| Fan-Dorf Props., Inc. v Classic Brownstones Unlimited,LLC |
| 2013 NY Slip Op 01325 [103 AD3d 589] |
| February 28, 2013 |
| Appellate Division, First Department |
| Fan-Dorf Properties, Inc., et al.,Appellants, v Classic Brownstones Unlimited, LLC, Respondent, et al.,Defendant. |
—[*1] Char & Herzberg LLP, New York (Edward M. Char of counsel), forrespondent.
Order, Supreme Court, New York County (Manuel Mendez, J.), entered August 2,2012, which denied plaintiffs' motion to renew, unanimously reversed, on the law, thefacts, and in the exercise of discretion, without costs, the motion granted and, uponrenewal, defendant Classic Brownstones Unlimited, LLC's (defendant) motion to dismissand for summary judgment denied. Appeal from order, same court and Justice, enteredAugust 30, 2011, which granted defendant's motion to dismiss and for summaryjudgment, unanimously dismissed, without costs, as academic.
In this action to quiet title to real property located at 15 West 129th Street in NewYork, brought pursuant to RPAPL article 15, defendant met its prima facie burden ofshowing that it is a bona fide purchaser for value, entitled to the protection of RealProperty Law § 266, by submitting the deeds in its chain of title, all of which wereduly acknowledged and recorded, and an affidavit from defendant's managing memberexplaining that defendant purchased the subject property for $1,650,000 in an armslength transaction (seeCommandment Keepers Ethiopian Hebrew Congregation of the Living God, Pillar &Ground of Truth, Inc. v 31 Mount Morris Park, LLC, 76 AD3d 465 [1st Dept2010]). In opposing defendant's motion, plaintiffs failed to raise an issue of fact becausethey only proffered the affirmation of counsel (see Zuckerman v City of NewYork, 49 NY2d 557, 563 [1980]; Murray v City of New York, 74 AD3d 550 [1st Dept2010]). However, in support of the motion to renew, plaintiffs submitted an abundanceof evidence, including six affidavits and sworn statements and a host of public records,showing that the deed purportedly conveying the subject property, which was signed byRobert Adamson, as president of plaintiff Fan-Dorf Properties, Inc., was forged.
Plaintiffs' evidence established that Robert Adamson never existed, was neverpresident of Fan-Dorf, and that plaintiff Michael Adamson's decedent, RandolphAdamson, who was Fan-Dorf's president prior to his death, had singlehandedly managedthe corporation. Plaintiffs also proffered evidence that defendant 15 West 129th StreetCorp. was not incorporated until after the [*2]deedpurporting to convey title to it was executed, which would render the deed void (see Matter of Hausman, 13NY3d 408, 410-413 [2009]; Diallo v Grand Bay Assoc. Enters., Inc., 85 AD3d 628 [1stDept 2011]). Accordingly, Real Property Law § 266, which "applies to fraudsituations that are voidable, not those which are void such as here where a forged deed isalleged" (Yin Wu v Wu, 288 AD2d 104, 105 [1st Dept 2001]), is inapplicable.Thus, this action is governed by the 10 year statute of limitations pursuant to CPLR 212(a) rather than the 6 year statute of limitations pursuant to CPLR 213 (8), requiring denialof defendant's motion to dismiss on statute of limitations grounds.
The portion of defendant's motion seeking summary judgment must also be deniedsince plaintiffs demonstrated that there are questions of fact as to whether defendant is abona fide purchaser for value and whether the deed purporting to convey the propertyfrom Fan-Dorf to defendant was forged (see Yin Wu, 288 AD2d at 105; seeMarden v Dorthy, 160 NY 39 [1899]; ABN AMRO Mtge. Group, Inc. v Stephens, 91 AD3d 801,803 [2d Dept 2012]; LaSalleBank Natl. Assn. v Ally, 39 AD3d 597, 599-600 [2d Dept 2007]).
We have considered the parties' remaining arguments and find them unavailing.Concur—Tom, J.P., Sweeny, Renwick, Abdus-Salaam and Manzanet-Daniels, JJ.