Opinion
37649/07.
Decided July 31, 2008.
William D. Friedman, Esq. for the Plaintiff, Hempstead, New York.
George A. Durand, pro se.
The plaintiffs commenced this action on October 10, 2007, the gravamen of which seeks to recover $5,100.00 from the defendant for rents paid to him during a period of time when he allegedly was no longer the owner of the premises rented by the plaintiffs. Issue was joined, by service of the defendant's answer with a counterclaim, on or about October 15, 2007. Following an arbitration held pursuant to 22 NYCRR Part 28, on January 7, 2008, the defendant filed for a trial de novo. The plaintiffs now move for summary judgment in their favor and against the defendant, George A. Durand, in the amount of $5,100.00, pursuant to CPLR 3212. The defendant opposes the motion.
Summary judgment is a drastic remedy, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 (1957), which should not be granted where there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d 141 (1978) To prevail, the movant must first make a showing of entitlement to judgment, as a matter of law, Bank of New York v. Granat, 197 AD2d 653, 602 NYS2d 942 (2nd Dept. 1993), tendering evidentiary proof in admissible form. Friends of Animals, Inc. v. Associate Fur Manufacturers, Inc., 46 NY2d 1065, 416 NYS2d 790 (1979). It is only thereafter incumbent upon the party opposing summary judgment to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do." Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). The movant's failure to make such a showing, regardless of the sufficiency of opposing papers, mandates the denial of a summary judgment motion. Winegrad v. New York University Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985)
In support of their motion the plaintiffs submit the affirmation of their attorney, their Complaint, a certified Referee's Deed and five (5) prior decisions in previous actions between these parties, addressing the issue of the defendant's ownership of the subject property.
It is well settled that the submission of an attorney's affirmation in support of a motion for summary judgment that is not based upon personal knowledge of the facts is of no probative or evidentiary value. See: Zuckerman v. City of New York, supra .; Warrington v. Ryder Truck Rental, Inc. , 35 AD3d 455 , 826 NYS2d 152 (2d Dept. 2006) This is not to say, however, that summary judgment must be denied upon the failure to submit an affidavit of an individual with personal knowledge of the facts. Supporting proof, such as deposition testimony and documentary evidence, may properly be considered by the court if submitted in addition to an attorney's affirmation. See Ellman v. Village of Rhineback , 41 AD3d 635 , 838 NYS2d 641 (2nd Dept 2007); Blazer v. Tri-County Ambulette Serv., 285 AD2d 575, 728 NYS2d 742 (2nd Dept 2001). Additionally, CPLR § 105(u) provides, "A verified pleading' may be utilized as an affidavit whenever the latter is required." The plaintiffs' Complaint has been verified by the plaintiff, Cannon Simmons.
The plaintiffs allege that from February 2006 through April 2006 they paid rent totaling $5,100.00 to the defendant, based upon his demand therefor and his representation that he was the owner of the premises. The plaintiffs further allege that during the period from February 1, 2006 through April 30, 2006 the defendant was, in fact, not the owner of the premises and was not entitled to receive the plaintiffs' rent payment. In support thereof the plaintiffs submit a certified copy of a Referee's Deed in Foreclosure dated February 9, 2006, and recorded in the office of the Nassau County Clerk on March 33, 2006, indicating that the owner at the time in question was All State Properties, LLC. In addition thereto, the plaintiffs offer five (5) prior decisions in actions between theses same parties specifically addressing the question of the defendant's ownership of the subject property. In Durand v. Cannon and Carol Simmons (SP 3595/06), a holdover proceeding brought by the present defendant against the plaintiffs, decided in this court by Hon. Gary F. Knobel on October 31, 2006, the court determined that the defendant had failed to set forth sufficient proof that he could maintain the proceeding or had legal status to commence the proceeding pursuant to RPAPL §§ 721 and 741. The defendant appealed that decision, resulting in the decision of the Appellate Term for the 9th and 10th Judicial Districts affirming Judge Knoble, holding "petitioner [Mr. Durand] was not the owner of the property at the time the proceeding was commenced" and that the "petitioner failed to substantiate his claim that the referee's deed was subsequently nullified." Next, in Durand v. Cannon and Carol Simmons (SP 5846/07), on October 29, 2007, Hon. Scott Fairgrieve granted the Simmons' motion to dismiss on the ground that the defendant was not the owner of the premises. On Decmeber 6, 2007 Judge Fairgrieve again granted a motion brought by the Simmons to dismiss a non-payment proceeding brought by the defendant, finding "[p]etitioner had no interest in the property" and recognizing Judge Knoble previous determination that title was vested in "Allstate Properties, LLC., by referee's deed dated February 9, 2006." Similarly, in Durand v. Cannon and Carol Simmons (022411/07), on February 11, 2008 Hon. John M. Galasso of the Supreme Court of the State of New York, Nassau County, inter alia, granted a motion brought by the palintiffs to dismiss that action, once again finding that "[Mr. Durand] failed to set forth sufficient proof that he had legal status by title to the subject premises."
In opposition to the plaintiff's motion the defendant asserts nothing more than a statute of limitations defense, pursuant to CPLR § 215(7). This subdivision provides for a one (1) year statute of limitations for "an action by a tenant pursuant to subdivision three of section two hundred twenty-three-b of the real property law." The defendant's opposition is misplaced, as there is no such action alleged in this matter. Neither the defendant's Answer, which the plaintiffs annex to their motion papers, nor the defendant's papers submitted in opposition to the motion deny that the defendant received $5,100.00 in rent payments from the plaintiffs for the period of February 2006 through April 2006. Having failed to deny this allegation, it is deemed admitted. CPLR § 3018(a). The defendant's Answer does allege that he was the owner of the premises rented by the plaintiffs at the time he received such rent payments; and, in support thereof, he annexes thereto two (2) deeds, one dated May 4, 1987 and one dated September 24, 2007, which appear to be for the property in question. The deed dated May 4, 1987 pre-dates the Referee's Deed. While the deed dated September 24, 2007 is subsequent to the Referee's Deed, it names the defendant as both the grantor and the grantee; and, the defendant provides no explanation as to how the property was deeded back to him after the execution and filing of the Referee's Deed.
Not only has the defendant failed to provide this court with proof in admissible form that he was the owner of the subject premises during the period in question, but he is barred from re-litigating this issue by the doctrine of collateral estoppel. The identical issue was necessarily decided in not one (1), but four(4), prior actions, is decisive in the present action and the defendant had a full and fair opportunity to contest the prior determinations. Parker v. Blauvelt Volunteer Fire Co., Inc., 93 NY2d 343, 690 NYS2d 478 (1999); Motors Insurance Corp. v. Mautone , 41 AD3d 800 , 839 NYS2d 507 (2nd Dept. 2007); Laramie Springtree Corp. v. Equity Residential Properties Trust , 38 AD3d 850 , 832 NYS2d 672 (2nd Dept. 2007)
Although it is apparent from the foregoing that the defendant had no right to receive rent payments from the plaintiffs during the period in question, the problem for the plaintiffs, and by extension the court, is that it is not altogether clear under what theory the plaintiffs seek to recover the monies paid to the defendant. On the one hand, the allegations may be read as a claim of unjust enrichment. On the other hand, the allegations may be read as an attempt to set forth a claim of fraud. Each of these theories present problems for the plaintiffs upon this motion.
"To state a cause of action for unjust enrichment, a plaintiff must allege that it conferred a benefit upon the defendant, and that the defendant will obtain such benefit without adequately compensating plaintiff therefor (citations omitted)." Nakamura v. Fujii, 253 AD2d 387, 677 NYS2d 113 (1st Dept. 1998); See also: MT Property, Inc. v. Ira Weinstein and Larry Weinstein, LLC , 50 AD3d 751 , 855 NYS2d 627 (2nd Dept. 2008) While the plaintiffs uncontroverted allegations and proof substantiate such a cause of action, "[s]uch a claim is undoubtedly equitable;" Paramount Film Distributing Corporation v. State, 30 NY2d 415, 334 NYS2d 388 (1972) cert. denied 414 U.S. 829, 94 S.Ct. 57, 38 L.Ed.2d 64 (1973); See also: Cruz v. McAneney , 31 AD3d 54 , 816 NYS2d 486 (2nd Dept. 2006); Manufacturers Hanover Trust Company v. Chemical Bank, 160 AD2d 113, 559 NYS2d 704 (1st Dept. 1990); Schwartz v. Manfredi, 72 AD2d 579, 421 NYS2d 23 (2nd Dept. 1979) and this court does not have subject matter jurisdiction over matters seeking equitable or injunctive relief, except to the extent permitted by statute. See: New York State Constitution, Article 6, § 6(d); UDCA § 202; World Realty Corp. v. Consumer Sales, Inc., 9 Misc 3d 136, 2005 WL 2683595 (App.Term 9th and 10th Jud. Dists. 2005); cf. University Gardens Property Owners Association, Inc. v. Steinberg, 40 Misc 2d 816, 244 NYS2d 208 (Dist.Ct. Nassau Co. 1963)
While this court does have jurisdiction to hear and determine a cause of action sounding in fraud, to succeed on this motion the plaintiffs must demonstrate "a misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury (citations omitted)." Lama Holding Company v. Smith Barney, Inc., 88 NY2d 413, 646 NYS2d 76 (1996). See also: Richmond Shop Smart, Inc. v. Kenbar Development Center, LLC , 32 AD3d 423 , 820 NYS2d 124 (2nd Dept. 2006); Shovak v. Long Island Commercial Bank , 50 AD3d 1118 , 858 NYS2d 660 (2nd Dept. 2008) This the plaintiffs have not done. Specifically, absent from the plaintiffs' allegations and proof is any indication that the plaintiffs reliance upon the defendant's representation of ownership was justified or that the plaintiffs suffered any injury as a result that representation.
The Referee's Deed in Foreclosure, which the plaintiffs themselves submit to the court, clearly indicates that the plaintiffs were named in, and made aware of, the foreclosure action against the defendant. At the very least, this put the plaintiffs on notice to doubt and investigate the defendant's representation of ownership. See: Orlando v. Kukielka , 40 AD3d 829 , 836 NYS2d 252 (2nd Dept. 2007) Having been named in and notified of the foreclosure proceeding, the defendant's alleged ownership of the premises was "not peculiarly within the [defendant's] knowledge and the [plaintiffs] ha[d] the means available to [them] of knowing by the exercise of ordinary intelligence the truth or real quality of the subject of the representation [and] must make use of those means or [they] will not be heard to complain that [they were] induced to enter the transaction by misrepresentation (citation omitted)." DiFilippo v. Hidden Ponds Associates, 146 AD2d 737, 537 NYS2d 222 (2nd Dept. 1989); See also: F.A.S.A. Const. Corp. v. Degenshein , 47 AD3d 877 , 850 NYS2d 612 (2nd Dept. 2008); O'Dell v. Ginsberg, 253 AD2d 544, 677 NYS2d 583 (2nd Dept. 1998) The plaintiff have not offered any proof addressing this issue.
Similarly, the plaintiffs have neither alleged nor demonstrated that they were harmed by the defendant's misrepresentation. The plaintiffs acknowledge that they lived in the subject premises, as tenants, during the period in question. They, in fact, continued to reside there at the time of the commencement of this action, eighteen (18) months later. The plaintiffs neither allege nor demonstrate that the true owner of the premises, All State Properties, LLC., ever commenced non-payment proceedings against them or sought payment of rent from them for the period in question in any other fashion; nor do the plaintiffs allege that they paid rent twice for the same period. While it is apparent from the foregoing that the defendant has been unjustly enriched by the plaintiffs' payment of rent to him, during a period of time when he was no longer the owner of the premises, the plaintiffs do not get to occupy the premises rent free. Until such time as the plaintiffs demonstrate that the defendant's misrepresentation caused them to have to pay rent twice for the same period, or caused their removal from the premises, there does not appear to be an actual injury suffered by the plaintiffs sufficient to support a cause of action sounding in fraud.
Having established a right to relief on their equitable claim, which this court cannot grant, and having failed to establish their prima facie right to a judgment as a matter of law on a possible fraud theory, this court has no choice but to deny the plaintiffs' motion for summary judgment.
This constitutes the decision and order of this court.