Take v 267 Goldie Partners LLC

2024 NY Slip Op 31410(U)

April 22, 2024

Supreme Court, Kings County

Docket Number: Index No. 535152/23

Judge: Lawrence Knipel

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 04/22/2024 04:34 PM INDEX NO. 535152/2023

NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/22/2024

1 of 4

PRE SENT: 

HQN. LAWRENCE KNIPEL, 

Justice. 

Atan IAS Part57 of the Supreme Courtofthe State 

ofNewYork,he;id in and for the County of Kings, 

at the Courtho1.1-se, at Civic Center, Brooklyn, 

NewYork, on th¢ 22.nd day.of April, 2024 · 

- .- - - - - .... - - - - - - - - - ·- ·- -· - '" - - - - - -· - - - - - ·C.. ·- - - X 

EKANEMTAI<.E, individually and derivatively 

ONBEHALFOF267 GOLDIEPARTNERS,LLC, 

Plaintiff, 

- against -

267 GOLDIE PARTNERS LLC, DONALD M 

MATHESON, MELISSA BENJAMIN, 

ELLIOT BERMAN, CITIZENS BANKN.A 

PARKING VIOLATIONS BUREAU, 

COMMISSIONER OF LABOR STATE OF 

NEWYORK . . . ' 

Defendants. 

- - ,. - - - - - - - -· - - - ·- - - - - - - - .., .- .., - - - ·- - - - - - - X 

; 

' 

ORDER 

Index No.: 535152/23 

Defendants Melissa Benjamin and Elliot Berman move by order to show cause to cancel the notice . . ' 

ofpendency filed by plaintiff and, in effect, for summary judgment 4ismissing plaintiffs claim to void and . . . . i . 

; 

rescind the deed from defendant 267 Goldie Partners LLC (LLC}dtted October 19, 2021, for the property 

located at 267 Putnam A venue, Brooklyn, N i::w York. 

In September 2021 , defendant Donald Matheson provided· !an affidavit to. the moving defendants 

I 

; 

stating that he was authorized to c.ohvey the subject property 1 that t~ere was no provision pro hi bi ting him ; 

i 

from sel Hng the property, and tha{ he was the sole member of LLC) 

' I 

However, in her-complaint, plaintiff alleges that she and M~theson formed LLC, and agreed to an f . . 

' 

Operating Agree1hen t that would control thei t j ointventure for rede~elopiiig the prop¢rfy. Pursuant to their 

[* 1]
FILED: KINGS COUNTY CLERK 04/22/2024 04:34 PM INDEX NO. 535152/2023

NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/22/2024

2 of 4

operating agreement, plaintiff allf:ges she had a 403⁄4 interest in LLC, and that the sale of the property 

required a unanimous decision of all members. Plaintiff contet)ds that· since Matheson did not have 

unanimous consent of the members of the LLG to transfer to the n1oving defendants, the purported 

conveyance is null and void and the LLC should be declared the sf le owner of the property. 

Defendants, however,·contend that they purchased the suljject premises fot its appraised value of 

$1,500,000, and that they have undertaken major renovations and e;xpended over $600,000 to date to make 

the premises their pdmaryresidence. In addition, they have a $2l875,COOO mortgage with a $1.4 million 

' ' 

construction loan. Because of the notice of pendency, their tonsttifdion loan was "frozen''_, their property 

; 

' is gutted andthus subject to deterioration and vandalism,and the)i areliablc for mortgage payments over 

$7000amonth. 

In this motion, the moving defendants contend that plaintiffs argument thatthe deed here is void ; 

ab initi_o is misplaced. A deed is void ab initio if the signaturepurporting to be the _grantor's is forged. Here; 

however, while there may be issues as tothe grantor's authority to fign the deed, there is ho issue as to the 

gtantor' s authenticity, and the de eel is merely voidable. And, by wai}ing over twoyears to bringthis lawsuit, 

•• I 

the moving defendants argue that they are entitled to the equitable !defense of laches which would prevent 

plaintiff from seeking to void it now. This is especially so here, in[ light ofthe great expenses incurred by 

the moving defendants who entered into an arms Iepgth transact19n, paid fair value -for the property and 

incurred substantial financialobligations torenovatetheirhome. Pfaintiff argues in opposition that forgery 

is but one species .of fraud; and that using the fake operating agreei'μent for the purpose of fraud and deceit 

against the other partner should make this transaction void ab initip. 

A forged deed is void at its inception, a legal nullity that is not enthled to legal effect and cannot . : l 

convey good title (see Morden v Dorthy, 160 NY 39 [1899]; Faisbn v Lewis, 25 NY2d 2015 [20l5J). In . t 

contrast, a deed where the signature and authority for conveyancre are acquired by fraudulent means is 

[* 2]
FILED: KINGS COUNTY CLERK 04/22/2024 04:34 PM INDEX NO. 535152/2023

NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/22/2024

3 of 4

voidable, and until it is set aside it has the effect of transferring tit!~ to the grantee (Faisonv Lewis, supra; 

Matter of Shau Chung Hu v Low bet Realty Corp,, 161 AD3d 986 i[2d Dept 2018][Subjectdeed was ortly 

voidable, not void ab initio, since petitioner alleged that the signat4re in question and authority to convey 

were acquired by fraudulent means but did not allege that the signrturc was forged]). 

"The essence ofthe equitable defense oflaehes is prejudiciaUdelay in the assertion ofri ghts (citations 

omitted)" (Stein v Doukas, 98 AD3dl026 [2d Dept 2012][In order for !aches to apply to the failure ofan 

owner of real property to assert his or her interest, it must be show* that the plaintiff inexcusably failed to 

act when he or she knew or should have known that there was a problem with title]), "Moreover:, as the 

; 

effect of delay may be critical to an adverse paity, delays of even le~s than oneyear have been sufficient to 

warrant the application of the defense'' (Stein v Doukas, supra198 AD2d at 1028; see Schulz v State (~[New 

York, 81 NY2d; 336, 348 [1993]). 

Herc, M athesonmisreprescnted to the moving defendants that he was authorized to sell the property, . . 

that there was no reason he could not sell and that he-Was the sole Il}cmbcr ofLLC. But he did not forge the 

signature ofai1other individual who in truth owned the property. His signatme was authentic and he was a 

majority partner in LLC. Because of the allegedfraud on plaintiff: h9wever, thedeedwas voidable. Plaintiff 

could have moved in immediately to cancel the sale and restore title to the LLC, butshe did not. The moving 

. . 

defendants were bona fide purchasers, paid valuable consideratio~, lacked knowledge of any fraud in. the 

conveyance or of any facts that would lead are<1sonably prudent putchaser to inquire about possible fraud. 

Their reliance on the appearance of Matheson' s apparent authority :Was reasonable. In the two yeats since 

purchasing the subject premises they embarked oh gut renovation~, an enhanced mortgage to finance. the 

renovations and a construction loan that is apparently frozen due to the filing ofthenotice ofpcndericy and . ! . 

this litigation. In addition,underthese circumstances, the moving def cndants ate entitled to use the equitable 

i 

[* 3]
FILED: KINGS COUNTY CLERK 04/22/2024 04:34 PM INDEX NO. 535152/2023

NYSCEF DOC. NO. 106 RECEIVED NYSCEF: 04/22/2024

4 of 4

defense of laches to prevent plaintiff from voiding the sale at this *me. Plaintiff can pursue other options, 

including seeking money damages from the party that caused her tp sustain those damages. 

; 

According} y, the motion, in effect, for summary judgmqnfdismi ssing the claim to void or rescind 

the deed tp the moving clefendants is granted, andthe complaint is 4ismissed againsttherh. In addition, the 

notice of pend ency shall be vacated within one. week after the dat~ of this order. 

The foregoing constitutes the decision and orderofthis covrt. 

E NT E R, fb«T1iLl.' lfli 

. 

; 

; 

HON. tAWf=itNCE KNlPEL 

ADMINl6TRATIVE.JUDGE 

[* 4]