Hall v. FV-1, Inc.

2015 NY Slip Op 31102(U)

DENIS HALL, Plaintiff, v. FV-1, INC. and MORGAN STANLEY MORTGAGE CAPITAL HOLDINGS, LLC. Defendants.

Index No. 153177/2015

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 35

June 26, 2015

DECISION/ORDER

CAROL ROBINSON EDMEAD, J.S.C.

MEMORANDUM DECISION

Defendants FV-1, Inc. and Morgan Stanley Mortgage Capital Holdings, LLC ("defendants") move for an Order, pursuant to CPLR 3211(a)(1) and (7), dismissing the complaint of plaintiff Denis Hall ("plaintiff").

Defendants' Contentions

On March 7, 2009, the Queens County Supreme Court in an action entitled Central Mortgage Company v. Greta Jusino (Index No. 24233/07) entered a Judgment of Foreclosure directing that Plaintiff therein was entitled to foreclosure of the Property.

Pursuant to the Judgment, the Premises was sold at a. public auction on or about April 28, 2008, at which the Federal National Mortgage Association ("FNMA.") was the successful bidder and a Referee's Deed was executed to FNMA.

By Deed dated March 16, 2011 FNMA. transferred title to the Property to Morgan Stanley Mortgage Capital Holdings LLC ("Morgan Stanley").

By Deed dated September 19, 2012, Morgan. Stanley transferred title to the Property toFV-1, in trust for Morgan Stanley Mortgage Capital Holdings LLC as evidenced by a Deed. That on or about November 20, 2014, Defendant. Morgan Stanley sold, the Property to Amarjit S, Multani, for the amount of $280,000,00.

Plaintiff contends in his Complaint that the Plaintiff's alleged injuries on February 9, 2015 were caused by the "gross negligence, carelessness, recklessness and wanton actions of the defendant...for permitting the ice to be on the sidewalk, in failing to clear away the ice...". Complaint (¶29). However, as demonstrated above, Defendants were not the owner of the property at the time of the injury and therefore had no duty to maintain the property. Moreover, the Plaintiff fails to allege any damages or injuries sustained suffered from the alleged slip and fall on the sidewalk. As a result, Plaintiff has wholly failed to allege a viable cause of action against the Defendants herein and the action should thus be dismissed.

Plaintiff's Opposition

Defendants' failure to fulfill their statutory obligation to keep the abutting sidewalk clear of snow and ice not only contributed to plaintiff's accident, but was a competent producing cause of the resulting injuries.

Since defendants' motion is one to dismiss pursuant to CPLR 3211, defendants have not interposed an Answer and, thus, for the purpose of this motion, all of the allegations set forth in plaintiff's Complaint must be deemed true.

Defendants contend that they were not the owner of the building at the time of the accident and, thus, they are not responsible for the accident. However, defendants' evidence in support of that claim is not based on any admissible or documentary evidence as required by CPLR 3211(a)(1). Specifically, all of the documents in support of defendants' position areappended to defendants' motion as Exhibit "F". The most important document submitted by the defendants is what purports to be a filed Deed. However, the document indicates that it was recorded/filed on April 28, 2015, almost three months after plaintiff's accident. Thus, even if the document were in admissible form, if anything, it shows that at the time of the filing of the Deed, the owner of the premises was defendant FV-1, Inc, and not the alleged new buyer Mr. Multani. Thus, on its face, the document appended by the defendants does not support their position.

Next, defense counsel appends what is titled to be an "indenture" that purports to be dated November 20, 2014. However, the document itself is not in admissible form and simply has a written-in date and, indeed, on its face, purports to be signed by a "Scott Keeter." The document also notes that a Power of Attorney is to be recorded with it but there is no Power of Attorney attached. Thus, on its face, the document is inadmissible and not probative of any proof issues of ownership. Even if it were admissible, it only shows that there was a contract, but, pointedly, does not show if, or, more importantly, when title to the property passed. At best, the document, even if admissible, which it is not, is only a binder for a proposed sale of the property.

Next, defense counsel appends some document that purports to be something from the State of Colorado, but is not properly certified pursuant to CPLR 2309, and is otherwise irrelevant. In any event, the document does not even purport to evidence when, or even if, title passed.

Next, defense counsel appends what purports to be a Contract of Sale. The contract itself is not in admissible form and there is no proof that the signatures are of the buyer and seller of the property. Indeed, the contract is not even signed by the seller and only purports to be signed by the proposed buyer. The signatures are not dated and are not probative of anything! Indeed,the contract provides that the sale price be $280,000.00, yet the only check (which itself is not in admissible form) appended shows that only $5,000.00 was paid, which seems to be only a binder. Indeed, there is absolutely no proof that the monies were even paid, or, more importantly, when they were paid. Most importantly, even if the "contract" were admissible, which it is not, the contract does not show when title was passed.

Next, defense counsel appends what is termed a "Wire Transfer Inquiry Detail" that purports to be two pages, but is only one page, has no signatures, is not in any way in admissible form and does not in any way prove when the sale took place. Going back to the filing of the Deed, it would appear that the sale did not take place until April, 2015, months after plaintiff's accident.

In sum, there is simply not any admissible documentary evidence proving to show that the defendants were not the owners of the premises on the date of the accident.

Next, defendants argue that the Summons & Complaint fails to state a cause of action. First, defendants claim (para. 13) that they did not owe a duty to the plaintiff in that "there existed no privity between Plaintiff and Defendants...." In explanation of this absurd argument, defendants claim that "an owner has no duty to trespassers...." Suffice it to say, walking on a public sidewalk in front of a building does not make someone a trespasser.

Next, defendants argue that plaintiff has failed to allege that the defendants had actual or constructive notice of the icy condition of the sidewalk. Suffice it to say, defendants have neglected to read paragraphs 20-24 of plaintiff's Complaint.

Next, defendants argue that they, as owners, were not responsible to remove snow and ice from the front of the premises.Next, defendants argue (para. 17) they were not the proximate cause of plaintiff's injuries. It is beyond cavil that an owner is responsible to maintain its property, including the public sidewalk in front of it and the defendants' failure properly to maintain the sidewalk free of snow and ice is actionable.

In sum, defendants have failed to carry their burden on CPLR 3211 motion. Indeed, defendants' moving papers are so devoid of merit, costs and sanctions should be imposed.

Defendants' Reply

The crux of plaintiff's Opposition, as well as the Complaint, is that Defendants owned the property and therefore were responsible for the sidewalk maintenance where the alleged slip and fall occurred. As Defendants' Motion clearly demonstrates, through documentary evidence, neither of the Defendants owned the property at the alleged slip and fall, therefore rendering the Defendants improper parties to said action. See Defendants' Exhibit F. Said Exhibit contains a copy of the deed, contract of sale, a check and wire transfer which demonstrates the sale of the property from Morgan Stanley to Amarjit S. Multani, the owner of the premises.

Plaintiff's allegation concerning the recording of the deed is of no merit. Recording of the deed is not required to demonstrate delivery of same. Pursuant to RPL § 244, once a deed is delivered by the grantor and accepted by the grantee, a conveyance of real property takes place immediately so as to vest the estate or interest intended to be conveyed. Therefore, the fact that the Deed was not recorded until months after does not negate the ownership and that neither Defendant was the owner at the time of the alleged slip and fall.

The ample case law that Defendants cited in its Motion to Dismiss demonstrates that, even if, Defendants owned the property, which is not admitted, they did not breach a duty owedto the Plaintiff.

Within Plaintiff's opposition, there is still no evidence provided that demonstrates any slip and fall occurred nor any injuries allegedly sustained by the Plaintiff.

DISCUSSION

CPLR 3211[a] [1]: Defense is founded upon documentary evidence

Pursuant to CPLR 3211 [a] [1], a party may move for judgment dismissing one or more causes of action asserted against him on the ground that "a defense is founded upon documentary evidence." A motion to dismiss on the basis of a defense founded upon documentary evidence may be granted "only where the documentary evidence utterly refutes [the complaint's] factual allegations, conclusively establishing a defense as a matter of law"(DKR Soundshore Oasis Holding Fund Ltd. v. Merrill Lynch Intern., 80 AD3d 448, 914 NYS2d 145 [1^st Dept 2011] citing Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326, 746 NYS2d 858 [2002]). "Dismissal pursuant to CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (VisionChina Media Inc. v Shareholder Representative VisionChina Media Inc. v Shareholder Representative Services, LLC, 109 AD3d 49, 967 NYS2d 338 [1^st Dept 2013]).

To be considered "documentary," evidence must be unambiguous and of undisputed authenticity (Fontanetta v Doe, 73...