Inc. in the amount Mortgage Acceptance amount of of
$696,000 $696,000 on March
March 23, 2005.
2005. This
This mortgage
mortgage was later
later assigned Deutsche Bank.
assigned to Deutsche Bank. Defendant Defendant
asserts asserts that the funds
funds from this mortgage
from this were used mortgage were used to satisfy satisfy55 the GreenPoint Mortgage Funding, GreenPoint Mortgage Funding, Inc. mortgage,
mortgage, which was procured which was procured by Mr. Conti when he obtained Conti when Property on January obtained the Property January 9, 2004. 2004. According
According to Deutsche
Deutsche Bank,
Bank, a foreclosure
foreclosure action
action was
was commenced
commenced in January
January 2015 (the
"Foreclosure "Foreclosure Action")
Action") and the
the motion
motion for a default judgment against default judgment Plaintiff and Plaintiffs against Plaintiff Plaintiffs crosscross -
motion motion to file an amended answer to the amended amended answer amended complaint complaint are fully
fully submitted
submitted and remain
remain
pending.66 pending.
Deutsche Deutsche Bank now moves
Bank now moves to dismiss this complaint dismiss this under CPLR complaint under CPLR 321 l(a)(l), (3), (5), and 3211(a)(I),
(7). With
With respect
respect to Plaintiffs
Plaintiffs first and fourth fourth causes
causes of
of action
action alleging forgery, Deutsche alleging forgery, Deutsche Bank Bank
argues argues that
that Plaintiffs
Plaintiffs only basis for standing only basis standing is the 2007 2007 Deed
Deed which granted him
which granted him 50%
50% ownership
ownership
1
I The complaint
complaint asserts
asserts that
that Amelio
Amelio waswas Gaetano
Gaetano Conti'
Conti'ss long-term
long-term attorney and friend attorney and friend (NYSCEF (NYSCEF DocDoc No. 1,l, ,i~ 19).
2
2 The deed
deed from Gaetano
Gaetano Conti
Conti to Amelio Marino and Rose Amelio Marino Marino, as joint Rose Marino, joint tenants, tenants, is dated
dated February
February 16, 2005
2005
(NYSCEF (NYSCEF Doc No. 40).
Doc No. 40).
3 By deed 3 deed dated
dated May
May 1, 2007 and
1,2007 and recorded
recorded on July
July 17, 2007, Amelio
17,2007, Amelio and Rose Rose Marino
Marino conveyed their ownership conveyed their ownership interest interest so that
that the 50%
50% was
was held by Amelio
held by Amelio and 50% was held 50% was held by Plaintiff Plaintiff (NYSCEF
(NYSCEF Doc Doc No.
No. 43).
43).
4 By deed 4 deed dated
dated May
May 8, 2013, Amelio conveyed 2013, Amelio conveyed his 50% 50% interest Rose (NYSCEF interest to Rose (NYSCEF Doc No. 37).
Doc No.
5 The Satisfaction 5 Satisfaction of
of Mortgage
Mortgage was was executed May 5, 2005 executed on May 2005 (NYSCEF (NYSCEF Doc No. 16).
Doc No.
6 The Foreclosure 6 Foreclosure Action Action is pending
pending in Kings
Kings County
County Supreme
Supreme Court,
Court, under index No.
under index No. 501047/2015 501047/2015 and titled
titled
Deutsche Bank Deutsche Bank National
National Trust
Trust Company
Company as Indenture
Indenture Trustee for American Trustee/or American Home Home Mortgage
Mortgage Investment
Investment Trust 2005-
2005-
1 v. Amelio
Amelio P. Marino;
Marino; Rose
Rose A. Marino;
Marino; Mario
Mario Conti, et al.
2
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interest, interest, which
which he is seeking
seeking to void
void in this action. Further, Deutsche action. Further, Deutsche Bank Bank contends that to the contends that
extent extent Plaintiff's
Plaintiffs quiet title cause quiet title cause of
of action
action is based
based on the 2005
2005 Deed,
Deed, it is time-barred l 0-
time-barred by the 10-
year statute year statute of limitations. Deutsche of limitations. Deutsche Bank Bank also argues that the 2007 argues that 2007 Deed Deed and power
power of
of attorney
attorney
were subscribed were before a notary subscribed before notary public public and are thus
thus entitled
entitled to a presumption presumption of validity and of validity
Plaintiff's self-serving Plaintiffs self-serving claim claim of forgery is insufficient of forgery insufficient to rebut rebut the
the presumption.
presumption. In addition, addition,
Deutsche Bank Deutsche Bank claims that Plaintiff claims that Plaintiff is not harmed harmed because
because by his own
own admission Foreclosure admission in the Foreclosure Action, Plaintiff Action, Plaintiff understood understood that
that he would only own half would only half of
of the Property. Therefore, Deutsche Property. Therefore, Deutsche Bank avers Bank avers that
that even if Plaintiffs
even if Plaintiff's allegations were true, he is in the exact allegations were exact same position he believed same position believed would be in if he would if the alleged forgery had not occurred.
alleged forgery occurred.
With respect With respect to Plaintiffs Plaintiff's fraud-based
fraud-based claims
claims (second, third and (second, third and fifth causes causes of
of action),
action),
Deutsche Bank argues Deutsche Bank that they argues that they must
must be dismissed time-barred. Deutsche dismissed as time-barred. Deutsche Bank Bank maintains
maintains that
that
fraud claims must be commenced claims must within six years commenced within years of fraud or within of the fraud within two two years
years from the time
time
the plaintiff
plaintiff discovered
discovered the fraud
fraud or could with reasonable could with reasonable diligence diligence have
have discovered Deutsche discovered it. Deutsche
Bank asserts Bank asserts that Plaintiff's answer that Plaintiffs Foreclosure Action, answer in the Foreclosure Action, in which which he asserts affirn1ative asserts affirmative
defenses defenses of
of fraud,
fraud, indicates that he knew indicates that knew of alleged fraud no later of the alleged than December later than December 2017.
Accordingly, Deutsche Bank Accordingly, Deutsche Bank claims claims that Plaintiff'ss fraud claims that Plaintiff claims expired expired no later
later than
than December
December
2019 2019 and since
since this
this action was not commenced action was until 2023, commenced until 2023, it is untimely.
untimely.
Turning Plaintiffss sixth Turning to Plaintiff cause of sixth cause of action
action for slander
slander of title, Deutsche of title, Bank contends Deutsche Bank that contends that
it is insufficiently pied because insufficiently pled because the complaint lacks any allegation complaint lacks allegation of of special
special damages. Regarding damages. Regarding
Plaintiff'ss seventh Plaintiff seventh cause cause of
of action
action for a constructive constructive trust, Deutsche Bank trust, Deutsche Bank argues that Plaintiff argues that Plaintiff fails to state a cause
cause of
of action
action since
since it does
does not have
have any relationship with either relationship with either Plaintiff Plaintiff or Mr. Conti.
Conti.
Moreover, Plaintiffs Moreover, Plaintiffs cause cause of
of action
action for a constructive constructive trust
trust started
started to accrue
accrue at the time
time of
of the
Deed and
2005 Deed thus it is time-barred.
and thus time-barred. Defendant Defendant Marino's
Marino's counsel
counsel filed an affirmation affirmation in support
support of Deutsche Bank's of Deutsche Bank's motion motion
and the legal
legal and factual
factual arguments
arguments contained therein. DefendantMarino contained therein. Defendant Marino also also adds that Plaintiffs adds that Plaintiff's
quiet quiet title
title action
action is subject
subject to a 10-year
l 0-year statute of limitations statute of limitations and if based and if based on the 2005 Deed, Deed,
Plaintiff's Plaintiffs time
time to commence
commence the
the action
action expired
expired in February
February 2015.
2015.
In his opposition,
opposition, Plaintiff
Plaintiff contends
contends that
that Deutsche
Deutsche Bank's
Bank's mortgage
mortgage is facially
facially deficient
deficient in
that that the first
first page
page is missing
missing and
and it provides
provides no information
information as to the
the amount
amount loaned,
loaned, who
who was/is
was/is
the lender
lender and
and borrower( s), and
borrower(s), and which
which property
property was
was encumbered.
encumbered. Plaintiff
Plaintiff further
further maintains
maintains that
that
signatures on
the signatures on the
the deeds
deeds were
were forged
forged and
and alleges
alleges that
that the "purported
"purported notaries
notaries were
were elderly
elderly and
and
3
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in poor health at the time, poor health time, with with their
their notary
notary stamps
stamps likely
likely not even
even in their
their possessions."
possessions." Plaintiff
Plaintiff
further represents further that he did not represents that not discover discover the "full
"full nature"
nature" of
of the fraud
fraud and forgery
forgery until
until late 2021
and thus, statute of
thus, the statute limitations has not expired of limitations expired and at the least, least, create
create an issue
issue of
of fact for the
the
jury. Moreover, jury. Moreover, Plaintiff Plaintiff asserts
asserts that
that since
since the deeds
deeds are forgeries,
forgeries, they
they were
were never
never valid
valid and his
fraud claims
claims are not subject
subject to the statute of limitations.
statute of limitations. Since Plaintiff contests Since Plaintiff contests the deeds deeds and
mortgage mortgage submitted Deutsche Bank, submitted by Deutsche Bank, they cannot cannot be considered
considered documentary
documentary evidence.
evidence. In
addition, Plaintiff claims addition, Plaintiff that "giving claims that allegations in the Complaint "giving the allegations Complaint every every favorable
favorable inference,
inference,
the Complaint
Complaint clearly
clearly states cause of states a cause of action."
action." Plaintiff
Plaintiff also argues
argues that
that Deutsche
Deutsche Bank's
Bank's motion
motion
premature because is premature because he has has not
not had
had an opportunity
opportunity to depose
depose Defendant
Defendant Marino
Marino or someone
someone from
Deutsche Bank with Deutsche Bank personal knowledge.
with personal knowledge. reply, Deutsche
In its reply, Deutsche Bank Bank argues
argues that
that Plaintiff
Plaintiffss contention
contention that
that the
the deeds
deeds and
and power
power of
of
attorney attorney are void
void ab initio
initio and thus
thus not time
time barred
barred are not
not substantiated
substantiated by any documentary documentary
evidence. evidence. Instead,
Instead, Deutsche Bank asserts Deutsche Bank asserts that that Plaintiff
Plaintiff relies
relies solely
solely on unsubstantiated unsubstantiated narrative narrative
and hearsay
hearsay testimony.
testimony. Moreover,
Moreover, Plaintiffs
Plaintiffs assertion
assertion that
that he only
only recently
recently discovered
discovered the fraud
is, according
according to Deutsche Bank, demonstrably Deutsche Bank, demonstrably false.
The Court must first address Court must address Deutsche Deutsche Bank's
Bank's claim
claim that
that Plaintiff
Plaintiff lacks
lacks standing.
standing. "A party
party
has standing assert a cause standing to assert of action cause of action to quiet
quiet title
title only
only where
where he or she has an estate estate or interest
interest
property" (Morales
in the property" Rolon, 226 AD3d (Morales v Rolon, AD3d 765, 767 [2d Dept Dept 2024]).
2024]). In his complaint
complaint Plaintiff
Plaintiff
asserts that he holds asserts that holds title title to the Property, but the only evidence Property, but evidence in support support of
of this
this claim
claim is the 2007
2007
Deed. The 2007 Deed. Deed is premised 2007 Deed premised on the 2005 Deed, Deed, which
which Plaintiff
Plaintiff claims
claims contains
contains a forged
forged
signature. signature. If
If the deeds
deeds are fraudulent
fraudulent as alleged
alleged by Plaintiff,
Plaintiff, then
then there
there is insufficient
insufficient "evidence
"evidence
that he has good that good title
title or that
that he ever
ever had
had good
good title"
title" (id.). If the Court (id.). If Court disregards disregards the deeds,
deeds,
Plaintiffs only Plaintiffs only interest
interest in the Property would the Property would be as a "potential "potential intestate
intestate beneficiar[y],"
beneficiar[y]," which
which is
insufficient insufficient to confer
confer standing here (Soscia standing here Soscia, 35 AD3d (Soscia v Soscia, AD3d 841, 843 [2d Dept 841,843 Dept 2006]).
2006]). Assuming
Assuming
arguendo that arguendo Plaintiff has that Plaintiff standing, the Court has standing, Court analyzes analyzes Deutsche
Deutsche Bank's
Bank's remaining
remaining contentions.
contentions.
First, the Court First, Court rejects
rejects Deutsche
Deutsche Bank's
Bank's statute
statute of
of limitations
limitations argument
argument with
with respect
respect to
certain certain causes
causes of
of action
action premised
premised on the
the alleged
alleged forged
forged deed.
deed. "Under
"Under [Court
[Court of
of Appeals]
Appeals] case
case law
law
it is well-settled
well-settled that
that a forged
forged deed
deed is void
void ab initio
initio. . .... [[and]
and] any
any encumbrance
encumbrance upon
upon real
real property
property
based on a forged based forged deed
deed is null
null and
and void.
void. Therefore,
Therefore, the
the statute
statute of
of limitations
limitations set forth
forth in CPLR
CPLR 213
does not
(8) does not foreclose
foreclose plaintiff's
plaintiffs claim"
claim" of
of fraud
fraud in the
the factum
factum (Faison
(Faison v Lewis, NY3d 220,222 Lewis, 25 NY3d 220,222
[2015]; see also Simmons v Bell, also Simmons Bell, 220
220 AD3d
AD3d 647,
647,648-649 Dept 2023]
648-649 [2d Dept 2023] ["A ["A statute
statute oflimitations
oflimitations
4
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does does not make
make an agreement
agreement that
that was
was void
void at its inception
inception valid
valid by the
the mere passage of
mere passage of time"]
time"]
[internal [internal quotation
quotation marks
marks and
and citations
citations omitted]).
omitted]). Likewise,
Likewise, Plaintiff's
Plaintiff s cause
cause of
of action
action seeking
seeking to
quiet quiet title
title on the
the basis
basis that
that the
the forged
forged deed
deed was
was void
void ab initio
initio is not
not subject
subject to the
the 10-year
10-year statute
statute
of limitations (see Torres of limitations Torres v Equity Equity Holdings
Holdings LLC,
LLC, 2021 NY
NY Slip
Slip Op 31031[0],
31031 [U], *4 [Sup Ct, Kings Kings
County 2021];]; Canecchia County 2021 Canecchia v Richmond Richmond Assoc.
Assoc. Ny
Ny LLC,
LLC, 2021 NY
NY Misc
Mise LEXIS
LEXIS 49310,
49310, at *4-5 [Sup
Ct, Richmond
Richmond County,
County, Dec.
Dec. 22, 2021, 150613/2021]; CPLR212 2021, No. 150613/2021]; CPLR 212 [a]). In addition, addition, "[t]he
"[t]he nature
nature
of of the
the relief
relief sought
sought in a declaratory judgment action declaratory judgment action dictates the applicable dictates the applicable limitations limitations period"
period"
(Waldman (Waldman v 853 St. Nicholas Nicholas Realty
Realty Corp.,
Corp., 64 AD3d
AD3d 585,587
585,587 [2d Dept
Dept 2009]).
2009]). Thus,
Thus, to the extent
extent
that that Plaintiff predicated his Plaintiff predicated his causes causes of
of action
action for a declaratory judgment on a forged declaratory judgment forged deed, deed, the
the claims
claims
are not
not time-barred.
time-barred. However, However, where
where a plaintiff
plaintiff claims
claims that
that the "signature
"signature and
and authority
authority for conveyance
conveyance are
acquired acquired by fraudulent
fraudulent means
means ...
... the deed voidable" (Faison, deed is voidable" (Faison, 25 NY3d NY3d at 224)
224) and
and a fraud
fraud in
the inducement cause of
inducement cause of action action is subject
subject to a six-year
six-year statute
statute oflimitations
oflimitations governing
governing fraud
fraud claims
claims
(Mahabir (Mahabir v Snyder Realty Group, Inc., Snyder Realty Inc., 217 217 AD3d
AD3d 850, 852 [2d Dept
Dept 2023]).
2023]). "A
"A cause
cause of
of action
action
based based upon
upon fraud
fraud must
must be commenced
commenced within
within six years
years from
from the
the time
time of
of the
the fraud
fraud or within
within two
two
years years from the time
time the
the fraud
fraud was
was discovered,
discovered, or with
with reasonable
reasonable diligence,
diligence, could
could have
have been
been
discovered, discovered, whichever
whichever is longer" Oggioni v Oggioni, longer" ((Oggioni Oggioni, 46 AD3d AD3d 646,
646, 648 [2d Dept
Dept 2007]).
2007]). Here,
Here,
the earliest
earliest purported
purported fraud
fraud occurred
occurred in 2005.
2005. The
The Court
Court finds
finds Plaintiff's
Plaintiffs contention
contention that
that he only
only
recently recently discovered
discovered the
the facts
facts surrounding
surrounding the
the fraud
fraud untenable
untenable where
where his answer
answer in the
the Foreclosure
Foreclosure
Action, Action, dated
dated December
December 27, 2017,
2017, contained
contained affirmative
affirmative defenses
defenses alleging
alleging forgery,
forgery, fraud
fraud in the
factum factum and
and fraud
fraud in the inducement (see Oggioni, the inducement Oggioni, 46 AD3d AD3d at 648 ["[T]he
["[T]he Supreme
Supreme Court properly
Court properly
determined determined that
that the
the second
second cause
cause of
of action
action to set aside
aside the deed
deed on the
the ground
ground of
of fraud
fraud was
was timetime
-
barred barred because
because the plaintiff possessed the plaintiff possessed knowledge knowledge of
of facts from
from which
which the
the fraud
fraud could
could reasonably
reasonably
have have been
been inferred
inferred when
when he was
was served
served with
with the probate
probate petition
petition indicating
indicating that
that his father
father owned
owned
no real property
property at the time of
the time of his death."]).
death."]). Therefore,
Therefore, Plaintiff's
Plaintiffs fraud
fraud in the
the inducement
inducement claim
claim is
untimely. untimely.
Upon Upon consideration
consideration of
of Deutsche
Deutsche Bank's
Bank's statute
statute of
of limitations
limitations arguments,
arguments, the Court
Court finds
finds
that that only
only Plaintiff's
Plaintiffs fraud
fraud in the
the inducement
inducement cause
cause of
of action
action is time-barred.
time-barred.
Second, Second, the
the Court
Court considers
considers Deutsche
Deutsche Bank's
Bank's arguments
arguments that
that (a) the
the power
power of
of attorney
attorney and
the 2005
2005 Deed
Deed are entitled
entitled to a presumption presumption of
of validity,
validity, which
which Plaintiff
Plaintiff fails
fails to rebut,
rebut, and
and that
that (b)
Plaintiff Plaintiff cannot
cannot prove
prove actual
actual damages.
damages.
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Pursuant Pursuant to the Civil
Civil Practice
Practice Law
Law and Rules:
Rules:
Certification of Certification of the acknowledgment acknowledgment or proof
proof of writing, except of a writing, except a will, will, in the
manner prescribed manner prescribed by law law for taking
taking and certifying
certifying the acknowledgment acknowledgment or proof
proof
of of a conveyance
conveyance of
of real property
property within
within the state is prima prima facie
facie evidence that it was evidence that was
executed executed by the person
person who
who purported
purported to do so (CPLR
(CPLR § S 4538).
4538).
"A certificate
certificate of
of acknowledgment
acknowledgment attached
attached to an instrument instrument such
such as a deed
deed raises
raises a
presumption of presumption of due execution, which presumption, execution, which presumption, in a case such as this, case such this, can
can be rebutted only after rebutted only after
being being weighed
weighed against
against any evidence adduced to show evidence adduced show that that the subject instrument was not duly subject instrument
executed" (Son Fong executed" Fong Lum
Lum v Antonelli,
Antonelli, 102 AD2d
AD2d 258, 260-261
260-261 [2d Dept
Dept 1984 affd 64 NY2d 1984],], affd NY2d
1158 [1985]).
[1985]). It '"should not be overthrown '''should not upon evidence overthrown upon evidence of of a doubtful
doubtful character,
character, such as the
unsupported testimony unsupported testimony of
of interested witnesses, nor interested witnesses, upon a bare nor upon bare preponderance preponderance of
of evidence, but
evidence, but
only on proof
proof so clear
clear and convincing as to amount and convincing certainty'" (Beshara moral ce1iainty'"
amount to a moral Beshara, 51 (Beshara v Beshara, 51
AD3d AD3d 837, 838 [2d Dept
Dept 2008],
2008], quoting Albany County quoting Albany Bank v McCarty, County Sav. Bank McCarty, 149 NY NY 71, 80
[1896]). [1896]).
In Clark
Clark v Mtge. Servs. Unlimited, Unlimited, the Second
Second Department found that Department found that the plaintiff plaintiff had not
rebutted presumption of rebutted the presumption of due execution failing to put execution by failing put forth "evidence, "evidence, such
such as the affidavit
affidavit
of of a handwriting
handwriting expert
expert or of
of a lay witness
witness who was present
present at the execution of the execution of the deeds
deeds or who
was otherwise familiar with otherwise familiar with her her handwriting,
handwriting, to establish that the signatures establish that signatures on the deeds were not deeds were
hers" (Clark v Mtge. Servs. Unlimited, hers" (Clark AD3d 1104, 1105 [2d Dept Unlimited, 78 AD3d 2010], lv Dept 2010], denied 16 NY3d Iv denied NY3d
709 [2011]).
[2011]). Similarly,
Similarly, "[w]ithout
"[w]ithout additional
additional evidence such ...
evidence such proof establishing ... proof establishing that that plaintiff
plaintiff
was not was not present New York present in New York State State on [the date the deed deed was
was signed],
signed], the court
court cannot
cannot find that
plaintiff has presented plaintiff presented evidence evidence so clear
clear and convincing
convincing so as to amount amount to a moral
moral certainty
certainty that
forged" (0
the deed is forged" 'Connor v O'Connor, (O'Connor O'Connor, 40 Misc Misc 3d 1226[A],
1226[A], 2013
2013 NY Slip Op 51324[U], NY Slip 5 l 324[U], *2 Kings County
[Sup Ct, Kings County 2013 2013]).
]).
Here, affidavit, Plaintiff Here, in his affidavit, Plaintiff contends contends that
that his and Mr. Conti's
Conti's signatures
signatures were
were forged
forged
and they
they never signed anything never signed anything before before the notaries.
notaries. Plaintiff further claims Plaintiff further claims that that he and his father
father
were were not in the
the United
United States "on the
States "on the date that
that it was purported to have was purported have occurred."
occurred." Plaintiff
Plaintiff also
submitted an affidavit submitted affidavit of of his mother,
mother, Maria
Maria Conti
Conti ("Mrs.
("Mrs. Conti"),
Conti"), wherein
wherein she asserts
asserts that
that the
family family had gone
gone to Italy
Italy sometime
sometime in 2005.
2005. Mrs. Conti
Conti makes
makes further
further allegations
allegations as to the physical physical
and mental
mental capacity
capacity of
of the
the two
two notaries
notaries involved
involved with
with the 2005
2005 and
and 2007
2007 Deeds.
Deeds. These
These affidavits
affidavits
insufficient to rebut
are insufficient rebut the the presumption of validity.
presumption of validity.
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It has long
long been held that
been held that "[i]f fraud causes "[i]f the fraud causes no loss, then then the plaintiff
plaintiff has suffered
spffered no
damages" (Connaughton damages" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d Chipotle Mexican NY3d 137, 142 [2017], quoting Sager [2017], quoting Sager
Friedman, 270 v Friedman, 270 NY
NY 472,
472, 481 [1936]). Here, Deutsche [1936]). Here, Deutsche Bank Bank contends that Plaintiffs contends that Plaintiffs
understanding understanding and expectation expectation was
was that would own 50% of that he would of the Property.
Property. Since
Since Plaintiff
Plaintiff is
"precisely where he believed "precisely where believed he would if the alleged would be if forgery had alleged forgery had not
not occurred," Deutsche Bank occurred," Deutsche Bank
argues argues that there is an absence that there absence of hann (see e.g., Ciardiello of harm Ciardiello v Pugliese, Pugliese, 39 AD2d
AD2d 562, 563 [2d
Dept 1972] [finding Dept that "it [finding that could have "it could have established that even established that if plaintiffs even if plaintiffs were
were deceived
deceived into signing
signing
the 1968 deed
deed defendant
defendant had
had title time [pursuant title at that time [pursuant to the 1967 deed]
deed] and thus plaintiffs and thus plaintiffs had
sustained sustained no damage
damage as a result thereof. "l). In support result thereof."]). support of this argument, of this argument, Deutsche Deutsche Bank
Bank refers
refers to
the transcript of Plaintiffs transcript of deposition testimony Plaintiffs deposition testimony in the Foreclosure Foreclosure Action,
Action, which contains
which contains
references references of
of owning only half
owning only half of Property.
of the Property.
"An "An infom1al judicial admission informal judicial admission is a declaration made by a party declaration made party in the the course
course of
of any
judicial proceeding judicial proceeding (whether (whether in the same
same or another
another case) inconsistent with case) inconsistent position [the party]
with the position party]
now assumes" (People now assumes" Brown, 98 NY2d (People v Brown, NY2d 226, 232, n 2 [2002] [internal [internal quotation marks and quotation marks
citation citation omitted]).
omitted]). "Statements contained in a verified "Statements contained verified complaint, complaint, or made
made by a party
party as a witness,
witness,
contained in a deposition, or contained deposition, a bill of of particulars,
particulars, or an affidavit affidavit constitute
constitute informal
informal judicial
judicial
admissions" Ocampo v Pagan, admissions" ((Ocampo Pagan, 68 AD3d AD3d 1077, 1078 [2d Dept
Dept 2009] [internal quotation 2009] [internal marks quotation marks
citations omitted]).
and citations omitted]). "While "While not conclusive,
conclusive, [informal
[informal judicial
judicial admissions] evidence of admissions] are evidence of the fact or facts admitted"
admitted" (id. [internal quotation (id [internal marks and citations quotation marks citations omitted]).
omitted]).
"Where, as here, "Where, here, evidentiary material was submitted evidentiary material submitted and considered on the motion and considered motion to dismiss and the motion dismiss was not converted motion was converted into one for summary summary judgment,
judgment, the question
question becomes
becomes
whether the plaintiff whether cause of plaintiff has a cause of action, action, not whether
whether the plaintiff
plaintiff has stated
stated one,
one, and unless
unless it
has been
been shown
shown that material fact as claimed that a material claimed by the plaintiff plaintiff to be one
one is not
not a fact at all and
unless it can be said unless said that that no significant
significant dispute
dispute exists
exists regarding
regarding it, dismissal
dismissal should
should not eventuate"
eventuate"
(Halvatzis Perrone, 199 AD3d (Halvatzis v Perrone, AD3d 785, 786 [2d Dept [internal quotation Dept 2021] [internal quotation marks citations marks and citations
omitted]). If omitted]). If an informal informal judicial admission disproves judicial admission disproves an essential essential element
element of
of a claim,
claim, dismissal
dismissal is
warranted (see id. warranted id at 787
787 [[dismissal proper where dismissal proper where informal informal judicial admission established judicial admission established that that
plaintiff could not plaintiff could not meet
meet one
one of
of two
two elements
elements of
of cause
cause of action]; WL Ross of action]; Ross & Co. LLC LLC v Storper,
Storper,
2016 NY 2016 Slip Op 31284[U], NY Slip * 8 [Sup 31284[V], *8 [Sup Ct, NY County 2016]
NY County 2016] ["[A]n
["[A]n informal
informal judicial admission judicial admission
which refutes which refutes an essential essential element
element of
of a plaintiff(' claim thereby plaintiffI' s] claim thereby serv[ serv[ es] as a basis
basis for
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dismissal"]). dismissal"]). Since Plaintiff made Since Plaintiff made admissions admissions at his deposition that he was deposition that was going going to be or only held
held
a 50% interest
interest the Court
Court finds that he does not have finds that have a cause cause of
of action.
action.
Third, Third, the Court turns to Deutsche Court turns Deutsche Bank's Bank's claim
claim that the complaint cause of complaint fails to state a cause of action action for a constructive constructive trust
trust and slander of title. Courts slander of Courts will only only grant
grant a motion
motion to dismiss under
dismiss under
CPLR 321 l(a)(7) if, "taking CPLR 3211(a)(7) "taking all facts alleged alleged as true and according them every according them possible inference every possible inference
favorable favorable to the plaintiff, plaintiff: the complaint
complaint states
states in some recognizable form some recognizable form any cause of action cause of action
known to our known law" (Rubinstein our law" (Rubinstein v Salomon, AD3d 536, 538 [2d Dept Salomon, 46 AD3d Dept 2007]
2007] [internal
[internal quotation
quotation
marks and citations marks citations omitted]). However, bare omitted]). However, bare legal conclusions conclusions are not
not presumed
presumed to be true or
accorded accorded every
every favorable inference (Morris favorable inference A1orris, 306 AD2d (Morris v Morris, AD2d 449, 449, 451 [2d Dept
Dept 2003]).
2003]). A
complaint has sufficiently complaint plead a cause sufficiently plead of action cause of action if
if "it gives
gives sufficient
sufficient notice
notice of transactions, of the transactions,
occurrences, occurrences, or series
series of transactions or occurrences of transactions intended to be proved occurrences intended proved and [] requisite [] the requisite
elements elements of
of any cause
cause of action known
of action known to our law law can be discerned
discerned from averments" (Pace v from its avennents"
Perk, 81 Perk, 81 AD2d
AD2d 444,
444, 449 [2d Dept
Dept 1981] [internal
[internal citations
citations omitted]).
omitted]).
To obtain
obtain a constructive
constructive trust,
trust, a party must establish party must establish the existence existence of
of (1) a fiduciary
fiduciary or
confidential relationship, confidential relationship, (2) a promise, promise, (3) a transfer
transfer in reliance thereon, and (4) unjust reliance thereon, unjust enrichment enrichment
(Delidimitropoulos, (Delidimitropoulos, 186 AD3d AD3d at 1490). Here,
Here, Plaintiff
Plaintiff is alleging that the 2005 alleging that 2005 Deed forged Deed was forged
but does not allege but allege that
that he "actually transferred the property "actually transferred property and that that such transfer was made such transfer made in reliance upon a promise reliance upon promise made representative of made by any representative of the defendant" Bank (Amex Deutsche Bank
defendant" Deutsche (Amex Dev., LLC v Aljohn LLC A/john Group, Inc., Inc., 134 AD3d
AD3d 865, 866 [2d Dept
Dept 2015], mod 209
2015], mod 209 AD3d
AD3d 808 [2d Dept
Dept
2022]). 2022]). Plaintiff's
Plaintiff's complaint
complaint is further
further devoid
devoid of
of allegations that there allegations that there was was (i) a fiduciary
fiduciary or
confidential relationship with confidential relationship with Deutsche Deutsche Bank;
Bank; (ii) a promise
promise made
made by Deutsche
Deutsche Bank
Bank to Plaintiff;
Plaintiff;
or (iii) reliance Plaintiff on that reliance by Plaintiff promise (see City of that promise Long Beach of Long Beach v Agostisi, Agostisi, 221 AD3d
AD3d 776,
780 [2d Dept
Dept 2023]).
2023]).
"The "The elements
elements of
of a cause
cause of
of action recover damages action to recover damages for slander slander of title are ((1)
of title 1) a
communication communication falsely
falsely casting
casting doubt
doubt on the validity
validity of
of [the] complainant's title, (2) reasonably complainant's title, reasonably calculated calculated to cause harm, and cause harm, and (3) resulting resulting in special damages" (Irizarry special damages" Rosselli, _AD3d_, (Irizarry v Rosselli, _AD3d_, 2024 NY Slip 2024 NY Slip Op 04065,
04065, *2 [2d Dept
Dept 2024]
2024] [internal
[internal quotation
quotation marks
marks and
and citations
citations omitted]).
omitted]).
"[T]he "[T]he cause
cause of
of action
action does
does not
not arise
arise until special
special damages
damages actually result" (Rosenbaum actually result" (Rosenbaum v City City of
of
NY, 8 NY3d
NY3d 1, 12 [2006]).
[2006]). This
This requirement well-established (see Kendall requirement is well-established Kendall v Stone, Stone, 5 NY
NY 14,
18-19 [1851]).
[1851]). Therefore,
Therefore, a plaintiff's
plaintiff's cause
cause of
of action
action is not
not sufficiently pied where sufficiently pled where he or she "fail[s] "fail[s] to adequately
adequately allege
allege that
that special
special damages
damages resulted
resulted from
from the
the [defendants']
[defendants'] allegedly
allegedly tortious
tortious
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conduct conduct (id.; see
see also
also Shahid
Shahid v Slochowsky
Slochowsky & Slochowsky,
Slochrnvsky, LLP,
LLP, 208 AD3d
AD3d 1381, 1383 [2d Dept
Dept
2022]). Plaintiff 2022]). Plaintiff has not met the first, second not met second nor nor third
third criteria.
criteria. In his complaint, complaint, Plaintiff
Plaintiff merely
merely
asserts that he was asserts that was injured, direct and proximate injured, as a direct proximate result result of
of defendants'
defendants' conduct,
conduct, in an amount
amount
than $2,500,000.
no less than $2,500,000. This This is insufficient
insufficient to satisfy
satisfy the particularity particularity requirement requirement (Drug Research (Drug Research
Corp. v Curtis Pub!. Co., 7 NY2d Curtis Publ. NY2d 435, 441 [1960] ["Such round figures, ["Such round figures, with with no attempt
attempt at
itemization, must be deemed itemization, must representation of deemed to be a representation of general general damages"]).
damages"]).
Thus, Court finds Thus, the Court finds that Plaintiffss causes that Plaintiff causes of of action
action for a constructive constructive trust
trust and slander
slander of
of
title are insufficiently title insufficiently pled pied and should dismissed.
should be dismissed.
In sum, the Court finds that Court finds that Plaintiff Plaintiff lacks
lacks standing.
standing. Even if Plaintiff Even if Plaintiff had
had standing,
standing, his
cause cause of
of action
action for fraud
fraud in the
the inducement
inducement would
would be dismissed
dismissed as time-barred
time-barred and
and his causes
causes of
of
action action for slander
slander of title and constructive of title constructive trust trust would
would be dismissed
dismissed for failure
failure to state
state a claim.
claim.
Plaintiff Plaintiff also has
has not
not rebutted
rebutted the presumption
presumption of
of due execution
execution of
of the documents
documents or established
established
damages. damages.
Accordingly, hereby Accordingly, it is hereby ORDERED, that Defendant ORDERED, that Defendant Deutsche Deutsche Bank's
Bank's motion
motion (Mot. Seq. No.1)
No. 1) is granted.
granted.
All other issues not
other issues not addressed addressed herein
herein are without
without merit
merit or moot.
moot.
This This constitutes
constitutes the decision order of decision and order of the Court.
Court.
Hon. Hon. Ingrid
Ingrid Jos h, J.S.C.
J.S.C.
Hon.lngri Hon. lngri JOSeph
Joseph
Supreme Court Supreme Court Justice
Justice
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