Montague v. Yezol, Inc.

213 N.Y.S.3d 882

83 Misc.3d 424

Chevelle MONTAGUE, Alfred L. Washington, Jr., and Carolyn King Washington, Plaintiffs,

v.YEZOL, INC., Enriz C. Ramirez, Zulma Charloten, Gilberto Pena, 1251 Polite Corp., Phase 2 Development, LLC., 1251 Rev James LLC., and M.Y. Safra Bank, FSB., Defendants.

Supreme Court, Bronx County.

Decided on March 5, 2024

Plaintiffs, Donald Novick, Esq., Novick & Associates, 202 E. Main Street, Suite 208, Huntington, NY 11743, 631-547-0300, dnovick@novicklawgroup.com

Defendant 1251 Rev James, Peter Metis, Office of Peter Metis LLC, 46 Trinity Place, 5th Floor, New York, NY 10006, 646-908-2468, pmetis@metislawoffice.com

Defendant MY Sabra Bank, FSB, Bill Tsevis, Esq., Solomon & Siris, 100 Quentin Roosevelt Boulevard Suite 504, Garden City, NY 11530, 516-228-9350, btsevis@solomonsiris.com

Veronica G. Hummel, J.

In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with defendant 1251 REV JAMES LLC.’s motion ("1251 Rev James") (Seq. No. 5), made pursuant to CPLR 3212, seeking an order granting 1251 Rev James summary judgment dismissing the amended complaint and granting summary judgment on movant’s counterclaim seeking an order quieting title in the subject property to 1251 Rev James, declaring any right, title or interest in the subject property held by plaintiffs CHEVELLE MONTAGUE, ALFRED L. WASHINGTON, JR. and CAROLYN KING WASHINGTON ("plaintiffs"), to have been extinguished through adverse possession and declaring 1251 Rev James to be the owner of good and valid title to the relevant property; and defendant M.Y. SAFRA BANK, FSB’S ("MYSB") motion (Seq. No. 6) seeking an order, pursuant to CPLR 3212, granting summary judgment in favor of defendant MYSB dismissing the amended complaint, and awarding judgment to defendant MYSB on its first counterclaim for a declaration that its $1,050,000.00 mortgage, as described in the underlying motion papers, is a valid mortgage lien on the subject real property on the ground that defendant 1251 Rev James, MYSB’s mortgagor, has good and valid ownership of and title to the subject real property through adverse possession.

Oral argument on the motions was held before the Court on November 14, 2023. For the reasons discussed below, the motions are GRANTED.

The birthplace of this litigation is a property located at 1251 Rev James A. Polite Avenue, Bronx, NY ("the Property"). The Property is a corner property comprised of a commercial space and one residential apartment on the ground floor and two apartments located on the second floor. The commercial space is currently leased to a Deli. The other three residential apartments are all occupied and rented.

The central issue on the motions is the legal validity and effect of a number of title and possession transfers that occurred after a deed was forged in 1994. Of note, the material facts underlying the action are not in dispute.

In support of the motions for summary judgment, movant defendants submit copies of the pleadings, copies of various deeds and mortgages, personal affidavits by Cohen, Ramirez, Pena, and Aronov, deposition transcripts, Bankruptcy documents, an ACRIS index, Pacer dockets, attorney affirmations, statements of material facts, and memorandums of law. Movant defendants also submit attorney affirmations in reply.

In opposition, plaintiffs submit an attorney affirmation, a copy of the court’s rules, a death index for Varlack, and a memorandum in opposition.

Facts:

The earliest relevant owner of the Property was non-party Andrena Varlack. Andrena Varlack was sole owner of the Property when she died intestate on November 12, 1947. At the time that she passed, Andrena was survived by her two children and her husband. When Andrena’s husband and son passed away, her daughter May Louise became the sole remaining distributee of the family’s assets. May Louise had one child, Alfred Washington, Sr. ("Alfred") and when she died, he was her sole distributee.

Alfred died in September 2018. At the time that he passed, he was married to Carolyn King Washington ("King") and survived by two children, Chevelle Montague ("Montague") and Alfred L. Washington, Jr. ("Washington Jr."). His wife and children are the plaintiffs herein.

As for the contested transfers of title to the Property, the dispute springs from a deed executed in 1994. On May 15, 1994, almost fifty years after Andrena had died, a deed was executed in her name purportedly transferring the Property to defendant 1251 Polite Corp. As Andrena had been dead for decades by the time that she allegedly signed the deed, this deed is undisputedly forged ("the Forged Deed"). The Forged Deed was not recorded in the Office of the City Register of the City of New York, Bronx County until six years later on February 28, 2000.

One month later, by deed dated March 30, 2000, and recorded on April 19, 2000, the Property was conveyed from 1251 Polite Corp. to defendant Yezol, Inc. ("the Yezol Deed"). By affidavit Ilan Cohen, an officer and witness for Yezol, avers that, at the time of the purchase, he believed 1251 Polite Corp. to be the owner of the Property. The Property was purchased with the goal of renovating the building for resale. Yezol was in sole and exclusive possession of the Property during the time that it owned the Property. Yezol paid for all of the costs and expenses of the Property during its time as owner. Yezol was unaware of plaintiffs until the present lawsuit and no one else ever claimed any interest in the property during Yezol’s ownership.

A few months later, by deed dated September 18, 2000 and recorded on January 16, 2001, the Property was conveyed from Yezol to defendant Enriz C. Ramirez ("Ramirez") and his mother Zulma Charloten ("Charloten"), as tenants in common ("the Ramirez/Charloten Deed"). Ramirez and Charloten owned the Property for seven years, from September 18, 2000 to July 25, 2007. Ramirez avers that at the time of the purchase, there was unfinished construction on the Property, which was basically uninhabitable. By taking out loans against the Property, the owners completed between $50,000 and $60,000 worth of renovations to the Property.

The Ramirez family resided at the Property and also rented out the first floor apartment and the storefront for some time before Ramirez used it as his own office space. In the seven years they owned the Property, they collected all of the rent, paid all of the real estate taxes, water/sewer charges, homeowner’s insurance premiums and utilities, and paid for all necessary repairs on the Property. No one ever challenged their ownership of the Property or made any competing claims of ownership; and until this action, Ramirez had never heard of plaintiffs and plaintiffs never had access to any part of the Property.

In addition, over the seven years, Ramirez and Charloten gave three mortgages on the Property, to wit: i) a mortgage dated September 18, 2000, and recorded on January 16, 2001, in favor of Consumer Home Mortgage, Inc. in the amount of $255,050; ii) the Consumer Home Mortgage, Inc. mortgage was then consolidated, extended and modified by agreement on September 29, 2001, for a new loan amount of $256,450; and iii) a mortgage dated July 28, 2003, which was a second position mortgage given to the Secretary of Housing and Urban Development in the amount of $15,299.71 ("the Ramirez/Charloten Mortgages").

After seven years, the Property was sold, by deed dated July 25, 2007 and recorded on August 17, 2007, to defendant Gilberto Pena ("Pena Deed"). Pena purchased the Property for $585,000. Pena gave a first mortgage in favor of Countywide Home Loans, Inc. in the amount of $480,000 and a second mortgage in favor of Countrywide Home Loans, Inc. in the amount of $60,000, each recorded against the Property on August 17, 2007 ("the Pena Mortgages").

Pena owned the Property for approximately six years, from July 25, 2007, to January 29, 2013. Pena testified that when he purchased the Property, he understood Ramirez and Charloten to be the Property’s owners. There was a tenant in the Property when he purchased it and he collected rent from the tenant during the time he owned the Property. At times, he rented out a room in the apartment he occupied with his family and also rented out the third-floor apartment. He paid the real estate taxes on the Property through his mortgage, he paid all utility charges and insurance for the Property and maintained the Property by keeping the sidewalks clean, removing the trash, and clearing the snow. During the time that he owned the Property, no one else ever claimed any ownership of the Property and he has never met any of the plaintiffs.

After owning the Property for six years, Pena sold it for a loss via bank short sale, by deed dated January 29, 2013, and recorded on March 12, 2013, to defendant Phase 2 Development, LLC. ("Phase 2 Deed"). Phase 2 paid $120,000. A private mortgage in favor of Imanuel Piroozian in the amount of $230,000 was recorded against the Property on March 12, 2013 ("Phase 2 Mortgage").

Phase 2 owned the Property for one year, from January 29, 2013 to March 19, 2014. The owner of Phase 2 avers that Phase 2 purchased the Property from Pena, who the witness believed to be the owner of the Property. Phase 2 financed its purchase with a $230,000.00 mortgage loan from Piroozian. During the time that Phase 2 owned the Property, the owner collected rents from the occupants of the Property, paid the mortgage, paid real estate taxes, paid water/sewer charges and otherwise maintained the Property. He was not aware of any challenges to the validity of Phase 2’s deed and title to the Property or that anyone else was claiming ownership of the Property. He had no reason to believe that anyone other than Phase 2 was the owner of the Property. He does not know and has never heard of or met the plaintiffs, and none of whom lived at the Property during the time that...