### 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 ofthe Supreme Courtofthe State ofNewYork,he;id in and for the County ofKings, at the Courtho1.1-se, at Civic Center, Brooklyn, NewYork, on th¢ 22. nd day.ofApril, 2024 ·

- .- - - - - .... - - - - - - - - - ·- ·- -· - '"
- - - - - -· - - - - - ·C.. ·- - - X EKANEMTAI<.E, individually and derivatively ONBEHALFOF267 GOLDIEPARTNERS,LLC, Plaintiff,

- against
- 267 GOLDIE PARTNERSLLC, 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 Bermanmove 

### byorder to show cause to cancelthe notice

. . ' ofpendency filed byplaintiffand, in effect, 

### for summaryjudgment 4ismissing plaintiffs claim to void and

. . . . i . ; rescind thedeed from defendant 267 Goldie Partners LLC (LLC}dtted October 19, 2021, for the property located at 267 Putnam Avenue, Brooklyn, Ni::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 

### prohibiting him ; i 

### from 

## sel Hng the property, 

# and tha{ he was the sole member ofLLC) ' I 

### However, in 

### her-complaint, plaintiffalleges that 

### she and M~theson formed LLC, and 

### agreed 

## to an f . . ' Operating 

### Agree1hentthatwould control 

### thei tj

### ointventure 

### for rede~elopiiig 

### the prop¢rfy. Pursuanttotheir


### [* 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 ofthe property. Defendants, however,·contend that they purchased the suljject premises 

### fot its appraised value of $1,500,000, and that they have undertakenmajor 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 ofthe notice ofpendency, their tonsttifdion loanwas "frozen''_, their property
; ' 

### is gutted andthus subject to deterioration and vandalism,and the)i areliablcfor mortgage payments over $7000amonth. 

### Inthis motion, the moving defendants contend that plaintiffs argument thatthe deed here is void ; 

### ab initi_o ismisplaced. A deed is void ab initio 

### ifthe signaturepurporting to be the_grantor's is forged. Here; however, while there may beissues as tothe grantor's authority to 

### fign the deed, there is ho issue as to the gtantor's authenticity, and the deeel ismerely voidable. And, by wai}ing overtwoyears to bringthis lawsuit,

•• I 

### the moving defendants argue that they are entitled to the equitable !defense oflaches

### which would prevent plaintifffrom seeking to void itnow. This is especially sohere, 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. Pfaintiffargues inoppositionthat forgery is but one species

### .offraud; and that usingthe fake operating agreei'μent for the purpose offraud 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 ithasthe effect oftransferring 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 petitioneralleged that the signat4re 

### in question and authority to convey were acquired by fraudulent means but did not allege thatthe signrturc was forged]). "The essence oftheequitable defense oflaehes is prejudiciaUdelay in the assertion ofrights (citations omitted)" (Stein v Doukas, 98 AD3dl026 [2d Dept 2012][In order for !aches to apply to the failure ofan owner ofreal property to assert his or her interest, it mustbe show* thatthe plaintiffinexcusably failed to act when he or she knew 

### or should have known that there was a problem with title]), "Moreover:, as the

; effect ofdelay may be critical to an adverse paity, delays of even le~s than oneyear have been sufficient to warrantthe application ofthedefense'' (Stein v Doukas, supra 1 

## 98 AD2dat 1028; see Schulz v State (~[New York, 81 NY2d; 336, 348 [1993]). Herc, Mathesonmisreprescntedto themoving defendantsthat he wasauthorized to sell the property,

. . that there was no reason he could not sell and that he-Was thesole Il}cmbcr ofLLC. Buthe did not forge the signature ofai1other individual who in truth owned the property. His signatme was authentic and hewas a majority partner inLLC. Because of the allegedfraudonplaintiff: h9wever, thedeedwas voidable. Plaintiff could have moved in immediately to cancel the sale andrestore 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 ofany facts that would lead are<1sonably prudent putchaser to inquire about possible fraud. Their reliance onthe appearance ofMatheson'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 entitledto 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 oflaches to prevent plaintifffrom voidingthe 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 summaryjudgmqnfdismissing the claimto void orrescind the deed tp the moving clefendants is granted, andthe complaint is 4ismissed againsttherh. 

### In addition, the notice ofpendency shall be vacated

### within one.week after the dat~ ofthis order. The foregoing constitutes the decision and orderofthis covrt. 

### E NT E R,

# fb«T1iLl.' 

# lfli

. ; ; 

### HON. tAWf=itNCE KNlPEL ADMINl6TRATIVE.JUDGE



### [* 4]