Opinion
Index No. 710592/2017 Motion Seq. Nos. 16 17 18 & 19
01-13-2022
RENUKA HAIDER, as Administrator of the Estate of MOHAMMED HAIDER a/k/a MOHAMMED HAROON HAIDER, and RENUKA HAIDER, Plaintiffs, v. KHALID MASHRIQI; PHILIP W. LEE ESQ.: KAPLAN, KAPLAN, DITRIPANI, LLP; FAIRWAY INDEPENDENT MORTGAGE CORPORATION; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Defendant(s).
Unpublished Opinion
Motion Dated: September 21, 2021
FILED: 01/18/2022
HONORABLE MARGUERITE A. GRAYS, J.S.C.
The following papers numbered EF 339-497 read on this motion (sequence #16) by plaintiffs Renuka Haider, as Administrator of the Estate of Mohammed Haider a/k/a Mohammed Haroon Haider, and Renuka Haider (collectively referred to as plaintiffs), for dismissal of the defenses and counterclaims interposed by defendants in their respective answers, striking those Answers, and for summary judgment on the Complaint pursuant to CPLR §3212, against defendants Khalid Mashriqi (Mashriqi), Kaplan, Kaplan, Ditripani, LLP (Kaplan), Fairway Mortgage Independent Mortgage Corporation (Fairway), and Mortgage Electronic Registration Systems, Inc. (MERS). and to set this matter down for an assessment of damages; separate motion (sequence number 17) by defendants Fairway and MERS for summary judgment pursuant to CPLR §3212 as against plaintiff for dismissal of plaintiffs' remaining causes of action against Fairway and MERS, and for entry of judgment as a matter of law on Fairway's and MERS' First, Second and Third counterclaims; separate motion (sequence #18) by Kaplan for summary judgment pursuant to CPLR §3212, dismissing plaintiffs' Complaint; and separate motion (sequence #19) by Mashriqi for dismissal of the Complaint pursuant to CPLR §3211(a)(7), for failure to state a cause of action, and for summary judgment pursuant to CPLR §3212, dismissing plaintiffs' Complaint.
PAPERS NUMBERED
Notices of Motion - Affidavits - Exhibits................
EF 339-425
Answering Affidavits - Exhibits..............................
EF 426-480, EF488-490
Reply Affidavits.......................................................
EF 481-487, EF491-497
Upon the foregoing papers it is ordered that the motions are consolidated for purposes of this decision and determined as follows:
Deceased plaintiff Mohammed Haroon Haider (the decedent), and plaintiff Renuka Haider (Haider), who were husband and wife, were the owners of premises located at 73-06 164 Street, in the County of Queens. As is relevant upon the instant motions, plaintiffs commenced the instant action alleging, among other things, that Mashriqi, Kaplan, Fairway and MERS deprived plaintiffs of their ownership interest in the subject premises for no consideration. Plaintiffs have alleged that MERS acted as a nominee for Fairway, that Mashriqi borrowed $598,200.00 from Fairway against the subject premises, that Fairway and MERS claim an interest in the premises, that Kaplan acted as Mashriqi's settlement agent and that Kaplan undertook to represent plaintiffs in all matters relating to the instant Complaint and failed to protect plaintiffs' interests.
Following commencement of the instant action, in their respective answers, Mashriqi has alleged fifteen affirmative defenses and two counterclaims, Kaplan has alleged twelve affirmative defenses, and Fairway and MERS have alleged sixteen affirmative defense and three counterclaims. The parties have all now moved for various relief.
The Court will first address the branches of the parties' motions for summary judgment. Plaintiffs have moved for summary' judgment on the Complaint pursuant to CPLR §3212, against Mashriqi, Kaplan, Fairway, and MERS, and to set this matter down for an assessment of damages. Fairway and MERS have moved for summary judgment pursuant to CPLR § 3212, for dismissal of plaintiffs' remaining causes of action as against them. Kaplan has moved for summary judgment pursuant to CPLR § 3212, dismissing plaintiffs Complaint. Mashriqi has moved for summary judgment pursuant to CPLR § 3212, dismissing plaintiffs' Complaint.
Although Fairway and MERS have previously moved for summary judgment, a motion which this Court denied for their failure to satisfy their prima facie burden in a decision dated June 1, 2020, and entered on June 2, 2020, upon this instant motion, they have argued that disclosure has since been completed, which provided additional grounds for relief and elicited new testimony, which were not available and could not have been submitted with their prior application. As such, on the basis of new evidence, the Court will consider Fairway's and MERS' instant motion for summary judgment (see Cocciav Liotti, 101 A.D.3d 664, 666 [2012]; cf Hillrich Holding Corp, v BMSL Mgt., LLC, 175 A.D.3d 474, 475 [2019]).
In order "'[t]o grant summary judgment, it must clearly appear that no material and triable issue of fact is presented'" (Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 25 [2019], quoting Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 N.Y.2d 439, 441 [1968]). '"Summary judgment should not be granted where there is any doubt as to the existence of a factual issue or where the existence of a factual issue is arguable'" (Matter of New York City Asbestos Litig., 33 N.Y.3d at 25, quoting Forrest v Jewish Guildfor the Blind, 3 N.Y.3d 295,315 [2004]). On summary judgment, "facts must be viewed in the light most favorable to the non-moving party" (Matter of New York City Asbestos Litig., 33 N.Y.3d at 25), and "the proponent of a summary' judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (id., at 25-26, quoting Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
In support of this branch of their motion, plaintiffs have argued that Mashriqi defrauded plaintiffs, that Mashriqi paid no consideration to plaintiffs, and that Kaplan, Fairway and MERS failed to exercise due diligence. Plaintiffs have argued that all defendants were aware of defendants' failure to comply with Real Property Law 265-a and the Home Ownership and Equity Protection Act. Plaintiffs have argued that a copy of a Deed dated May 6, 2016, the transfer documents, copies of a Contract of Sale and a deed dated April 21,2017, and a copy of a Promissory Note dated December 23, 2015, have demonstrated that the Promissory Note dated December 23, 2015, is a covered agreement under Real Property Law § 265-a, that no disclosures and notices in regard to Real Property Law § 265-a, were given to plaintiffs, in violation of those sections, and that plaintiffs were fraudulently induced by Mashriqi to transfer title to their home. Plaintiffs have further argued that Mashriqi, Fairway and MERS are not bona fide purchases for value under Real Property Law § 266, since Mashriqi executed a loan under fraudulent circumstances.
As an initial matter, to the extent that plaintiffs have argued that certain provisions of The Home Equity Theft Prevention Act (HELP A), The Truth In Lending Act (TIL A), Banking Law §595-a, as amended by Real Property Law 265-a, and Regulation Z, which is also known as TILA, were violated, inasmuch as this Court has previously determined that those sections are inapplicable in this matter and has dismissed claims arising out of those provisions and sections, based upon the doctrine of law of the case, any contentions plaintiffs have advanced in regards to those provisions are not a ground for relief (see Matter of Chung Li, 165 A.D.3d 1105, 1106 [2018], lv to appeal denied 32 N.Y.3d 915 [2019]).
In opposition to plaintiffs' motion, Fairway and MERS have argued, among other things, that plaintiffs have failed to submit admissible evidence in support of this branch of their motion since Haider lacks personal knowledge of the facts sufficient to provide admissible testimony regarding the sale of the subject premises to Mashriqi, that Haider testi Tied that she did not recall events relating to the transaction and that her deceased husband, the decedent, was the only one who negotiated the transaction with Mashriqi, and that Haider's affidavit should be stricken because it contradicts her earlier sworn deposition testimony.
Similarly, in opposition, Kaplan has argued, among other things, that plaintiffs have failed to satisfy their burden on their motion inasmuch as Haider's affidavit is inadmissible since it is conclusory, self-serving, and contradicts her prior sworn deposition testimony. Kaplan has further argued that, despite plaintiffs' request in her motion papers, plaintiffs' verified Complaint may not be used as an affidavit to support plaintiffs' motion for summary' judgment since it contradicts Haider's sworn deposition testimony and was verified by the decedent, who was not deposed in the action and cannot be cross-examined by any party and the affidavit of a deceased plaintiff cannot be considered testimony. In opposition. Mashriqi has argued that plaintiffs have failed to satisfy their burden on this branch of their motion because Haider's deposition testimony reflected that Haider never spoke to Mashriqi and did not know what the alleged transaction between the decedent and Mashriqi involved.
The record in this matter contains, among other things, copies of the pleadings, Haider's affidavit and deposition testimony, Mashriqi's deposition testimony, the affidavit of non-party' Jared Kaplan, a copy of a mortgage agreement dated October 20, 2005, a copy of an Assignment of Mortgage dated April 26, 2006, a copy of an Assignment of Mortgage dated January 16, 2008, a copy of an "Agreement, Promissory Note" made between the decedent, Haider and Mashriqi dated December 23, 2015, a copy of a Deed dated May 6. 2016. a copy of a Deed dated April 21, 2017. a copy of a mortgage agreement made between Fairway, with MERS acting as Fairway's nominee, and Mashriqi, dated April 21,2017, a copy of a closing disclosure dated April 21,2017, a copy of a Satisfaction of Mortgage dated April 28,2017, and various prior Orders of this Court.
Inasmuch as Haider's affidavit, annexed to plaintiffs' motion for summary judgment, contradicted her previous sworn deposition testimony, her affidavit is self-serving and will not be considered by the Court in deciding summary judgment or as a means of raising a triable issue of fact sufficient to defeat another parties' motion for summary judgment (see Haxhia v Varanelli, 170 A.D.3d 679,682 [2019]; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 A.D.3d 710, 711 [ 2007]; Shpizel v Reo Realty, Const. Co., 288 A.D.2d 291 [2001]; see also Lupinsky v Windham Const. Corp., 293 A.D.2d 317, 318 [2002]; Johnson v Singh, 32 Misc.3d 1219[A] [Sup Ct 2009], affd, 82 A.D.3d 565 [2011]).
With regard to Kaplan's argument that despite plaintiffs' request that the verified Complaint be considered "as a supplemental [a]ffidavit in conjunction with" Haider's affidavit, said Complaint was verified by the decedent and cannot be considered, to the extent that such evidence may be excludable at trial and should not be used to support summary judgment. It may, nevertheless, be considered in opposition to a motion for summary judgment so long as it is not the sole evidence proffered (see Wright v Morning Star Ambulette Services, Inc., 170 A.D.3d 1249, 1251 [2019]; Phillips v Kantor & Co., 31 N.Y.2d 307, 314 [1972]). The Court notes that for purposes of plaintiffs' opposing the other parties' motions, the Complaint has been submitted along with additional evidence and will be considered.
The Court also notes that without Haider's affidavit, plaintiffs have failed to support their motion for summary judgment with sufficient admissible proof pursuant to CPLR §3212 (b), which provides that "[a] motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions..." In any event, even given the above determinations, when the evidence in the record is considered in totality, including but not limited to, at the very least, conflicts between Haider's and Mashriqi's deposition testimony, both of which have been included in the record before the Court, the Court has concluded that plaintiffs have failed to eliminate all triable issues of material fact as to the causes of action set forth in the Complaint and failed to point to sufficient evidence in the record to meet their prima facie burden on this branch of their motion (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324). Therefore, in light of the above, plaintiffs are not entitled to summary judgment on the Complaint against all defendants or to have this matter set down for an assessment of damages.
As to the branch of Mashriqi's motion for summary judgment, in support of his motion Mashriqi has argued that the Complaint should be dismissed as vague, conclusory, fraudulent and baseless. In opposition and in support of plaintiffs' motion, plaintiffs have argued that Mashriqi's motion should be dismissed as it has not been supported by admissible evidence and that Mashriqi has failed to satisfy his prima facie burden.
A review of Mashriqi's motion papers has demonstrated that he, like plaintiffs, has failed to support his motion for summary judgment with sufficient admissible evidence (CPLR §3212 [b]). In any event, based upon a review of the record before the Court, given the Court's above determinations and taking into consideration the conflicts that exist between Haider's and Mashriqi's deposition testimony as to the nature of the transaction and what actually occurred between the parties in this matter, Mashriqi has failed to satisfy his prima facie burden and is not entitled to summary relief (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324).
Turning next to Kaplan's motion for summary judgment, Kaplan has argued that the legal malpractice cause of action should be dismissed since there was no attorney-client relationship with plaintiffs, and that to any extent that the Second Cause of Action seeks any relief against Kaplan, it should be dismissed pursuant to the doctrine of law of the case. With regard to plaintiffs' cause of action against Kaplan sounding in legal malpractice, '"A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action'" (Denisco v Uysal, 195 A.D.3d 989 [2021 ], quoting 4777 Food Servs. Corp. v Anthony P. Gallo, P.C., 150 A.D.3d 1054, 1055 [2017]). "To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship" (Wei Cheng Chang v Pi, 288 A.D.2d 378, 380 [2001]; see Lombardi v Lombardi, 127 A.D.3d 1038, 1042 [2015]; Velasquez v Katz, 42 A.D.3d 566, 567 [2007]).
Plaintiffs have alleged that Kaplan represented them and Mashriqi at the closing on April 21, 2017, and failed to protect plaintiffs' interests. However. Haider's testimony has demonstrated that while the closing took place on April 21,2017, at Kaplan's office, plaintiffs were not represented by an attorney at that closing. Additionally the closing disclosure dated April 21,2017, has demonstrated that Kaplan was the settlement agent at the closing.
Jared Kaplan stated in his affidavit that he was a partner of Kaplan, that Kaplan was the settlement agent for Fairway at the closing held on April 21, 2017, that the loan Mashriqi obtained from Fairway was used to pay off Haider's and the decedent s existing mortgage on the real property, and that Haider, the decedent and Mashriqi all attended the closing on April 21, 2017. As admitted by Haider in her deposition testimony, Jared Kaplan stated in his affidavit that Kaplan did not represent Haider, the decedent or Mashriqi at the closing on April 21, 2017.
Based upon the evidence in the record, Kaplan has satisfied its prima facie burden as to the legal malpractice cause of action. In opposition, no party has raised a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324). Thus, inasmuch as no attorney-client relationship existed between Kaplan and plaintiffs. Kaplan is entitled to summary' judgment dismissing the cause of action sounding in legal malpractice (see Lombardi v Lombardi, 127 A.D.3d at 1042; Velasquez v Katz, 42 A.D.3d at 568; Wei Cheng Chang v Pi, 288 A.D.2d at 381).
With regard to plaintiffs' Second Cause of Action, in an Order dated July 3, 2018, and entered on July 17, 2018, this Court dismissed plaintiffs' second cause of action against nonparty Philip W. Lee. Esq. (Lee). In that Order, the Court determined that "[t]he factual allegations of the Second Cause of Action clearly set forth allegations of intentional tortious conduct on the part of defendant Lee ... Furthermore, New York does not recognize civil conspiracy to commit a tort as an independent cause of action ... Instead, the claim stands or falls with the underlying tort... Thus, as the underlying cause of action for intentional tort is dismissed, plaintiffs' claim for conspiracy is also properly dismissed."
"The doctrine of the law of the case is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and Courts of co-ordinate jurisdiction are concerned" (Matter of Chung Li, 165 A.D.3d at 1106 , see Martin v City of Cohoes, 37 N.Y.2d 162, 165 [1975]). "The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case" (Matter of Chung Li, 165 A.D.3d at 1106, quoting RPG Consulting, Inc. v Zormati, 82 A.D.3d 739, 740 [2011]).
Given that plaintiffs' allegations are identical in the second cause of action with respect to Kaplan as they were against Lee, and given this Court's prior determination dismissing that cause of action, Kaplan has sufficiently demonstrated that the doctrine of law of the case applies to plaintiffs' Second Cause of Action to the extent that plaintiffs have also asserted that Kaplan engaged in an intentional tort and civil conspiracy. Moreover, given a thorough reading of the allegations contained in the Complaint, inasmuch as plaintiffs' allegations against Kaplan all arise out of Kaplan's alleged "representation" of plaintiffs, taking into consideration this Court's above determination that no attorney-client relationship existed. Kaplan is entitled to summary judgment dismissing the Complaint.
Next, the Court will address Fairway's and MERS' motion for summary' judgment dismissing the Complaint. In support of their motion, Fairway and MERS have argued, among other things, that plaintiffs have failed to overcome the legal presumption of a valid deed, that they are entitled to summary judgment based upon the doctrines of estoppel by deed, equitable estoppel, acceptance, acquiescence and/or ratification, and on the basis of their status as bona fide encumbrancers.
Despite Fairway's and MERS' contentions based on the doctrine of estoppel by deed, inasmuch as estoppel by deed may only arise between the parties to the deed, and the evidence has demonstrated that Fairway and MERS were not parties to the two deeds contained in the record executed between Haider, the decedent and Mashriqi, Fairway's and MERS' contentions are without merit (see Kraker v Roll, 100 A.D.2d 424,431 [1984]; see also Goldfine v Sichenzia [Sup Ct, Putnam County 2005], affd, 43 A.D.3d 1108 [2007]).
As to Fairway's and MERS' contention that plaintiffs cannot overcome the legal presumption of a valid Deed afforded to the Deed dated April 21, 2017 (see Kanterakis v Minos Realty I, LLC, 151 A.D.3d 950, 951 [2017]; ABN AMBRO Mtge. Group, Inc. v Stephens, 91 A.D.3d 801,803 [2012]), a presumption "that a deed purporting to transfer ownership in real property has been delivered and accepted ... may be overcome by evidence of the parties' actual intent" (Goodell v Rosetti, 52 A.D.3d 911,913 [2008]). [I]n the construction of deeds ... the language of a deed must be so interpreted and applied as to be meaningful and valid, and the intent of the parties, as evidenced by the deed and the circumstances surrounding the making thereof, must be given expression wherever it is possible to do so without violating law and reason'" (328 Owners Corp. v 330 W. 86 Oaks Corp., 8 N.Y.3d 372, 381 [2007]). Taking into account the issues of fact that remain in this matter, not the least of which relates to what the intent of the parties was, the nature of the alleged transactions, and the ultimate issue of whether the deed at issue is voidable as a result of any alleged fraud, even given the above stated presumption, Fairway ard MERS are not entitled to summary judgment on this ground.
Real Property Law § 266 protects the rights of a purchaser or encumbrancer for valuable consideration. "Pursuant to Real Property Law § 266. a bona fide ... encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the immediate seller" (Maiorano v Garson, 65 A.D.3d 1300, 1302 [2009]; see LaSalle Bank Nat. Ass'n v Ally, 39 A.D.3d 597, 600 [2007]; see also Miller-Francis v Smith-Jackson, 113 A.D.3d 28, 34 [2013], Fleming-Jackson v Fleming, 41 A.D.3d 175, 176 [2007]). "A mortgagee is under a duty to make an inquiry where it is aware of facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue" (2386 Hempstead, Inc. v 182 St., Inc., 184 A.D.3d 783,785 [2020]; see Stracham v Bresnick, 76 A.D.3d 1009, 1010 [2010]). "'A mortgagee who fails to make such an inquiry is not a bona fide encumbrancer for value'" (2386 Hempstead, Inc. v 182 St., Inc., 184 A.D.3d at 785, quoting Booth v Ameriquest Mtge. Co., 63 A.D.3d 769 [2009]).
With regard to the Fairways' and MERS' contention that they are bona fide encumbrancers, they have failed to satisfy their burden. In general, "[a] mortgagee may make a prima facie showing that it is a bona fide encumbrancer by presenting a title search showing a clear chain of title" (Miller-Francis v Smith-Jackson, 113 A.D.3d at 34). While the record before the Court has demonstrated that a title report was generated for the closing on April 21, 2017, Fairway and MERS have, notably, failed to present a copy of that title search (CPLR § 4523; Unity Electric, Co., Inc. v William Aversa 2012 Tr., 193 A.D.3d 792 [2021]).
Furthermore, given the evidence in the record, including Haider's and Mashriqi's conflicting deposition testimony regarding the alleged agreement to convey title to Mashriqi, the alleged monies exchanged and the significantly reduced sale price of the real property at issue, along with Haider's alleged continued possession of the premises and the other surrounding circumstances of the transfer of title, Fairway and MERS have failed to eliminate all triable issues of fact regarding whether they had no notice of circumstances and facts that would lead a reasonable, prudent lender to make inquiries of the circumstances of the transaction at issue (see 2386 Hempstead, Inc. v 182 St., Inc., 184 A.D.3d at 785).
With regard to Fairways' and MERS' contentions that they are entitled to summary judgment based upon the doctrines of equitable estoppel, acceptance, acquiescence and/or ratification, the record before the Court contains evidence that challenges the applicability of these doctrines. In light of plaintiffs' allegations, contained in the Complaint regarding an agreement to convey title from Haider and the decedent to Mashriqi for a sum of money which was not ultimately paid, and plaintiffs' allegations that they were unaware of the mortgage loan that Mashriqi obtained from Fairway and MERS until some time after such a loan was obtained, Fairway and MERS have failed to satisfy their burden. Therefore, Fairway and MERS are not entitled to summary judgment dismissing the Complaint against them (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324).
Next, the Court will address the branch of Mashriqi's motion for dismissal pursuant to CPLR § 3211(a)(7), for failure to state a cause of action. CPLR § 3211 (a)(7) provides that a party may move to dismiss an action on the ground that "the pleading fails to state a cause of action." "On a motion to dismiss pursuant to CPLR § 3211, the Complaint is to be afforded a liberal construction" (Benitez v Bolla Operating LI Corp., 189 A.D.3d 970 [2020]; CPLR § 3026; see Gorbatov v Tsirelman. 155 A.D.3d 836 [2017]; Feldman v Finkelstein & Partners, LLP, 76 A.D.3d 703, 704 [2010]). "'In reviewing a motion pursuant to CPLR § 3211(a)(7) to dismiss the Complaint for failure to state a cause of action, the facts as alleged in the Complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the Court's function is to determine only whether the facts as alleged fit within any cognizable legal theory'" (Benitez v Bolla Operating LI Corp., 189 A.D.3d at 970, quoting Mendelovitz v Cohen, 37 A.D.3d 670, 671 [2007]; see Bianco v Law Offices of Yuri Prakhin, 189 A.D.3d 1326 [2020]; Gorbatov v Tsirelman, 155 A.D.3d at 836; Feldman v Finkelstein &Partners, LLP, 76 A.D.3d at 704).
In support of this branch of his motion, Mashriqi has argued that plaintiff s Complaint is fatally flawed as it is conclusory and asserts no factual assertions to support a cause of action. CPLR § 3013, provides that: "[statements in a pleading shall be sufficiently particular to give the Court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."
Taking into consideration the requirements of CPLR §§3013 and 3211 (a)(7), the Court has reviewed the allegations set forth in plaintiffs' Complaint and has concluded that the allegations set forth therein were sufficiently particular to give notice of the transactions and occurrences which are intended to be proved and was sufficient to place Mashriqi on notice. As such, Mashriqi is not entitled to dismissal of the Complaint on this ground. Moreover, based upon a review of Mashriqi's motion papers, Mashriqi has failed to adequately address the allegations that have been set forth in the Complaint and, thus, has failed to satisfy his burden on this branch of his motion (CPLR § 3211 [a][7]).
Plaintiffs have moved to strike Mashriqi's Affirmative Defenses and Answer, to preclude Mashriqi from offering into evidence the items demanded in plaintiffs' disclosure requests and precluded him from giving testimony at a trial in this matter on the basis of his failure to comply with disclosure. "CPLR § 3126 provides that a Court may. in its discretion, impose a wide range of penalties upon a party that 'refuses to obey an order for disclosure' or 'wilfully fails to disclose information which the Court finds ought to have been disclosed'" (Morano v Westchester Paving & Sealing Corp., 7 A.D.3d 495, 496 [2004]).
However, it is undisputed that plaintiffs filed the Note of Issue and Certificate of Readiness for Trial on November 12, 2020. prior to filing the instant motion. "By filing the note of issue and certificate of readiness prior to moving pursuant to CPLR 3126 for the imposition of a discovery sanction ... plaintiffs waived any objection to ... defendants' failure to meet their disclosure obligations" (J. H. v City of New York, 170 A.D.3d 816, 818 [2019]; see Iscowitz v County of Suffolk, 54 A.D.3d 725 [2008]).
In any event, '"the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith'" (Morano v Westchester Paving & Sealing Corp., 7 A.D.3d at 496; Kubacka v Town of N. Hempstead, 240 A.D.2d 374. 375 [1997]; see JNG Constr., Ltd. v Roussopoulos, 170 A.D.3d 1136, 1139 [2019]). and plaintiffs have failed to make such a showing. Therefore, in light of the above, plaintiffs are not entitled to the relief sought on this branch of their motion.
Plaintiffs have also moved to dismiss Mashriqi's affirmative defenses and the counterclaims interposed in his answer. In support of this branch of their motion, to the extent that plaintiffs have argued that Mashriqi's affirmative defenses and counterclaims should be stricken for failure to comply with disclosure, in light of the above determination, plaintiffs are not entitled to the relief on this branch of their motion on this ground. Additionally, based upon a review of plaintiffs' motion papers, plaintiffs have failed to sufficiently address the merits of each of Mashriqi's fifteen affirmative defenses and two counterclaims and. thus, have failed to satisfy their burden on this branch of their motion.
To the extent that plaintiffs have also moved to dismiss Fairway's, MERS' and Kaplan's affirmative defenses, answers and counterclaims in light of this Court's dismissal of the Complaint against Kaplan, plaintiffs are not entitled to the relief sought on that branch of their motion as to Kaplan.
As to Fairway and MERS, a careful review of plaintiffs' motion papers has demonstrated that plaintiffs have failed to adequately address each of Fairway's and MERS' affirmative defenses, with the exception of Fairway's and MERS' contention that they are bona fide encumbrancers. To the extent that Fairway and MERS have alleged an affirmative defense of bona fide encumbrancer, given this Court's determination that issues of fact exist which preclude a determination as on that issue, plaintiffs are not entitled to its dismissal. Furthermore, in light of the above, plaintiffs are not entitled to the dismissal of Fairway's and MERS' remaining affirmative defenses and/or answer.
With regard to Fairway's and MERS' three counterclaims, plaintiffs have argued that these counterclaims have failed to state a claim upon which relief can be granted. Simultaneously, Fairway and MERS have moved for entry of judgment as a matter of law on their First, Second and Third Counterclaims. A careful review of plaintiffs' motion papers has demonstrated that plaintiffs have failed to sufficiently address the branch of their motion to dismiss Fairway's and MERS' three counterclaims. Therefore, the branch of plaintiffs' motion to dismiss the counterclaims interposed by Fairway and MERS in their answer is denied.
Additionally, Fairway and MERS are not entitled to judgment as a matter of law on their First, Second and Third Counterclaims for equitable subrogation, equitable lien and bona fide encumbrancer. Given this Court's determination that Fairway and MERS failed to satisfy their burden on their motion for summary' judgment as to these doctrines and the determination that neither plaintiffs, nor Mashriqi, are entitled to summary judgment since issues of fact remain unresolved as to the allegations and claims between those parties, no determination will be made regarding these counterclaims at this juncture. Therefore, Fairway and MERS are not entitled to a judgment as a matter of law on their First, Second and Third Counterclaims.
Accordingly, plaintiffs' motion is denied in its entirety. Fairway's and MERS' motion is denied in its entirety. Kaplan's motion for summary' judgment dismissing the Complaint is granted. Mashriqi's motion is denied in its entirety.