The following electronically filed documents read on this motion by defendants for an Order dismissing the action and cancelling the Notice of Pendency due to bad faith filing and pursuant to CPLR 3211 (a) (4) and (7) and 6514 (b):Papers NumberedNotice of Motion-Affidavit-Exhibits EF 11-24Affirmation in Opposition-Exhibits-Memo. of Law EF 26-32 This is an action pursuant to RPAPL Article 15 to compel the determination of claims to the property, seeking for the May 11, 2017 deed and mortgage to be null and void, and for fraudulent acquisition, fraudulent misrepresentation pursuant to GBS 349, and unjust enrichment for damages arising out of defendants’ acquisition of title pursuant to the short sale between the parties for the property located at 104-56 123rd Street, South Richmond Hill, New York 11419 (hereinafter the premises).Plaintiffs commenced this action by filing a summons, verified complaint, and notice of pendency on August 23, 2018. The complaint alleges that pursuant to an Oral Agreement, plaintiffs agreed to sell the subject premises to defendants at a short sale for the sum of $500,000. Pursuant to the Oral Agreement and promise from defendant Bashir Haque (Haque), defendant Shameem Holdings, LLC (Shameem Holdings) would purchase the premises from plaintiffs in a short sale, with the intent of returning the premises to plaintiffs. In return, plaintiff Devika Molchan would contribute towards the mortgage payments of around $1,000 and manage the premises for any tenants. As directed by defendant Haque, Devika Molchan tendered a downpayment in the amount of $30,000 and a tax payment in the amount of $33,000. Once the mortgage was satisfied, defendant Haque assured that he would convey the premises to plaintiffs. On May 11, 2017, the premises was conveyed to Shameem Holdings in a short sale, and plaintiff made the monthly mortgage payments for ten months to defendant Haque. Plaintiff Devika Molchan ceased payments around July 2018, and the parties discussed and mutually agreed to place the premises on sale. However, without notifying or informing plaintiff Devika Molchan, defendants placed the premises for sale. The premises is currently under contract.Defendants now seek to dismiss the action and cancel the notice of pendency on the grounds that the notice of pendency was filed in bad faith, there is a prior action pending, and the complaint fails to state a cause of action.In support of the motion, defendant Haque submits an affidavit dated October 21, 2018. He affirms that he is the spouse of co-defendant Shameem Ahmed, who is the sole member of defendant Shameem Holdings. Shameem Holdings sold the premises located at 114 Blackwood Road, Levittown, NY 11756 (hereinafter the Nassau premises) to plaintiff Devika Molchan on April 4, 2018. In connection with the transfer of title, Devika Molchan promised to pay $14,515.03 to defendants for materials and services rendered within ninety days. Devika Molchan failed to pay. Based on such, defendants commenced an action in Nassau County District Court on August 20, 2018. On August 23, 2018, plaintiff’s commenced this action and filed a notice of pendency against the subject premises, located in Queens County. Shameem Holdings had purchased the subject premises from plaintiffs in May 2017. Although the complaint alleges that defendants promised to sell the subject premises back to plaintiffs after Shameem Holdings purchased the property from plaintiffs in a short sale, Haque affirms that such agreement never existed. Moreover, even if an agreement did exist, the agreement would be illegal in that Shameem Holdings had to certify to the short sale bank that there was no arrangement to sell the premises back to the plaintiffs. Moreover, Shameem Holdings transferred the premises on July 31, 2018 to Md. Reaz Uddin, a good faith purchaser. None of defendants have any business or family connection with Md. Reaz Uddin.Pursuant to CPLR 6514(b), a motion for cancellation of a notice of pendency may be made by any person aggrieved by the existence of the notice of pendency. Here, defendant Haque affirms that the subject premises were transferred on July 31, 2018 to Md. Reaz Uddin. Moreover, a deed transferring the subject premises to Md. Reaz Uddin was filed on October 18, 2018. As defendants no longer have an interest in the premises affected by the notice of pendency, this Court finds that defendant are not persons aggrieved by the existence of the notice of pendency. As such, defendants do not have a right to seek cancellation of the notice of pendency under CPLR 6514(b).That branch of the motion for an order dismissing the instant action pursuant to CPLR 3211(a) (4) is also denied. CPLR 3211(a) (4) permits dismissal on the grounds that “there is another action pending between the same parties for the same cause of action”. Here, the Nassau County District Court action does not involve identical parties and, as admitted by defendant Haque in his reply affidavit, the two actions involve completely different issues.However, that branch of the motion for an order dismissing the action pursuant to CPLR 3211(a) (7) is granted. The purported agreement, whereby defendants were to convey the premises back to plaintiffs even though the parties certified to the bank that there was no such arrangement, is illegal. As such, plaintiffs are proscribed from seeking the assistance of the courts in enforcing such oral agreement (see Stone v. Freeman, 298 NY 268 [1948]; Ballan v. Sirota, 163 AD3d 516 [2d Dept. 2018]; Bonilla v. Rotter, 36 AD3d 534 [1st Dept. 2007]) The Court will not be a party to such an illegal transaction.Accordingly, and for the reasons stated above, it is herebyORDERED, that defendants’ motion to dismiss pursuant to CPLR 3211(a) (7) is granted, and the complaint is dismissed in its entirety; and it is furtherORDERED, that the County Clerk of Queens County is directed, upon payment of the proper fees, if any, to cancel and discharge a certain notice of pendency filed in this action on August 23, 2018, against property known as 104-56 123rd Street, Richmond Hill, New York (BLOCK 9576, LOT 30) and said Clerk is hereby directed to enter upon the margin of the record of same, a Notice of Cancellation referring to this Order.Dated: December 14, 2018Long Island City, N.Y.
