Opinion
Index No. 8560/2015 Motion Sequence No. 5
07-08-2022
THEODORE LEEBOO and ETHEL SCOTT aka ETHEL LEEBOO Plaintiffs, v. DAVID COHAN, LTE DEVELOPMENT INC., and ALYCIANA A. AMA, Defendants.
Unpublished Opinion
PRESENT: HON. CARL J. LANDICINO, Justice.
DECISION AND ORDER
CARL J. LANDICINO JUDGE.
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered
Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed ..........8-30
Opposing Affidavits (Affirmations)............................................. 34-41,
Reply Affidavits (Affirmations)................................................... 43
Upon the foregoing papers, and after oral argument, the Court finds as follows:
The instant action relates to a claim concerning the alleged transfer of property on or about November 19, 2010. Plaintiffs Theodore Leeboo (hereinafter the "Plaintiff Theodore") and Ethel Scott, a/k/a Ethel Leeboo (hereinafter the "Plaintiff Ethel") (hereinafter collectively the "Plaintiffs") allege that Defendants David Cohan and LTE Development Inc. (hereinafter collectively the "Defendants") recorded a fraudulent/forged deed on or about November 19, 2010, purportedly executed by Plaintiffs, and thereby sought to convey all rights, title and interest in and to 86 Barbey Street, Brooklyn, New York (hereinafter the "Premises"). Defendant Alyciana A. Ama has failed to answer or appear in the instant action.
On April 27, 2017, a Compliance Conference was held, and the Note of Issue date was determined to be September 1, 2017. Plaintiffs' prior counsel apparently failed to file the Note of Issue on or before September 1,2017 and the Clerk of the Court marked the action "disposed." On or about January 14, 2019, Defendants served a 90-day Demand to Prosecute notice. (See CPLR 3216). On or about April 11,2019, Plaintiffs' prior counsel served the Note of Issue on Defendants and attempted to file the same with the Clerk of the Supreme Court, Kings County. The Clerk allegedly refused to accept the Note of Issue without a Court order, as reflected in Plaintiffs' prior counsel's affirmation in support dated May 13, 2019. (See Plaintiffs Motion, Exhibit F, NYSCEF Document 16). On or about May 22, 2019, Defendants brought a motion to dismiss the complaint pursuant to CPLR 3216 and cancel the notice of pendency (motion sequence #1).
On or about May 24, 2019, Plaintiffs' prior counsel apparently brought a motion (motion sequence #2) to: 1) vacate the "disposed" marking made on September 1, 2017, 2) restore the instant matter to the calendar, and 3) grant Plaintiffs leave to file a late Note of Issue. On or about July 10, 2019, Plaintiffs obtained new counsel ("current counsel"), pursuant to a consent to change attorney. Plaintiffs' current counsel brought a motion by order to show cause seeking an order 1) requiring Plaintiffs' prior counsel to relinquish the case file requested and 2) granting a stay of the instant action to afford Plaintiffs' current counsel time to review the case files. On February 18, 2020, the Court granted Plaintiffs' motion and directed Plaintiffs' prior counsel to produce copies of the Plaintiffs' case files, produce an accounting of all work performed, and pay sanctions to Plaintiffs in the amount of $2,500 for forcing them to make the application. (Hon. Bruce M. Balter, J.S.C.) Purportedly, Plaintiffs' prior counsel produced the files in early March of 2020. Plaintiffs" current counsel contends that at that time, he obtained information that Defendant David Cohan's name may have been an alias/false identity. Plaintiffs' current counsel drafted an Order to Show Cause based on this new information but was apparently unable to file it with the Court because only essential matters were being filed at that time due to the COVID pandemic. Plaintiffs' current counsel contends that on August 24. 2020 it was instructed by the Court's ex-parte office to submit the proposed order to show cause by hand-delivery to the Court. However, Plaintiffs' current counsel contends that he was unable to do so when he arrived at the Courthouse and was told to e-file the papers. At that time, the instant action was apparently not an e-file case and current counsel was then required to convert the case to the e-filing system. Plaintiffs' current counsel contends that Defendants did not consent to the conversion. Plaintiffs' current counsel purportedly also delivered a courtesy copy of the papers to the chambers of the justice previously assigned to this action. Plaintiffs' current counsel alleges that it sent a copy of the proposed Order to Show Cause via FedEx to Trial Support but it was apparently not processed prior to the return date of the two pending motions. On September 22, 2020, an Order and Judgment was issued by the Hon. Bruce M. Balter, J.S.C., granting Defendants' motion to dismiss (motion sequence #1) and denying Plaintiffs' motion for leave to accept late service of the Note of Issue (motion sequence #2).
The Plaintiffs now moves (motion sequence #5) pursuant to CPLR 2221(d) and (e) granting reargument/renewal of this Court's Order/Judgment dated September 22, 2020 (Hon. Bruce M. Balter, J.S.C.).
The Plaintiffs contend that the motion should be granted on renewal because of newly discovered evidence and new facts not offered on the prior motions. Moreover, Plaintiffs contend that reargument is in order when matters may have been overlooked by the Court. The Plaintiffs further contend that the motion should be granted as to reargument because Plaintiffs have a justifiable excuse for failing to timely file the Note of Issue based on the alleged conduct of their prior counsel. The Plaintiffs also contend that they have a meritorious cause of action.
The Defendants oppose the motion and contend that the Court did not overlook or misapprehend law or fact in dismissing the instant action. Additionally, Defendants contend that Plaintiffs have failed to proffer a reasonable justification for not providing the purportedly new facts in relation to the prior motions.
Reargument
CPLR. 2221(d)(2) states that "fa] motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." "A motion for reargument is addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law." McGill v. Goldman, 261 A.D.2d 593, 594. 691 N.Y.S.2d 75, 76 [2d Dept 1999]. CPLR 2221(d)(3) does provide that any motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." However, a "Court had jurisdiction to reconsider its prior order '[r]egardless of statutory time limits concerning motions to reargue.'" ttzkowitz v. King Kutten Grocery Co., 22 A.D.3d 636, 638, 804 N.Y.S.2d350, 351 [2d Dept 2005]. Further, "a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented." Amato v. Lord &Taylor, Inc., 10 A.D.3d 374. 375, 781 N.Y.S.2d 125, 126 [2d Dept 2004]. A motion for leave to reargue is not an opportunity for a litigant to reargue issues previously decided. See Anthony J. Carter, DDS, P.C. v. Carter, 81 A.D.3d 819, 820, 916 N.Y.S.2d 821 [2d Dept 2011 ]. "Although a court retains residual discretion to deny a motion to dismiss when [the] plaintiff tenders even an unjustifiable excuse, this discretion should be exercised sparingly." Worldwide Ins. Brokerage Ltd. v. New City Mgt., LLC, 172 A.D.3d 1282. 1283, 98 N.Y.S.3d 849, 850 [2d Dept. 2019], quoting Baczkowski v. Collins Consir. Co., 89 N.Y.2d 499, 504, 655 N.Y.S.2d 848, 851 [1997] [internal quotations omitted].
Here, Plaintiffs argue that the Court misapplied CPLR 3216 to the related facts when it granted Defendants' motion to dismiss. "CPLR 3216 'is extremely forgiving of litigation delay.' If a party fails to comply with a 90-day demand to serve and file a note of issue, but demonstrates a' justifiable excuse for the delay and a good and meritorious cause of action', the trial court may not dismiss the action.'" Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 633, 768 N.Y.S.2d 735, 736-37 [2003], quoting Baczkowski v. Collins Consir. Co., 89 N.Y.2d 499, 503,655 N.Y.S.2d 848 [1997] and (CPLR 3216 [e]). Justified delay includes delay that "was not willful or with intent to abandon the action, but rather was the result of neglect on the part of the plaintiffs previous attorneys." Di Simone v. Good Samaritan Hosp., 100 N.Y.2d 632, 634, 768 N.Y.S.2d 735, 737 [2003], quoting Carte v. Segall, 134 A.D.2d 397, 398, 520 N.Y.S.2d 944 [2d Dept 1987], The Court finds that the Plaintiffs demonstrated that there was a justifiable excuse as to the delay in complying with Defendants' 90-day demand. According to Plaintiffs' prior counsel's affirmation, she attempted to file the Note of Issue with the Clerk but because the action was marked "disposed" the Clerk would not accept the Note of Issue without a Court Order even though the Kings County Supreme Court Uniform Civil Term Rules, Part D, Paragraph 4 provides that "[a] 90-day notice (CPLR 3216) shall permit a plaintiff to file a Note of Issue within such ninety (90) days without a Court order." Additionally, there is no evidence that Plaintiffs' delay was willful or with intent to abandon the action. Further to providing a justifiable excuse, "in order to justify vacating the default, plaintiff must demonstrate a meritorious cause of action by submitting an affidavit containing evidentiary facts by a person competent to attest to the meritorious nature of her claim.'' Essner v. Keavy, 104 A.D.2d 632, 632-633, 480 N.Y.S.2d 12 [2d Dept 1984]. Plaintiffs argue that the recorded deed was induced by fraud and/or forgery. Conclusory allegations of fraud are not sufficient to establish a meritorious cause of action. Archer Capital Fund, L.P. v. CEL. LLC, 95 A.D.3d 800, 802, 944 N.Y.S.2d 179, 181 [2d Dept 2012], "The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff' and damages (see Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, 488, 836 N.Y.S.2d 509 [2007]; Lama Holding Co. v. Smith Barney. 88 N.Y.2d 413. 421, 646 N.Y.S.2d 76 [1996]). A claim rooted in fraud must be pleaded with the requisite particularity under CPLR 3016 (b)." Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N Y3d 553, 559, 883 N.Y,S.2d 147, 150 [2009].
Here, Plaintiff Theodore Leeboo states in an affidavit dated August 20, 2020 that the Defendant "took steps to illegally transfer two properties owned by my wife and me: 86 Barbey St., Brooklyn, New York, and 50 Rochester Ave. Brooklyn, New York (the 'Properties') in or around November 2010, to a company named LTE Development Inc. without our consent and for no consideration. At no time did we sign any documents relating to the alleged transfer of title, much less did we receive any form of payment for the false transfers." (See NYSCEF Document 9, Page 6). This proffered material provides sufficient evidence of a meritorious action.
Renewal
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" [CPLR 2221 (e)(2)] and "shall contain reasonable justification for the failure to present such facts on the prior motion" [CPLR 2221 (e)(3)]. "The requirement that a motion for renewal be based on new facts is a flexible one, and it is within the court's discretion to grant renewal upon facts known to the moving party at the time of the original motion if the movant offers a reasonable excuse for the failure to present those facts on the prior motion." Matter of Defendi, 142 A.D.3d 500, 502, 35 N.Y.S.3d 495, 497 [2d Dept 2016], quoting JRP Holding. Inc. v. Pratt, 113 A.D.3d 823, 824, 978 N.Y.S.2d 902 2014] [internal quotation marks omitted]: see Gonzalez v. Vigo Constr. Corp., 69 A.D.3d 565, 566, 892 N.Y.S.2d 194 [2010]; see Matter of Surdo v. Levittown Pub. School Dist., 41 A.D.3d 486, 486, 837 N.Y.S.2d 315 [2007[; Griffith v. Wray, 109 A.D.3d 512, 970 N.Y.S.2d 458 [2d Dept 2013].
Turning to the merits of the Plaintiffs' motion (motion sequence #5), the Court finds that the underlying decision should be vacated and the matter restored. "In order to avoid a default under a 90-day notice, a plaintiff must comply either by timely filing a note of issue or by moving, before the default date, to vacate the demand or to extend the 90-day period." Pollucci v. Rizzo, 261 A.D.2d 594, 595, 690 N.Y.S.2d 667, 668 [2d Dept 1999], The Plaintiffs' have proffered a reasonable excuse under the circumstances. "Under the circumstances of this case, the plaintiff demonstrated a reasonable excuse for her failure to timely file a note of issue based on law office failure." Colucci v. Gardiners Properties, 187 A.D.3d 844, 132 N.Y.S.3d 440, 442 [2d Dept 2020|; see also Piszczatowski v. Hill, 93 A.D.3d 707, 708, 940 N.Y.S.2d 283, 284-85 [2d Dept 2012]. Finally, there is a strong public policy in favor of cases being resolved on the merits. See Harcztark v. Drive Variety. Inc., 21 A.D.3d 876, 877, 800 N.Y.S.2d 613, 614 [2d Dept 2005].
The Court also finds that the Plaintiffs have sufficiently shown that they have a meritorious cause of action further supported by the new material purportedly discovered after the prior motion was made. The Court notes that the new material was provide by Plaintiffs' current counsel who was not on the case at its inception. The Plaintiffs allege that the Defendants recorded a fraudulent deed, purportedly executed by Plaintiffs, conveying all rights, title and interest in the Premises. In support of their position, the Plaintiffs have submitted an affidavit from Plaintiff Theodore Leeboo attesting to the merits of the claim. Plaintiff Theodore Leeboo provided in his affidavit that "[d]enying Plaintiffs' motion to reargue and renew will result in David Cohan, a fictious identity used by Ilan Avitscdek and his associates, wrongfully maintaining owners of the Properties and thereby facing no consequences for his fraudulent transfer of our Properties and for operating a larger scheme in which he, among other things, fraudulently transfers properties away from his victims and then defaults in foreclosures of mortgages on those properties." (See Plaintiffs Motion, Affidavit of Theodore Leeboo, NYSCEF Document 9, paragraph 23). Additionally, Plaintiffs' current counsel provided in an affirmation quoting his own prior affirmation in support of the Plaintiffs' prior motion (motion sequence #4). that
That motion sought to void transfers and disqualify Defendant's counsel.
[p]ublicly available documents and affidavits by witnesses in an unrelated action entitled U.S. Bank National Association, as Trustee v. Patricia Love, David Cohan, et al, Index No. 34558/2006, indicate that Cohan purports to hold title to numerous properties as part of a larger fraudulent scheme in which Cohan is a nonexistent person and merely a false identity used by a person or group of people to swindle borrowers out of their home equity. The attorney for the plaintiff in the Patricia Love action filed an affidavit of a licensed private investigator, Philip Restivo, who
was retained to investigate Cohan and the possibility that the Cohan identity is a false identity used by a man named Ilan David Avitsedek, and possibly others.(See NYSCEF Document 29, Page 10, Paragraph 7).
In addition, Plaintiffs' attorney attached exhibits from a bankruptcy proceeding In re Northfield 30 Corp., Eastern District of New York, Docket No. 1:18-bk-42802, that includes DMV records that purportedly reflect that Defendant Cohan's license was revoked for "mak[ing] a false statement or providing] fraudulent documents in application for a New York State identification document." Taken together, this evidence is sufficient to show that the Plaintiffs have a meritorious claim for purposes of the motion and that this additional material supports this determination. See Mid-Hudson Properties, Inc. v. Klein, 167 A.D.3d 862, 90 N.Y.S.3d 264 [2d Dept 2018]; 555 Prospect Assocs., LLC, v. Greenwich Design c& Dev. Grp. Corp., 154 A.D.3d 909, 62 N.Y.S.3d 530 12d Dept 2017]; Kohn v. Kohn, 86 A.D.3d 630, 928 N.Y.S.2d 55 [2d Dept 2011]. Accordingly, the Plaintiffs' motion (motion sequence #5) is granted and the underlying order dated September 22, 2020 is vacated and the matter is restored.
Based on the foregoing, it is hereby ORDERED as follows:
The Plaintiffs' motion (motion sequence #5) is granted. Defendant's motion sequence #1 is denied. Plaintiffs' motion sequence #2 is granted and the matter is restored. Plaintiff shall file a Note of Issue within 30 days of service of notice of entry of this Decision and Order.
The foregoing constitutes the Decision and Order of the Court.