# Conti v. Marino > New York Supreme Court, Kings County · August 12, 2024 · 2024 NY Slip Op 32868(U) URL: https://www.frixlaw.com/law-library/cases/10511900 ## Case - **Court:** New York Supreme Court, Kings County - **Decided:** August 12, 2024 - **Citations:** 2024 NY Slip Op 32868(U) - **Precedential status:** Unpublished - **Opinion:** Opinion by Ingrid Joseph - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10511900 ## Opinion text 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 t 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, 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. 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 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 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 1 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 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 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 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 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 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 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. 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 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 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]). [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 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 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 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 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 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 see also also Shahid Shahid v Slochowsky Slochowsky & Slochowsky, Slochrnvsky, LLP, LLP, 208 AD3d AD3d 1381, 1383 [2d Dept Dept 2022]). Plaintiff 2022]). Plaintiff has not met the first, second not met second nor nor third third criteria. criteria. In his complaint, complaint, Plaintiff Plaintiff merely merely asserts that he was asserts that was injured, direct and proximate injured, as a direct proximate result result of of defendants' defendants' conduct, conduct, in an amount amount than $2,500,000. no less than $2,500,000. This This is insufficient insufficient to satisfy satisfy the particularity particularity requirement requirement (Drug Research (Drug Research Corp. v Curtis Pub!. Co., 7 NY2d Curtis Publ. NY2d 435, 441 [1960] ["Such round figures, ["Such round figures, with with no attempt attempt at itemization, must be deemed itemization, must representation of deemed to be a representation of general general damages"]). damages"]). Thus, Court finds Thus, the Court finds that Plaintiffss causes that Plaintiff causes of of action action for a constructive constructive trust trust and slander slander of of title are insufficiently title insufficiently pled pied and should dismissed. should be dismissed. In sum, the Court finds that Court finds that Plaintiff Plaintiff lacks lacks standing. standing. Even if Plaintiff Even if Plaintiff had had standing, standing, his cause cause of of action action for fraud fraud in the the inducement inducement would would be dismissed dismissed as time-barred time-barred and and his causes causes of of action action for slander slander of title and constructive of title constructive trust trust would would be dismissed dismissed for failure failure to state state a claim. claim. Plaintiff Plaintiff also has has not not rebutted rebutted the presumption presumption of of due execution execution of of the documents documents or established established damages. damages. Accordingly, hereby Accordingly, it is hereby ORDERED, that Defendant ORDERED, that Defendant Deutsche Deutsche Bank's Bank's motion motion (Mot. Seq. No.1) No. 1) is granted. granted. All other issues not other issues not addressed addressed herein herein are without without merit merit or moot. moot. This This constitutes constitutes the decision order of decision and order of the Court. Court. Hon. Hon. Ingrid Ingrid Jos h, J.S.C. J.S.C. Hon.lngri Hon. lngri JOSeph Joseph Supreme Court Supreme Court Justice Justice 9 9 of 9 [* 9] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10511900. Public record. Not legal advice.