Opinion

Conti v. Marino

2024 NY Slip Op 32868(U)

Court: New York Supreme Court, Kings County
Filed: Aug 12, 2024
Status: Unpublished
Author: Ingrid Joseph
Cited by: 1 cases
Authority: More cited than 47.3%

The opinion

Conti v Marino

2024 NY Slip Op 32868(U)

August 12, 2024

Supreme Court, Kings County

Docket Number: Index No. 514326/2023

Judge: Ingrid Joseph

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

_,;:

At an IASlAS Term, Part 83 of

Term, Part of the Supreme

Supreme

Court

Court ofof the State

State of New York,

of New York, held

held in and

for the

the County

County of

of Kings,

Kings, at the Courthouse,

Courthouse, at

360 Ad~-Street, Brookly~w York,

York, on

Ad~-Street,

theh~e ~ day of of ~1

Brookly~W.

-frt½.J ·,

2024.

-,2024.

PRESENT:

PRE SEN T: HON. HaN. INGRID

INGRID JOSEPH,

JOSEPH, J.S.C.

J.S.C.

SUPREME

SUPREME COURT COURT OF THE STATE OF NEW

THE STATE NEW YORK YORK

COUNTY

COUNTY OF KINGS KINGS

----------------------_._----------------------------------_._------~--)( .--X

--------------------------------------------------------------------

MARIO

MARIO CONTI,·

CONTI,

Plaintiff,

-against-

-against- Index No.: 514326/2023

Index No.: 514326/2023

ROSE

ROSE MARINO,

MARINO,

DEUTSCHE

DEUTSCHE BANK NATIONAL TRUST

BANK NATIONAL TRUST COMPANY

COMPANY

As INDENTURE

INDENTURE TRUSTEE

TRUSTEE FOR

FOR AMERICAN

AMERICAN HOME

HOME

MORTGAGE

MORTGAGE TRUST

TRUST 2005-1,

2005-1, DECISION

DECISION AND

AND ORDER

ORDER

Defendants.

-----------------------------------------------------------------------X

-----------------------------------------------------------------------)(

The following

following e-filed papers read

e-filed papers read herein:

herein: NYSCEF Doc. Nos.:

NYSCEF Nos.:

Notice of

Notice of Motion/

Motion/ Memorandum

Memorandum of of Law/ Affirmation/Exhibits .............. .

Law/Affirmation/Exhibits 7-24

7 -24

Affirmation Support ......................_..................................................... ...

Affirmation in Support 34

Affirmation

Affirmation in Opposition/Exhibits

Opposition/Exhibits ......................................................... . 35-47

35 - 47

Reply Affirmation

Affirmation .................................................................................... . 48

Defendant

Defendant Deutsche

Deutsche Bank National Trust

Bank National Trust Company

Company as Indenture

Indenture Trustee

Trustee for American

American

Home

Home Mortgage

Mortgage Investment

Investment Trust

Trust 2005-1 ("Defendant"

("Defendant" or "Deutsche

"Deutsche Bank") moves for an order,

Bank") moves order,

pursuant CPLR 321 l(a),

pursuant to CPLR 1(a), dismissing

dismissing Plaintiff

Plaintiff Mario

Mario Conti's

Conti's complaint

complaint ("Plaintiff')

("Plaintiff') (Mot. Seq.

No. 1). Plaintiff

No.1). Plaintiff opposes

opposes the motion.

motion.

On or about

about April

April 25, 2023,

2023, Plaintifffileda summons and complain_t,

Plaintiff filed a summons complaint, alleging

alleging that

that he holds

holds

title

title to real property

property located

located at 7402

7402 Colonial

Colonial Road

Road in Brooklyn, New York

Brooklyn, New York (the "Property").

"Property").

Plaintiff

Plaintiff asserts

asserts that

that the Property previously o:wned

PropertY was previously owned by his father

father Gaetano

Gaetano Conti

Conti ("Mr.

("Mr. Conti").

Conti").

Plaintiff

Plaintiff alleges

alleges that

that he discovered

discovered that

that there

there are deeds

deeds of

of record

record reflecting

reflecting that

that the Property

Property was

,✓

1 of 9

[* 1]

--------------------------------------------------

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

conveyed

conveyed from

from Mr. Conti Amelio Marino!

Conti to Amelio Marino 1 ("Mr. Marino") and

("Mr. Marino") and defendant Rose Marino

defendant Rose Marino (Mr.

Marino's

Marino's daughter; hereinafter "Defendant

daughter; hereinafter "Defendant Marino"),

Marino"), as joint

joint tenants

tenants (the

(the "2005 Deed"),2 then

"2005 Deed"),2 then

from Mr. Marino

Marino and Defendant Marino to Mr. Marino

Defendant Marino Marino and Plaintiff,

Plaintiff, each

each with

with 50% ownership

ownership

interest

interest as tenants

tenants in common

common (the

(the "2007

"2007 Deed"),3

Deed"),3 and then Marino conveyed

then Mr. Marino conveyed his 50% interest

interest

to Defendant

Defendant Marino

Marin044 (the "2013

"2013 Deed").

Deed"). In the complaint, Plaintiff asserts

complaint, Plaintiff that neither

asserts that neither he nor his

deceased

deceased father

father Mr. Conti

Conti ever

ever agreed

agreed to covey

covey any interest

interest in the Property

Property to either

either Mr. Marino

Marino

or Defendant

Defendant Marino

Marino and never received consideration.

never received consideration. Plaintiff further alleges

Plaintiff further alleges that

that the signatures

signatures

to the deed

deed to Mr. Marino

Marino and

and the purported

purported power

power of attorney are forgeries

of attorney forgeries and are void

void ab initio.

Plaintiff

Plaintiff further

further alleges that Deutsche

alleges that Deutsche Bank's

Bank's mortgage

mortgage on the Property

Property is predicated

predicated upon

upon the

forged

forged deed

deed to Mr. Marino. The complaint

Marino. The complaint asserts

asserts seven causes of

seven causes of action:

action: (1)

(l) declaratory judgment

declaratory judgment

declaring

declaring that

that the deeds

deeds are nullities;

nullities; (2) fraud

fraud in the factum;

facturn; (3) fraud

fraud in the inducement;

inducement; (4)

determination of

determination title under

of title RPAPL Article

under RPAPL Article 15; (5) declaratory judgment declaring

declaratory judgment Deutsche

declaring Deutsche

Bank's

Bank's mortgage

mortgage null and void; (6) slander

and void; slander of

of title;

title; and (7) constructive

constructive trust.

trust.

Defendant

Defendant asserts

asserts that

that after

after the Property

Property was conveyed Marino and Defendant

conveyed to Mr. Marino Defendant

Marino,

Marino, they

they gave

gave a mortgage

mortgage to American

American Home

Horne Mortgage Acceptance Inc. in the amount

Mortgage Acceptance amount of

$696,000

$696,000 on March

March 23, 2005.

2005. This

This mortgage

mortgage was later

later assigned Deutsche Bank.

assigned to Deutsche Bank. Defendant

Defendant

asserts

asserts that the funds

funds from this mortgage

from this were used

mortgage were used to satisfy

satisfy55 the GreenPoint Mortgage Funding,

GreenPoint Mortgage Funding,

Inc. mortgage,

mortgage, which was procured

which was procured by Mr. Conti when he obtained

Conti when Property on January

obtained the Property January 9,

2004.

2004. According

According to Deutsche

Deutsche Bank,

Bank, a foreclosure

foreclosure action

action was

was commenced

commenced in January

January 2015 (the

"Foreclosure

"Foreclosure Action")

Action") and the

the motion

motion for a default judgment against

default judgment Plaintiff and Plaintiffs

against Plaintiff Plaintiffs cross-

cross-

motion

motion to file an amended answer to the amended

amended answer amended complaint

complaint are fully

fully submitted

submitted and remain

remain

pending.66

pending.

Deutsche

Deutsche Bank now moves

Bank now moves to dismiss this complaint

dismiss this under CPLR

complaint under CPLR 321 l(a)(l), (3), (5), and

3211(a)(I),

(7). With

With respect

respect to Plaintiffs

Plaintiffs first and fourth

fourth causes

causes of

of action

action alleging forgery, Deutsche

alleging forgery, Deutsche Bank

Bank

argues

argues that

that Plaintiffs

Plaintiffs only basis for standing

only basis standing is the 2007

2007 Deed

Deed which granted him

which granted him 50%

50% ownership

ownership

I The complaint

complaint asserts

asserts that

that Amelio

Amelio waswas Gaetano

Gaetano Conti'

Conti'ss long-term

long-term attorney and friend

attorney and friend (NYSCEF

(NYSCEF DocDoc No. 1,l, ,i~ 19).

2 The deed

deed from Gaetano

Gaetano Conti

Conti to Amelio Marino and Rose

Amelio Marino Marino, as joint

Rose Marino, joint tenants,

tenants, is dated

dated February

February 16, 2005

2005

(NYSCEF

(NYSCEF Doc No. 40).

Doc No. 40).

3 By deed

3 deed dated

dated May

May 1, 2007 and

1,2007 and recorded

recorded on July

July 17, 2007, Amelio

17,2007, Amelio and Rose

Rose Marino

Marino conveyed their ownership

conveyed their ownership

interest

interest so that

that the 50%

50% was

was held by Amelio

held by Amelio and 50% was held

50% was held by Plaintiff

Plaintiff (NYSCEF

(NYSCEF Doc Doc No.

No. 43).

43).

4 By deed

4 deed dated

dated May

May 8, 2013, Amelio conveyed

2013, Amelio conveyed his 50%

50% interest Rose (NYSCEF

interest to Rose (NYSCEF Doc No. 37).

Doc No.

5 The Satisfaction

5 Satisfaction of

of Mortgage

Mortgage was was executed May 5, 2005

executed on May 2005 (NYSCEF

(NYSCEF Doc No. 16).

Doc No.

6 The Foreclosure

6 Foreclosure Action

Action is pending

pending in Kings

Kings County

County Supreme

Supreme Court,

Court, under index No.

under index No. 501047/2015

501047/2015 and titled

titled

Deutsche Bank

Deutsche Bank National

National Trust

Trust Company

Company as Indenture

Indenture Trustee for American

Trustee/or American Home

Home Mortgage

Mortgage Investment

Investment Trust 2005-

2005-

1 v. Amelio

Amelio P. Marino;

Marino; Rose

Rose A. Marino;

Marino; Mario

Mario Conti, et al.

2 of 9

[* 2]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

interest,

interest, which

which he is seeking

seeking to void

void in this action. Further, Deutsche

action. Further, Deutsche Bank

Bank contends that to the

contends that

extent

extent Plaintiff's

Plaintiffs quiet title cause

quiet title cause of

of action

action is based

based on the 2005

2005 Deed,

Deed, it is time-barred l 0-

time-barred by the 10-

year statute

year statute of limitations. Deutsche

of limitations. Deutsche Bank

Bank also argues that the 2007

argues that 2007 Deed

Deed and power

power of

of attorney

attorney

were subscribed

were before a notary

subscribed before notary public

public and are thus

thus entitled

entitled to a presumption

presumption of validity and

of validity

Plaintiff's self-serving

Plaintiffs self-serving claim

claim of forgery is insufficient

of forgery insufficient to rebut

rebut the

the presumption.

presumption. In addition,

addition,

Deutsche Bank

Deutsche Bank claims that Plaintiff

claims that Plaintiff is not harmed

harmed because

because by his own

own admission Foreclosure

admission in the Foreclosure

Action, Plaintiff

Action, Plaintiff understood

understood that

that he would only own half

would only half of

of the Property. Therefore, Deutsche

Property. Therefore, Deutsche

Bank avers

Bank avers that

that even if Plaintiffs

even if Plaintiff's allegations were true, he is in the exact

allegations were exact same position he believed

same position believed

would be in if

he would if the alleged forgery had not occurred.

alleged forgery occurred.

With respect

With respect to Plaintiffs

Plaintiff's fraud-based

fraud-based claims

claims (second, third and

(second, third and fifth causes

causes of

of action),

action),

Deutsche Bank argues

Deutsche Bank that they

argues that they must

must be dismissed time-barred. Deutsche

dismissed as time-barred. Deutsche Bank

Bank maintains

maintains that

that

fraud claims must be commenced

claims must within six years

commenced within years of fraud or within

of the fraud within two

two years

years from the time

time

the plaintiff

plaintiff discovered

discovered the fraud

fraud or could with reasonable

could with reasonable diligence

diligence have

have discovered Deutsche

discovered it. Deutsche

Bank asserts

Bank asserts that Plaintiff's answer

that Plaintiffs Foreclosure Action,

answer in the Foreclosure Action, in which

which he asserts affirn1ative

asserts affirmative

defenses

defenses of

of fraud,

fraud, indicates that he knew

indicates that knew of alleged fraud no later

of the alleged than December

later than December 2017.

Accordingly, Deutsche Bank

Accordingly, Deutsche Bank claims

claims that Plaintiff'ss fraud claims

that Plaintiff claims expired

expired no later

later than

than December

December

2019

2019 and since

since this

this action was not commenced

action was until 2023,

commenced until 2023, it is untimely.

untimely.

Turning Plaintiffss sixth

Turning to Plaintiff cause of

sixth cause of action

action for slander

slander of title, Deutsche

of title, Bank contends

Deutsche Bank that

contends that

it is insufficiently pied because

insufficiently pled because the complaint lacks any allegation

complaint lacks allegation of

of special

special damages. Regarding

damages. Regarding

Plaintiff'ss seventh

Plaintiff seventh cause

cause of

of action

action for a constructive

constructive trust, Deutsche Bank

trust, Deutsche Bank argues that Plaintiff

argues that Plaintiff fails

to state a cause

cause of

of action

action since

since it does

does not have

have any relationship with either

relationship with either Plaintiff

Plaintiff or Mr. Conti.

Conti.

Moreover, Plaintiffs

Moreover, Plaintiffs cause

cause of

of action

action for a constructive

constructive trust

trust started

started to accrue

accrue at the time

time of

of the

Deed and

2005 Deed thus it is time-barred.

and thus time-barred.

Defendant

Defendant Marino's

Marino's counsel

counsel filed an affirmation

affirmation in support

support of Deutsche Bank's

of Deutsche Bank's motion

motion

and the legal

legal and factual

factual arguments

arguments contained therein. DefendantMarino

contained therein. Defendant Marino also

also adds that Plaintiffs

adds that Plaintiff's

quiet

quiet title

title action

action is subject

subject to a 10-year

l 0-year statute of limitations

statute of limitations and if based

and if based on the 2005 Deed,

Deed,

Plaintiff's

Plaintiffs time

time to commence

commence the

the action

action expired

expired in February

February 2015.

2015.

In his opposition,

opposition, Plaintiff

Plaintiff contends

contends that

that Deutsche

Deutsche Bank's

Bank's mortgage

mortgage is facially

facially deficient

deficient in

that

that the first

first page

page is missing

missing and

and it provides

provides no information

information as to the

the amount

amount loaned,

loaned, who

who was/is

was/is

the lender

lender and

and borrower( s), and

borrower(s), and which

which property

property was

was encumbered.

encumbered. Plaintiff

Plaintiff further

further maintains

maintains that

that

signatures on

the signatures on the

the deeds

deeds were

were forged

forged and

and alleges

alleges that

that the "purported

"purported notaries

notaries were

were elderly

elderly and

and

3 of 9

[* 3]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

in poor health at the time,

poor health time, with

with their

their notary

notary stamps

stamps likely

likely not even

even in their

their possessions."

possessions." Plaintiff

Plaintiff

further represents

further that he did not

represents that not discover

discover the "full

"full nature"

nature" of

of the fraud

fraud and forgery

forgery until

until late 2021

and thus, statute of

thus, the statute limitations has not expired

of limitations expired and at the least,

least, create

create an issue

issue of

of fact for the

the

jury. Moreover,

jury. Moreover, Plaintiff

Plaintiff asserts

asserts that

that since

since the deeds

deeds are forgeries,

forgeries, they

they were

were never

never valid

valid and his

fraud claims

claims are not subject

subject to the statute of limitations.

statute of limitations. Since Plaintiff contests

Since Plaintiff contests the deeds

deeds and

mortgage

mortgage submitted Deutsche Bank,

submitted by Deutsche Bank, they cannot

cannot be considered

considered documentary

documentary evidence.

evidence. In

addition, Plaintiff claims

addition, Plaintiff that "giving

claims that allegations in the Complaint

"giving the allegations Complaint every

every favorable

favorable inference,

inference,

the Complaint

Complaint clearly

clearly states cause of

states a cause of action."

action." Plaintiff

Plaintiff also argues

argues that

that Deutsche

Deutsche Bank's

Bank's motion

motion

premature because

is premature because he has

has not

not had

had an opportunity

opportunity to depose

depose Defendant

Defendant Marino

Marino or someone

someone from

Deutsche Bank with

Deutsche Bank personal knowledge.

with personal knowledge.

reply, Deutsche

In its reply, Deutsche Bank

Bank argues

argues that

that Plaintiff

Plaintiffss contention

contention that

that the

the deeds

deeds and

and power

power of

attorney

attorney are void

void ab initio

initio and thus

thus not time

time barred

barred are not

not substantiated

substantiated by any documentary

documentary

evidence.

evidence. Instead,

Instead, Deutsche Bank asserts

Deutsche Bank asserts that

that Plaintiff

Plaintiff relies

relies solely

solely on unsubstantiated

unsubstantiated narrative

narrative

and hearsay

hearsay testimony.

testimony. Moreover,

Moreover, Plaintiffs

Plaintiffs assertion

assertion that

that he only

only recently

recently discovered

discovered the fraud

is, according

according to Deutsche Bank, demonstrably

Deutsche Bank, demonstrably false.

The Court must first address

Court must address Deutsche

Deutsche Bank's

Bank's claim

claim that

that Plaintiff

Plaintiff lacks

lacks standing.

standing. "A party

party

has standing assert a cause

standing to assert of action

cause of action to quiet

quiet title

title only

only where

where he or she has an estate

estate or interest

interest

property" (Morales

in the property" Rolon, 226 AD3d

(Morales v Rolon, AD3d 765, 767 [2d Dept

Dept 2024]).

2024]). In his complaint

complaint Plaintiff

Plaintiff

asserts that he holds

asserts that holds title

title to the Property, but the only evidence

Property, but evidence in support

support of

of this

this claim

claim is the 2007

2007

Deed. The 2007

Deed. Deed is premised

2007 Deed premised on the 2005 Deed,

Deed, which

which Plaintiff

Plaintiff claims

claims contains

contains a forged

forged

signature.

signature. If

If the deeds

deeds are fraudulent

fraudulent as alleged

alleged by Plaintiff,

Plaintiff, then

then there

there is insufficient

insufficient "evidence

"evidence

that he has good

that good title

title or that

that he ever

ever had

had good

good title"

title" (id.). If the Court

(id.). If Court disregards

disregards the deeds,

deeds,

Plaintiffs only

Plaintiffs only interest

interest in the Property would

the Property would be as a "potential

"potential intestate

intestate beneficiar[y],"

beneficiar[y]," which

which is

insufficient

insufficient to confer

confer standing here (Soscia

standing here Soscia, 35 AD3d

(Soscia v Soscia, AD3d 841, 843 [2d Dept

841,843 Dept 2006]).

2006]). Assuming

Assuming

arguendo that

arguendo Plaintiff has

that Plaintiff standing, the Court

has standing, Court analyzes

analyzes Deutsche

Deutsche Bank's

Bank's remaining

remaining contentions.

contentions.

First, the Court

First, Court rejects

rejects Deutsche

Deutsche Bank's

Bank's statute

statute of

of limitations

limitations argument

argument with

with respect

respect to

certain

certain causes

causes of

of action

action premised

premised on the

the alleged

alleged forged

forged deed.

deed. "Under

"Under [Court

[Court of

of Appeals]

Appeals] case

case law

law

it is well-settled

well-settled that

that a forged

forged deed

deed is void

void ab initio

initio. . .... [[and]

and] any

any encumbrance

encumbrance upon

upon real

real property

property

based on a forged

based forged deed

deed is null

null and

and void.

void. Therefore,

Therefore, the

the statute

statute of

of limitations

limitations set forth

forth in CPLR

CPLR 213

does not

(8) does not foreclose

foreclose plaintiff's

plaintiffs claim"

claim" of

of fraud

fraud in the

the factum

factum (Faison

(Faison v Lewis, NY3d 220,222

Lewis, 25 NY3d 220,222

[2015]; see also Simmons v Bell,

also Simmons Bell, 220

220 AD3d

AD3d 647,

647,648-649 Dept 2023]

648-649 [2d Dept 2023] ["A

["A statute

statute oflimitations

oflimitations

4 of 9

[* 4]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

does

does not make

make an agreement

agreement that

that was

was void

void at its inception

inception valid

valid by the

the mere passage of

mere passage of time"]

time"]

[internal

[internal quotation

quotation marks

marks and

and citations

citations omitted]).

omitted]). Likewise,

Likewise, Plaintiff's

Plaintiff s cause

cause of

of action

action seeking

seeking to

quiet

quiet title

title on the

the basis

basis that

that the

the forged

forged deed

deed was

was void

void ab initio

initio is not

not subject

subject to the

the 10-year

10-year statute

statute

of limitations (see Torres

of limitations Torres v Equity

Equity Holdings

Holdings LLC,

LLC, 2021 NY

NY Slip

Slip Op 31031[0],

31031 [U], *4 [Sup Ct, Kings

Kings

County 2021];]; Canecchia

County 2021 Canecchia v Richmond

Richmond Assoc.

Assoc. Ny

Ny LLC,

LLC, 2021 NY

NY Misc

Mise LEXIS

LEXIS 49310,

49310, at *4-5 [Sup

Ct, Richmond

Richmond County,

County, Dec.

Dec. 22, 2021, 150613/2021]; CPLR212

2021, No. 150613/2021]; CPLR 212 [a]). In addition,

addition, "[t]he

"[t]he nature

nature

of the

the relief

relief sought

sought in a declaratory judgment action

declaratory judgment action dictates the applicable

dictates the applicable limitations

limitations period"

period"

(Waldman

(Waldman v 853 St. Nicholas

Nicholas Realty

Realty Corp.,

Corp., 64 AD3d

AD3d 585,587

585,587 [2d Dept

Dept 2009]).

2009]). Thus,

Thus, to the extent

extent

that

that Plaintiff predicated his

Plaintiff predicated his causes

causes of

of action

action for a declaratory judgment on a forged

declaratory judgment forged deed,

deed, the

the claims

claims

are not

not time-barred.

time-barred.

However,

However, where

where a plaintiff

plaintiff claims

claims that

that the "signature

"signature and

and authority

authority for conveyance

conveyance are

acquired

acquired by fraudulent

fraudulent means

means ...

... the deed voidable" (Faison,

deed is voidable" (Faison, 25 NY3d

NY3d at 224)

224) and

and a fraud

fraud in

the inducement cause of

inducement cause of action

action is subject

subject to a six-year

six-year statute

statute oflimitations

oflimitations governing

governing fraud

fraud claims

claims

(Mahabir

(Mahabir v Snyder Realty Group, Inc.,

Snyder Realty Inc., 217

217 AD3d

AD3d 850, 852 [2d Dept

Dept 2023]).

2023]). "A

"A cause

cause of

of action

action

based

based upon

upon fraud

fraud must

must be commenced

commenced within

within six years

years from

from the

the time

time of

of the

the fraud

fraud or within

within two

two

years

years from the time

time the

the fraud

fraud was

was discovered,

discovered, or with

with reasonable

reasonable diligence,

diligence, could

could have

have been

been

discovered,

discovered, whichever

whichever is longer" Oggioni v Oggioni,

longer" ((Oggioni Oggioni, 46 AD3d

AD3d 646,

646, 648 [2d Dept

Dept 2007]).

2007]). Here,

Here,

the earliest

earliest purported

purported fraud

fraud occurred

occurred in 2005.

2005. The

The Court

Court finds

finds Plaintiff's

Plaintiffs contention

contention that

that he only

only

recently

recently discovered

discovered the

the facts

facts surrounding

surrounding the

the fraud

fraud untenable

untenable where

where his answer

answer in the

the Foreclosure

Foreclosure

Action,

Action, dated

dated December

December 27, 2017,

2017, contained

contained affirmative

affirmative defenses

defenses alleging

alleging forgery,

forgery, fraud

fraud in the

factum

factum and

and fraud

fraud in the inducement (see Oggioni,

the inducement Oggioni, 46 AD3d

AD3d at 648 ["[T]he

["[T]he Supreme

Supreme Court properly

Court properly

determined

determined that

that the

the second

second cause

cause of

of action

action to set aside

aside the deed

deed on the

the ground

ground of

of fraud

fraud was

was time-

time-

barred

barred because

because the plaintiff possessed

the plaintiff possessed knowledge

knowledge of

of facts from

from which

which the

the fraud

fraud could

could reasonably

reasonably

have

have been

been inferred

inferred when

when he was

was served

served with

with the probate

probate petition

petition indicating

indicating that

that his father

father owned

owned

no real property

property at the time of

the time of his death."]).

death."]). Therefore,

Therefore, Plaintiff's

Plaintiffs fraud

fraud in the

the inducement

inducement claim

claim is

untimely.

Upon

Upon consideration

consideration of

of Deutsche

Deutsche Bank's

Bank's statute

statute of

of limitations

limitations arguments,

arguments, the Court

Court finds

finds

that

that only

only Plaintiff's

Plaintiffs fraud

fraud in the

the inducement

inducement cause

cause of

of action

action is time-barred.

time-barred.

Second,

Second, the

the Court

Court considers

considers Deutsche

Deutsche Bank's

Bank's arguments

arguments that

that (a) the

the power

power of

of attorney

attorney and

the 2005

2005 Deed

Deed are entitled

entitled to a presumption

presumption of

of validity,

validity, which

which Plaintiff

Plaintiff fails

fails to rebut,

rebut, and

and that

that (b)

Plaintiff

Plaintiff cannot

cannot prove

prove actual

actual damages.

damages.

5 of 9

[* 5]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

Pursuant

Pursuant to the Civil

Civil Practice

Practice Law

Law and Rules:

Rules:

Certification of

Certification of the acknowledgment

acknowledgment or proof

proof of writing, except

of a writing, except a will,

will, in the

manner prescribed

manner prescribed by law

law for taking

taking and certifying

certifying the acknowledgment

acknowledgment or proof

proof

of a conveyance

conveyance of

of real property

property within

within the state is prima

prima facie

facie evidence that it was

evidence that was

executed

executed by the person

person who

who purported

purported to do so (CPLR

(CPLR § S 4538).

4538).

"A certificate

certificate of

of acknowledgment

acknowledgment attached

attached to an instrument

instrument such

such as a deed

deed raises

raises a

presumption of

presumption of due execution, which presumption,

execution, which presumption, in a case such as this,

case such this, can

can be rebutted only after

rebutted only after

being

being weighed

weighed against

against any evidence adduced to show

evidence adduced show that

that the subject instrument was not duly

subject instrument

executed" (Son Fong

executed" Fong Lum

Lum v Antonelli,

Antonelli, 102 AD2d

AD2d 258, 260-261

260-261 [2d Dept

Dept 1984 affd 64 NY2d

1984],], affd NY2d

1158 [1985]).

[1985]). It '"should not be overthrown

'''should not upon evidence

overthrown upon evidence of

of a doubtful

doubtful character,

character, such as the

unsupported testimony

unsupported testimony of

of interested witnesses, nor

interested witnesses, upon a bare

nor upon bare preponderance

preponderance of

of evidence, but

evidence, but

only on proof

proof so clear

clear and convincing as to amount

and convincing certainty'" (Beshara

moral ce1iainty'"

amount to a moral Beshara, 51

(Beshara v Beshara, 51

AD3d

AD3d 837, 838 [2d Dept

Dept 2008],

2008], quoting Albany County

quoting Albany Bank v McCarty,

County Sav. Bank McCarty, 149 NY

NY 71, 80

[1896]).

In Clark

Clark v Mtge. Servs. Unlimited,

Unlimited, the Second

Second Department found that

Department found that the plaintiff

plaintiff had not

rebutted presumption of

rebutted the presumption of due execution failing to put

execution by failing put forth "evidence,

"evidence, such

such as the affidavit

affidavit

of a handwriting

handwriting expert

expert or of

of a lay witness

witness who was present

present at the execution of the

execution of the deeds

deeds or who

was otherwise familiar with

otherwise familiar with her

her handwriting,

handwriting, to establish that the signatures

establish that signatures on the deeds were not

deeds were

hers" (Clark v Mtge. Servs. Unlimited,

hers" (Clark AD3d 1104, 1105 [2d Dept

Unlimited, 78 AD3d 2010], lv

Dept 2010], denied 16 NY3d

Iv denied NY3d

709 [2011]).

[2011]). Similarly,

Similarly, "[w]ithout

"[w]ithout additional

additional evidence such ...

evidence such proof establishing

... proof establishing that

that plaintiff

plaintiff

was not

was not present New York

present in New York State

State on [the date the deed

deed was

was signed],

signed], the court

court cannot

cannot find that

plaintiff has presented

plaintiff presented evidence

evidence so clear

clear and convincing

convincing so as to amount

amount to a moral

moral certainty

certainty that

forged" (0

the deed is forged" 'Connor v O'Connor,

(O'Connor O'Connor, 40 Misc

Misc 3d 1226[A],

1226[A], 2013

2013 NY Slip Op 51324[U],

NY Slip 5 l 324[U], *2

Kings County

[Sup Ct, Kings County 2013

2013]).

]).

Here, affidavit, Plaintiff

Here, in his affidavit, Plaintiff contends

contends that

that his and Mr. Conti's

Conti's signatures

signatures were

were forged

forged

and they

they never signed anything

never signed anything before

before the notaries.

notaries. Plaintiff further claims

Plaintiff further claims that

that he and his father

father

were

were not in the

the United

United States "on the

States "on the date that

that it was purported to have

was purported have occurred."

occurred." Plaintiff

Plaintiff also

submitted an affidavit

submitted affidavit of

of his mother,

mother, Maria

Maria Conti

Conti ("Mrs.

("Mrs. Conti"),

Conti"), wherein

wherein she asserts

asserts that

that the

family

family had gone

gone to Italy

Italy sometime

sometime in 2005.

2005. Mrs. Conti

Conti makes

makes further

further allegations

allegations as to the physical

physical

and mental

mental capacity

capacity of

of the

the two

two notaries

notaries involved

involved with

with the 2005

2005 and

and 2007

2007 Deeds.

Deeds. These

These affidavits

affidavits

insufficient to rebut

are insufficient rebut the

the presumption of validity.

presumption of validity.

6 of 9

[* 6]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

It has long

long been held that

been held that "[i]f fraud causes

"[i]f the fraud causes no loss, then

then the plaintiff

plaintiff has suffered

spffered no

damages" (Connaughton

damages" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d

Chipotle Mexican NY3d 137, 142 [2017], quoting Sager

[2017], quoting Sager

Friedman, 270

v Friedman, 270 NY

NY 472,

472, 481 [1936]). Here, Deutsche

[1936]). Here, Deutsche Bank

Bank contends that Plaintiffs

contends that Plaintiffs

understanding

understanding and expectation

expectation was

was that would own 50% of

that he would of the Property.

Property. Since

Since Plaintiff

Plaintiff is

"precisely where he believed

"precisely where believed he would if the alleged

would be if forgery had

alleged forgery had not

not occurred," Deutsche Bank

occurred," Deutsche Bank

argues

argues that there is an absence

that there absence of hann (see e.g., Ciardiello

of harm Ciardiello v Pugliese,

Pugliese, 39 AD2d

AD2d 562, 563 [2d

Dept 1972] [finding

Dept that "it

[finding that could have

"it could have established that even

established that if plaintiffs

even if plaintiffs were

were deceived

deceived into signing

signing

the 1968 deed

deed defendant

defendant had

had title time [pursuant

title at that time [pursuant to the 1967 deed]

deed] and thus plaintiffs

and thus plaintiffs had

sustained

sustained no damage

damage as a result thereof. "l). In support

result thereof."]). support of this argument,

of this argument, Deutsche

Deutsche Bank

Bank refers

refers to

the transcript of Plaintiffs

transcript of deposition testimony

Plaintiffs deposition testimony in the Foreclosure

Foreclosure Action,

Action, which contains

which contains

references

references of

of owning only half

owning only half of Property.

of the Property.

"An

"An infom1al judicial admission

informal judicial admission is a declaration made by a party

declaration made party in the

the course

course of

of any

judicial proceeding

judicial proceeding (whether

(whether in the same

same or another

another case) inconsistent with

case) inconsistent position [the party]

with the position party]

now assumes" (People

now assumes" Brown, 98 NY2d

(People v Brown, NY2d 226, 232, n 2 [2002] [internal

[internal quotation marks and

quotation marks

citation

citation omitted]).

omitted]). "Statements contained in a verified

"Statements contained verified complaint,

complaint, or made

made by a party

party as a witness,

witness,

contained in a deposition,

or contained deposition, a bill of

of particulars,

particulars, or an affidavit

affidavit constitute

constitute informal

informal judicial

judicial

admissions" Ocampo v Pagan,

admissions" ((Ocampo Pagan, 68 AD3d

AD3d 1077, 1078 [2d Dept

Dept 2009] [internal quotation

2009] [internal marks

quotation marks

citations omitted]).

and citations omitted]). "While

"While not conclusive,

conclusive, [informal

[informal judicial

judicial admissions] evidence of

admissions] are evidence of the

fact or facts admitted"

admitted" (id. [internal quotation

(id [internal marks and citations

quotation marks citations omitted]).

omitted]).

"Where, as here,

"Where, here, evidentiary material was submitted

evidentiary material submitted and considered on the motion

and considered motion to

dismiss and the motion

dismiss was not converted

motion was converted into one for summary

summary judgment,

judgment, the question

question becomes

becomes

whether the plaintiff

whether cause of

plaintiff has a cause of action,

action, not whether

whether the plaintiff

plaintiff has stated

stated one,

one, and unless

unless it

has been

been shown

shown that material fact as claimed

that a material claimed by the plaintiff

plaintiff to be one

one is not

not a fact at all and

unless it can be said

unless said that

that no significant

significant dispute

dispute exists

exists regarding

regarding it, dismissal

dismissal should

should not eventuate"

eventuate"

(Halvatzis Perrone, 199 AD3d

(Halvatzis v Perrone, AD3d 785, 786 [2d Dept [internal quotation

Dept 2021] [internal quotation marks citations

marks and citations

omitted]). If

omitted]). If an informal

informal judicial admission disproves

judicial admission disproves an essential

essential element

element of

of a claim,

claim, dismissal

dismissal is

warranted (see id.

warranted id at 787

787 [[dismissal proper where

dismissal proper where informal

informal judicial admission established

judicial admission established that

that

plaintiff could not

plaintiff could not meet

meet one

one of

of two

two elements

elements of

of cause

cause of action]; WL Ross

of action]; Ross & Co. LLC

LLC v Storper,

Storper,

2016 NY

2016 Slip Op 31284[U],

NY Slip * 8 [Sup

31284[V], *8 [Sup Ct, NY County 2016]

NY County 2016] ["[A]n

["[A]n informal

informal judicial admission

judicial admission

which refutes

which refutes an essential

essential element

element of

of a plaintiff(' claim thereby

plaintiffI' s] claim thereby serv[

serv[ es] as a basis

basis for

7 of 9

[* 7]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

dismissal"]).

dismissal"]). Since Plaintiff made

Since Plaintiff made admissions

admissions at his deposition that he was

deposition that was going

going to be or only held

held

a 50% interest

interest the Court

Court finds that he does not have

finds that have a cause

cause of

of action.

action.

Third,

Third, the Court turns to Deutsche

Court turns Deutsche Bank's

Bank's claim

claim that the complaint cause of

complaint fails to state a cause of

action

action for a constructive

constructive trust

trust and slander of title. Courts

slander of Courts will only

only grant

grant a motion

motion to dismiss under

dismiss under

CPLR 321 l(a)(7) if, "taking

CPLR 3211(a)(7) "taking all facts alleged

alleged as true and according them every

according them possible inference

every possible inference

favorable

favorable to the plaintiff,

plaintiff: the complaint

complaint states

states in some recognizable form

some recognizable form any cause of action

cause of action

known to our

known law" (Rubinstein

our law" (Rubinstein v Salomon, AD3d 536, 538 [2d Dept

Salomon, 46 AD3d Dept 2007]

2007] [internal

[internal quotation

quotation

marks and citations

marks citations omitted]). However, bare

omitted]). However, bare legal conclusions

conclusions are not

not presumed

presumed to be true or

accorded

accorded every

every favorable inference (Morris

favorable inference A1orris, 306 AD2d

(Morris v Morris, AD2d 449,

449, 451 [2d Dept

Dept 2003]).

2003]). A

complaint has sufficiently

complaint plead a cause

sufficiently plead of action

cause of action if

if "it gives

gives sufficient

sufficient notice

notice of transactions,

of the transactions,

occurrences,

occurrences, or series

series of transactions or occurrences

of transactions intended to be proved

occurrences intended proved and [] requisite

[] the requisite

elements

elements of

of any cause

cause of action known

of action known to our law

law can be discerned

discerned from averments" (Pace v

from its avennents"

Perk, 81

Perk, 81 AD2d

AD2d 444,

444, 449 [2d Dept

Dept 1981] [internal

[internal citations

citations omitted]).

omitted]).

To obtain

obtain a constructive

constructive trust,

trust, a party must establish

party must establish the existence

existence of

of (1) a fiduciary

fiduciary or

confidential relationship,

confidential relationship, (2) a promise,

promise, (3) a transfer

transfer in reliance thereon, and (4) unjust

reliance thereon, unjust enrichment

enrichment

(Delidimitropoulos,

(Delidimitropoulos, 186 AD3d

AD3d at 1490). Here,

Here, Plaintiff

Plaintiff is alleging that the 2005

alleging that 2005 Deed forged

Deed was forged

but does not allege

but allege that

that he "actually transferred the property

"actually transferred property and that

that such transfer was made

such transfer made in

reliance upon a promise

reliance upon promise made representative of

made by any representative of the defendant" Bank (Amex

Deutsche Bank

defendant" Deutsche (Amex Dev.,

LLC v Aljohn

LLC A/john Group, Inc.,

Inc., 134 AD3d

AD3d 865, 866 [2d Dept

Dept 2015], mod 209

2015], mod 209 AD3d

AD3d 808 [2d Dept

Dept

2022]).

2022]). Plaintiff's

Plaintiff's complaint

complaint is further

further devoid

devoid of

of allegations that there

allegations that there was

was (i) a fiduciary

fiduciary or

confidential relationship with

confidential relationship with Deutsche

Deutsche Bank;

Bank; (ii) a promise

promise made

made by Deutsche

Deutsche Bank

Bank to Plaintiff;

Plaintiff;

or (iii) reliance Plaintiff on that

reliance by Plaintiff promise (see City of

that promise Long Beach

of Long Beach v Agostisi,

Agostisi, 221 AD3d

AD3d 776,

780 [2d Dept

Dept 2023]).

2023]).

"The

"The elements

elements of

of a cause

cause of

of action recover damages

action to recover damages for slander

slander of title are ((1)

of title 1) a

communication

communication falsely

falsely casting

casting doubt

doubt on the validity

validity of

of [the] complainant's title, (2) reasonably

complainant's title, reasonably

calculated

calculated to cause harm, and

cause harm, and (3) resulting

resulting in special damages" (Irizarry

special damages" Rosselli, _AD3d_,

(Irizarry v Rosselli, _AD3d_,

2024 NY Slip

2024 NY Slip Op 04065,

04065, *2 [2d Dept

Dept 2024]

2024] [internal

[internal quotation

quotation marks

marks and

and citations

citations omitted]).

omitted]).

"[T]he

"[T]he cause

cause of

of action

action does

does not

not arise

arise until special

special damages

damages actually result" (Rosenbaum

actually result" (Rosenbaum v City

City of

NY, 8 NY3d

NY3d 1, 12 [2006]).

[2006]). This

This requirement well-established (see Kendall

requirement is well-established Kendall v Stone,

Stone, 5 NY

NY 14,

18-19 [1851]).

[1851]). Therefore,

Therefore, a plaintiff's

plaintiff's cause

cause of

of action

action is not

not sufficiently pied where

sufficiently pled where he or she

"fail[s]

"fail[s] to adequately

adequately allege

allege that

that special

special damages

damages resulted

resulted from

from the

the [defendants']

[defendants'] allegedly

allegedly tortious

tortious

8 of 9

[* 8]

FILED: KINGS COUNTY CLERK 08/14/2024 04:13 PM INDEX NO. 514326/2023

NYSCEF DOC. NO. 52 RECEIVED NYSCEF: 08/14/2024

conduct

conduct (id.; see