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.