Opinion
Index No. 505744/2024 Motion Sequence No. 01
04-16-2024
In the matter of the Application of Troy Walthour, as Co-Administrator of the Estate of Thelma Walthour, Petitioner, v. For an Order Discharging a Certain Memorandums of Contract filed the Property 85 Somers Street, Brooklyn, NY 11233, 187 Hull Street, Brooklyn, NY 11233 and 191 Hull Street, Brooklyn, NY 11233 filed by and in favor of 85 Somers St LLC, 187 Hull St LLC, and 191 Hull St LLC, Respondents
Unpublished Opinion
DECISION/ORDER
Hon. Robin K. Scares, J.S.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion:
Papers......................NYSCEF Document No:
Sequence# 01
Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed/Exhibits..........6 - 15; 18 -22
UPON review of the Verified Petition and Order to Show Cause filed on February 27,2024 and upon the Affirmation of Naomi Zeltser, Esq., dated February 27, 2024, and upon the exhibits annexed hereto from which it appears that this special proceeding was brought to discharge certain liens of record, namely the Memorandums of Contract recorded against certain real properties in the Office of the County Clerk, Kings County, and upon the filed affidavits of service upon the above named Respondents 85 Somers St LLC, 187 Hull St LLC, and 191 Hull St LLC ("Respondents");
Petitioner provided sufficient proof that service of the Verified Petition and Order to Show Cause was effectuated upon the Respondents; and no answer has been interposed by Respondents though the time to do so has expired;
ORDERED, that the within motion is GRANTED;
THAT in accordance with CPLR 409(b), the Petitioners have satisfied its prima facie burden to the entitlement of relief it seeks in its petition with submission of the following proofs:
The first Memorandum of Contract is dated June 26, 2019, and recorded on June 16,2022, with the office of the Kings County City Register under CRFN: 2022000242108 (the Memorandum of Contract No. I) filed by Respondents 85 Somers St LLC, against the affected real property located in the City of New York, County of Kings, State of New York, and described as 85 Somers Street, Brooklyn, NY 11233, Block 1539, Lot 63 (the "Property No. I")
The second Memorandum of Contract is dated June 26, 2019, and recorded on June 1, 2022, with the office of the Kings County City Register under CRFN:2022000218717 (the Memorandum of Contract No. II) filed by Respondents 187 Hull St LLC, against the affected real property located in the City of New York, County of Kings, State of New York, and described as 187 Hull Street, Brooklyn, NY 11233, Block 1534, Lot 48 (the "Property No. II")
The third Memorandum of Contract is dated June 26,2019, and recorded on May 31,2022, with the office of the Kings County City Register under CRFN:2022000217049 (the Memorandum of Contract No. Ill) filed by Respondents 191 Hull St LLC, against the affected real property located in the City of New York, County of Kings, State of New York, and described as 191 Hull Street, Brooklyn, NY 11233, Block 1534, Lot 46 (the "Property No. III").
Petitioner provided sufficient proof that he had no legal authority to enter into a contract of sale with plaintiff and bind the estate of the decedent Thelma Waithour. See Murphy v. EEG Enterprises, Inc., 245 A.D.2d 495, 496 (2d Dept. 1997). The Petitioner contends that the memorandums of contract are frivolous, and its enforcement has no actual and substantial benefit to the Petitioner and the estate of Thelma Waithour. Therefore, Petitioner seeks to discharge, and cancel the Memorandums of Contract recorded against the subject properties;
No triable issue of fact has been raised to dispute the proofs and evidence submitted by Petitioner in support of his Petition to deem the Memorandums of Contract as null and void;
IT IS HEREBY ORDERED, that the Memorandum of Contract is dated June 26, 2019, and recorded on June 16, 2022, with the office of the Kings County City Register under CRFN: 2022000242108 (the Memorandum of Contract No. I) filed by Respondents 85 Somers St LLC, against the affected real property located in the City of New York, County of Kings, State of New York, and described as 85 Somers Street, Brooklyn, NY 11233, Block 1539, Lot 63 is hereby cancelled and discharged of record;
IT IS HEREBY FURTHER ORDERED, that the Memorandum of Contract is dated June 26, 2019, and recorded on June 1, 2022, with the office of the Kings County City Register under CRFN:2022000218717 (the Memorandum of Contract No. II) filed by Respondents 187 Hull St LLC, against the affected real property located in the City of New York, County of Kings, State of New York, and described as 187 Hull Street, Brooklyn, NY 11233, Block 1534, Lot 48 is hereby cancelled and discharged of record;
IT IS HEREBY FURTHER ORDERED, that the Memorandum of Contract is dated June 26, 2019, and recorded on May 31, 2022, with the office of the Kings County City Register under CRFN:2022000217049 (the Memorandum of Contract No. Ill) filed by Respondents 191 Hull St LLC, against the affected real property located in the City of New York, County of Kings, State of New York, and described as 191 Hull Street, Brooklyn, NY 11233, Block 1534, Lot 46 is hereby cancelled and discharged of record.
This constitutes the Decision/Order of the Court.