Recitation, as required by CPLR 2219(a), of the papers considered in the review of plaintiff’s motion for summary judgment and defendants’ cross motion to amend their answer. Papers NYSCEF Doc. Notices of Motion, Affirmations and Exhibits Annexed 386-450; 470-472 Answering Affirmations 451-452; 475-489 Reply Affirmations 490-496; 497 DECISION / ORDER Upon the foregoing cited papers, the Decision/Order on these motions is as follows: In this action to quiet title, plaintiff asserts three causes of action. The amended verified complaint, at Document 128 in NYSCEF, states that “the Plaintiff’s signature on the Deed dated August 5, 2005, allegedly acknowledged on August 5, 2005, and recorded on May 27, 2006 which provided the Defendant, ZBT Holding Inc., with record Ownership of 100 percent of the Property known as 131 Vernon Ave, Brooklyn New York, is the result of forgery, fraud, trickery, deceit and conversion as to the Plaintiff’s aforesaid real property” and seeks an order declaring this deed void. The second cause of action is for an accounting with regard to the rents, profits, and mortgages subsequent to the forged deed. The third cause of action is to cancel the mortgage placed on the property by defendant Farhad Homayoonfar in 2006, now held by defendant Bank of America [Docs 22 and 23]. Simultaneously with the filing of the summons and complaint, a Notice of Pendency was filed. The defendants were served with the documents within 30 days. In their answer to the amended complaint, the defendants (other than the Bank of America) assert two counterclaims, one for unjust enrichment and one for equitable subrogation, and seek a money judgment. Defendants allege, in part, that they satisfied the plaintiff’s 2003 mortgage when they took out the mortgage in 2006, which was subsequently assigned to Bank of America. This action is on the trial calendar, and the defendants (other than the Bank of America) have all been precluded by court order from “offering evidence, testifying at trial or submitting an affidavit in response to any dispositive motion.” See Docs 347, 382 and 444. Plaintiff’s Motion for Summary Judgment In Motion Seq. #13, filed March 15, 2022, plaintiff moves for summary judgment, and requests and order “striking the Defendants’ defenses, awarding Summary Judgment to the Plaintiff, and dismissing the Defendants’ counterclaims, thereby directing the Kings County Register to cancel the 8/5/2005 deed, as to Block 01755 Lot 0051, recorded on 1/27/2006, in CRFN 2003000221607, with Judgment as against the Defendants, except Bank of America, but canceling its mortgage as to the same premises, dated March 14, 2006, recorded March 21, 2006, CRFN 2006000177748, as assigned by MERS, on 2/12/10″ and also asks for a money judgment on plaintiff’s claim for an accounting. Plaintiff supports his motion with numerous documents. One is a certified report from the federal government of his passport record information, which indicates that he was not in the United States when the deed was allegedly executed. The notary indicated on the deed from plaintiff to ZBT Holdings Inc. was deposed [Doc 398] and testified that the signature on the deed is not his. He testified that he does not know the plaintiff, but he did know defendant Farhad Homayoonfar, who was a mortgage broker, and that he had notarized many documents involving mortgages provided by First United Mortgage Banking, the company Mr. Homayoonfar worked for. The documents connected with the 2005 deed indicate that the transfer was made without payment of any consideration. Plaintiff has provided at least one affidavit of the facts as he understands them, at Document 95. Defendant Bank of America responded to this motion [Doc 451] on May 12, 2022, and states in counsel’s affirmation that “To the extent that Plaintiff seeks to have the mortgage on the premises discharged, BANA [Bank of America N.A.] does not contest that relief. Said mortgage was dated March 14, 2006, and recorded March 21, 2006, in CRFN 2006000177748, in the Office of City Register for the County of Kings and was as assigned by Mortgage Electronic Registration Systems on February 12, 2010.” Bank of America concludes that they do not oppose the plaintiff’s motion, but ask that the court not construe the motion to “seek a money judgment from Bank of America.” The court finds that plaintiff has brought this action against all necessary parties, that plaintiff makes a prima facie case for the relief requested, and thus plaintiff is entitled to a declaratory judgment that the deed dated 8/5/2005 is void and should be cancelled of record. This deed conveyed the property at issue to ZBT Holdings, Inc., which, according to the NYS Department of State Division of Corporations’ website, was formed in February of 2005, and decedent is listed as the CEO. Then, according to the copies of the deeds provided by plaintiff, Farhad Homayoonfar as principal of ZBT Holdings Inc. executed a deed to himself alone in 2006, and subsequently, his wife, as executor, executed a deed from his estate to herself alone in 2017, and then, a few weeks later, executed a deed to defendant 131 Vernon LLC for no consideration. All of these people and entities have been named and served and have answered the complaint. The mailing address for 131 Vernon LLC on the NYS Department of State Division of Corporations’ website is Ms. Homayoonfar’s home address in Great Neck, NY. This is the address she listed on the 2017 deeds she executed. This is also the address she indicated on her October 2022 multiple dwelling registration for the property with NYC HPD, according to their public website, which indicates that she is the managing agent for the premises, a four-family multiple dwelling. The court notes that a forged deed is void ab initio, and, as such, any mortgage or encumbrance on real property based on a forged deed is also void. (see Faison v. Lewis, 25 NY3d 220 [2015]). The effect of the orders precluding the defendants from “offering evidence, testifying at trial or submitting an affidavit in response to any dispositive motion” requires the court to disregard the affidavit [Doc 472] provided by Ms. Homayoonfar in opposition to the motion and in support of the defendants’ cross-motion (Motion Sequence #16) to amend their answer. In conclusion, plaintiff has established, with uncontroverted evidence in admissible form, that the deed dated August 5, 2005 and recorded on January 27, 2006, was forged. Therefore, he is entitled to summary judgment and a declaratory judgment on his first cause of action, that that deed, as well as the subsequent deeds, are void and should be cancelled of record. The defendants have failed to overcome the motion and raise any triable issues of fact with regard to the plaintiff’s first cause of action to quiet title. In addition, plaintiff has established that he is entitled to summary judgment and a declaratory judgment on his third cause of action, that that mortgage executed by defendant Farhad Homayoonfar when he did not have valid title to the premises should be declared to be void and should be cancelled of record. Bank of America, the holder of the mortgage, does not oppose this branch of the motion. The defendants’ counterclaim for equitable subrogation is hereby dismissed. They do not have standing to assert such a claim. With regard to the plaintiff’s second cause of action, for an accounting, the court finds that the money judgment for the sum requested by plaintiff cannot be granted. An inquest must be held to determine the amount due to plaintiff. There are the issues of the rents and profits, expenses, mortgage payments, and the like, which must be ascertained. However, there are other facts to be determined. In Document 95, plaintiff’s affidavit alleges that he did not apply to the NYC Department of Buildings in 2007 for a Building Permit. Thus, he presumably did not oversee the renovation work or pay for it. To be clear, defendants have asserted a counterclaim for unjust enrichment. The preclusion order does not apply to their counterclaim. They are entitled to testify and submit evidence in support of the counterclaim. While the court could sever the counterclaim, so plaintiff could have an inquest, and defendants could have a trial, this would not serve the interests of judicial economy. Therefore, the court finds that both of these proceedings should take place before a justice, pursuant to the note of issue requesting a bench trial filed by plaintiff in 2022. The court will need to ascertain the net amount plaintiff is entitled to, after deducting any sums defendants establish they are entitled to be reimbursed for. Defendants’ Cross Motion In Motion Sequence #16, defendants (other than Bank of America) move for leave “to interpose the annexed Amended Answer with Counterclaims.” This cross motion was filed on January 26, 2023, [Doc 470], almost a year after the plaintiff’s motion was filed. It must be denied. First, there is no proposed amended answer annexed. A motion for leave to amend a pleading must include a copy of the proposed amended pleading. CPLR 3025(b) “Motion to amend or supplement must attach copy of proposed amended or supplemental pleading clearly showing proposed changes or additions.” Second, this motion is made after the plaintiff filed the note of issue. Leave to amend should be denied if the party waited an unreasonable time to bring its motion, such that the amendment would cause “significant prejudice” to the other party (see Heller v. Louis Provenzano, Inc., 303 AD2d 20, 22 (1st Dept 2003). After the note of issue is filed, leave to amend should not be granted if the proposed amendment contains previously unpled factual allegations and new theories of liability, which may require additional discovery, because such a result would unduly prejudice the non-moving party (Tribeca Space Mgrs., Inc. v. Tribeca Mews Ltd., 200 AD3d 626 [1st Dept 2021]). CPLR §3025 allows liberal amendment of pleadings absent demonstrable prejudice (Atlantic Mut. Ins. Co. v. Greater New York Mut. Ins. Co., 271 AD2d 278, 280 [1st Dept 2000]). Even if there is no prejudice, leave to amend a pleading must be denied where the proposed amendment is plainly lacking in merit (see Bd. of Managers of Gramercy Park Habitat Condo v. Zucker, 190 AD2d 636 [1st Dept 1993]). Here, from the discussion in counsel’s affirmation in support, the proposed amended answer was to include a new counterclaim, for adverse possession. This claim clearly lacks merit. An adverse possessor acquires title to the occupied real property upon the expiration of the 10-year statutory period (see CPLR 212 [a]) where the use “has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual” (RPAPL 501 [2]). As the court has determined that title was acquired by forgery, defendants cannot assert that title was “under a claim of right.” This would be true even if Ms. Homayoonfar could prove that she was unaware of her deceased husband’s actions, which she cannot prove as she has been precluded from testifying or offering any evidence, and as the 2005 deed and all the subsequent deeds are declared herein to have been void ab initio. The proposed amendment, as described by counsel without an actual proposed amended answer, would therefore be devoid of merit. Conclusions of Law Accordingly, the branch of the plaintiff’s motion for summary judgment on his first cause of action is granted, and it is hereby ORDERED, ADJUDGED AND DECLARED, that the deed dated 8/5/2005, as to Block 01755 Lot 0051, recorded on 1/27/2006, as CRFN 2003000221607 in the office of the City Register for the County of Kings, is canceled, and deemed void ab initio, and that the City Register’s Office for the County of Kings, where such deed was recorded, is further directed to strike said deed from the record, as well as the three subsequent deeds, at CRFN 2006000177747, 2017000194294 and 2017000194293, which are all void due to the 2005 void deed, and are hereby cancelled of record, thereby restoring Shaul Amzalag to title in fee simple absolute, and to record this declaratory judgment against the block and lot and make a notation on the records to the effect that said deeds are null and void. In addition, the branch of plaintiff’s motion for summary judgment on his third cause of action is granted, and it is hereby ORDERED, ADJUDGED AND DECLARED, that the mortgage dated March 14, 2006, recorded March 21, 2006, as CRFN 2006000177748, then assigned by MERS on 2/12/10 to Bank of America, as CRFN 2010000078952, as to Block 01755 Lot 0051, and both documents having been recorded in the office of the City Register for the County of Kings, are hereby canceled, and deemed void ab initio, and that the City Register’s Office for the County of Kings where such mortgage was recorded is further directed to record this declaratory judgment against the block and lot and make a notation on the records to the effect that said mortgage is null and void; and it is further ORDERED that the branch of plaintiff’s motion for summary judgment on his second cause of action, for an accounting, is granted, and this cause of action shall proceed to inquest, along with a non-jury trial on defendants’ counterclaim for unjust enrichment, unless the parties stipulate to have it heard by a Court-Attorney Referee pursuant to a referee referral order stipulating that the referee shall hear and determine the issues; and it is further ORDERED that the caption is hereby amended to reflect that the above caption is the correct caption in this action, as there have been additions and discontinuances during the course of the litigation; and it is further ORDERED that the defendants’ motion to amend their answer (MS #16) is denied; and it is further ORDERED that the defendants’ counterclaim for equitable subrogation is dismissed; and it is further ORDERED that this action shall appear on the Non-jury Trial Readiness Part Calendar, NJTRP-C, on April 4, 2023. Virtual appearances are required. Contact (347) 401-9047 if a Teams invitation is not received by e-mail. This constitutes the decision, judgment and order of the court. Dated: February 28, 2023
