ESTATE OF 72634552 CORP., plf v. JOSEPH OKON, YVETTE APPLEBAUM, ET AL., def (10/2817/B) — This action, commenced on October 7, 2011, was transferred to this Court by order dated February 8, 2016 of Hon. Richard Velasquez, Supreme Court, Kings County. Plaintiff 72634552 Corp. commenced this action in Supreme Court against defendants Joseph Okon and Yvette Applebaum for partition and sale of a parcel of real property that is an asset of the estate of defendants’ mother, Mildred Applebaum (decedent). Defendants now move to nullify and invalidate the deed purporting to convey the share in real property beneficially held by the defendants’ sister, Pamela McKenzie, who post-deceased the decedent. Plaintiff cross-moves for summary judgment for an order to determine plaintiff’s and defendants’ respective interests in the real property, and for an order of partition and sale of the property.
BACKGROUND / FACTUAL ALLEGATIONSThe decedent died on July 26, 2010, leaving a Last Will and Testament (Will) that devised her residuary estate to her three children, Joseph Okon (Okon), Yvette Applebaum (Applebaum), and Pamela Mckenzie (Mckenzie), in equal shares, and nominated Okon as executor. The Will was admitted to probate and letters testamentary were issued to Okon on January 25, 2012. The decedent’s estate includes a one-family home located at 258 Fenimore St., Brooklyn, NY (real property), which was not specifically devised, but rather is part of the residuary estate. The decedent’s Will provides, in pertinent part, as follows:FIRST: I direct my [Executor] to pay all of my just debts and funeral expenses as soon as practicable after my death.SECOND: I give, devise and bequeath my entire residuary estate, whether real, personal or mixed, of whatsoever kind and nature and wheresoever situated, which I may own or be entitled to at the time of my death, to my children [Okon, Applebaum and Mckenzie] to share and share alike.FIFTH: I give my [Executor] the fullest power and authority in all matters and questions, and to do all acts which I might or could do if living, including without limitation, complete power and authority to retain any and all property, whether real, personal or mixed, and to sell, mortgage, lease, dispose of and distribute in kind, any and all said property, at such times and upon such terms and conditions as [he] may deem advisable.According to plaintiff, almost 6 months prior to the letters testamentary being issued, Mckenzie allegedly conveyed her interest in the real property to plaintiff by deed dated August 17, 2011. McKenzie has since died.1 The alleged “bargain and sale deed with convenant against grantor’s acts,” recorded with the NYC Department of Finance on or about September 29, 2011 (deed), states that McKenzie, conveyed a 33.33 percent interest in the real property to plaintiff “in consideration for Ten Dollars and other valuable consideration paid by” plaintiff. The “recording and endorsement cover page” (cover page) for the deed identifies Yuval Golan as its presenter. The cover page states that no NYC Real Property Transfer Tax was paid and $40.00 was paid in NYS Real Estate Transfer Tax. Plaintiff also submits a copy of an untitled document allegedly signed by McKenzie on August 17, 2011 and bearing the signature of “witness” Aubrey Marquez. The document states in pertinent part as follows:Pamela L. McKenzie… hereby acknowledges that she met with or spoke with the purchaser and negotiated with the purchaser the terms of an agreement to sell and convey her interest in real property known as 258 Fenimore Street, Brooklyn, New York. Pamela L. McKenzie acknowledges that Robert D. Gelman, Esq. did not participate in these negotiations.Pamela L. McKenzie acknowledges and understands that Robert D. Gelman, Esq. reviewed with her the death certificate of her mother, the title report, and contract of sale, a deed, and transfer tax returns, and advised her that Robert D. Gelman, Esq. represented only the purchaser in this transaction, and that Robert D. Gelman, Esq. did not represent Pamela L. McKenzie. Pamela L. McKenzie acknowledges that she affirmatively advised Robert D. Gelman, Esq. that she did not wish to review the contract of sale, deed, or transfer tax returns with her own attorney, and that she knowingly and willingly entered into the agreement with the purchaser, and that she understands she is knowingly and voluntarily executing a contract that will bind her to transfer ownership to 72634552 Corp., and she is knowingly and voluntarily executing a deed that will IMMEDIATELY and IRREVOCABLY transfer to 72634552 Corp. of all of her right, title, and interest in real property known as 258 Fenimore Street, Brooklyn, New York. Accordingly, Pamela L. McKenzie hereby releases Robert D. Gelman, Esq. and holds Robert D. Gelman, Esq., harmless for any actions concerning the conveyance of Pamela L. McKenzie’s interest in real property known as 258 Fenimore Street, Brooklyn, New York to 72634552 Corp.Pamela L. McKenzie requested that the purchaser’s attorney, Robert D. Gelman, Esq. prepare a contract of sale, a deed, and transfer tax returns on her behalf to bind her and the purchaser in a transaction to sell and to purchase all of the right, title and interest of Pamela L. McKenzie in real property known as 258 Fenimore Street, Brooklyn, New York, to 72634552 Corp. or its assignee. Pamela L. McKenzie acknowledges… that Robert D. Gelman, Esq. did not represent her or her interests.While the document states that plaintiff’s attorney was to prepare a “contract of sale” and “transfer tax returns,” no copies of any such documents have been submitted, nor is there any indication that such documents were ever prepared. There is no document before the court to show that McKenzie signed an agreement specifying any sale price or consideration other than the “Ten Dollars” noted on the deed. Rather, plaintiff submits a copy of a cashed check in the amount of $10,000 dated April 17, 2011, made out to McKenzie. Plaintiff claims that amount was the full consideration given for McKenzie’s one-third interest in the real property. Further, in support of the claim that McKenzie knowingly and voluntarily agreed to the transaction and accepted $10,000 in full consideration thereof, plaintiff submits the affidavits of Samiel Hanasab (Hanasab), purportedly the President of 72634552 Corp., and Aubrey Marquez (Marquez), purportedly a witness to the transaction.Hanasab states in his affidavit that on August 17, 2011, McKenzie and his company “came to an agreement” that his company would purchase her interest in the real property. Hanasab denies that McKenzie was coerced, under duress, or “not in her right frame of mind” when entering into the agreement. Hanasab further states that McKenzie brought her “friend” Marquez to Hanasab’s office to witness McKenzie sign the “disclosure agreement” (ostensibly the untitled document referenced above) and deed. Hanasab does not provide any details as to how he and McKenzie first met and “came to an agreement;” how long McKenzie was given to consider the agreement and retain her own counsel; why no contract was prepared and signed by the parties; and whether anyone advised McKenzie about the fair market value of the real property.Marquez states in his affidavit that he was a neighbor of McKenzie and knew her for five years prior to her death. Marquez further states that on an unspecified date, McKenzie informed him that she had inherited an interest in the real property and that she wished to sell her interest to plaintiff. McKenzie further informed him that the closing of the sale was to take place on August 17, 2011 and asked Marquez to attend “for support.” Accordingly, Marquez went to plaintiff’s office that day where the “disclosure statement” and deed were presented to McKenzie. Marquez also states that he saw McKenzie read and sign the documents and accept a check in the amount of $10,000. Marquez also read the “disclosure statement” and signed as a witness. He then accompanied McKenzie to the bank where he witnessed her cash the check. Marquez contends that based upon his observations, McKenzie was fully aware of what she was doing and not under any duress, or the influence of medications, drugs, or pain.2Defendants assert that the value of the real property, located in the Crown Heights neighborhood of Brooklyn, is worth in excess of $1,800,000 and that plaintiff’s alleged purchase of McKenzie’s one-third share in the real property for merely $10,000 is a product of fraud, and otherwise unconscionable as a matter of law. Okon also submits an affidavit in support of defendants’ motion stating that at the time of the transaction, McKenzie had been diagnosed with a number of chronic and terminal illnesses; been in and out of many drug rehabilitation centers; and was addicted to pain medications and on Tramadol and Oxycontin, which affected her mental capacity and ability to understand the nature of the “complex real estate transaction at the time of the alleged conveyance.” Accordingly, defendants assert that the transaction was a product of plaintiff’s principal Yuval Golan’s “immoral coercion” over McKenzie, who was compromised due to her weakness, addictions, poor health, and inability to think independently.3
