JUDICIAL SCRUTINY OF A DIVORCE AGREEMENT

Entering into a matrimonial agreement, where the parties waive full financial disclosure and the terms of support are unrealistic, is still subject to judicial review.

Mizrahi v Mizrahi, 2019 NY Slip Op 03040, Decided on April 24, 2019, Appellate Division, Second Department:

"The parties were married on August 15, 1996, and have two children together. On January 15, 2015, the parties entered into a separation agreement. In January 2016, the plaintiff commenced this action for a divorce and ancillary relief and interposed causes of action seeking to set aside the separation agreement. The plaintiff thereafter moved to set aside the separation agreement on the ground, inter alia, of unconscionability, and the defendant cross-moved, among other things, to dismiss the causes of action seeking to set aside the separation agreement. The Supreme Court denied the plaintiff's motion, in effect, granted that branch of the defendant's cross motion which was to dismiss the causes of action seeking to set aside the separation agreement, and, sua sponte, determined that the defendant was entitled to an award of attorney's fees pursuant to the terms of the separation agreement and awarded the defendant attorney's fees in the sum of $4,000 for fees expended in opposing the motion. The plaintiff thereafter moved for leave to reargue her prior motion and, in effect, her opposition to that branch of the defendant's cross motion which was to dismiss the causes of action seeking to set aside the separation agreement. The court granted reargument and, upon reargument, adhered to its original determination. The plaintiff appeals.

"Agreements between spouses . . . involve a fiduciary relationship requiring the utmost of good faith. There is a strict surveillance of all transactions between married persons, especially separation agreements. Equity is so zealous in this respect that a separation agreement may be set aside on grounds that would be insufficient to vitiate an ordinary contract" (Christian v Christian, 42 NY2d 63, 72 [citations omitted]).

"Generally, separation agreements which are regular on their face are binding on the parties, unless and until they are put aside" (id. at 71). "Judicial review is to be exercised circumspectly, sparingly and with a persisting view to the encouragement of parties settling their own differences in connection with the negotiation of property settlement provisions. Furthermore, when there has been full disclosure between the parties, not only of all relevant facts but also of their contextual significance, and there has been an absence of inequitable conduct or other infirmity which might vitiate the execution of the agreement, courts should not intrude so as to redesign the bargain arrived at by the parties on the ground that judicial wisdom in retrospect would view one or more of the specific provisions as improvident or one-sided" (id. at 71-72 [emphasis added]).

"A separation agreement or stipulation of settlement which is fair on its face will be enforced according to its terms unless there is proof of fraud, duress, overreaching, or unconscionability" (Linder v Linder, 297 AD2d 710, 711; see Hughes v Hughes, 131 AD3d 1207, 1208; Kabir v Kabir, 85 AD3d 1127, 1127). However, because of the fiduciary relationship existing between spouses, a marital agreement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud or where it is shown to be manifestly unjust because of the other spouse's overreaching (see Jon v Jon, 123 AD3d 979; Potter v Potter, 116 AD3d 1021, 1022). To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness (see Jon v Jon, 123 AD3d at 979; Kerr v Kerr, 8 AD3d 626, 626-627).

"In general, an unconscionable contract has been defined as one which is so grossly unreasonable as to be unenforceable because of an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party" (King v Fox, 7 NY3d 181, 191; see Gillman v Chase Manhattan Bank, 73 NY2d 1, 10; Simar Holding Corp. v GSC, 87 AD3d 688, 689). " This definition reveals two major elements which have been labeled by commentators, procedural and substantive unconscionability'" (Simar Holding Corp. v GSC, 87 AD3d at 689, quoting State of New York v Wolowitz, 96 AD2d 47, 67). " The procedural element of unconscionability concerns the contract formation process and the alleged lack of meaningful choice; the substantive element looks to the content of the contract, per se'" (Simar Holding Corp. v GSC, 87 AD3d at 689, quoting State of New York v Wolowitz, 96 AD2d at 67).

A reviewing court examining a challenge to a separation agreement "will view the agreement in its entirety and under the totality of the circumstances" (Jon v Jon, 123 AD3d at 980; see Kabir v Kabir, 85 AD3d at 1127-1128; Reiss v Reiss, 21 AD3d 1073, 1074). Here, without a hearing to determine the totality of the circumstances, including the extent of the parties' incomes [*2]and assets and the circumstances surrounding the execution of the separation agreement, it cannot be determined on this record whether equity should intervene to invalidate the parties' separation agreement (see Kabir v Kabir, 85 AD3d at 1127-1128). The plaintiff raised an inference that the parties' separation agreement was invalid, sufficient to warrant a hearing (see Jon v Jon, 123 AD3d at 980).

It is undisputed that the separation agreement was the product of a mediation conducted by the attorney who prepared the document. The separation agreement reflects that the defendant retained counsel to represent him, while the plaintiff did not do so. While the plaintiff consulted with an attorney regarding the separation agreement, the agreement states, in bold print, that the plaintiff's consulting attorney advised her not to sign the agreement "based upon the fact that there has been no discovery in the matter whatsoever, and [the attorney's] considered opinion that the support provisions in the agreement are not adequate to meet the [plaintiff's] and children's basic needs."

The substantive terms of the agreement reveal that, at the time of execution, the plaintiff earned no income, and the defendant represented his income as $100,000 per year "based upon his ability to earn." The defendant agreed to pay $3,000 per month in child support for the parties' two children, and $500 per month in maintenance. The defendant agreed to provide health insurance for the children and to pay 75% of the children's medical expenses not covered by insurance, with the plaintiff to pay 25% of such expenses. No provision was made for the payment of the children's educational expenses, although the defendant agreed to pay a "possible" outstanding balance due to the children's private high school.

The separation agreement provided that the plaintiff would have exclusive use and occupancy of the marital residence, a rental apartment, and that the defendant would pay, for the period between January 15, 2015, and February 1, 2015, the rent, utilities, and carrying charges in connection with the apartment. From February 1, 2015, the plaintiff was responsible for such expenses. Each party was to retain his or her own personal property, except that the defendant waived any interest in rugs and other items in storage in Israel and agreed to pay the storage charges until October 1, 2015. The defendant agreed to pay the plaintiff a lump sum of $45,000, representing an equitable share in his business, identified as EMS 15A, LLC. The agreement did not identify this business as being claimed by the defendant as his separate property, did not describe the nature of the business, and did not place a value on the business. The agreement recited that the parties had waived their rights to disclosure and to the exchange of statements of net worth. The agreement provided that in the event that the validity of the agreement was unsuccessfully challenged, the challenging party would be responsible for the attorney fees and legal expenses of the defending party.

The Supreme Court denied the plaintiff's motion to set aside the separation agreement and, in effect, granted that branch of the defendant's cross motion which was to dismiss the causes of action challenging the agreement on the ground that the agreement was the product of a mediation, that the plaintiff was afforded the opportunity to consult with counsel, and that the plaintiff elected to sign the agreement, notwithstanding the advice of counsel not to do so. We disagree. These facts, standing alone, do not shield the separation agreement from judicial scrutiny. The validity of the agreement is dependent upon an examination of the totality of the circumstances, including an examination of the terms of the agreement, to see if there is an inference of overreaching (see Christian v Christian, 42 NY2d at 72-73). Moreover, the record discloses no information regarding who retained and paid for the services of the mediator, and how the mediator arrived at the substantive terms of the agreement.

It was undisputed that the monthly rent for the marital residence in Forest Hills, Queens, exceeded $5,200 per month. The amount of combined maintenance and child support, payable by the defendant to the plaintiff, who had no other income, was less than the monthly rent. Thus, the amount of support that the plaintiff was to receive was less than her housing expense, let alone sufficient to cover food, clothing, and other expenses. There is no indication that the plaintiff was expected to, or could, obtain reasonable alternative housing at lesser cost. The plaintiff's [*3]affidavit submitted in support of her motion indicated that she was in the process of being evicted from the marital residence due to missed rental payments. The agreement did not provide for the payment of the children's private school tuition, even though the children had attended a private religious school for several years. The record contains no information as to the plaintiff's ability to obtain employment. While the defendant averred that he was diagnosed with end-stage renal disease in March 2015 and that he was working only on a part-time basis, he did not provide any documentation of his condition and his past or present income.

In his opposition to the plaintiff's motion, the defendant averred that his business, EMS 15A, LLC, owns a condominum apartment in Manhattan, which he estimated had a fair market value of $3,200,000 . He claimed that he had purchased the apartment in 2001, borrowing $150,000 from his watch business to make the down payment. He asserted that the watch business was his separate property, he sold part of his interest in the watch business to his brother in 2006, and he used the proceeds of the sale to repay the mortgage on the apartment. On the other hand, he also claimed that he thereafter had taken out $2,595,000 in mortgages on the property, on which he was in default. He did not, however, describe what use he made of the proceeds of the mortgages.

In addition, the parties' affidavits raised questions as to value of the rugs that the plaintiff was to receive under the separation agreement and the nature and extent of jewelry that the plaintiff retained as her property.

Given that the agreement's support provisions were insufficient to cover the rent for the marital residence and other basic needs of the plaintiff and the children, as well as the lack of financial disclosure regarding the value of the defendant's business, condominium, and actual income, questions of fact existed as to whether the separation agreement was invalid, sufficient to warrant a hearing (see Gardella v Remizov, 144 AD3d 977, 980; Jon v Jon, 123 AD3d at 980; Kabir v Kabir, 85 AD3d 1127). Given the lack of any financial disclosure, the Supreme Court should have exercised its equitable powers and directed disclosure regarding the parties' finances at the time the agreement was executed, to be followed by a hearing to test the validity of the separation agreement (see Gardella v Remizov, 144 AD3d at 980; Kabir v Kabir, 85 AD3d at 1128)."

FREE MORTGAGE FORECLOSURE CLINIC TODAY

I will be volunteering today at the Nassau County Bar Association's free clinic for Mortgage Foreclosure, Bankruptcy and Superstorm Sandy issues, from 3pm to 6pm.

For more information, contact Nassau County Bar Association, 15^th and West Streets, Mineola, NY 11501 at (516) 747-4070

A GOOD FAITH PURCHASER?

Of course, one wonders why the bank waited over 6 years to record the mortgage but still.....

Emigrant Bank v Drimmer, 2019 NY Slip Op 03026, Decided on April 24, 2019, Appellate Division, Second Department:

"In August 1999, the defendant Levi Drimmer purchased real property in Brooklyn, financed by a $472,500 purchase money mortgage from the plaintiff's predecessor-in-interest, Emigrant Mortgage Company, Inc. (hereinafter the Emigrant mortgage). The Emigrant mortgage was not recorded until February 2006. In September 2002, Drimmer sold the property to the defendant Yosef Sternberg. Sternberg obtained a title report prior to closing, which did not show the unrecorded Emigrant mortgage. Following the sale of the premises, Drimmer continued to make monthly payments on the Emigrant mortgage, which included escrowed payments for real estate taxes on the premises. In August 2007, after learning of the sale, the plaintiff's predecessor accelerated the loan and demanded payment from Drimmer of the full balance. It thereafter stopped accepting monthly payments.

The plaintiff commenced this action, inter alia, to impose its mortgage on the premises, to foreclose the mortgage, and for a judgment declaring that its mortgage is a valid lien against the premises. Sternberg moved for summary judgment dismissing the complaint insofar as asserted against him. In an order dated May 24, 2016, the Supreme Court granted Sternberg's motion and declared that he was a good faith purchaser for value of the subject premises and took the property free of the subject mortgage. The plaintiff appeals.

"The New York Recording Act (Real Property Law § 290 et seq.), inter alia, protects a good faith purchaser for value from an unrecorded interest in a property, provided such a purchaser's interest is first to be duly recorded" (Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d 708, 709 [emphasis omitted]; see Real Property Law § 291; Gregg v M & T Bank Corp., 160 AD3d 936, 940). " The status of good faith purchaser for value cannot be maintained by a purchaser with either notice or knowledge of a prior interest or equity in the property, or one with knowledge of facts that would lead a reasonably prudent purchaser to make inquiries concerning such'" (Gregg v M & T Bank Corp., 160 AD3d at 940, quoting Yen-Te Hsueh Chen v Geranium Dev. Corp., 243 AD2d at 709; see Anderson v Blood, 152 NY 285, 293). "The intended purchaser must be presumed to have investigated the title, and to have examined every deed or instrument properly recorded, and to have known every fact disclosed or to which an inquiry suggested by the record would have led" (Fairmont Funding Ltd. v Stefansky, 301 AD2d 562, 564). "If the purchaser fails to use due diligence in examining the title, he or she is chargeable, as a matter of law, with notice of the facts which a proper inquiry would have disclosed" (id. at 564; see Congregation Beth Medrosh of Monsey, Inc. v Rolling Acres Chestnut Ridge, LLC, 101 AD3d 797, 799; Matter of Hill, 95 AD3d 889, 889; Booth v Ameriquest Mtge. Co., 63 AD3d 769, 769).

Here, Sternberg established his prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that he purchased the subject property for valuable consideration, without prior notice of the Emigrant mortgage, and without knowledge of facts that would lead a reasonably prudent purchaser to make such an inquiry, and that he recorded his deed prior to the recording of the Emigrant mortgage (see 139 Lefferts, LLC v Melendez, 156 AD3d 666, 667; Washington Mut. Bank, FA v Peak Health Club, Inc., 48 AD3d 793, 797-798). However, viewing the evidence in the light most favorable to the plaintiff and resolving all reasonable inferences in its favor (see Derise v Jaak 773, Inc., 127 AD3d 1011, 1011), the plaintiff raised triable issues of fact in opposition. Specifically, evidence that the plaintiff's predecessor-in-interest paid the real estate taxes on the property both before and after Sternberg's purchase of the premises raised triable issues of fact as to Sternberg's actual knowledge of the Emigrant mortgage prior to his purchase and whether due diligence in examining the tax records for the property would have placed him on inquiry notice of the Emigrant mortgage prior to his purchase (see Ward v Ward, 52 AD3d 919, 921; 7 Vestry LLC v Department of Fin. of City of N.Y., 22 AD3d 174, 184)."

MORTGAGE FORECLOSURE - A RPAPL 1306 DEFENSE FAILS

Bank of Am., N.A. v Colagrande, 2019 NY Slip Op 03020, Decided on April 24, 2019, Appellate Division, Second Department:

"On May 13, 2004, the defendant Mario Colagrande (hereinafter the defendant) executed a note in favor of Countrywide Home Loans, Inc. (hereinafter Countrywide), promising to repay a loan of $306,000, and executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee of Countrywide, to secure the loan. The defendant allegedly defaulted on the loan in 2010. On May 20, 2013, the plaintiff, which had obtained possession of the original note with blank endorsement in 2004, commenced this action to foreclose the mortgage. The defendant moved for summary judgment dismissing the complaint insofar as asserted against him, contending that the plaintiff failed to comply with RPAPL 1306. The Supreme Court denied the motion, and the defendant appeals.

RPAPL 1306(1) requires that lenders or assignees "file with the superintendent of financial services (superintendent) within three business days of the mailing of the notice required by [RPAPL 1304]" certain information about the borrower and the mortgage loan. Here, contrary to the defendant's contention, the fact that the plaintiff filed the required information one day before the mailing of a RPAPL 1304 notice did not constitute a failure to comply with RPAPL 1306. The plaintiff complied with RPAPL 1306 because it filed the required information and its filing was made before the three-day time limit expired (cf. TD Bank, N.A. v Leroy, 121 AD3d 1256, 1259). This filing served the purposes of RPAPL 1306, which include monitoring the extent of foreclosure filings in the state and "identify[ing] distressed homeowners as soon as possible" in order to "target counseling help effectively and expeditiously" (Governor's Program Bill Mem, Bill Jacket, L 2009, ch 507 at 11; see RPAPL 1306[4]; TD Bank, N.A. v Leroy, 121 AD3d at 1259)."

ON OBSTRUCTION OF JUSTICE

This was the first law firm I worked for, the first case, the first appeal, etc. The lower court decision is linked here too and should be read (I had also worked on that motion):

United States of America, Appellee, v. E. Garrison St. Clair, Appellant, 552 F.2d 57 (2d Cir. 1977):

"This is an appeal from convictions, after jury trial in the Eastern District, on five counts of mail fraud, 18 U.S.C. § 1341, and two counts of obstruction of justice, 18 U.S.C. § 1510. We announced our decision affirming the convictions at oral argument. Because the case does raise an issue of first impression in this court regarding the interpretation of 18 U.S.C. § 1510, and because we think the district court's instruction to the jury unduly limited the scope of the statute, we supplement our decision with a written opinion.

The defendant was charged with three counts of obstruction of justice. The relevant facts are recounted in Judge Pratt's opinion in the district court, 418 F. Supp. 201. While under investigation for mail fraud, the defendant St. Clair gave government investigators the names of three women friends of his who he said could corroborate his innocence, Evangeline Rojas, Kari Hopper, and Mary Ann Claire. The evidence at trial demonstrated that defendant then asked the women to make certain false statements on his behalf if they were contacted by the investigators. One of the women, Evangeline Rojas, went along with his suggestion and did lie to the investigators. However, the defendant was unable to persuade the other two women; his efforts at playing down the seriousness of the matter were unsuccessful with them, and they both eventually told the investigators about St. Clair's efforts to have them make false statements.

18 U.S.C. § 1510 makes it a crime to "willfully endeavor by means of bribery, misrepresentation, intimidation, or force or threats thereof to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator." At the close of trial Judge Pratt dismissed the obstruction of justice count relating to Rojas and instructed the jury that they could convict on the other two counts only if they found that the defendant had actually made a misrepresentation to Hopper or Claire. His reasoning, set forth in his post-trial opinion, was that § 1510 applies only where a person seeking to obstruct the communication of information to an investigator has himself made a misrepresentation to a potential witness. On appeal, the defendant argues that the evidence was insufficient to support convictions on the district court's theory. We disagree. Moreover, there can be no complaint regarding the trial judge's instruction to the jury as it was unduly favorable to the defendant.

We conclude that § 1510 is violated whenever an individual induces or attempts to induce another person to make a material misrepresentation to a criminal investigator. From the legislative history of P.L. 90-123, enacted in 1967, it is abundantly clear that Congress specifically intended such cases to be covered when it included the word "misrepresentation" in § 1510. The House committee report stated:

Your committee wishes to make abundantly clear the meaning of the term "misrepresentation" as used in this act. It is our intention that the actual procurement by a party of another party's misrepresentation or silence to a Federal investigator would be covered even though such procurement was not achieved by any misrepresentation. At the same time, it is also our intention that procurement of a witness' communication or silence to a Federal investigator by means of a misrepresentation on the part of the procurer is also covered under the act.

H.R.Rep.No. 658, 90th Cong., 1st Sess., in 1967 U.S.Code Cong. & Adm.News, pp. 1760, 1762 (emphasis supplied). Subsequent House debates on whether "misrepresentation" should be omitted from the statute confirm the committee's interpretation. Thus, Representative Cromer stated that the word "misrepresentation" was included specifically in order to cover those cases where the government's failure to obtain testimony is due to a code of silence or loyalty between the potential witness and the defendant. 113 Cong.Rec. 29,404 (Oct. 19, 1967). And several opponents of inclusion complained that "(t)he misrepresentation of facts by individuals contacted by law enforcement officers is an entirely different matter from bribery, intimidation, or the use of force to obstruct criminal investigations. . . . " Additional views of Basil L. Whitner and William L. Hungate to House Rep. No. 558, 1967 U.S.Code Cong. & Admin.News 1765-66.¹ 

Our interpretation fully comports with the language of the statute itself. To persuade or to attempt to persuade someone to lie to investigators is to "endeavor by means of . . . misrepresentation . . . to obstruct . . . the communication of information." Nothing in the statutory language requires that the misrepresentation be made by the defendant; it is enough that he may be endeavoring to obstruct justice by means of misrepresentation by a potential witness.

Finally, this reading of § 1510 is consistent with established principles of statutory interpretation as summarized in United States v. Bass, 404 U.S. 336, 347-48, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971). The defendant has received fair warning of what is proscribed; no one would be surprised to learn that soliciting misrepresentations by potential witnesses is illegal. With the statute and its unambiguous legislative history, Congress has clearly defined the criminal activity at issue.

Implicit in the jury's verdicts of conviction under § 1510 were findings that the defendant had attempted to persuade Hopper and Claire to lie to the criminal investigators. Accordingly, our resolution of the issue of statutory interpretation disposes of the appellant's claim.

1

The district court relied on portions of the House committee report which indicate that a principal objective of § 1510 was the protection of informants and potential witnesses. However, nothing in the report supports the district court's conclusion that this was the only purpose. The court apparently took the second sentence of the following paragraph out of context:

This committee wishes to make it abundantly clear that this legislation cannot be used by a Federal investigator to intimidate or harass a potential witness or informant by reason of his giving false or misleading information about a criminal violation. The sole purpose of the act is to protect informants and witnesses against intimidation or injury by third parties with the purpose of preventing or discouraging the informants or witnesses from supplying or communicating information to the Federal investigator. The informants or witnesses cannot themselves be subject to prosecution under this act on account of any information they may furnish to the investigator."

H.R.Rep.No. 658, supra.

SPOUSAL MAINTENANCE AND THE NEW TAX LAW

For many years, spousal maintenance (alimony) has been tax deductible for the person paying it and taxable income for the person receiving it. But that basic tenet of divorce no longer applies due to provisions in the GOP tax law. Here is a case which considers the new tax law effect on spousal maintenance and reduces the statutory guideline amount by 12%.

WISSEMAN v. WISSEMAN, 2019 NY Slip Op 29092 - NY: Supreme Court, Dutchess 2019:

"On March 6, 2019 a hearing was held. Prior to the hearing, the parties' attorneys represented that all issues were able to be resolved with the exception of the sum of maintenance. Although the parties had agreed that the husband would be obligated to pay maintenance to the wife for a period of two years they were unable to agree upon the sum. The parties' attorneys represented that the basis for the inability to agree was the change in the tax law effective this year pursuant to which maintenance is no longer tax deductible to the payor spouse, in this case, the husband, and no longer includable as taxable income to the payee spouse, in this case, the wife. The quandary is twofold. First, it is the husband's position that he should pay less maintenance since he cannot deduct the maintenance payment from his taxable income. Second, the question is how much less. The parties agree that the husband's federal tax rate is 22%. Therefore, he claims that an award of maintenance calculated by strict application of the maintenance statue (Domestic Relations Law §236B(6)) would be unjust and inappropriate and that his statutory calculation should be reduced by 22%. However, the parties agree that the wife's federal tax rate is 12%. She argues that strict application of the statutory formula is mandated, and that reduction of her award by 22% would result in even less of a net payment to her than would have resulted if she had to claim the maintenance as taxable income.
Counsel stipulated that based upon the husband's annual income of $70,800.00 and the wife's of $30,000.00, strict application of the statutory guidelines would require maintenance of $512.54 per month.

The original purpose of the tax law enabling the payor spouse to deduct maintenance from his or her taxable income was to leave more disposable income available to both parties. This was accomplished by the spouse in the higher income tax bracket taking the deduction and having the sum deducted includable as income to the spouse in the lower tax bracket. Now, more tax is paid and the spouses as a unit have less disposable income.

When deciding the issue of maintenance, the court must consider all of the factors set forth at Domestic Relations Law §236(B)(6). At bar, the parties agree that maintenance is due and only the sum is to be determined. Their incomes and income abilities have been agreed upon, as has been the duration of maintenance. Both parties have represented that the other factors have been considered, and agreed upon, with the exception of the tax consequences to each party. Based on those representations and those relevant factors, strict application of the maintenance guidelines would be unjust and inappropriate so as to warrant a deviation. Based upon all of the above, it is hereby

ORDERED that the husband shall pay maintenance to the wife in the sum of $451.04 per month. The statutory award is reduced by 12%, the net result of which is application of the guidelines as intended by the New York State Legislature prior to the federal change in the relevant tax law, impacted only by a reduction concomitant with the wife's tax bracket and what she would have been obligated to include as taxable income. Until this court is guided by a higher authority or legislative change it finds that such deviation under these circumstances is just and proper."

TERMINATING A SECTION 8 LEASE AGREEMENT OF A DISABLED TENANT

What is also interesting about this case is that the defense of highlighting the notice requirements with disabled tenants also raised the question of a guardianship.

2013 Amsterdam Ave. Hous. Assn., L.P. v King, 2019 NY Slip Op 29074, Decided on March 22, 2019, Appellate Term, First Department:

"The notice of termination underlying this holdover proceeding alleged that tenant breached the Section 8 lease agreement by engaging in a pattern of conduct that adversely affects the health and safety of other building residents, including causing recurrent instances of flooding into the units below, and refusing to allow landlord access to effect repairs. The notice further alleged that

"...during the ten (10) calendar days following the date this Notice was hand delivered or the day after this Notice was mailed, whichever is earlier, you may request of the Landlord to discuss the proposed termination of your tenancy, and upon your request, the landlord may agree to discuss this with you." (emphasis added)

Significantly, the notice did not inform tenant, who is a paraplegic, wheelchair-bound, double-amputee who requires a colostomy bag, that he could request a reasonable accommodation to participate in the hearing process.

The HUD Handbook and the governing Section 8 lease agreement set forth the requirements for the termination of a tenancy. Among other requirements, Sections 8-13(B)(2)(c)(4) and 8-13(B)(2)(c)(5) of the Handbook specify that the Notice of Termination must advise tenant that "he/she has 10 days within which to discuss termination of tenancy with the owner" and that "persons with disabilities have the right to request reasonable accommodations to participate in the hearing process." 

Paragraphs 17(b) and 23(e) of the HUD lease specify that [*2]if tenant requests a meeting to discuss the proposed termination, the landlord "agrees" to meet with the tenant. In other words, the landlord must agree to meet with tenant.

The Notice served by landlord did not comply with the above-mentioned HUD requirements, since it incorrectly informed tenant that landlord "may" meet with him to discuss the proposed termination when, in fact, landlord was required to participate in any requested pretermination meeting. Furthermore, the notice failed to inform the severely disabled tenant that he could request a reasonable accommodation. In such form, the notice was not reasonable in view of the attendant circumstances (see generally Oxford Towers Co., LLC v Leites, 41 AD3d 144 [2007]), since the combined defects eviscerated the procedural safeguards intended to prevent improper termination of a Section 8 tenancy (see Matter of Henry Phipps Plaza S. Assoc. v Quijano, 137 AD3d 602 [2016], revg for reasons stated in dissenting op of Schoenfeld, J., 45 Misc 3d 12 [App Term, 1st Dept 2014]). Thus the notice was insufficient to serve as a predicate for this eviction proceeding.

Contrary to landlord's claim, tenant's objection to the sufficiency of the notice was timely raised and was not waived (cf. 433 W. Assoc. v Murdock, 276 AD2d 360 [2000]).

We note, also, that in view of tenant's disabilities and the serious conduct at issue, that the parties should explore reasonable accommodations that will enable tenant to fulfill his lease obligations and avoid eviction, i.e., ongoing supportive services and suitable monitoring (see Matter of Prospect Union Assoc. v DeJesus, 167 AD3d 540 [2018]). This may even include, if warranted, the commencement of a proceeding by an appropriate party for the appointment of a Mental Hygiene Law article 81 guardian."

PASSOVER AND EASTER GREETINGS

A PRESUMPTION OF COMPETENCE WHEN DAD REMARRIES

This is a familiar fact pattern. A parent transfers family home to joint ownership with new wife. At death of parent, the children claim undue influence. Perhaps, the answer is for the parent to just transfer a life estate to the new wife, unless the intention is not to leave the property to the children.

Mastrantoni v Mancini, 2019 NY Slip Op 02698, Decided on April 10, 2019, Appellate Division, Second Department:

"The plaintiff commenced this action against the defendant, her father's widow, inter alia, for a judgment declaring that a deed dated July 21, 2009, is null and void. Pursuant to that deed, the plaintiff's father, Armando Mancini (hereinafter the decedent), transferred ownership of residential property, where he resided with the defendant for many years, from himself alone to himself and the defendant. The decedent died on October 19, 2014. According to the plaintiff, when the decedent executed the deed, he was incompetent to do so and the conveyance was the product of undue influence.

The defendant moved for summary judgment declaring that the subject deed is valid and in full force and effect. The Supreme Court granted the motion and issued a judgment in favor of the defendant and against the plaintiff declaring, inter alia, that the deed is valid and in full force and effect. The plaintiff appeals.

We agree with the Supreme Court's determination to grant the defendant's motion and to declare, inter alia, that the deed was valid and in full force and effect.

"As a general rule, a party's competence is presumed, and in order to set aside a transfer of property on the ground of lack of capacity, it must be established that the party did not understand the nature of the transaction at the time of the conveyance as a result of his or her mental disability" (Buckley v Ritchie Knop, Inc., 40 AD3d 794, 795; see Preshaz v Przyziazniuk, 51 AD3d [*2]752, 753). Here, the defendant established, prima facie, her entitlement to judgment as a matter of law based upon the presumption of the decedent's competence and by submitting, among other things, the deposition testimony of the attorney who prepared the deed and witnessed its execution with a certificate of acknowledgment, establishing that the deed was properly executed (see CPLR 4538; Valenzano v Valenzano, 98 AD3d 661, 661-662; Preshaz v Przyziazniuk, 51 AD3d at 753). In opposition, the plaintiff failed to raise a triable issue of fact as to the decedent's mental capacity on the day he executed the deed (see Crawn v Sayah, 31 AD3d 367, 368).

Similarly, the defendant established, prima facie, that the decedent's conveyance of the subject property by the deed was not the product of undue influence (see Crawford v Smith, 130 AD3d 968, 969; Harris v Pitts, 109 AD3d 790, 791). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Bazigos v Krukar, 140 AD3d 811, 814)."

MENTAL HEALTH ISSUE AND NEGLECT

If you suffer from mental illness, does it mean you are incapable of parenting your children? Would the result have been different if this was a custody matter and not a neglect proceeding?

Matter of Jonefe R. v. Denise T., NYLJ April 12, 2019 , Date filed: 2019-03-27, Court: Family Court, Bronx, Judge: Judge Sarah P. Cooper:

"On June 7, 2018, ACS filed petitions against Denise T. [hereinafter the "Respondent"] alleging that she neglected the children Jonefe R. (DOB: xx/xx/2013) and Alexa N. (DOB: xx/xx/2010) within the meaning of section 1012(f)(i)(b) of the Family Court Act by suffering from a mental illness which impaired her ability to care for her children.

The fact-finding hearing in this matter commenced on December 3, 2018 and continued on January 29, 2019. The non-respondent father of the child Alexa (Mr. Luis N.), preventive services case-planner Ms. Sherman, and ACS caseworker Mr. Cureton testified on behalf of the Petitioner. The Court accepted into evidence without objection the child Jonefe’s birth certificate (Petitioner’s Exhibit 1), the child Alexa’s birth certificate (Petitioner’s Exhibit 2), and certified and delegated medical records from Lincoln Medical and Mental Health Center related to the Respondent (Petitioner’s Exhibit 3). Neither the Respondent, nor the attorney for the children, called any witnesses or presented any evidence. Each attorney gave an oral summation1 and the matter was adjourned for decision. Family Court Act §1012 (f) (i), in pertinent part, defines a “neglected child” as a child, less than 18 years old whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his or her parent to exercise a minimum degree of care.

A party seeking to establish neglect must show first that the child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired and second, that the actual or threatened harm to the child is a consequence of the failure of the parent. Nicholson v. Scoppetta, 3 NY3d 357 (2004). In determining whether a child is neglected within the meaning of Family Court Act §1012, courts must evaluate parental behavior objectively and ask whether a reasonable and prudent parent would have so acted, or failed to act, under the circumstances then and there existing. Nicholson v. Scoppetta, supra at 370. The standard takes into account the special vulnerabilities of the child, even where general physical health is not implicated. id. A finding of neglect does not require actual injury but, rather, an imminent threat that such injury or impairment may result. Matter of Aiden L., 47 AD3d 1089 (3rd Dept. 2008). The court is required to “focus on serious harm or potential harm to the child, not just on what might be deemed undesirable parental behavior.” Nicholson v. Scoppetta, supra at 369. A finding of neglect should not be made lightly, nor should it rest upon past deficiencies alone. Matter of Daniel C., 47 AD2d 160 (1st Dept. 1975).

A parent’s mental condition may form the basis of a neglect finding if it is shown by a preponderance of the evidence that his or her condition resulted in imminent danger to the child. Matter of Noah Jeremiah J. v. Kimberly J., 81 AD3d 37 (1st Dept. 2010). Neither expert testimony, nor a definitive psychiatric diagnosis, is required to show a parent suffers from a mental illness. Matter of Danielle M., 151 AD2d 240 (1st Dept. 1990); Matter or Zariyasta S., 158 AD2d 45 (1st Dept 1990). In Matter or Zariyasta S. supra, the First Department held that courts should consider the threat to the child’s well-being, instead of the formal diagnosis of the condition from which the threat emanates.

In the present case, the evidence against the Respondent is not refuted as she did not testify on her own behalf. A child protective proceeding is a civil proceeding and therefore the court may draw the strongest inference that the opposing evidence in the record permits where parties fail to testify at the fact-finding hearing. Commissioner of Social Services v. Philip De G., 59 NY2d 137 (1983). However, the strongest negative inference cannot provide a missing element of proof. Matter of Kayla F., 39 AD3d 983 (3rd Dept. 2007).

The medical records, in evidence as Petitioner’s Exhibit 3, indicate that on June 2, 2018, the Respondent was seen in the emergency room of Lincoln Medical and Mental Health Center [hereinafter "LMMHC"] where she reported feeling anxious. The Respondent was diagnosed as having an “acute stress reaction” as well as a urinary tract infection. The Respondent was tearful and at times refused to answer questions, so the Respondent was referred to the psychiatry department for an evaluation. At some point during the Respondent’s evaluation with the psychiatry department, a social worker joined to assist with the evaluation. The medical records contain notes from both the doctor and the social worker who was present during the evaluation. During the interview, the Respondent denied any history of psychiatric conditions, denied any history of taking psychotropic medications and denied any history of seeing a psychiatrist. The Respondent reported that she had been feeling stressed lately and that she had not slept in two days. The Respondent reported that people are following her and that she feels threatened by her neighbors. The Respondent denied having any suicidal ideations or homicidal ideations. The Respondent admitted to hearing voices. The Respondent indicated that she hears “many” voices that want to harm her. The Respondent reported that the first time she ever heard voices was two weeks prior. The Respondent reported that she had been hearing the voices constantly for the past three days. The Respondent denied any visual hallucinations and she was able to correctly identify the number of people in the room at that time. The Respondent indicated that she had a painful headache and that her vision was blurred. The Respondent reported that she had attempted suicide by overdose about three years prior.

The social worker’s notes from the interview indicate that the Respondent was reported as being “tearful but engaged” in the interview. Both the social worker and the doctor noted that, throughout the interview, the Respondent was pre-occupied with concern for her children. The Respondent indicated that, prior to coming to the hospital, she had left the children with a neighbor she knew and trusted. With the assistance of the social worker, the Respondent was able to contact her eldest daughter to confirm that the Respondent’s children were fine. The social worker noted that the Respondent appeared relieved after she spoke to her daughter. The doctor noted that the Respondent’s thought process during the interview was “linear” and “goal directed.” The doctor assessed that the Respondent was not a suicide risk. The doctor’s notes indicate that the Respondent was experiencing auditory hallucinations and that there was a concern for “new onset psychosis” as there was “no previous documented history of psychiatric diagnosis.” The doctor’s assessment from the interview was that “given the level of psychosis and distress, the patient could potentially be a danger to self and others” and that the Respondent could “benefit from psychiatric hospitalizations for stabilization and safety.” The doctor’s notes indicate that “current presentation could be etiologically related with a primary psychotic process, but substance and medical induced psychosis, mood disorder and somatic symptoms disorder, even factitious disorder and malingering” need to be carefully ruled out. The doctor prescribed Seroquel to the Respondent for “anxiety and psychosis.”

After being evaluated by the psychiatry department, the Respondent was admitted to the hospital. A doctor ordered a CT scan, indicating in the order under “history” that the Respondent had “new onset psychosis with auditory hallucinations” and that the Respondent’s diagnosis was an “acute stress reaction.” The Respondent was prescribed “Seroquel” for a “psychotic disorder not due to a substance or known physiological condition.”

The medical records indicate that, at times during her hospitalization, the Respondent was seen talking to herself. A nurse noted on June 3, 2018 that the Respondent appeared paranoid and “internally preoccupied.” Additionally, at times during her hospitalization, the Respondent would remain mute instead of answering questions. The medical records indicate that the State Central Registry was called after the neighbor who had one of the children indicated they were unsure how long they could keep the children. On June 4, 2018, the Respondent was noted as being “stable but disorientated to time and place” and the Respondent was prescribed Risperdal and Ativan on an “as needed” basis for agitation and anxiety. The medical record indicates that, on June 4, 2018, a doctor determined that the Respondent was unable to care for herself or her children at that time and that she needed inpatient psychiatric care. On June 4, 2018, the Respondent was transferred from LMMHC to Brunswick Hospital to be psychiatrically hospitalized. The Petitioner did not admit the Respondent’s records from Brunswick Hospital.

The medical records clearly establish that, when the Respondent was hospitalized at LMMHC in June of 2018, the Respondent was suffering from a serious mental disturbance. The medical records indicate that the Respondent’s mental disturbance was “acute” and “new.” The medical records indicate that the Respondent did not have a prior history of psychosis or psychiatric treatment. It is significant to this Court that none of the Petitioner’s three witnesses presented any evidence that the Respondent’s actions in June of 2018, or in the days and weeks leading up to June of 2018, were neglectful. Most significantly, the two witnesses who were familiar with the Respondent prior to June 2018 (Mr. Luis N. and Ms. Sherman) both indicated that they did not have concerns regarding the Respondent’s behavior, or concerns regarding the Respondent’s care of the children, prior to the Respondent being hospitalized in June of 2018. In fact, Mr. Luis N. testified that prior to the instant petitions being filed, he was seeing the Respondent three to four times a week and he had no concerns regarding the Respondent’s mental health. The preventative services case-planner, Ms. Sherman, testified that she was the Respondent’s assigned worker from September 13, 2017 to June 18, 2018. She testified that she would visit the Respondent’s home two to three times a month and that at no time did she ever note any concerns about how the Respondent cares for the children. Ms. Sherman noted that the Respondent was forthcoming, that she kept her children’s medical appointments up to date and that she appeared to have insight. Ms. Sherman referred the Respondent for a mental health evaluation because the Respondent had disclosed to Ms. Sherman that she had been depressed in the past after a romantic relationship ended. The Respondent had disclosed to Ms. Sherman that she attended therapy in 2015 because she was sad over the end of the relationship and because it had been a relationship with domestic violence. The Respondent further disclosed that she stopped attending therapy after she felt better. Ms. Sherman testified that she referred the Respondent for a mental health evaluation, not because of the Respondent’s behavior, but rather because she thought the Respondent could benefit from extra support.

The ACS caseworker, Mr. Cureton, testified that he was assigned to the Respondent’s case after an ORT came in on June 3, 2018. Mr. Cureton first spoke to the children on June 4, 2018. Both children told Mr. Cureton that over the past weekend, the Respondent had gotten sick and gone to the hospital. The child Alexa told Mr. Cureton she was sad because her mother was not with her. Mr. Cureton did not ask the child Alexa whether the Respondent had made any plans for Alexa’s care while the Respondent was hospitalized.

The present case can be distinguished from cases where evidence of parent’s inability to care for their child and evidence of a parent’s long-standing history of mental illness, is sufficient to support a finding that the child’s physical, mental, or emotional condition was in imminent danger of becoming impaired (see for example, Matter of Jayden S., 159 AD3d 500 [1st Dept. 2018]).

The medical records clearly demonstrate that the Respondent was hospitalized in June of 2018 because she was suffering from a serious and new onset of psychosis. There is no evidence before this Court to suggest that the Respondent could have anticipated in June of 2018 that she would have to be psychiatrically hospitalized, nor is there any evidence that the Respondent was neglectful of her own mental health needs leading up to June of 2018. While the Respondent did attempt suicide three years prior to her hospitalization in June of 2018, and while the Respondent attended therapy for a period of time three years prior to her hospitalization in June of 2018, there is no evidence that in the years since then the Respondent has had any mental health issues2. Further, the evidence demonstrates that, after not sleeping for two days and hearing voices for three days, the Respondent sought medical and mental health treatment by going to the hospital. Before seeking such treatment, the Respondent made an appropriate plan for her children by leaving them in the care of a neighbor the Respondent knew and trusted. The medical records show that at the hospital, even in the midst of her psychosis, the Respondent was pre-occupied with concern for the children. The Respondent leaving the children in the care of a neighbor she knew and trusted to go to the hospital to address an acute mental disturbance does not constitute neglect and in fact demonstrates that the Respondent acted appropriately to make a safety plan for her children. Accordingly, the Respondent’s actions did not fall below what a reasonable or prudent parent would have done in her situation.

The present case can be distinguished from cases where the parent’s behavior in front of the child, or the parent’s care of the child, supports a finding of neglect based upon mental illness (see for example, Matter of Melanie C., 136 AD3d 512 [1st Dept. 2016] where the evidence established that the mother, while in the child’s presence, threatened to kill herself and the child, that the mother did not take her medication on a consistent basis, and that the child had two facial injuries that were not adequately explained, as well as diaper rash that became more severe after the mother failed to fill the child’s prescription.) There is no evidence before this Court, other than the children missing their mother while she was hospitalized, that the children were ever affected by the Respondent’s psychosis in June of 20183.There is no evidence before this Court of any inappropriate or concerning behavior by the Respondent other than her behavior in the hospital in June of 2018. In fact, two of the Petitioner’s witnesses testified that they saw the Respondent regularly leading up to June of 2018 and that they had no concerns regarding the Respondent’s care of the children.

For the foregoing reasons, the Court finds that the Petitioner has failed to prove by a preponderance of the evidence that the Respondent neglected the children within the meaning of Section 1012(f)(i)(b) of the New York State Family Court Act. Accordingly, the petitions are dismissed with prejudice. This constitutes the decision and order of the Court."

DEED FRAUD NOT SAVED BY ADVERSE POSSESSION CLAIM

A real case of family feud.

Matthews v. Matthews, NYLJ April 11, 2019 ,  Date filed: 2019-03-01, Court: Supreme Court, Kings, 

Judge: Justice Richard Velasquez, Case Number: 501041/2018:

This action concerns real property in Kings County located at 212 Weirfield Street, Brooklyn, NY 11221 (herein after “premises”). The plaintiff in this action has made a claim of deed fraud against the defendant. The defendant is plaintiff’s aunt and the plaintiff’s deceased fathers’ sister. The following facts are undisputed and have previously been admitted by the defendant in a separate action for foreclosure brought against the defendant.

It is undisputed that the property in question was purchased by the defendant’s father in 1963. In 1967, the plaintiff’s father died intestate, and the property passed to the plaintiff’s mother by operation of law as his only living intestate distributees were his wife and his only daughter the plaintiff herein. In 1975, plaintiff’s mother died, and plaintiff was her sole heir. Therefore, the property then passed to the plaintiff by operation of law. In 1992, defendant admits she executed and recorded a false and fraudulent deed as sole heir to herself individually. Defendant was not an heir at law. Plaintiff is the only heir at law. Defendant at the same time mortgaged said property and within one year went into foreclosure. The defendant, by her own admission, in the previous foreclosure action in 2008, admitted she did not own the property, and that she could not legally convey an interest in the property, said foreclosure action was thereafter dismissed. Specifically, the foreclosure court issued a decision holding that the defendant did not and could not convey a valid security interest in the property. This action follows.

It is alleged that the plaintiff became aware of the issues with the defendant claiming she owned the property when she obtained an attorney in connection with her parents’ estate and went to defendant and demanded keys to the premises in 2012.

ARGUMENTS

Plaintiff, BETTY MATTHEWS, now moves for a preliminary injunction enjoining the defendant, her agents and servants, and all persons acting on her behalf, pursuant to CPLR 6301 from transferring, selling, conveying, leasing renting, alienating or encumbering real property located at 212 Weirfield Street, Brooklyn, New York 1122; Block 3404 Lot 23 contending said property is rightfully her property. Plaintiff also contends defendant cannot claim adverse possession.

Defendant contends she has acquired title to the property by adverse possession and the plaintiff is barred from bring this action against her as the six (6) year statute of limitations has expired.

ANALYSIS

This Court has jurisdiction in this matter to grant a Preliminary Injunction and enjoining and restraining the defendant from transferring, selling, conveying, leasing, renting, alienating, or encumbering the real property at 212 Weirfield Street pursuant to N.Y. C.P.L.R. §6301, as the plaintiff, BETTY MATTHEWS, will suffer irreparable harm should the defendant attempt to sell, rent or encumber said property.

The present case is similar to that of, the Cruz case, wherein; “The owner of the subject premises died intestate, was survived by six adult children who then became co-owners of the premises. Milton Brown, one of the surviving children, executed a deed conveying the entire premises to himself as sole heir, obtained a loan secured by a mortgage on the premises from the defendant Long Beach Mortgage Company (hereinafter Long Beach), and subsequently died.” In the Cruz case, the court found “A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Crispino v. Greenpoint Mtge. Corp., 304 AD2d 608, 608-609 [2003]; Yin Wu v. Wu, 288 AD2d 104, 105 [2001]; Rosen v. Rosen, 243 AD2d 618, 619 [1997]; Filowick v. Long, 201 AD2d 893 [1994]). In the Cruz case the Appellate division found; “the Supreme Court correctly cancelled the deed and mortgage which were obtained under false pretenses” (see Crispino v. Greenpoint Mtge. Corp., 304 AD2d 608, 608-609 [2003]); quoting Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2007).

It is well settled that a forged deed is a nullity. “Forged conveyances are void ab initio and do not transfer title”, Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2007). “A forged deed is a void deed and transfers no interest”, quoting Faison v. Lewis, 25 N.Y.3d 220, 230, 32 N.E.3d 400 (2015). Therefore, in the present case it is clear and undisputed, and in fact, admitted that the deed in the present case is forged and therefore the deed is void abinitio.

Defendant contends that plaintiff’s claim is time-barred because forgery is a category of fraud, and, like any other claim based on fraud, an action challenging a forged deed is subject to the limitations period of CPLR 203. “A void deed is not subject to a statutory time bar.” Faison v. Lewis, 25 N.Y.3d 220, 230, 32 N.E.3d 400 (2015). Therefore, defendants Statute of Limitations argument is unavailing.

Next, we turn to defendants’ motion pursuant to 1) CPLR 3211(a)(1), (7), and (8)1; or (2) Alternatively, treating this motion as one for summary judgment in favor of defendants. Pursuant to CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v. Purdy, 29 NY2d 157, 324 NYS2d 47, 272 NE2d 550). Nevertheless, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true (Gawrych v. Astoria Fed. Sav. & Loan, 148 AD3d 681, 684, 48 NYS3d 450, 455 (App Div 2d Dept, 2017). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65).

In the present case, defendant, fails to offer any documentary proof in admissible form to support any allegation disproving the complaint. Moreover, defendant fails to establish what the documentary evidence is and how it proves allegations in the complaint false. Therefore, the branch of defendant’s motion to dismiss that is upon documentary evidence is hereby denied.

Pursuant to CPLR 3211 (a) (7). “The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail (Gawrych v. Astoria Fed. Sav. & Loan, 148 AD3d 681, 684, 48 NYS3d 450, 455 (App Div, 2d Dept. 2017), quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Further, “we accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Matter of Palmore v. Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1073 [App Div, 2d Dept. 2016]); (Morone v. Morone, 50 NY2d 481, 484, 429 NYS2d 592, 413 NE2d 1154; Rovello v. Orofino Realty Co., 40 NY2d 633, 634, 389 NYS2d 314, 357 NE2d 970). Pursuant to CPLR §3211, the pleading is to be afforded a liberal construction (see, CPLR §3026). “In assessing a motion under CPLR §3211 (a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Rovello v. Orofino Realty Co., 40 NY2d at 635, 389 NYS2d 314, 357 NE2d 970) and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17; Rovello v. Orofino Realty Co., 40 NY2d at 636, 389 NYS.2d 314, 357 NE2d 970). Further, “the court may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects” (see Quinones v. Schaap, 91 AD3d 739, 740, 937 NYS2d 262; Daub v. Future Tech Enter., Inc., 65 AD3d at 1005, 885 NYS2d 115); Minovici v. Belkin BV, 109 AD3d 520, 521, 971 NYS2d 103, 106 (App Div 2d Dept. 2013). “[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion” (Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372, 751 NYS2d 401). “If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action” (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims…plays no part in the determination of a pre-discovery 3211 [a] [7] motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19).

In the present case, affording the complaint a liberal construction, accepting the facts as alleged therein as true, and granting plaintiff the benefit of every possible inference, it is the opinion of this Court that the complaint sufficiently states a cause of action for fraudulent deed (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 348, 27 NYS2d 231 at 38 (App Div, 2d Dept. 2006).

Now, turning to the defendant claim of adverse possession. Pursuant to CPLR 501 titled Adverse possession provides as follows; “(1) Adverse possessor. “A person or entity is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.” (2) Acquisition of title. “An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.” (3) Claim of Right. “A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.” NY Real Prop Acts Law §501 (McKinney)

To establish a claim to land by adverse possession, the adverse claimant must establish that possession has been “adverse, under claim of right, open and notorious, continuous, exclusive, and actual” (RPAPL 501 [2]; see Koudellou v. Sakalis, 29 AD3d 640 [2006]; Congregation Yetev Lev D’Satmar v. 26 Adar N.B. Corp., 192 AD2d 501, 503 [1993]). “A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor” (RPAPL 501 [3]); quoting Calder v. 731 Bergan, LLC, 83 A.D.3d 758, 759, 920 N.Y.S.2d 413 (2011). In the present case, the defendant has failed to establish that she has a claim of right in the property. In fact, in the previous foreclosure action she admits that she has no claim of right. Therefore, defendant claim of adverse possession in the present case is unavailing.

Next the court will address the Notice of Pendency. Pursuant to CPLR 6501; “A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. The pendency of such an action is constructive notice, from the time of filing of the notice only, to a purchaser from, or incumbrancer against, any defendant named in a notice of pendency indexed in a block index against a block in which property affected is situated or any defendant against whose name a notice of pendency is indexed. A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party”, see NY CPLR 6501 (McKinney). In the present case it is appropriate for the Notice of Pendency to remain in place. Therefore, the defendants request to cancel the Notice of Pendency is hereby denied.

Accordingly, plaintiff’s request for a preliminary injunction enjoining the defendant, her agents and servants, and all persons acting on her behalf, pursuant to CPLR 6301 from transferring, selling, conveying, leasing renting, alienating or encumbering real property located at 212 Weirfield Street, Brooklyn, New York 1122; Block 3404 Lot 23, is hereby granted for the reasons stated above. Defendants request (1) CPLR 3211(a)(1), (7), and (8) are hereby denied, for the reasons stated above. Defendant’s request to dismiss pursuant to CPLR 203 based upon statute of Limitations is hereby denied for the reasons stated above. Defendant’s request to cancel the notice of pendency filed relating to this action and prohibiting plaintiff from filing any successive notices of pendency is hereby denied. Defendant’s request for a declaratory judgment declaring the property the sole ownership of defendant through adverse possession is hereby denied for the reasons stated above.