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Joseph v. Joseph

Joseph v Joseph 2024 NY Slip Op 32544(U) July 23, 2024 Supreme Court, Kings County Docket Number: Index No. 500873/2024 Judge: Leon Ruchelsman 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 07/23/2024 11:33 AM INDEX NO. 500873/2024 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/23/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KI~GS: CIVIL TERM: COMMEtCiAL 8 ------------ --- ------- --------- -----. X STEPHEN JOSEPH, Plaintiff, Decision and order

- against - Inde~ No. 500873/2D24

PAMELA JOSEPH & CGGMM PROPERTIES LLC, Defendants, July 23, 2024 ----~-~~----- -- -~-- -- - . ---- --------x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #¹ & #²

The plaintiff fil.ed an order to show cause seeking a

judgement vacating the transfer of property from def.endant Pamela

Joseph to CGGMM P.toperties LLC. The defendants have moved

pursuant to CPLR §3211 seeking to dismiss the complaint and £or a

default judgement concerning the defendant's counterclaiins. The

motions have been opposed respectively. Papers were submitted by

the parties and arguments were held. After reviewing all the

arguments this court now makes the following determination.

According tc.i the complaint on May 20, 2008, the parties

entered into a Divorce Settlement Agreement which required the

defendant to transfer to the pla.intiff property located at 462

Marion Street in Kings County. The complaint alleges the

defendant failed to transfer the property. This lawsuit was

commenced and the complaint alleges causes of action for breach

df contract, breach of good f~ith and fair deal{ng, unjust

enJ::.ichment, promiss:ory estoppel and a yoidable tra.nsacti-0h. On

becembe:i; 20, 2.023 the defendant Parii.e.la Joseph sold the property

to defendant CGGMM Properties LLC. The plaintiff has moved

FILED: KINGS COUNTY CLERK 07/23/2024 11:33 AM INDEX NO. 500873/2024 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 07/23/2024

Footnotes

[1] of 6 [* 1] seeking to void that transfer. The defendant has moved seeking to dismiss the complaint on various grounds. As noted, the motions are opposed. Conclusions of Law I t is well settled that upon a motion to dismiss the court must determine, accepting the allegations of the complaint as true, whether the party can su,cceed upon any reasonable view of those facts (Perez v. Y & M Transportation Corporation; 219 AD3d 1449, 1Q6 NYS3d 145 [2d Dept., 2023]). Further, all the allegations in the complaint are deemed true and all reasonable inferences. may be drawn in favor 0£ the plaintiff (Archival Inc. , v. 177 Realty Corp., 220 AD3d 909, 198 NYS2d 567 [2d Dept., 2023]). Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its c:laims, of course, plays no part in the determination of a pre,.....discovery CPLR §3211 motion to dismiss (see, La:tn v. Weiss, 219 AD3d 713, 195 NYS3d 4.88 [2d Dept. , 2023]J. Turning to the timeliness of the lawsuit, pur13uant to CPLR §231(2) the statute of limitations for a breach of contract claim is six years. Moreover, the statute of limitations begins to run when a cc1uS:e of. action accrues (CPLR §203 (a) ) which means "whe.n all of the facts• necessary to the cause of action have occurred so th?.t the. party would be .entitled to obtain relief in coµrt" 2

[2] of 6 [* 2] (see, Aetna Life &. Casualty Company v. Nelson, 67 NY2d 169, 501 NYS2d 313 [1986)) . The.re is no dispute this action was commenced in 2024 well after six years following the divorce settlement agreement. The plaintiff does not really present any arguments why the action has been timely cornrnenced. Mr, Joseph states: in his affidavit that a foreclosure action was commenced in 2009 and that "Def€ndant Pamela promised and I had no choice but to agree that she would have the Marital Property transferred to my name once the Foreclosure action was resolVed" (see, Affidavit of Stephen Joseph, 'lI9 [NYSCEF Doc. No. BJ). Likewise, counsel for the plaintiff also asserted that "Plaintiff ha.ct no choice but to agree with Defendant Pamela to have the Marital Property transferred to his name once the Foreclosure action was resolved,; (see, Affirmation of Morriesha Shepherd, Esq., 112 [NYSCEF Doc. No. 5]) . In another affidavit the plaintiff asserts that ''after making multiple requests from as early as 2008 the: Defendant then relied on the 2009 Foreclosure action as a reason why she could not transfer the property. The reason £or th~s was because Defendant Joseph relayed to the Plaintiff that they stood a good chance of having the Mortgage Discharged and since the matter was filed in her name, she would continue the case and complete the transfE:l:r after" ( ~ , Affidavit of Stephen Joseph; CJll.5 [NYSCEF Doc •. No. 59]). Th us, .e ss.ent :Lally, .i: he plaintiff a rgue.s the foreclosure 3

[3] of 6 [* 3] action commenced stayed the defendant's obligation to transfer the property. However, a foreclosure action does not effectuate any such stay. Indeed; the plaintiff concedes the property was transferred to defendant CGGMM Properties LLC during the pendency of another foreclosure proceeding that had been commenced (see, Complaint, <JI17 lNYSCEF Doc. No, l] "The second Foreclosure has yet to be not fully resolved and still pending in the Appellate Court"~, also, Affidavit of Stephen Joseph, '][19 [NYSCEF Doc. No. 8]). Further 1 the divorce settl~ment agreement did not require the transfer from the defendant to the plaintiff to be free of any encumtir9nces or liens, thus there was not reason why the defendant could not fulfill her requirement to transfer the property and no reason why the plaintiff could not commence an action in the ensuing sixteen years. Therefore, the motion seeking to dismiss the first four causes of action of the complaint is granted. Turning to the fifth cause of action, the plaintiff alleges tll.e transfer to de.f·.eridant CGGMM Properties LLC may be voided. Debtor creditor Law former §276 states that "every conveyance made ... with actual intent ... to hinc:ier, delay, or defraud either present or future creditors, is fraudulent" {id). Thus, a creditor .must demonstrate, .by clear .and convincing evidence that a defendµnt had the actual intent to hinderi de-lay cit de.fraud. ,creditors (see, Jensen v. Jensen, '.?56 AD2d 116.2, 682 4

[4] of 6 [* 4] NYS2d 774 [2d Dept., 1998]). The fraudulent transfer law contained within the Debtor Creditor Law is designed to prevent debtors from avoiding the payment o.f their debts (Leifer v. Murphy, 149 Misc 455, 267 NYS 701 [Supreme Court B.ronx County 1933]). Pursuant to Debtor Creditor Law §278 any creditor may have fraudulent conveyances set as.ide except against any good faith purchaser for value, which is defined as any person who tendered fair consideration without knowledge of any fraud (see, Cotrtrnodity Futures Trading Comrttission v. Walsh, 17 NY3d 162, 927 NYS2d 821 [2011] ) . Preliminarily, it must be demonstrated that the plaintiff is a 'creditor' of the defendant. A creditor is ''a person having any claim, whether matured ot unmaturedi liquidated or unliquidated; absolute, fixed or contingent" (see, Debtor and Creditor Law §270). As noted, the plaintiff.does not maintain any claims against the defendant and thus cannot pursue claims based upcin the debtor creditor law. Further, there is .ho allegation presented that CGGMM Properties LLC was not a bona fide good faith purchaser for value, Therefore, the fifth cause of action is dismissed and all the causes of action O.f the complaint are hereby dismissed. Turning to th.edef13ndant's counterclaims, the de:feridant seeks a default due to the p1aintiff's failure to respond to them. The co.urt ca.nn,ot examinE:l the. adequacy of the counterclai.ms 5

[5] of 6 [* 5] without a motion to dismiss in the absence of extraordinary circumstances (Matter of Weindlinq v. Berkowitz, 157 AD3d 803, 69 NYS3d 340 [2d Dept.; 2018]). No such circumstances have been presented i.n this case. Therefore, the motion seeking a default is denied at this time. The plaintiff must respond to the counterclaims within thirty days of receipt of this order. So ordered. ENTER: DATED: July 23; 2024 Brooklyn N.Y. Hon. Le6'n Ruchelsman JSC 6

[6] of 6 [* 6]