DECISION/ORDER As per order of the undersigned dated February 28, 2020, a hearing was held on the issue of whether the residential property sales contract between 344 Rockaway Parkway Investor Group, LLC (“344 Rockaway Parkway”) and decedent Nedia Colon is governed by Real Property Law §265-A, also known as the Home Equity Theft Prevention Act (“the Act”). That statute, which seeks to protect homeowners who are in mortgage default or in foreclosure, was born of a recognition that homeowners in financial distress are more susceptible to fraud, deception and unfair dealing by home equity purchasers. At issue in this matter is whether decedent, the contracted seller, occupied the premises as her primary residence immediately prior to the equity sale, or in this case, the execution of the contract for sale of the residential property in question. The estate of Nedia Colon (“the estate”), the defendant herein, filed an Order to Show Cause seeking declaratory judgment pursuant to Civil Practice Law & Rules (“CPLR”) 3001 and 3017 rescinding the contract decedent entered into with 344 Rockaway Parkway on grounds it that is a covered under the Act, and that such contract fails to comply with the law in multiple regards, including font size and type, and notice of cancellation requirements. The estate further seeks dismissal of the action herein pursuant to CPLR 3211(a)(1). 344 Rockaway Parkway contends that the contract is not governed by the Act, because the residential property was not where Ms. Colon was living immediately prior to the equity sale, as mandated by subsection (2)(k) of the Act. That subsection provides the following definition: (k) “Residence” and “residential real property” means residential real property consisting of one- to four-family dwelling which the equity seller occupies or occupied at a time immediately prior to the equity sale as his or her primary residence…[emphasis added] The contract in question was executed on September 13, 2018 for sale of the residential property at 225-20 111th Avenue, Queens Village, New York, which is the subject of a foreclosure action filed in Supreme Court, Queens County on June 13, 2018, Bank of America v. Nedia Colon, et al. (Index Number 709105/2013). 344 Rockaway’s primary argument in opposition to the estate’s order to show cause is that the agreement is not a “covered contract” under the Act. It offers no contention that the contract complies in any way with the Act. At the hearing before the undersigned on August 13, 2020, Michael Lehrman, Esq. of Lehrman & Maseng, PLLC represented 344 Rockaway Parkway; John Mangelli, Esq. of the Law Offices of John Mangelli represented the estate. Decedent’s son and the administrator of her estate, Juan Colon, testified for the estate in support of the relief sought; Ben Ami Izhak, managing member of 344 Rockaway, a limited liability corporation, testified in opposition. Mr. Colon testified that decedent never moved out of her home, notwithstanding 344 Rockaway’s claims that she moved in with him. She was admitted into Hillside Manor Rehabilitation and Extended Care Center on August 23, 2018, and from there, was admitted to New York Presbyterian Hospital on October 5, 2018, where she passed away on October 10, 2018. However, he said that the subject premises never ceased being her primary residence. The estate submitted various documents as exhibits intending to show that decedent occupied the residence at the time of the contract execution, including her gas bills, decedent’s New York State Department of Motor Vehicles non-driver identification (which expired in 2016), and New York City Department of Environmental Protection water bills Mr. Izhak testified that he met with the decedent between four and five times at Mr. Colon’s residence on 130th Avenue in Springfield Gardens. He said that each time he arrived at the location, the decedent was already there. Mr. Izhak said they met in Mr. Colon’s living room, where there was a hospital bed in an adjoining bedroom. He said in addition to the hospital bed, he saw a chair and medical equipment in the bedroom. Mr. Izhak testified that Mr. Colon told him that decedent was living with him because of her medical condition, and because there were no utilities in the home. He said, “We discovered there is an oil burner that no longer supplies heat during the winter, and also, Con Edison had shut off the electric.” The Court notes, however, that Plaintiff’s evidence had established that the subject premises was heated by gas, and not oil. Upon the Court’s request, Mr. Colon was recalled to testify, and said there was no hospital bed in his home for his mother. Further, he testified that while there was no electricity in the decedent’s home, he installed a 3500-watt generator to provide power to the basement, where she was living. Weighing all the evidence in the matter herein, the Court finds that the estate presented a credible case that the subject premises were the premises occupied by the decedent immediately prior to the execution of the contract. 344 Rockaway has failed to credibly rebut the estate’s evidence. The Court does not find credible Mr. Izhak’s claim that he saw a hospital bed and medical equipment in a room adjoining Mr. Colon’s living room; and even if he saw those items, their presence did not establish that decedent’s residence was no longer at the subject premises. Although Mr. Izhak said that Mr. Colon told him the decedent was residing with him, Mr. Colon denied that she had taken up residence with him. Where, as in this instance, the Court’s findings “rest in large measure on considerations relating to the credibility of witnesses, deference is owed to the trial court’s credibility determinations” (Paino v. Reitano, et al., 142 AD3d 1057 at 1058, 1059 [2d Dept 2016], citing Neiss v. Fried, 127 AD3d 1044, 1046 [2d Dept 2015]). Accordingly, the Court finds that decedent was entitled to the protections of the Act. As 344 Rockaway makes no argument that the executed contract was in compliance with the Act, and no evidence of the same was offered, the Court grants the estate’s motion for declaratory judgment under CPLR 3001 and 3017(b), and dismisses the action pursuant to CPLR 3211(a)(1). The branch of the estate’s motion seeking legal fees and damages from 344 Rockaway is denied. Accordingly, it is hereby ORDERED, that the residential contract of sale dated September 13, 2018 between decedent Nedia Colon and 344 Rockaway Parkway Investor Group LLC is hereby rescinded; and it is further ORDERED, that the within action is dismissed; and it is further ORDERED, that the branch of the Estate of Nedia Colon’s motion seeking legal fees and damages from 344 Rockaway Parkway is denied. The foregoing constitutes the decision and order of the Court. Dated: August 25, 2020
