P R E S E N T : HON., J.S.C. At IAS Part of the Supreme Court of the State of New York for Kings County held at Kings County Supreme Court House, 360 Adams St., Brooklyn, New York, on the th day of August 2018 --------------------------------------------------------------------------X Index No. 20219-2013 GEORGE DAHARI, Plaintiff, ORDER TO SHOW CAUSE -against- FRANCISCO VILLAFANA, 2 MORGAN REALTY, LLC and SIGNATURE BANK, Defendants. --------------------------------------------------------------------------X FRANCISCO VILLAFANA, against- MANUEL TAVERAS, ESQ., Third-Party Plaintiff, Third-Party Defendant. --------------------------------------------------------------------------X PLEASE TAKE NOTICE, that upon the annexed affirmation of MICHAEL M. YOUSSEF, ESQ., attorney for Defendant/Third-Party Plaintiff FRANCISCO VILLAFANA ("VILLAFANA"), dated August 30, 2018, the Decision and Order of the Court (Ash, J.) dated April 6, 2016 (the "April 6, 2016 Order"), which, inter alia, granted Defendant 2 MORGAN REALTY, LLC's summary judgment motion against Defendant VILLAFANA on default and dismissed Defendant VILLAFANA's cross-claims against Defendant 2 MORGAN REALTY, LLC in their entirety and upon all the other papers and proceedings heretofore had herein,
LET DEFENDANT 2 MORGAN REALTY, LLC SHOW CAUSE at Part 11 of this Court before the Hon. Sylvia Ash, JSC at the Kings County Supreme Court Courthouse, 360 Adams St., Room, Brooklyn New York on the day of September 2018, at 9:30 o'clock in the forenoon of that day, or as soon thereafter as counsel can be heard, why an order should not be made herein: I. Pursuant to CPLR 5015(a), vacating that portion of the April 6, 2016 Order which granted Defendant 2 MORGAN REALTY, LLC's summary judgment motion against Defendant VILLAFANA and dismissed Defendant VILLAFANA's cross-claims as against Defendant 2 MORGAN REALTY, LLC, in the interests of substantial justice; and upon said vacatur thereafter II. Denying Defendant 2 MORGAN REALTY, LLC's summary judgment motion to dismiss Defendant VILLAFANA's crossclaims; and III.For such other relief as may be just, proper and equitable. SUFFICIENT CAUSE having been shown therefore, it is: ORDERED that pursuant to CPLR 2214, answering papers, if any, must be served so as to be received by plaintiff s attorneys seven (7) days prior to the return date of this Motion; and it is further ORDERED that service of a copy of this Order to Show Cause together with the papers upon which it was granted by upon the attorneys for all the parties appearing herein on or before be deemed sufficient service. E N T E R J.S.C.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X Index No. 20219-2013 GEORGE DAHARI, Plaintiff, AFFIRMATION IN SUPPORT -against- FRANCISCO VILLAFANA, 2 MORGAN REALTY, LLC and SIGNATURE BANK, Defendants. --------------------------------------------------------------------------X FRANCISCO VILLAFANA, against- MANUEL TAVERAS, ESQ., Third-Party Plaintiff, Third-Party Defendant. --------------------------------------------------------------------------X MICHAEL M. YOUSSEF, an attorney duly admitted to practice before the Courts of New York State, affirms the following under the penalties of perjury: 1. I am the attorney for Defendant/Third-Party Plaintiff FRANCISCO VILLAFANA (hereinafter referred to as "Defendant VILLAFANA ) in the above-captioned action. I am personally familiar with the facts and circumstances set forth herein; the basis of my knowledge is conversations with Defendant VILLAFANA, my offices' participation/ attendance at the depositions conducted herein and a review of my office file in this matter. 2. I make this affirmation in support of the Defendant's application: I. Pursuant to CPLR 5015(a), vacating that portion of the April 6, 2016 Decision and Order of the Court (Ash, J.) (the April 6, 2016 Order")(Exhibit A), which granted Defendant 2 MORGAN REALTY, LLC's summary judgment motion against Defendant
VILLAFANA on default and dismissed Defendant VILLAFANA's cross-claims as against Defendant 2 MORGAN REALTY, LLC, in the interests of substantial justice and upon the ground that Defendant VILLAFANA has a reasonable excuse for his default and a meritorious claim; and upon said vacatur thereafter II. Denying Defendant 2 MORGAN REALTY, LLC's summary judgment motion to dismiss Defendant VILLAFANA's crossclaims in its entirety. RELEVANT BACKGROUND FACTS AND PROCEDURAL HISTORY 3. The instant action (and third-party action) arises from Defendant VILLAFANA's sale of his property located at 1031 Flushing Avenue, Brooklyn, New York (the Property ), to Defendant 2 MORGAN REALTY, LLC ( 2 MORGAN REALTY ) on August 15, 2013. 4. Plaintiff, who operated a day care center in the Property, claims a first option to purchase the Property in her purported lease agreement with Defendant VILLAFANA 1, and commenced the underlying action seeking, inter alia, rescission of the sale and specific performance of her first option to purchase. Defendant SIGNATURE BANK holds a first and second mortgage given by 2 MORGAN REALTY at the closing of title, which encumbers the Property. 5. With prior knowledge of Plaintiff's alleged first option to purchase, Defendants 2 MORGAN REALTY and SIGNATURE BANK, required, as a condition in the Contract of Sale and at closing of title, that Defendant VILLAFANA provide a Tenant Estoppel Certificate executed by Plaintiff, attesting to, among other matter and representations, the terms of Plaintiff's lease, that there is no default or breach thereof, and that Plaintiff's 1 Defendant VILLAFANA asserts that the Plaintiff's purported lease containing the first option to purchase is a forgery, that he never n is forged and/or was procured by Plaintiff through fraudulent and deceptive measures. See attached Affidavit of Francisco Villafana dated August 7, 2018 (the "Villafana Affidavit") at 5.
rights and interests under her lease are subordinate to SIGNATURE BANK's lien of its first mortgage. See Exhibit B. 6. However, when Plaintiff refused to execute such Certificate, Defendants 2 MORGAN REALTY and SIGNATURE BANK, in concert with VILLAFANA's attorney, Third-Party Defendant MANUEL TAVERAS, ESQ. ( TAVERAS ), drafted an alternate Estoppel Certificate at the closing (Exhibit C), which they knew contained false and misleading representations, and thereafter compelled VILLAFANA to execute and deliver such fraudulent and falsified instrument, on behalf of Plaintiff, at the closing of title on August 15, 2013. See infra at 34-35 and Exhibit C. By reason of such fraudulent actions, Defendants 2 MORGAN REALTY, SIGNATURE BANK and Third-Party Defendant TAVARES were able to successfully complete the sale of the Property from VILLAFANA to Defendant 2 MORGAN REALTY. 7. Following commencement of suit (Exhibit D), Defendants 2 MORGAN REALTY and SIGNATURE BANK respectively appeared herein and answered the Complaint (Exhibit E). Defendant VILLAFANA appearing through prior counsel answered the Complaint; however, upon your Affirmant being retained, VILLAFANA was granted leave to amend his answer, and thereafter served an Amended Answer which included, inter alia, cross-claims for Fraud/Breach of Good Faith and Common Law Contribution/ Indemnification against Defendants 2 MORGAN REALTY and SIGNATURE BANK (Exhibit F). 8. Appearances on my behalf herein were routinely handled by my colleagues, APAAMOORE AGAMBILA, Esq. and Yvonne Antoinette Cumberbatch, Esq., both of whom served informally as "Of Counsel" to my office. At some point in early 2016, I was advised that Defendant VILLAFANA wished to switch counsel and that Ms. Cumberbatch
was to be substituted as counsel in my place. I was forwarded a consent to change attorney forms, which I executed and delivered to Ms. Cumberbatch. 9. Accordingly, thereafter, it was my reasonable belief that i was formally substituted as of counsel in this Action, that the Consent to Change Attorney Form was duly filed and that Defendant VILLAFANA's representation going forward would be handled by Ms. Cumberbatch and her firm/office. 10. Although I still received email notices concerning NYSCEF filings in this Action (and the Third-Party Action), my active participation herein ceased after January 2016, and my involvement thereafter was limited to forwarding emails received to Ms. Cumberbatch and Mr. AGAMBILA. 11. Thus, when I received Defendant 2 MORGAN REALTY's summary judgment motion in February 2016 (NYSCEF Doc. Nos. 167-197, inclusive), I forwarded the email to Ms. Cumberbatch reasonably believing that she would oppose the application on behalf of Defendant VILLAFANA. I did the same with all subsequent notices I received from NYSCEF in this action, including what I now know is the April 6, 2016 Order (Exhibit A), wherein Defendant 2 MORGAN REALTY's summary judgment application against Defendant VILLAFANA was granted on default without any opposition from VILLAFANA. 12. In the last year or so there has been little if any activity in these actions and I assumed that the matters were dormant and/or that the Court's records had been updated with my name being removed as VILLAFANA's attorney herein. 13. I first learned that I was still officially listed as Defendant VILLAFANA attorney in June 2018, when I received a call from Peter Hanschke, attorney for Plaintiff, DAHARI, advising me that 2 MORGAN REALTY and SIGNATURE BANK had entered into a settlement agreement with Plaintiff discontinuing all claims in Complaint against 2
MORGAN REALTY and SIGNATURE BANK, and the latter discontinuing their respective counterclaims and cross-claims. Mr. Hanschkerequested that I executed the Stipulation of Settlement (See NYSCEF Doc No. 351), which after consultation with Ms. Cumberbatch (advising me that she had never formally substituted me as counsel for VILLAFANA), I declined to do so unless all claims against VILLAFANA were simultaneously discontinued as well. 14. I expressly advised Mr. Hanschke that Defendant 2 MORGAN REALTY could not be let out of the case by reason of Defendant VILLAFANA's cross-claim for contribution and that Deposition Testimony established that Defendant 2 MORGAN REALTY, along with Defendant Mr. TAVARES, drafted the Estoppel Certificate, knowing the false representations contained therein, and together coerced VILLAFANA to execute it, thus exposing VILLAFANA to liability and this suit. 15. It was at this time that I first learned of the April 6, 2016 Order (Exhibit A), and that Defendant 2 MORGAN REALTY had obtained summary judgment on default dismissing Defendant VILLAFANA's cross-claims as against it. 16. Upon my continued refusal to execute the Stipulation of Settlement, Defendant 2 MORGAN REALTY moved, inter alia, for an order to discontinue with prejudice all claims, counterclaims and cross-claims in this action by and among Plaintiff and Defendants 2 MORGAN REALTY and SIGNATURE BANK. See NYSCEF Doc Nos. 357-370, inclusive. 17. By Court Order dated August 1, 2018 (Ash, J.) (NYSCEF Doc. No. 375), all claims, counterclaims and cross-claims, by and between Plaintiff and Defendants 2 MORGAN REALTY and SIGNATURE BANK were discontinued. Surviving are: (i) Plaintiff's claims against Defendant VILLAFANA (except the First Cause of Action for
Specific Performance); (ii) Defendant 2 MORGAN REALTY's cross-claims against VILLAFANA; and (iii) the third-party action. 18. Now, with Defendant 2 MORGAN REALTY released from the case, VILLAFANA faces the real specter of the inconsistent judicial result of establishing Defendant 2 MORGAN REALTY's liability for Plaintiff's loss and being precluded by the April 6, 2016 Order of obtaining contribution from 2 MORGAN REALTY for any judgment obtained by Plaintiff against VILLAFANA. This application was expeditiously filed thereafter; and in the interest of substantial justice the Court should this motion in its entirety. DISCUSSION Motion to Vacate Default 19. In addition to those grounds enumerated in CPLR 5015(a), the trial court retains the inherent discretionary power to vacate its own judgment for sufficient reason and in the interests of substantial justice, Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 (2003); Hudson City Savings Bank v. Cohen, 120 AD3d 1304 (2nd Dept 2014), upon such terms as may be just.".cplr 5015(a). 20. The inherent discretionary power to vacate judgments in furtherance of the ends of justice is unquestionable, Vanderbilt v. Schreyer, 81 NY 646, 648 (1880), and is properly exercised in those "unique or unusual" circumstances where the documentary evidence demonstrates that the prevailing party is not entitled to judgment on its claims as a matter of law. Katz v. Marra, 74 AD3d 888 (2nd Dep't 2010). Moreover it should be exercised in those instances where there is excusable neglect. Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 (1984). 21. Finally, such inherent authority is properly wielded in order to promote the
strong public policy that actions be resolved on their merits. N.Y. Univ. Hosp. Rusk Inst. v. Ill. Nat l Ins. Co., 31 AD3d 511, 512 (2nd Dep t 2006); N.Y. & Presbyterian Hosp. v Am. Home Assur. Co., 28 AD3d 442, 442 (2d Dep t 2006). 22. In Hudson City Savings Bank v. Cohen, 120 AD3d 1304 (2nd Dep't 2014), default judgment in a foreclosure action was properly vacated in the interests of substantial justice where documentary evidence demonstrated plaintiff had knowledge of facts that underlying mortgage transaction was suspect. See Gurin v. Pogge, 112 AD3d 1028 (3rd Dep't 2013), (untimely application to vacate default judgment granted, in the interests of justice, where the evidence submitted in support of the application raised factual issues concerning the authenticity of the note sued upon). 23. The same result was reached Soggs v. Crocco, 247 AD2d 887, 888 (3rd Dep't 1998) where a default judgment directing specific performance was vacated in the interest of substantial justice as such relief was expressly prohibited under the subject contract. See Government Empls. Ins. Co. v Employers Commercial Union Ins. Co., 62 AD2d at 127 (default judgment for insurance company vacated because insured had not been notified of policy cancellation). 24. Under such well-settled standard, the Court should exercise its discretion and vacate that portion of the April 6, 2016 Order granting summary judgment dismissing Defendant VILLAFANA's cross-claims as against Defendant 2 MORGAN REALTY for sufficient reason and in the interests of substantial justice. Woodson v. Mendon Leasing Corp., 100 NY2d 62, 68 (2003). 25. Initially, the Court should note the unique circumstances by which Defendant VILLAFANA defaulted in opposing 2 MORGAN REALTY summary judgment application. It is well settled that a default by reason of law office failure constitutes such excusable
neglect where counsel provides a detailed and credible explanation of the inadvertent oversight which resulted in the default at issue. CPLR 2005; Byers v. Winthrop University Hosp., 100 AD3d 817 (2d Dept. 2012); Swensen v. MV Transp., Inc., 89 AD3d 924. 26. Here, I was mistaken in my reasonable assumption that I had been formally substituted as counsel by Ms. Cumberbatch, and for that reason alone I mistakenly deferred to Ms. Cumberbatch to prosecute and defend VILLAFANA in this action. 27. I am uncertain as to the miscommunication between our offices and the inactions of proposed substitute counsel which resulted in the default at issue herein. I can only state that such discrete lapse under the unique circumstances present was reasonable and constitutes an incident of law office failure. Navarro v. A. Trenkman Estate, Inc., 279 AD2d 257,258 (1st Dep t 2001); Ramputi v. Timko Contr. Corp., 262 AD2d 26, 27-28 (1st Dep t 1999). 28. But for this unintentional error, I would have prepared timely opposition papers to oppose Defendant 2 MORGAN REALTY's motion, setting forth those facts to be proved at trial which demonstrate that the Estoppel Certificate herein was executed by reason of fraud and deceit practiced against Defendant VILLAFANA by Defendants 2 MORGAN REALTY and SIGNATURE BANK. See Affidavit of FRANCISCO VILLAFANA at 4-10, inclusive. 29. Inasmuch as the default herein was solely the result of an unintentional and isolated breakdown in communication and a misunderstanding which office was representing VILLAFANA, and in order to promote the strong public policy that "actions be resolved on their merits. N.Y. Univ. Hosp. Rusk Inst. v. Ill. Nat l Ins. Co., 31 AD3d 511, 512 (2nd Dep t 2006); it is respectfully submitted that the court should excuse Defendant VILLAFANA's default by reason of law office error. Navarro v. A. Trenkman
Estate, Inc., 279 AD2d 257,258 (1st Dep t 2001); CPLR 5015(a)(1). 30. Further, the Court should exercise its discretionary authority and vacate the April 6, 2016 Order in the interests of substantial justice as the documentary/testimonial evidence establishes that Defendant 2 MORGAN REALTY is not entitled to judgment as a matter a law. Katz v. Marra, 74 AD3d 888 (2nd Dep't 2010). 31. VINNAFANA cross-claim against Defendant 2 MORGAN REALTY asserts claims for contribution and common-law indemnification arising out of the sale of the Property and execution of the alternate Tenant Estoppel Certificate. Defendant 2 MORGAN REALTY's summary judgment motion asserts, in part, that as it has no underlying liability to Plaintiff for the claims asserted in the Complaint, it cannot be held liable to VILLAFANA for contribution/indemnification should VILLAFANA be found liable for those very claims. 32. However, in denying that branch of Defendant 2 MORGAN REALTY's summary judgment motion to dismiss the complaint, the Court found that there were material issues of fact with respect to 2 MORGAN REALTY's liability to Plaintiff which precluded summary judgment! See Exhibit A. Thus, by reason of its underlying potential liability to Plaintiff, Defendant 2 MORGAN REALTY may very well be subject to liability for contribution on any potential judgment Plaintiff obtains over VILLAFANA. The Court's granting summary judgment dismissing VILLAFANA's cross-claim is inconsistent with the Court's finding material issues of fact precluding dismissal of the Complaint against 2 MORGAN REALTY. 33. Moreover, the documentary/testimonial evidence establishes that Defendant 2 MORGAN REALTY drafted the alternate Estoppel Certificate containing false and misleading representations and compelled VILLAFANA to execute it; thereby completing
the subject Sale. Thus, such evidence demonstrates Defendant 2 MORGAN REALTY's liability for contribution to VILLAFANA on any judgment obtained by Plaintiff. 34. Specifically, the deposition testimonies of Laurence Reinlieb (NYSCEF Doc. No. 233), Defendant 2 MORGAN REALTY's attorney on the purchase of the Property and Defendant TAVARES (NYSCEF Doc. No. 232) reflects that the parties knew of Plaintiff's purported lease containing a first option (NYSCEF Doc. 232 at pp52, 72, 87, 95; NYSCEF Doc. 233 at p.47); that the initial proposed Estoppel Agreement required Plaintiff to expressly state that she did not have such option (NYSCEF Doc. No. 232 at p.95; NYSCEF Doc No. 24); that Plaintiff would not execute the initial proposed Estoppel Certificate (NYSCEF Doc. 232 at p. ; NYSCEF Doc No. p. 58); that Mr. Reinlieb drafted the alternate Estoppel Certificate, in consultation with TAVARES and Defendant SIGNATURE BANK's counsel in the hectic final minutes of the closing (see NYSCEF Doc. 232 at pp.77, 99, 105; NYSCEF Doc. 233 at p.55) and that Defendants knew that the alternate Estoppel Certificate contained false and misleading representations and that VILLAFANA was not authorized to execute same, on behalf of Plaintiff (NYSCEF Doc. No. 232 at p. 102; NYSCEF Doc. No. 233 at p.59-60) and finally, that Defendants coerced VILLAFANA to execute it, thus exposing VILLAFANA to liability and this suit (NYSCEF Doc. No. 232 at p.110; NYSCEF Doc 233 at pp.59-60). 35. Thus, the deposition testimony establishes that Defendants TAVARES, SIGNATURE BANK and 2 MORGAN REALTY drafted the alternate Estoppel Certificate Exhibit C, which they knew contained false and misleading information, secured VILLAFANA's signature thereon, and thereby completed the transfer and sale of the Property, through which Plaintiff sustained her claimed losses. 36. Accordingly, the evidentiary record establishes Defendant VILLAFANA's claim
for contribution against 2 MORGAN REALTY and further establishes that 2 MORGAN REALTY is not entitled to dismissal of VILLAFANA's cross-claims against it as a matter of law. Soggs v. Crocco, 247 AD2d 887, 888 (3rd Dep't1998); Hudson City Savings Bank v. Cohen, 120 AD3d 1304 (2nd Dep't 2014). 37. Lastly, now that Defendant 2 MORGAN REALTY has been released from the case, VILLAFANA faces the real specter of the inconsistent and wholly unjust result of establishing Defendant 2 MORGAN REALTY's liability for Plaintiff's loss, by drafting and coercing execution of the fraudulent Tenant Estoppel Certificate, while simultaneously being precluded from asserting its claims for contribution against 2 MORGAN REALTY by reason of the April 6, 2018 Order. 38. Inasmuch as the evidentiary record herein establishes that Defendant 2 MORGAN REALTY is not entitled to judgment dismissing VILLAFANA's cross-claims as a matter of law, the Court should vacate that portion of the April 6, 2018 Order doing so in the interest of justice. Hudson City Savings Bank v. Cohen, 120 AD3d 1304 (2nd Dep't 2014); Gurin v. Pogge, 112 AD3d 1028 (3rd Dep't 2013). Such a result is warranted to in order to promote the strong public policy that actions be resolved on their merits. N.Y. Univ. Hosp. Rusk Inst. v. Ill. Nat l Ins. Co., 31 AD3d 511, 512 (2nd Dep t 2006). DEFENDANT 2 MORGAN REALTY's SUMMARY JUDGMENT MOTION SHOULD BE DENIED 39. Upon vacating Defendant's default, it is respectfully submitted that Defendant 2 MORGAN REALTY's summary judgment motion dismissing the cross-claims should be denied in its entirety. 40. It is axiomatic that summary Judgment must be denied where, as is the case here, triable issues of fact remain to be resolved. Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957); Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986);
Forrest v. Jewish Guild for the Blind, 309 AD2d 546 (1 st Dep t 2003). 41. Moreover, the failure of the proponent to make the initial prima facie showing of entitlement to judgment as a matter of law, impels denial of the motion, without the opposing party demonstrating the existence of a triable issue of fact, or on default. Romano v. St. Vincent s Medical Center, 178 AD2d 467 (2nd Dep't 1991). 42. In determining such application, the court must scour the evidentiary record and view same in the light most favorable to the non-movant, Henderson v. City of New York, 178 AD2d 129, 130 (1 st Dep't 1991); any determination must be made on the version of the facts most favorable to [Defendant]'." Id., quoting Strychalski v. Mekus, 54 AD2d 1068, 1069 (4 th Dep t 1976). 43.. As established by deposition testimony and in Defendant VILLAFANA's attached affidavit, it is undisputed, indeed conceded, that Defendant 2 MORGAN REALTY drafted the alternate Estoppel Certificate, knew the false representations contained therein, and procured VILLAFANA's signature thereon by deceitful means and threats. Such evidence, which should have properly been considered by the Court precludes granting Defendant 2 MORGAN REALTY's initial summary judgment application as a matter of law. Accordingly, upon vacatur of the April 6, 2016 Order, Defendant 2 MORGAN REALTY, LLC's motion should be denied. 44. This application to vacate a judgment rendered on default is made by Order to Show Cause as directed and required by the CPLR and the Court rules. 45. No prior application for the relief requested herein has been made to this or any other court. WHEREFORE, Defendant FRANCISCO VILLAFANA respectfully requests that the Court grant the relief sought in the instant Motion, and issue an Order:
I Pursuant to CPLR 5015(a), vacating that portion of the April 6, 2016 Decision arid Order of the Cou (Ash, J.) which granted Dëfendant%MORGAN REALTY, LLC's summary judgment rnotion against Defendant VILLAFANA on default and dismissed Defëndant VILLAFANA's cross-claims as against Defendant 2 NIORGAN REALTY, LLC, in the interests of substantial justice ; and upoi¼said)âcatur thereafter Denying Defendant 2 MORGAN REALTY, LLC's summary judgment notiôn to dismiss Defendárk VILLAFANA's crossclaims in its entirety. Affirmed August30, 2018 idi0mat. OUSSEF
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X Index No. 20219-2013 GEORGE DAHARI, -against- FRANCISCO VILLAFANA, 2 MORGAN REALTY, LLC and SIGNATURE BANK, Plaintiff, AFFIDAVIT OF FRANSCICO VILLAFANA Defendants. --------------------------------------------------------------------------X FRANCISCO VILLAFANA, against- MANUEL TAVERAS, ESQ., Third-Party Plaintiff Third-Party Defendant. --------------------------------------------------------------------------X FRANCISCO VILLAFANA, being duly sworn deposes and says: 1. I am a Defendant herein, and am the prior owner of the Property subject of this action, 1031 Flushing Avenue, Brooklyn, New York (Block 3012; Lot 32) (the Property ). I have personal knowledge of the facts and circumstances set forth herein. 2. I submit this affidavit of merit in further support of my application: (i) pursuant to CPLR 5015(a), to vacate that part of the Decision and Order of the Court (Ash, J.) dated April 6, 2016, which dismissed Defendant's VILLAFANA'S cross-claims as to Defendant 2 MORGAN REALTY; and thereafter, (ii) Deny Defendant 2 MORGAN REALTY, LLC's summary judgment motion to dismiss Defendant VILLAFANA's cross-claims in its entirety.
3. Specifically, this Affidavit shall set forth the background facts supporting my cross-claims for fraud/deceit and common law contribution and indemnification against my co-defendants 2 MORGAN REALTY, LLC and SIGNATURE BANK. 4. Prior to August 15, 2013, I was the owner of the Property, in which Plaintiff GEORGE DAHARI leased space pursuant to a commercial lease agreement dated May 13, 2005. Plaintiff purports that her lease was extended by a written lease agreement dated May 15, 2010, terminating on May 14, 2015, which alleged lease further provides Plaintiff with a first option to purchase the Property if it comes on the market for sale. 5. I never saw this lease, never executed this lease and my signature appearing at the bottom thereof is a forgery and/or was procured by Plaintiff through fraudulent and deceptive measures. 6. Despite not having a valid right of first refusal I permitted Plaintiff a full and fair opportunity to purchase the Property but she offered less than half of the $1.3 million dollar offering price, and was unable to obtain requisite approval from a lending institution to conclude the transaction Purchase. 7. I thereafter entered into a contract of sale for the Property with Defendant 2 MORGAN REALTY, LLC's assignor; Defendant SIGNATURE BANK is 2 MORGAN REALTY, LLC's bank. 8. Based on Plaintiff's false and misleading representations, Defendants 2 MORGAN REALTY, LLC and SIGNATURE BANK required that I secure a Tenant's Estoppel Certificate (the Estoppel Certificate ) to be executed by Plaintiff which specifically warranted and represented therein that she ha[d] no option or right of first refusal to purchase the Leased Premises or the Premises or any portion thereof. 9. Defendants knew that Plaintiff was unwilling to execute this instrument despite
her prior agreement to do so. 10. With full knowledge that Plaintiff claimed a first option to purchase the Property and would not not sign the Estoppel Certificate, at the August 15, 2013 closing of title, Defendants 2 MORGAN REALTY, LLC and SIGNATURE BANK, together with Third- Party Defendant MANUEL TAVERAS, ESQ., (my then attorney) prepared and drafted a substitute Estoppel Certificate and acting with deceit, fraud and in bad faith, directed me to execute same on behalf of Plaintiff DAHARI, despite knowing that I was not authorized by Plaintiff to do so and that Plaintiff allegedly had a first option to purchase the Property. 11. By reason of such fraud and deceit I was deceived into executing the Estoppel Agreement and concluding the subject sale/conveyance of the Property, and sustained actual damages in an amount to be determined at trial but believed to be in excess of $2,000,000.00. 12. I further seek punitive and treble damages and seek common law indemnification/contribution from Defendants for any recovery had herein by Plaintiff DAHARI against me by reason of the negligence, want of due care, culpable conduct and/or acts of commission or omission on the part of Defendants 2 MORGAN REALTY, LLC and SIGNATURE BANK. 13. I am advised that an untimely motion to vacate a judgment rendered on default should be granted in the interest of substantial justice where the evidence establishes that the prevailing party is not entitled to judgment as a matter of law. It is respectfully submitted that the deposition testimony of TAVARES and Laurence Reinlieb, Defendant 2 MORGAN REALTY's attorney at the closing establish my assertions herein as well as my cross-claims against Defendants 2 MORGAN REALTY, LLC and SIGNATURE BANK for
deceit/fraud in procuring my execution of the Estoppel Certificate and for common law contribution/indemnification. 14. I respectfully refer the Court to MICHAEL M. YOUSSEF's attached Affirmation, and the Exhibits annexed thereto, which demonstrates the ground for the Court to exercise its discretionary authority in the interest of substantial justice.. 15. Notwithstanding 2 MORGAN REALTY, LLC's legal arguments, these are the uncontroverted facts which shall be established at trial and which shall establish that Defendants drafted the altemate Estoppel Certificatè, knew the false representations contained therein, and procured my signature thereon by decoitful means and threats. 16. For such reason there are triable issues of fact, which after vacating my default herein mandate surnmary denial of Defendant 2 MORGAN REALTY, LLC's motion for summary judgment. Acccidiñgly Defendant's Motion should be granted in its entirety. WHEREFORE, Defendant FRANCISCO VILLAFANA respectfully requests that the Court grant the relief sought in the instant Motion, and issue and Order: (1) Pursuant to CPLR 5015(a) vacating that part of the Decision and Order of the Court (Ash, J.) dated April 6, 2016, which dismissed Defendant's VILLAFANA'S cross-claims as to Defeñdañt 2 MORGAN REALTY; and thereafter, (ii) Deny Defendant 2 MORGAN REALTY, LLC's summary judgméñt moticñ to dismiss Def A's cross-claims in its entirety. FRANCIS VILLAFANA Sworn to before me this day of August 2018 NO BLIC MICHAEL MrÝOUSSEF ot y Public, State Of New York No 02YO6072585 Qualified In Kings Còunty Commission Expires April 8, 20