Abruzzi v. Bond Realty, Inc.

201 A.D.3d 680

161 N.Y.S.3d 280

Thomas ABRUZZI, etc., appellant,

v.BOND REALTY, INC., etc., et al., respondents.

2017–12954

Index No. 702780/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 13, 2021

January 12, 2022

Christopher S. Henn (Martin Katzman, Garden City, NY, of counsel), for appellant.

Lynn, Gartner, Dunne & Covello, LLP, Mineola, NY (Robert P. Lynn, Jr., Kenneth L. Gartner, and Tiffany D. Frigenti of counsel), for respondents Bond Realty, Inc., Bon Realty Corp., Ryan Tessier, Diane Schreiber, Jennifer Abruzzi, Susan Abruzzi, Theresa Abruzzi, and Joseph Abruzzi.

Ganfer Shore Leeds & Zauderer LLP, New York, NY (Mark A. Berman and Dawn M. Wilson of counsel), for respondent GC Cross Bay Realty, LLC.

Hopkins & Kopilow, Garden City, NY (Michael T. Hopkins of counsel), for respondent Domenica Marjorie Centrone.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action, inter alia, for a judgment declaring a deed to certain real property to be void and to recover damages for fraudulent concealment and unjust enrichment, the plaintiff appeals from an order of the Supreme Court, Queens County (Marguerite A. Grays, J.), entered September 28, 2017. The order granted that branch of the motion of the defendants Bond Realty, Inc., Bon Realty Corp., Ryan Tessier, Diane Schreiber, Jennifer Abruzzi, Susan Abruzzi, Theresa Abruzzi, and Joseph Abruzzi which was for summary judgment dismissing the complaint insofar as asserted against them, granted the separate motion of the defendant GC Cross Bay Realty, LLC, inter alia, to cancel the notice of pendency, and granted the separate motion of the defendant Domenica Majorie Centrone pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against her.

ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

In 1964, three brothers, Thomas Abruzzi, Pasquale Abruzzi, and Rocco Abruzzi, each owned a one-third interest in a partnership, Bond Motors (hereinafter the partnership), which operated a Ford dealership in Queens. That same year, the three brothers, doing business as the partnership, acquired most of the real property located in Block 14030 on the Tax Map for the Borough of Queens, on which the car dealership was located. In 1967, the three brothers incorporated Bond Motors, Inc. (hereinafter the corporation), and in 1968, executed two deeds transferring part of the aforementioned property to the corporation. The remainder of the property (hereinafter the disputed property) continued to be owned by the partnership pursuant to deeds executed in 1964. Subsequent to its incorporation, a fourth brother, Joseph Abruzzi, became a shareholder in the corporation.

After Pasquale died on March 22, 1969, his will was admitted to probate on August 20, 1969, and Marcella Abruzzi, Pasquale's surviving spouse, was appointed executor of his estate. At the request of the estate's attorney, the property known as Block 14030, located at 160–10 and 160–50 Cross Bay Boulevard, Howard Beach, was appraised as of March 6, 1970, and valued at between $605,000 to $635,000. The estate commenced a lawsuit against the corporation, which was settled by an agreement, dated December 1, 1971, pursuant to which the corporation purchased Pasquale's shares in the corporation from the estate for $135,000. The Federal estate tax return for the estate noted that one-fourth of the outstanding shares of stock of the corporation held by the estate were valued at $135,000 as of the date of Pasquale's death, based upon the settlement reached with the remaining shareholders, the balance sheets for the corporation and the partnership, and the aforementioned appraisal. Schedule B–2 of the estate tax return explained that the $135,000 valuation of the estate's interest in the corporation was arrived at as a result of a stockholders’ action and "endless negotiations," and the "reduced value" of the stock was due to the fact that a minority share in the corporation was "relatively worthless," and there was "no other outlet for [the] stock."

In 1992, a deed dated December 28, 1992, was created and filed purporting to transfer the disputed property from the partnership to the corporation (hereinafter the 1992 deed). The 1992 deed was signed by Thomas and Rocco, and someone placed Pasquale's signature on the 1992 deed despite the fact that he had been dead for approximately 23 years. All the signatures on the 1992 deed were notarized by the defendant Domenica Majorie Centrone. In 2016, the two lots currently comprising the entirety of Block 14030 of the Tax Map for the Borough of Queens were transferred to the defendant GC Cross Bay Realty, LLC (hereinafter GC Cross Bay Realty).

In 2017, Paul Abruzzi, as administrator c.t.a. of the estate of Pasquale Abruzzi, commenced this action against GC Cross Bay Realty, Centrone, and Bond Realty, Inc., formerly known as the corporation, Bon Realty Corp., Ryan Tessier, as executor of the estate of Thomas Abruzzi, Diane Schreiber, as executor of the estate of Rocco Joseph Abruzzi, Jennifer Abruzzi, Susan Abruzzi, Theresa Abruzzi, and Joseph Abruzzi (hereinafter collectively the Abruzzi defendants), inter alia, for a judgment declaring the 1992 deed purportedly signed by Pasquale null and void as to Pasquale's interest in the disputed property, and to recover damages for fraudulent concealment and unjust enrichment against the Abruzzi defendants and Centrone. The plaintiff also filed a notice of pendency against the entirety of Lots 6 and 20 of Block 14030.

GC Cross Bay Realty moved, among other things, to cancel the notice of pendency. The Abruzzi defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against them. Centrone moved...