ADDITIONAL CASES1822 Nostrand Realty LLC, Third-Party Plaintiff v. Joseph Addy, Third-Party Defendant.The following papers numbered 1 to 9 were read on this motion by intervenor/defendant, third-party plaintiff for an order granting summary judgment and dismissing plaintiffs’ complaint against the movant pursuant to CPLR §3212, or in the alternative, granting partial summary judgment and declaring that movant is the holder of an equitable first mortgage lien against the subject property in a sum certain, plus interest, superior to plaintiffs’ rights, title to and interest in the property.Papers NumberedNotice of Motion, Affidavit, Affirmation, ExhibitsMemorandum of Law 1-5Affirmation in Opposition, Exhibits 6-7Reply Affirmation 8-9 Upon the foregoing papers, and a conference/oral argument at the call of the calendar, it is ordered that this motion is determined as follows:The court has dealt with this matter at length and now revisits same to address intervenor/defendant, third-party plaintiff 1822 Nostrand Realty LLC’s (“Nostrand Realty”) request for summary judgment, or partial summary judgment. Nostrand Realty signed a contract with defendant Godfrey Olowofela (“Godfrey”) to purchase the property located at 1822 Nostrand Avenue, Brooklyn, New York (“the property”)1 on August 27, 2015 and closed shortly thereafter on September 18, 2015. Prior to purchase a title report was obtained. The title report confirmed that defendant Godfrey was the sole record title holder of the property and had been so by virtue of a deed dated May 21, 2009 and recorded on June 25, 2009. Further, the report did not indicate any Notices of Pendency or pending lawsuits.Accordingly, movant contends that it is an innocent, bona fide purchaser and encumbrancer for value. Movant argues that laches bars the plaintiffs’ causes of action and that the causes of action against Nostrand Realty lack merit. Alternatively, Nostrand Realty argues that it is entitled to a declaration that it holds an equitable mortgage lien on the property in the amount of $338,874.85 plus interest from the closing, and that plaintiffs’ affirmative defenses lack merit.Plaintiffs submitted opposition arguing that movant did not meet its burden on a motion such as this as they did not eliminate all issues of fact. Plaintiffs assert that there can be no bona fide purchaser or encumbrancer for value based upon a forged deed, and the deed of May 21, 2009 is a forgery in that plaintiff Segun Olowofela (“Segun”) did not sign same conveying title from him and his father Godfrey to Godfrey alone. They also argue that movant did not prove the elements of laches because plaintiff Segun testified that he was not aware of Godfrey’s self dealing until late 2014. Finally, plaintiffs argue that movant did not meet its burden relative to equitable subrogation on account of their unclean hands.Essentially plaintiffs failed to file a Notice of Pendency against the property at the commencement of this action in February 2015, or when an emergency application seeking in unctive relief was denied in May 2015, or when they filed Notices of Pendency against the Queens properties (see FN1) in August 2015. The Notice of Pendency relative to the property at issue was inexplicably filed only in late September 2015, after the closing took place and title was transferred to movant.Summary judgment is appropriate where movant has established its entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact, (see generally Alvarez v. Prospect Hospital, 68 NY2d 320 [1986], Zuckerman v. City of New York, 49 NY2d 557 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion to assemble and lay bare evidence in admissible form showing facts sufficient to require a trail, (see CPLR 3212; see also Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). Overall evidence should be viewed in a light most favorable to the opposing party, (see Frutarom, Ltd. v. Flavormatic Industries, Inc., 237 AD2d 487 [2nd Dept. 1997] citing Robinson v. Strong Mem. Hosp., 98 AD2d 976 [4th Dept. 1983]), and “issue-finding, rather than issue — determination, is the key to the procedure” (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Determinations of credibility are not ripe for summary judgment, (id). However, a court must decide if an issue presented is genuine, or feigned, and if the latter summary judgment should be granted, (see Prunty v. Keltie’s Bum Steer, 163 AD2d 595, 596 [2nd Dept. 1990]). To that end “mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to defeat the request” (Zuckerman, supra at 562; see also Alvord v. Swift & Muller Constr., Co., 46 NY2d 276, 281-82 [1978], Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223 [1978]).Movant submits its request for summary judgment premised on the equitable defense of laches, which is “based on a lengthy neglect or omission to assert a right and the resulting prejudice to an adverse party” (Saratoga County Chamber of Commerce v. Pataki, 100 NY2d 801, 816 [2003]). It requires a showing of “(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event relief is accorded the complainant” (Cohen v. Krantz, 227 AD2d 581, 582 [2nd Dept. 1996]).“In order for laches to apply to the failure of an owner of real property to assert his or her interest, it must be shown that the plaintiff inexcusably failed to act when he or she knew, or should have known, that there was a problem with his or her title to the property. In other words, for there to be laches, there must be elements to create an equitable estoppel. Equitable estoppel arises when a property owner stands by without objection while an opposing party asserts an ownership interest in the property and incurs expense in reliance on that belief. The property owner must inexcusably delay in asserting a claim to the property, knowing that the opposing party has changed his position to his irreversible detriment” (Stein v. Doukas, 98 AD3d 1026, 1028 [2nd Dept. 2012] [internal citations omitted]).Here movant presents the following: it purchased the property after having a title report issued, which indicated there were no Notices of Pendency filed against the property, and the last Deed of record into Godfrey’s name alone was executed and filed making it public record, more than six years prior to transfer, in 2009. In addition to this concrete and extrinsic evidence, movant also submits observations and testimony that highlight plaintiffs, specifically Segun’s, neglect and delay in addressing Godfrey’s blatant, adverse and continuous conduct giving rise to this action.For example, in 2005 Segun and Godfrey mortgaged the property in the amount of $393,750.00 and Godfrey kept the entire proceeds for himself without objection from Segun. Also in 2005 Segun suggested that Godfrey establish a separate account for the rental income from the property but Godfrey ignored this suggestion. He continued to co-mingle and keep that income, again, with knowledge, but without objection from Segun. In 2007, Segun knew that Godfrey ignored the proposed plan to put the property into a “FELA” limited liability company. Between 2006 and 2007 Segun, as well as the other plaintiffs, knew that Godfrey’s conduct of retaining mortgage proceeds for himself, co-mingling rental income and failing to cooperate in the LLC scheme extended to the other properties at issue in this action, (see FN1), but again no action was taken and Segun “left it alone.” There are likewise indications that plaintiffs knew as early as 2007 of the alleged forged deeds and in a continuing pattern neglected to act or to protect their interests or the properties.In opposition plaintiffs offer their simple, self serving statements that they were unaware of their father’s actions until the end of 2014 and that they relied upon their relationship to assume that Godfrey was acting properly.Given Godfrey’s above emphasized actions, their unconcealed, public and continuous nature, both assertions are implausible, as the veracity of the statements as weighed against the actions to which they refer is not probable. It is not that the statements are themselves unbelievable, but simply that they are unlikely in the face of Godfrey’s conduct. While the court is sympathetic to the influence of the relationship between the parties, the same does not permit the plaintiffs to be like ostriches and ignore years of behavior contradictory to and undermining of that relationship. This position is supported by the uncontested fact that Segun is not a unsophisticated individual. He holds an undergraduate degree in finance, an Executive MBA in business administration, and has years of experience working in the fields of accounting and finance for a few prominent companies. His ignorance appears feigned and his indifference is indefensible.Plaintiffs also fail to offer any explanation relative to the delay and in the case of the property at issue here, complete failure until after sale, to file Notices of Pendency, which if filed would have wholly eliminated movant’s involvement in this action.In a last ditch effort plaintiffs argue that movant was or should have been aware of an issue in title given that they purchased the property for an amount more than $500,000 below market value. This argument bears no merit and is without probative value as unsubstantiated. Plaintiffs do not submit any evidence of the market value of the property, or that movant purchased it for less than that value.This Court finds that movant has demonstrated that the doctrine of laches applies and precludes plaintiffs from seeking to set aside, or affect movant’s deed, title and interest in the property. Plaintiffs remaining causes of action as against movant are without merit and Nostrand Realty is entitled to summary judgment and dismissal of plaintiffs’ Complaint as against it, and it is herebyORDERED, that intervenor/defendant 1822 Nostrand Realty LLC’s motion for summary judgment and dismissal of the plaintiffs’ Complaint as against it is granted; and it is herebyORDERED, that plaintiffs’ Complaint as against 1822 Nostrand Realty LLC is dismissed in its entirety; and it is furtherORDERED, that a copy of this Order with Notice of Entry shall be served by movant upon all parties within twenty (20) days of the date of entry hereof.Dated: June 17, 2019
