Take v. 267 Goldie Partners LLC

2024 NY Slip Op 31410(U)

Opinion

Take v 267 Goldie Partners LLC 2024 NY Slip Op 31410(U) April 22, 2024 Supreme Court, Kings County Docket Number: Index No. 535152/23 Judge: Lawrence Knipel 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 04/22/2024 04:34 PM INDEX NO. 535152/2023 NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/22/2024

Atan IAS Part57 of the Supreme Courtofthe State ofNewYork,he;id in and for the County of Kings, at the Courtho1.1-se, at Civic Center, Brooklyn, NewYork, on th¢ 22. nd day.of April, 2024 ·

PRE SENT:

HQN. LAWRENCE KNIPEL, Justice.

- .- - - - - .... - - - - - - - - - ·- ·- -· - '" - - - - - -· - - - - - ·C.. · - - - X EKANEMTAI<.E, individually and derivatively ONBEHALFOF267 GOLDIEPARTNERS,LLC,

Plaintiff, ORDER - against - Index No.: 535152/23

267 GOLDIE PARTNERS LLC, DONALD M MATHESON, MELISSA BENJAMIN, ELLIOT BERMAN, CITIZENS BANKN.A PARKING VIOLATIONS BUREAU, COMMISSIONER OF LABOR STATE OF NEWYORK '. . .

Defendants. - - ,. - - - - - - - -· - - - ·- - - - - - - - .., .- .., - - - ·- - - - - - - X

; ' Defendants Melissa Benjamin . and Elliot Berman move . by order ' to show cause to cancel the notice

ofpendency filed by plaintiff and, in effect, for summary judgment 4ismissing plaintiffs claim to void and . . .. i . ;

rescind the deed from defendant 267 Goldie Partners LLC (LLC}dtted October 19, 2021, for the property

located at 267 Putnam A venue, Brooklyn, N i::w York.

In September 2021 , defendant Donald Matheson provided· !an affidavit to. the moving defendants I;

stating that he was authorized to c.ohvey the subject property1 that t~ere was no provision prohi bi ting him ; i from sel Hng the property, and tha{ he was the sole member of LLC) I' However, in her-complaint, plaintiff alleges that she and M~theson f formed LLC, and agreed . . to an '

Operating Agree1hen t that would control thei t j ointventure for rede~elopiiig the prop¢rfy. Pursuant to their

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operating agreement, plaintiff allf:ges she had a 40¾ interest in LLC, and that the sale of the property required a unanimous decision of all members. Plaintiff contet)ds that· since Matheson did not have unanimous consent of the members of the LLG to transfer to the n1oving defendants, the purported

conveyance is null and void and the LLC should be declared the sf le owner of the property.

Defendants, however,·contend that they purchased the suljject premises fot its appraised value of

$1,500,000, and that they have undertaken major renovations and e;xpended over $600,000 to date to make

the premises their pdmaryresidence. In addition, they have a $2l875,COOO mortgage with a $1.4 million ' '

construction loan. Because of the notice of pendency, their tonsttifdion loan was "frozen''_, their property ; ' is gutted andthus subject to deterioration and vandalism,and the)i areliablc for mortgage payments over

$7000amonth.

In this motion, the moving defendants contend that plaintiffs argument thatthe deed here is void ;

ab initi_o is misplaced. A deed is void ab initio if the signaturepurporting to be the _grantor's is forged. Here;

however, while there may be issues as tothe grantor's authority to fign the deed, there is ho issue as to the

gtantor' s authenticity, and the de eel is merely voidable. And, by wai}ing over twoyears to bringthis lawsuit, •• I

the moving defendants argue that they are entitled to the equitable !defense of laches which would prevent

plaintiff from seeking to void it now. This is especially so here, in[ light ofthe great expenses incurred by

the moving defendants who entered into an arms Iepgth transact19n, paid fair value -for the property and

incurred substantial financialobligations torenovatetheirhome. Pfaintiff argues in opposition that forgery

is but one species .of fraud; and that using the fake operating agreei'µent for the purpose of fraud and deceit

against the other partner should make this transaction void ab initip. A forged deed is void at its inception, a legal . : nullity that is not enthled to legal effect and cannot l

convey good title (see Morden v Dorthy, 160 NY 39 [1899]; Faisbn v Lewis, 25 NY2d 2015 [20l5J). In . t

contrast, a deed where the signature and authority for conveyancre are acquired by fraudulent means is

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voidable, and until it is set aside it has the effect of transferring tit!~ to the grantee (Faisonv Lewis, supra;

Matter ofShau Chung Hu v Lowbet Realty Corp,, 161 AD3d 986 i[2d Dept 2018][Subjectdeed was ortly

voidable, not void ab initio, since petitioner alleged that the signat4re in question and authority to convey

were acquired by fraudulent means but did not allege that the signrturc was forged]).

"The essence ofthe equitable defense oflaehes is prejudiciaUdelay in the assertion ofri ghts (citations

omitted)" (Stein v Doukas, 98 AD3dl026 [2d Dept 2012][In order for !aches to apply to the failure ofan

owner of real property to assert his or her interest, it must be show* that the plaintiff inexcusably failed to

act when he or she knew or should have known that there was a problem with title]), "Moreover:, as the ;

effect of delay may be critical to an adverse paity, delays ofeven le~s than oneyear have been sufficient to

warrant the application of the defense'' (Stein v Doukas, supra 198 AD2d at 1028; see Schulz v State (~[New

York, 81 NY2d; 336, 348 [1993]).

Herc, M athesonmisreprescnted to the moving defendants that . he was authorized to sell the property, .

that there was no reason he could not sell and that he-Was the sole Il}cmbcr ofLLC. But he did not forge the

signature ofai1other individual who in truth owned the property. His signatme was authentic and he was a

majority partner in LLC. Because ofthe allegedfraud on plaintiff: h9wever, thedeedwas voidable. Plaintiff

could have moved in immediately to cancel the sale and restore title to the LLC, butshe did not. The moving . .

defendants were bona fide purchasers, paid valuable consideratio~, lacked knowledge of any fraud in. the

conveyance or of any facts that would lead are<1sonably prudent putchaser to inquire about possible fraud.

Their reliance on the appearance of Matheson' s apparent authority :Was reasonable. In the two yeats since

purchasing the subject premises they embarked oh gut renovation~, an enhanced mortgage to finance. the

renovations and a construction loan that is apparently . frozen due to !the filing ofthenotice ofpcndericy and .

this litigation. In addition,underthese circumstances, the moving defcndants ate entitled to use the equitable i

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defense of laches to prevent plaintiff from voiding the sale at this *me. Plaintiff can pursue other options,

including seeking money damages from the party that caused her tp sustain those damages. ;

According} y, the motion, in effect, for summary judgmqnfdismi ssing the claim to void or rescind

the deed tp the moving clefendants is granted, andthe complaint is 4ismissed againsttherh. In addition, the

notice of pendency shall be vacated within one. week after the dat~ of this order.

The foregoing constitutes the decision and orderofthis covrt.

E NT E R, fb«T1iLl.' lfli

.; ;

HON. tAWf=itNCE KNlPEL ADMINl6TRATIVE.JUDGE

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