Edwards v. Javash Realty, LLC

2024 NY Slip Op 32336(U)

• Court: New York Supreme Court, Kings County
• Decided: July 8, 2024
• Status: Unpublished

Opinion

Edwards v Javash Realty, LLC 2024 NY Slip Op 32336(U) July 8, 2024 Supreme Court, Kings County Docket Number: Index No. 513726/2023 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 07/09/2024 04:33 PM ..; INDEX NO. 513726/2023 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 07/09/2024

At At an IASlAS Term, Term, Part Part 83 of of the Supreme Supreme Court Court ofof the the State State of New York, of New York, held held in and for the 360 the County of the County 360 Adams Adams Street, Street, 3'tK'day of the ~day d of [f B;yn, B:;yn, of Kings, Kings, at the the Courthouse, Courthouse, at New York, New York, on ,,2024. 2024. '- '-

PRESENT: PRE SEN T: HON. HON. INGRID INGRID JOSEPH, JOSEPH, J.S.C. J.S.C. SUPREME SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK COUNTY COUNTY OF KINGS KINGS ------------------ ·----------------------------------------- ----------X ------------------~----------------------------------------------------J( ORENTON ORENTON EDWARDS, EDWARDS,

Plaintiff, Plaintiff, . -against- -against- Index No.: 513726/2023 Index No.: 513726/2023

DECISION DECISION AND AND ORDER ORDER JA VASH REAL JAVASH TY, LLC, REALTY, LLC,

Defendants. Defendants. -----------------------------------------------------------------------X -----------------------------------------------------------------------J(

The following following e-filed papers read e-filed papers read herein: herein: NYSCEF Doc NYSCEF Nos. Doc Nos.

Mot. No. 111 Mot. Seq. No. Order Order to Show Show Cause/ Affirmation/Affidavit/Exhibits Cause/Affirmation! Affidavit/Exhibits ............ . 6-9, 18 6 - 9,18 Memorandum Memorandum in Opposition/ Opposition! Affidavits/Exhibits Affidavits/Exhibits ................ . 22-32 22 - 32

Mot. Seq. Seq. No. No.22 Notice of Notice of Motion/ Motion! Affirmation/ Affirmation! Affidavits/Exhibits Affidavits/Exhibits ............... . 38-50 38 - 50 Memorandum of Memorandum of Law Law in Opposition/ Opposition! Affirmatimi/Exhibits Affirmatio~Exhibits ........ . 68-76 68 -76 Affirmation Affirmation in Reply/ Affidavits/Memorandum/Exhibits.......... . Reply/Affidavits/Memorandum/Exhibits 77-91 77 - 91

Upon Upon the the foregoing papers, Plaintiff foregoing papers, Plaintiff Orenton Orenton Edwards Edwards ("Plaintiff') ("Plaintiff') moves, moves, by Order Order to Show Show Cause, Cause, for an order, order, granting granting a temporary temporary restraining restraining order order from from any further enforcement of further enforcement of the warrant warrant of of eviction eviction issued issued in housing housing court court under under Index No. LT323025-22KI Index No. LT323025-22KI (Mot. (Mot. Seq. No. No. 1). Defendant Defendant Javash Javash Realty, Realty, LLC LLC ("Javash") ("Javash") opposes opposes Plaintiffs Plaintiffs order order to show show cause cause and moves moves for an order, pursuant to CPLR order, pursuant CPLR 3211 (a)(l) (a)(I) and and (a)(7), (a)(7), dismissing dismissing Plaintiff's Plaintiff's second second cause cause of of action action for a constructive constructive trust trust and his third cause of third cause of action action for an equitable equitable lien lien on the the basis basis that that (a) the the pleadings are conclusory pleadings concIusory and and without without necessary detail of necessary detail of facts facts and and circumstances, circumstances, (b) the the pleadings pleadings

I Plaintiff 1 Plaintiff improperly improperly filed filed reply reply papers papers to the the order order to show show cause cause without without seeking seeking leave leave of of court. court. Accordingly, Accordingly, NYSCEF Doc NYSCEF Nos. 59 - 67 will Doc Nos. will not not be considered considered (see Nanas v Govas, (see Nanas Govas, 2018 NY Slip 2018 NY Slip Op Op 32676[UJ, 32676[UJ, *4 [Sup [Sup Ct, Kings Kings County County 2018]). 2018]).

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do not state a cause not state action, and of action, cause of c) there and ((c) documentary evidence there is documentary that the alleged indicating that evidence indicating alleged promisor had no relationship promisor had (Motion Seq. No. Javash (Motion relationship to Javash 2). No.2). This action arises This action of a claim out of arises out located at 5370 property located claim to property Court in Brooklyn, Preston Court 5370 Preston Brooklyn, New York New "Property"). In his complaint, (the "Property"). York (the Plaintiff alleges complaint, Plaintiff that Joseph alleges that ("~r. Serpico") Serpico ("Mr. Joseph Serpico Serpico") _.✓

was the was the managing member of managing member Javash and of Javash that Plaintiff and that took care Plaintiff took of Mr. Serpico care of Serpico when was ill when he was and drove drove him doctors appointments. him to doctors appointments. According Serpico orally Plaintiff, Mr. Serpico According to Plaintiff, orally promised that promised that he would gift the would gift Plaintiff upon Property to Plaintiff the Property death. Plaintiff upon his death. alleges that Plaintiff alleges this promise, based on this that based promise, he made improvements to the Property made improvements paid for them and paid Property and pocket. Plaintiff of pocket. them out of that Javash claims that Plaintiff claims Javash denying the Property is denying The . complaint Plaintiff. The Property to Plaintiff three causes asserts three complaint asserts action .for unjust of action causes of unjust enrichment, constructive enrichment, and equitable trust and constructive trust court, Javash housing court, equitable lien. In housing a judgment of obtained ajudgme~t Javash obtained of possession warrant of possession and warrant against Plaintiff. eviction against of eviction Plaintiff. Plaintiff moves to stay now moves Plaintiff now enforcement of stay enforcement judgment and of the judgment and warrant. Plaintiff argues warrant. Plaintiff that argues that contributed substantial he contributed upkeep and maintenance sums to the upkeep substantial sums the Property. of the maintenance of Plaintiff further Property. Plaintiff further asserts that he has asserts that out a claim made out has made constructive trust claim for a constructive thus, there trust and thus, of success likelihood of there is a likelihood success Moreover, Plaintiff merits. Moreover, on the merits. avers that Plaintiff avers savings that lose his life savings that he will lose invested in the that he invested Property if Property removed while if he is removed being disputed. title is being while title Plaintiff claims Finally, Plaintiff disputed. Finally, Javash will that Javash claims that prejudiced by having not be prejudiced wait to sell the Property having to wait decision on the while a decision Property while merits is rendered. the merits rendered. In opposition, Javash contends opposition, Javash that Plaintiff contends that Plaintiff previously writing to not admitted in writing previously admitted the being the not being owner of the owner of Property. In addition, the Property. Javash argues addition, Javash that not argues that does Plaintiff only does not only Plaintiffhave basis to stay have no basis the eviction, even if eviction, even took place eviction took if an eviction would still.be Plaintiff would place Plaintiff potential equitable entitled to any potential stillbe entitled equitable relief. Javash relief. further argues Javash further Plaintiff is unlikely that Plaintiff argues that obtain equitable ever obtain unlikely to ever since Mr. relief since equitable relief Serpico, the individual Serpico, allegedly promised who allegedly individual who 2016 and never died in 2016 promised a gift, died had any ownership never had ownership rights to the rights Since the Property. Since the Property. land and vacant land Property is a vacant the Property and photographs show no improvement, photographs show improvement, Javash asserts Javash asserts that any claims that any of improvement claims of illogical. ·. improvement are illogical. motion to dismiss In its motion third causes second and third dismiss the second action, Javash of action, causes of that Plaintiff argues that Javash argues Plaintiff cannot enforce any claims cannot enforce admitted that because he admitted claims because only relationship his only that his was through Javash was relationship to Javash through Mr. Serpico, who was Serpico, who member of neither a member was neither liability company limited liability of the limited owner. In support nor the owner. company nor support of their motion, of their submitted affidavits Javash submitted motion, Javash siblings Anthony of siblings affidavits of Heather Serpico. Serpico and Heather Anthony Serpico Serpico. Anthony and Heather Anthony assert that Serpico assert Heather Serpico they, together that they, with their together with their brothers and Vincent, Joseph V. and brothers Joseph Vincent, each owned each interest in Javash 25% interest owned a 25% the time Javash at the title was time title acquired in 2002. was acquired According to iavash, 2002. According Javash, prevent potential to prevent with the vacant issues with potential issues agreed to let Plaintiff it agreed vacant lot it_ space for his business the space Plaintiff use the business

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without paying rent without paying rent in exchange exchange for keeping keeping it in good good shape shape and preven!ing others and preventing others from parking_ from parking or leaving leaving garbage garbage there. there. Javash Javash claims claims that between 2018 that between 2018 and and 2020, 2020, Plaintiff Plaintiff was was asked asked to leave leave for doing doing a poor job three poor job three separate separate times times and later later returned returned after after asking asking to be reinstated but never reinstated but never claimed claimed ownership. ownership ..·In 2020, 2020, Anthony Anthony Serpico Serpico asserts that Plaintiff asserts that Plaintiff left left a voicemail voicemail informing informing him. him that that a man man stopped stopped by by interested interested in buying buying the Property. Property. In 2021, he further 2021, he further asserts asserts that that Plaintiff Plaintiff exchanged exchanged text text messages messages stating stating that that he would would want want a lease lease to the the Property until it was Property until was sold. sold .. These These communications, communications, according according to Javash, Javash, are clear clear indications indications that that Plaintiff Plaintiff acknowledged acknowledged he was was not not the owner owner of of the the Property. Property. In 2022, 2022, Javash Javash informed informed Plaintiff Plaintiff that that there there was was a potential potential buyer buyer and asked asked Plaintiff Plaintiff to leave. leave. Javash Javash asserts asserts that that Plaintiff Plaintiff asked asked for money, but Javash money, but Javash refused refused and then then filed a holdover proceeding. Javash holdover proceeding. Javashargues that if argues that if Plaintiff Plaintiff performed performed any upkeep, upkeep, that that cannot cannot be the basis claim of basis for a claim of ownership. ownership. In addition, addition, Javash Javash contends contends that that any upkeep upkeep performed performed was . .

in lieu of of rent rent and and Plaintiff Plaintiff never paid for never paid for taxes, taxes, insurance insurance or other other costs. costs. Javash Javash further further asserts asserts that that a claim claim for equitable equitable relief relief fails fails because because money damages would_ money damages would suffice. suffice. In his opposition opposition to Javash' Javash's s motion, motion, Plaintiff Plaintiff asserts asserts that Mr. Serpico that Mr. Serpico was was the the sole member member of of Javash per its Articles Javash per Articles of of Organization. Organization. Moreover, Moreover, Plaintiff Plaintiff contends contends that that documentary documentary evidence evidence establishes establishes that Serpico was that Mr. Serpico was the the sole member member as per per aaletter letter dated as dated Oct~ber October 29, 2 2 2008. 29,2008. Thus, Thus, Plaintiff Plaintiff avers avers that that the the share share certificates issued to the: certificates issued the siblings siblings dated dated October October 1, 2008 and the 2005 1,2008 2005 Schedule K-1 indicating Schedule indicating 25% 25% ownership ownership are suspect. suspect. Plaintiff Plaintiff further further denies denies sending sending text text messages messages and voicemails voicemails disclaiming-ownership disclaiming ownership interest. interest. With With respect respect to improvements, Plaintiff improvements, Plaintiff claims claims that that he installed installed a six-foot six-foot concrete concrete foundation, foundation, a container container . that that. was . was converted converted tnto .' . . a storage into storage . ~

unit unit and office office space, space, metal metal fences, fences, and and a concrete concrete wan.. wall. Plaintiff. Plaintiff argues argues that that he spent spent approximately approximately $300,000 $300,000 on these these improvements. improvements. Moreover, Moreover, Plaintiff Plaintiff avers avers that that he was was "closely "closely associated" associated" with Mr. Serpico with Mr. Serpico since since 2003, 2003, but but it it is only only Plaintiff's Plaintiffs "fact "fact witness" witness" who provides a who provides time line about timeline about the the alleged promise, albe_it alleged promise, albeit a vague vague one.· one. In his affidavit, affidavit, Mark Mark Jackson, Jackson, a tradesman tradesman a and carpenter carpenter who who allegedly performed work allegedly performed work for Mr. Serpico, Serpico, affirms affirms that Serpico (a) on that Mr. Serpico on "more "more than than a few occasions" occasions" stated stated that that Plaintiff Plaintiff would would inherit inherit the the Property Property and. and (b) "reinstated "reinstated

22 This This letter letter was was written written by by John John G. Serpico, Serpico, Esq. ("John.Serpico"), ("John Serpico"), whose priodinn est~blished whose priorfirm established the the entity entity Javash Javash Realty, Realty, LLCLLC in 2002 2002 (NYSCEF (NYSCEF Doc Nos. 69, 90). Doc Nos. 90). In this Jetter, John this.1etter, John Serpico Serpico states states that that JavashWas Javash was "owned "owned by JoeJoe initially ... initially ... , but but nonetheless nonetheless it was was always always Joe Joe and and everyone's everyone's understanding understanding that that it was was to be be owned owned by all of of you you equally" equally" (NYSCEF (NYSCEF Doc No. 69). Doc No. 69). .

.. 3

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[sic] [sic] this this several several times times in [his] presence presence and and in [Joseph [Joseph V.'s V.'s presence] presence] ... ... particularly particularly so in the year year 2015 2015 and and ... ... in 2016." 2016."33 In reply, reply, Javash Javash contends contends that that the the record record is clear clear that that only only the the four four siblings siblings were were members. members. Javash Javash maintains maintains that that Mr. Serpico's Serpico's son son Joseph Joseph V. signed signed the mortgage mortgage for the property in 2002 the property 2002 for Javash, Javash, signed signed the the membership membership certificates certificates to his siblings siblings from from 2008, 2008, and executed executed a lease lease in 2009 behalf of 2009 on behalf of Javash. Javash. In addition, addition, John John Serpico Serpico submitted submitted an affirmation affirmation in which which he states states that that Mr. Serpico Serpico was was never never a member member and Joseph Joseph V. handled handled all Javash Javash matters, matters, including including the the closing closing for the Property. Property.44 Even Even if if Mr. Serpico Serpico was was also also a member, member, Javash Javash argues argues that that he could could not have have unilaterally unilaterally consented consented to gifting gifting the Property Property to Plaintiff. Plaintiff. Moreover, Moreover, Javash Javash argues argues that that Plaintiff's Plaintiffs constructive constructive trust trust claim claim fails because because there there is no allegation allegation that that Javash Javash wrongly wrongly obtained obtained title title to the Property Property in the first first place. place. Javash Javash also also argues argues that that Plaintiff's Plaintiffs equitable equitable claims claims fail because because the action action is premised premised on a broken broken promise promise allegedly allegedly made made by Mr. Serpico Serpico and a promise promise is unenforceable. unenforceable. The Court Court will will first address address Plaintiff's Plaintiffs request request for a temporary temporary restraining restraining order. order. The The purpose purpose of of injunctive injunctive relief relief is to preserve preserve the status status quo while while an action pending (Moody action is pending (Moody v Filipowski, 146 AD2d Filipowski, AD2d 675,678 675,678 [2d Dept Dept 1989] [internal [internal citations citations omitted]). omitted]). The The burden burden rests rests on the movant movant to show: show: (1) a likelihood likelihood of of success success on the the merits, merits, (2) irreparable irreparable harm harm in the absence absence on an injunction, injunction, and and (3) a balance balance of of the the equities equities in favor favor of of granting granting the injunction (Stockley the injunction (Stockley v Gorelik, Gorelik, 24 AD3d AD3d 535, 535, 536 536 [2d Dept Dept 2005]; Aetna Ins. Co. v Capasso, 2005]; Aetna Capasso, 75 NY2d NY2d 860, 862 [1990]). [1990]). CPLR CPLR 6312 provides that 6312 provides that the the movant movant must must establish establish by "affidavit "affidavit or such such other other evidence" evidence" that that there there is a cause cause of of action action that that meets meets one one of of the the grounds grounds for a preliminary preliminary injunction injunction (CPLR (CPLR 6312 6312 [a]; 6301). 6301). "Bare "Bare conclusory conclusory allegations allegations are insufficient insufficient to support support a motion motion for a preliminary preliminary injunction" (Kaufman injunction" (Kaufman v Inti. Intl. Bus. Machs. Machs. Corp., Corp., 97 AD2d AD2d 925,926 925,926 [3d Dept 1983], ajfd Dept 1983], ajJd 61 NY2d NY2d 930 [1984]; Neos v Lacey, [1984]; Neos Lacey, 291 AD2d AD2d 434,435 434, 435 [2d Dept Dept 2002]). 2002]). Even Even if if issues issues of of fact exist, exist, this alone alone will will not not warrant warrant the the denial denial of of a motion motion for a preliminary injunction (Arcamone-Makinano preliminary injunction (Arcamone-Makinano v

The Court 3 The 3 Court notes notes that that Mr. Jackson's Jackson's affidavit affidavit was notarized in Georgia, was notarized Georgia, and and it did not not include include a certificate certificate ofof conformity conformity as required required by CPLR CPLR 2309 2309 (c) (NYSCEF (NYSCEF Doc Doc No.No. 73). 73). However, However, the the Second Second Department Department has has held held that that "the absence of "the absence of a certificate certificate ofof conformity conformity for an out-of-state out-of-state affidavit affidavit is not not a fatal defect" (Fredette fatal defect" (Fredette v Town of of Southampton, Southampton, 95 AD3dAD3d 940,942 940, 942 [2d DeptDept 2012]). 2012]). 4 In his affirmation, 4 affirmation, John John Serpico Serpico also also attempts attempts to explain explain thethe contents contents ofof his his letter letter from from 2008 2008 (NYSCEF (NYSCEF Doc No. Doc No. 79). According According to John John Serpico, Serpico, at the the time time of of the the letter letter all four four siblings siblings were were considered considered members, members, actedacted as members members and handled handled tax tax papers papers as members; members; nonetheless, nonetheless, Joseph Joseph V. had had received received the the membership membership certificates certificates and had not not officially officially signed signed off off on the the papers papers to formalize formalize this this until until early early October October 2008 (id. at ,r 2008 (id. ~ 6). In addition, addition, he avers avers that that he called called Joseph Joseph V. "Joe" "Joe" as that that was was how how he waswas known known to him him (id.). (id.). The The Court Court notes notes that that the the letter letter is only only addressed addressed to Anthony, Anthony, Heather Heather and and Vincent Vincent Serpico Serpico (NYSCEF (NYSCEF Doc No. 69). Doc No.

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Prop., Inc., Britton Prop., Britton Dept 2011]; AD3d 623, 625 [2d Dept Inc., 83 AD3d Meloney, 26 AD3d Ruiz v Me/oney, 2011]; _Ruiz 485, 486 [2d AD3d 485, Dept 2006] Dept proof is not ["conclusive proof 2006] ["conclusive preliminary injunction required" at the preliminary not required" phase]). Ultimately, injunction phase]). Ultimately, grant or deny "decision to grant the "decision preliminary injunction deny a preliminary sound discretion within the sound injunction lies within of the discretion of Supreme Court" Supreme AD3d at 625). (Arcamone-Makinano, 83 AD3d Court" (Arcamone-Makinano, 625). The Court The Plaintiff s unjust turns to Plaintiffs Court turns claim, stemming enrichment claim, unjust enrichment Plaintiff s alleged from Plaintiffs stemming from alleged investment Property. "To the Property. investment in the prove unjust "To prove enrichment, a party unjust enrichment, must show party must show that the other that the party· other party enriched at his or her was enriched and it is against expense, and her expense, and good equity and against equity permit that conscience to permit good conscience that person to retain person what is sought retain what recovered" (Delidimitropoulos sought to be recovered" Karantinidis, 186 AD3d (Delidimitropoulos v Karantinidis, AD3d Dept 2020]). 1489, 1491 [2d Dept affidavit in support 2020]). In his affidavit Order to Show of his Order support of Cause, Plaintiff Show Cause, Plaintiff asserts that he put asserts that "life savings his "life put his into" the Property savings into" and "made Property and many properties improvements to many "made improvements properties close by." It is only close by." papers,55. that reply papers, improper reply only in his improper Plaintiff first that Plaintiff explains what first explains these alleged what these alleged were and improvements were improvements and provides photographs. provides photographs. not submit. Plaintiff did not Plai~tiff of any evidence of submit evidence the Property expenditure on the expenditure receipts, invoices, Property (e.g., receipts, bank statements). loans, or bank invoices, loans, However, the statements). However, Court need not Court need whether Plaintiff determine whether not determine likelihood of demonstrated a likelihood Plaintiff demonstrated because Plaintiff success because of success Plaintiff cannot establish that cannot establish suffer irreparable would suffer that he would "since money harm "since irreparable harm would be sufficient damages would money damages sufficient him with compensate him to compensate this cause respect to this with respect action" (Kurlandski of action" cause of AD3d 676, 678 Kim, 111 AD3d (Kurland ski v Kim, Dept 2013]; [2d Dept 2013]; Price Paper & Twine Price Paper AD2d 748,750 Miller, 182 AD2d Twine Co. v Miller, Dept 1992] ["Where 748,750 [2d Dept ["Where ..... . a litigant can fully litigant can recompensed by a monetary fully be recompensed preliminary injunction award, a preliminary monetary award, injunction will not will not issue"]). issue"]). Court will The Court address Plaintiffs will address of action cause of Plaintiff s cause equitable lien. In his complaint, action for an equitable complaint, Plaintiff asserts Plaintiff reliance on Mr. Serpico's that in reliance asserts that promise, he made alleged promise, Serpico's alleged contributions towards made contributions towards the maintenance and upkeep maintenance and Property for approximately of the Property upkeep of years but eight years approximately eight does not but does provide not provide documentary evidence. supporting documentary any supporting evidence. "An equitable lien "An equitable granted in favor may be granted lien may person of a person favor of who, who, due to the nature of the nature his or her of his relationship with her relationship property owner, with a property owner, has relied upon has relied that owner's upon that owner's promise to convey unfulfilled promise unfulfilled property, and as a result convey the property, expended funds result has expended preserve or funds to preserve anticipation of improve it in anticipation improve conveyance" (Rock, of the conveyance" 617; Bolender AD3d at 617; (Rock, 100 AD3d Ronin Prop. Bolender v Ronin Partners, LLC, 168 AD3d Partners, LLC, 2019]). In this Dept 2019]). AD3d 1032, 1035 [2d Dept Plaintiff has case, Plaintiff this case, made a strong not made has not strong showing of showing likelihood of of a likelihood merits because success on the merits of success parties' submissions the parties' because the indicate that submissions indicate that Mr. rights himself Serpico had no rights Serpico the Property himself to the (Allmacher v Digiacomo, time (Allmacher Property at any time AD2d 651, Digiacomo, 153 AD2d

5 "Absent 5 advance permission "Absent advance of the permission of court, reply the court, papers shall reply papers not be submitted shall not orders to show submitted on orders cause" (Uniform show cause" (Uniform Rules for Trial Rules [22 NYCRR] Trial Cts (22 NYCRR] § 202.8-d). Here, ~ 202.8-d). Plaintiff did not Here, Plaintiff seek leave not seek of Court leave of a'reply .. Court to file a·reply ..

s· 5'

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Dept 1989]). 652 [2d Dept Plaintiff has not Moreover, Plaintiff 1989]). Moreover, that he-would established that not established have no adequate he would have adequate remedy at law remedy Leibinger, 91 (Leibinger-Roberts, Inc. v Leibinger, law (Leibinger~Roberts, AD2d 527 [2d Dept 97 AD2d 1983] [preliminary Dept 19831 [preliminary injunction should not injunction should where movant granted where not be granted not show movant did not that it did show that have an adequate "not have did "not adequate remedy at law remedy form of the form law in the Wolfv Natl. Council award of damages"]; Wolfv of an awardofdamages"]; Isr., 264 AD2d of Young lsr., Council a/Young AD2d Dept 1999] ["The 416, 418 [2d Dept 416,418 ["The remedy of an equitable remedy.of unwarranted where lien is unwarranted equitable lien damages lie for where damages unjust enrichment"]). unjust enrichment"]). The Court The turns to Plaintiffs now turns Court now trust claim. constructive trust Plaintiff s constructive affirmation in support, his affirmation claim. In his support, Plaintiff s counsel, Plaintiffs fashion, states conclusory fashion, counsel, in a conclusory "Plaintiff has satisfied that "Plaintiff states that factors required satisfied all factors required trust to be imposed." constructive trust for a constructive obtain a constructive imposed." To obtain party must trust, a party constructive trust, establish the must establish existence of existence fiduciary or confidential of (1) a fiduciary relationship, (2) a promise, confidential relationship, transfer in reliance promise, (3) a transfer reliance and (4) unjust thereon, and thereon, enrichment (Delidimitropoulos, unjust enrichment AD3d at 1490). (Delidimitropoulos, 186 AD3d addition, "[a] 1490). In addition, constructive trust constructive will be imposed trust will where property imposed where with on faith parted with property is parted oral or implied of an oral faith of implied reconvey, but promise to reconvey, promise may be imposed none may but none interest in the property who has no interest imposed by one who prior to property prior obtaining promise that obtaining a promise interest will such interest that such him" (Scivoletti given to him" will be given AD2d 401, Marsala, 97 AD2d (Scivoletti v Marsala, 401, [internal quotation Dept 1983] [internal 402 [2d Dept citations omitted]). marks and citations quotation marks does not Plaintiff does omitted]). Plaintiff allege or not allege establish that establish interest in the had any interest that he had the property Serpico making prior to Mr. Serpico property prior the alleged making the promise alleged promise (see Scivoletti, AD2d at 402; Scivoletti, 97 AD2d Fedziuk v Conroy, 402; Fedziuk Dept 1993]; 300,300 [2d Dept AD2d 300,300 Conroy, 199 AD2d Edwards 1993]; Edwards Dept 2019]). AD3d 865, 868 [2d Dept v Walsh, 169 AD3d Nonetheless, 2019]). N onethe1ess, where plaintiff did where a plaintiff did not title transfer title not transfer to the defendant, reliance" element "transfer in reliance" defendant, the "transfer established if may be established element may if"the plaintiff has provided ''the plaintiff provided funds for the maintenance substantial funds substantial improvement of maintenance and improvement [property]" (Hairman of the [property]" Jhawarer, (Hairman v Jhawarer, 122 AD3d Dept 2014]; 570,572 [2d Dept AD3d 570,572 2014]; Hernandez AD3d 1144, Florian, 173 AD3d Hernandez v Florian, Dept 2019]; 1144, 1145 [2d Dept 2019]; Rock v Rock, Rock Dept 2012]; 614, 616 [2d Dept AD3d 614, Rock, 100 AD3d 2012]; Marini Lombardo, 19 Marini v Lombardo, 79 AD3d 932, 934 [2d AD3d 932, Dept 201 Dept 2010] ["Where ..... . [party] O] ["Where had no actual [party] had actual prior this subject interest in this prior interest subject property, was required property, he was required to show show that interest developed equitable interest that an equitable through the developed through expenditure of the expenditure of money, labor, and money, labor, time in and time the property"]; Ruiz v Meloney, property"]; Ruiz AD3d 485, 486 Meloney, 26 AD3d Dept 2006]). 486 [2d Dept 2006]). Here, Plaintiff Here, that the Property avers that Plaintiff avers promised to him was promised Property was point by Mr. Serpico some point him at some Serpico Plaintiff contributed result, Plaintiff and as a result, money to the maintenance contributed money Property. The of the Property. maintenance of Court finds The Court these allegations insufficient these allegations likelihood of establish a likelihood insufficient to establish because even success because of success Serpico made if Mr. Serpico even if made promise and the promise Plaintiff expended and Plaintiff the record money, the expended money, not definitively does not record does that Mr. demonstrate that definitively demonstrate Serpico owned Serpico owned the had the Property or had the Property authority to convey the authority convey the Property (Sarker the Property AD3d Das, 203 AD3d (Sarker v Das, 973,975 [2d Dept 973,975 2022] [preliminary Dept 2022] should have injunction should [preliminary injunction denied where been denied have been failed to plaintiff failed where plaintiff

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submit "probative evidence submit "probative demonstrating a· evidence demonstrating of s1,1ccess likelihood of a likelihood the merits"]; success on the August v merits"]; August Schwartz, 50 Misc Schwartz, 1224[A], 2016 3d 1224[A], Misc 3d 50253[U], *9 [Sup Ct, NY NY Slip Op 50253[U], 2016 NY 2016] [finding County 2016] NY County [finding that plaintiff that plaintiff failed failed to establish likelihood of establish likelihood success on merits of success of constructive merits of claim, in part, trust claim, constructive trust part, because not provide because she did not provide evidence of expenses evidence of maintaining and efforts in maintaining expenses or efforts improving the and improving apartment]). apartment]). Accordingly, the Accordingly, Court finds the Court that Plaintiff finds that established entitlementto not established Plaintiff has not preliminary entitlement to a preliminary injunction his Order injunction and his Cause is denied. Show Cause Order to Show denied. The Court The Court will will now discuss Javash's now discuss dismiss the second motion to dismiss Javash's motion trust) and (constructive trust) second (constructive third (equitable third (equitable lien) of action causes of lien) causes CPLR 3211 (a)(l). under CPLR action under (a)(1).Pursuant 3211(a)(1), a CPLR 3211(a)(l), Pursuant to CPLR complaint will complaint will only only be dismissed if there dismissed if documentary evidence there is documentary that "utterly evidence that the factual refutes the "utterly refutes factual allegations of allegations of the complaint and the complaint establishes a defense conclusively establishes and conclusively defense to the matter of claims as a matter the claims of (Granada Condo. law" (Granada law" Condo. III Ass 'n v Palomino, III Ass'n 996 [2d Dept AD3d 996, 996 Palomino, 78 AD3d For evidence 2010]). For Dept 2010]). evidence documentary, it must considered documentary, to be considered authentic and unambiguous, authentic must be unambiguous, undisputed (Fontanetta and undisputed (Fontanetta v Doe, Doe, 73 AD3d [2d Dept AD3d 78, 86 (2d citation omitted]). [internal citation 2010] [internal Dept 2010] omitted]). Therefore, "affidavits, Therefore, "affidavits, deposition testimony, deposition letters are [not considered] testimony, [and] letters 'documentary evidence' considered] 'documentary within the evidence' within intendment of intendment CPLR 3211 (a) (1)" of CPLR (1)" (Granada Ass 'n, 78 AD3d III Ass'n, (Granada Condo. III 997). In an action AD3d at 997). action involving lease, deed, property, a lease, real property, involving real deed, mortgage, closing statement mortgage, closing satisfaction of statement and a satisfaction mortgage of mortgage have been held have been documentary evidence constitute documentary held to constitute Mett 's Surf Sunset Cafe, Inc. v Mett's evidence (see Sunset Sports Surf & Sports Corp., AD3d 707, Corp., 103 AD3d 707,709 2013]; Casso v Kaplan, 16 Dept 2013]; 709 [2d Dept 16Misc 130[A]_[Sup Ct, Kings County Misc 3d I1130(A][Sup 2007]). 2007]). support of In support seeking dismissal motion seeking of its motion CPLR 321 under CPLR dismissal under 3211(a)(I), produced four Javash produced l(a)(l), Javash Schedule K-1 Schedule K-1ss for the the tax tax year 2005, reflecting year 2005, that the siblings reflecting that each owned siblings each interest. In 25% interest. owned a 25% addition, Javash addition, Javash produced three membership produced three 2008, signed certificates from 2008, membership certificates Joseph V. Serpico signed by Joseph Serpico as managing member to siblings managing member siblings Anthony, Heather .and Anthony, Heather Vincent (NYSCEF and Vincent (NYSCEF Doc No. 46). In his Doc No. opposition, Plaintiff opposition, that the membership avers that Plaintiff avers false and certificates are false membership certificates the tax documents that the and that documents cannot be true cannot because Mr. Serpico true because member of was the sole member Serpico was 2008. -In LLC in 2008. of the LLC of his support of In support claims, Plaintiff claims, Plaintiff cites cites to the the Articles of Organization, Articles of which according Organization, which him, lists according to him, Serpico as Joe Serpico lists Joe member. What the sole member. What Plaintiff ignores, however, Plaintiff ignores, Serpico is listed that Joe Serpico however, is that individual to listed as the individual whom the Secretary whom Secretary of of State State must must mail mail copies copies of of any process Javash. In fact, the sixth against Javash. process against sixth paragraph states that paragraph states that Javash managed by a class "is to be managed Javash "is classes of class or classes of members," but does members," but not list does not whom they whom they are. Thus, Thus, the Articles of the Articles not the "smoking Organization are not of Organization Plaintiff purports gun" Plaintiff "smoking gun" purports

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There are admitted them to be. There them with the creation issues with admitted issues limited liability of the limited creation of company and who liability company were at the members were all the members creation.66 However, of its creation. time of the time reflects that record reflects However, the record Joseph V. that Joseph Serpico, Jr. was, Serpico, initially, the least initially, was, at least there is sufficient, owner and there the sole owner admissible documentary sufficient, admissible documentary evidence 77 that evidence establishes that that establishes not Mr. Serpico, siblings, and not that the siblings, were the Serpico, were members at the the members time of the time of any alleged promises. Consequently, alleged promises. Javash has sufficiently Consequently, Javash sufficiently refuted Plaintiff's allegations refuted Plaintiffs that allegations that Mr. Serpico was the Serpico was membe! and that managing member the managing rig~t to transfer had any right that he had even if Property even transfer the Property if that promise. make that he did make relies on the Articles Plaintiff relies promise. Plaintiff Organization and of Organization Articles of of two affidavits of and the affidavits individuals with no personal individuals with of the creation knowledge of personal knowledge of the management of creation and management support of LLC in support the LLC of his opposition. These are insufficient opposition. These Javash's contentions: rebut Javash's insufficient to rebut contentions: examine the portion Court will examine The Court Javash's motion of Javash's portion of dismissal of seeking dismissal motion seeking second and of the second third third causes of action causes of action pursuant CPLR 3211 (a)(7). Courts pursuant to CPLR will only Courts will motion to dismiss grant a motion only grant dismiss CPLR 3211 under CPLR under 3211(a)(7) true and according alleged as true "taking all facts alleged (a)(7) if, "taking them every according them possible every possible inference favorable inference plaintiff, the complaint the plaintiff, favorable to the some cognizable states in some complaint states cause of form any cause cognizable form of action known action law" (Rubinstein our law" known to our AD3d 536~ Salomon, 46 AD3d (Rubinstein v Salomon, 2007] [internal Dept 2007] 536, 538 [2d Dept [internal quotation marks and quotation marks omitted]). A complaint citations omitted]). and citations sufficiently pled complaint has sufficiently cause of pled a cause if "it action if of action "it gives sufficient gives of the transactions, notice of sufficient notice series of occurrences, or series transactions, occurrences, transactions or occurrences of transactions occurrences intended proved and intended to be proved requisite elements the requisite and [] the of action cause of of any cause elements of action known law can be known to our law discerned averments" (Pace from its averments" discerned from (Pace v Perk, 444,449 AD2d 444, Perk, 81 AD2d [internal citations Dept 1981] [internal 449 [2d Dept citations omitted]). Bare omitted]). conclusions are not legal conclusions Bare legal to be true presumed ·to not -presumed every favorable accorded every true or accorded favorable (Morris v Morris, inference (Morris inference AD2d 449,451 306 AD2d Morris, 306 2003]). Likewise, Dept 2003]). 449,451 [2d Dept claims flatly "factual claims Likewise, "factual contradicted by the record contradicted not entitled record are not consideration" (Doria such consideration" entitled to any such Masucci, 230 AD2d (Doria v Masucci, AD2d Dept 1996]). 764, 765 [2d Dept 1996]). motion, Javash In its motion, argues that Javash argues both causes that both action fail for various of action causes of First, Javash reasons. First, various reasons. Javash contends contends that money damages that money damages would suffice. Since would suffice. Property is worth Since the Property millions and worth millions Plaintiff's and Plaintiff's alleged improvements were alleged improvements only $50,000 worth only were worth per the complaint, $50,000 per Javash argues complaint, Javash Plaintiff can that Plaintiff argues that can

6 See 6 id. See id 7 See 7 title closing the title See also the statement listing closing statement the purchaser listing t_he Javash Realty, purchaser as Javash LLC by Joseph Realty, LLC Serpico, Jr. (NYSCEF Joseph Serpico, (NYSCEF Doc No. Doc the mortgage No. 81); the signed by Joseph mortgage signed Serpico as member Joseph Serpico behalf of member on behalf Javash Realty of Javash (NYSCEF Doc LLC (NYSCEF Realty LLC No. Doc No. 82); and the one-year lease the one-year signed by Joseph lease signed manager of Serpico as manager Joseph Serpico of Javash Realty LLC Javash Realty (NYSCEF Doc LLC (NYSCEF No. 87). Doc No. These documents These documents all bear similar signatures very similar bear very membership certificates, the membership signatures as the certificates, which alleges are Plaintiff alleges which Plaintiff purportedly documents signed false documents purportedly false Joseph V. Serpico, signed by Joseph Javash also Serpico, Jr. Javash also produced photograph of produced a photograph Mr. Serpico's of Mr. Serpico's cancelled passport cancelled passport with signature (NYSCEF his signature with his (NYSCEF Doc Doc No. 83). Though the Court Though the does not Court·does hold itself not hold out to be a itself out handwriting expert, handwriting the Court expert, the that the signatures observes that Court observes mortgage and the mortgage signatures on the and lease different than Mr. distinctly different lease are distinctly Serpico's signature in his passport. Serpico's signature passport.

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be made ..be whole without made whole necessity of the necessity without the trust or equitable constructive trust of a constructive there was Second, there equitable lien. Second, relationship between confidential relationship no confidential Plaintiff and Javash between Plaintiff claims of and any claims Javash and confidential or of a confidential fiduciary relationship fiduciary Serpico are irrelevant with Mr. Serpico relationship with Serpico did not since Mr. Serpico irrelevant since the property. own the not own property. Javash argues Third, Javash Third, Plaintiff s claim that Plaintiffs argues that improvements to the Property of improvements claim of conclusory at Property are (1) conclusory belied by photographs best, (2) belied reflecting broken photographs reflecting occupying the space, vehicles occupying broken vehicles and (3) expected space, and expected part of as part maintenance of Plaintiffs maintenance of Plaintiffs Property he did not of the Property rent for. The pay rent not pay majority of The majority Plaintiffs of Plaintiffs concerns Mr. Serpico's opposition concerns opposition alleged ownership Serpico's alleged Property. However, of the Property. ownership of Plaintiff does However, Plaintiff assert that assert concrete foundation, installed a concrete that he installed container on the foundation, installed a container foundation, installed built metal foundation, built metal fences, and completed fences, wall, with concrete wall, completed a concrete work totally such work with such over $300,000. totally over $300,000. the claim regard to the In regard constructive trust, claim for a constructive that Plaintiff Court finds that trust, the Court failed to Plaintiff has failed sufficiently allege sufficiently cause of such cause allege such Plaintiffs assertion Here, ·Plaintiffs action. Here, of action. assertion that Serpico owned that Mr. Serpico owned the Property is contradicted Property contradicted by the Matter of record (see Matter the record of Noble, AD3d 643, 645 [2d Dept Noble, 31 AD3d 2006] Dept 2006] [finding that plaintiff [finding that sufficiently allege failed to sufficiently plaintiff failed of action cause of allege a cause trust because constructive trust action for a constructive because the property the deed to the that it was established that property established owned by the parents never owned was never was conveyed when it was parents when conveyed brother D. Thus, the brother]). to the Thus, there claim for a constructive can be no claim there can the alleged when the trust when constructive trust promisor alleged promisor have title did not have property at. title to the property atthe time the alleged the time alleged promises were made promises were (Tichonchuk v Orloff, made (Tichonchuk Orloff, Misc 2d 623, 36 Misc Queens County 623, 627 [Sup Ct, Queens also Frazier County 1962]; see also Barnes, Sup Ct, Bronx· Frazier v Barnes, Bronx County, Oct. 20, 2021, County, Franco, J., index 2021, Franco, [complaint fails to state 801362-2021E [complaint index No. 801362·2021E cause of state a cause of action for a constructive action trust where constructive trust allegation that there is no allegation where there confidential . or fiduciary that a confidential fiduciary relationship existed, relationship promises were that promises existed, or that parties D. Thus, between the parties]). made, between were made, Plaintiff has failed Thus, Plaintiff failed plead a c:::.use sufficiently plead to sufficiently c::~useofof action constructive trust. action for a constructive trust. the Second Moreover, the Moreover, Department has previously Second Department dismissal of that dismissal previously heJd that equitable lien of equitable claims is appropriate claims Plaintiff has an adequate where Plaintiff appropriate where adequate remedy law-money damages remedy at law-money unjust damages for unjust enrichment enrichment (Bennett John, 151 AD2d (Bennett v John, 1989]; Wolf, 264 Dept 1989]; AD2d 711, 711 [2d Dept 264 AD2d 418). On AD2d at 418). this basis cause of Plaintiff s cause alone, Plaintiffs basis alone, of.action equitable lien action for an equitable must be dismissed. lien must dismissed. while it is undisputed Ultimately, while Ultimately, that Plaintiff undisputed that given permission was given Plaintiff was occupy the permission to occupy Property, Plaintiff has Property, Plaintiff make out failed to make has failed case that prima facie case out a prima promised the Property. was promised that he was Property. if Mr. Serpico Even if Even communicated a promise Serpico communicated Property, Mr. Serpico convey the Property, promise to convey could not Serpico could convey not own, what he did not convey what clear from made clear own, as is made from the documentary evidence. the documentary evidence. hereby Accordingly, it is hereby Accordingly,

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ORDERED, ORDERED, that that Plaintiffs Plaintiffs Ord~r Order to Show Show Cause Cause seeking preliminary injunction seeking a preliminary injunction (Mot. No. 1) is denied; Seq. No.1) denied; and and it is further further ORDERED, ORDERED, that that Defendant's Defendant's motion motion for an order order dismissing dismissing the second second and and third third causes causes of of action action (Mot. (Mot. Seq. No.2) No. 2) is granted; granted; and it is further further ORDERED, ORDERED, that that at this this stage, stage, the Complaint Complaint is still viable viable will will respect respect to the first cause cause of of action action for unjust unjust enrichment. enrichment. All other other issues issues not 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. INGRID J SEPH, l.S.C. Hon. Han. Ing In9'· Joseph Joseph ..,.., Supreme Supreme Court Court Justice Justice

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