2022 Fulton Street LLC v. Akande et al
Filing
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DECISION AND ORDER: This Court dismisses all claims over which it has original jurisdiction. The only remaining claims arise under the laws of New York State: violation of New York Judiciary Law § 487 and fraud against Defendants Arthur Forman a nd Akande, the latter of whom has not appeared in this action. This Court declines to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(c)(3). Baylis v. Marriot Corp., 843 F.2d 658 (2d Cir. 1988) (citing U nited Mine Workers of America v. Gibbs, 383 U.S. 715, 727 (1966) for the proposition that "where all bases for federal jurisdiction have been eliminated from a case so that only pendent state law claims remain, the federal court should ordinaril y dismiss the state claims"); Mauro v. Countrywide Home Loans, Inc., 727 F. Supp. 2d 145, 158-59 (E.D.N.Y. 2010) (Bianco, J.); Weissbrod v. Hous. Part of Civ. Ct. of City of New York, 293 F. Supp. 2d 349, 354 (S.D.N.Y. 2003) (Berman, J.). This action is hereby dismissed in its entirety. Ordered by Judge William F. Kuntz, II on 8/22/2012. (Fwd'd for judgment) (Brucella, Michelle)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------J(
DECISION AND ORDER
2022 FULTON STREET LLC,
Plaintiff,
ll-CV -3993 (WFK)(MDG)
-againstEHIKIOYA AKANDE, ARTHUR FORMAN,
and THE CITY OF NEW YORK,
Defendants.
---------------------------------------------------------J(
Introduction
Plaintiff 2022 Fulton Street LLC ("Plaintiff') filed this action on August 18, 2011.
Plaintiff asserts causes of action against Defendant The City of New York ("The City") for: (1)
declaration of title; (2) slander of title; (3) violations of rights secured by the Fifth and
Fourteenth Amendments of the United States Constitution; (4) violations of rights secured by
Article I, § 7(a) of the New York State Constitution; (5) interference with prospective business
relations; (6) violations of the Computer Fraud and Abuse Act; and (7) violation of New York
State General Business Law § 349(a). Plaintiff seeks a declaration that it is the owner of the
property located at 2022 Fulton Street, Brooklyn, New York ("Blackacre") and compensatory
damages in excess of $1,000,000.00. The City moves for summary judgment on its counterclaim
for declaration of title and seeks dismissal of all claims against it. For the reasons stated below,
the motion by The City is granted.
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Background
Defendant Ehikioya Akande ("Akande") acquired Blackacre from non-party Nilda Velez
by quitclaim deed dated February 5, 1991. Akande recorded the deed with the Office of the City
Register on November 15, 1991.
On April 3, 1995, The City filed a petition to condemn property in the BedfordStuyvesant section of Brooklyn for the Saratoga Square Urban Renewal Area in the New York
State Supreme Court, Kings County (Index No. 6012/95). The City sought to condemn property
including Blackacre. The Court granted the Petition on June 22, 1995. Compl., Ex. 2 (the
"Condemnation Order"). The Condemnation Order states, inter alia, "petitioner is authorized to
file the acquisition map in the office of the Clerk of the County of Kings," and "upon filing of
this Order and the acquisition map with said County Clerk or with the City Register, title to the
property shown on said map shall vest in the City of New York." Akande filed a compensation
claim in the condemnation proceeding in January of 1996, evidencing knowledge of that
proceeding.
On or about March 23,2011, Akande entered into a contact of sale for Blackacre to nonparty Urban Builders Collaborative LLC. Urban Builders Collaborative assigned the contract to
Plaintiff.
Akande conveyed a purported deed to Blackacre to Plaintiff on May 20, 2011.
Plaintiff s claims in this action are premised on that purported deed.
Analysis
1. Summary Judgment Standard
The Court shall grant summary judgment where the moving party "shows that there is no
genuine dispute as to any material fact and that [it] is entitled to judgment as a matter of law."
Grynberg v. BP, PL.c., 469 Fed. Appx. 5 (2d Cir. 2012) (quoting Fed R. Civ. P. 56); Knight v.
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•
us.
Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986). Because the "mere existence of factual
issues-where those issues are not material to the claims before the court-will not suffice to
defeat a motion for summary judgment," the court's responsibility is "not to resolve disputed
issues of fact but to assess whether there are any factual issues to be tried[.]" Quarles v. Gen.
Motors Corp. (Motor Holdings Div.), 758 F.2d 839, 840 (2d Cir. 1985); Knight, 804 F.3d at 11.
The moving party bears the initial burden of demonstrating entitlement to summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
In considering the
motion, this Court must view the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor. Am. Cas. Co. of Reading Pa. v. Nordic Leasing,
Inc., 42 F.3d 725, 728 (2d Cir. 1994). However, defeating the motion requires more than "mere
conjecture or speculation by the party resisting summary judgment." Quarles, 758 F.2d at 840.
The non-moving party must "set forth specific facts showing there is a genuine issue for trial."
Anderson, 477 U.S. at 256.
2. The City has Demonstrated Entitlement to Summary Judgment
The dispositive issue in this action is whether or not title to Blackacre vested in The City
on June 27, 1995. The City argues it did as a matter of law. The City contends "the Court
should dismiss, with prejudice and in their entirety, all claims asserted against The City, because
they are premised upon Plaintiff s erroneous contention that Plaintiff holds, and The City lacks,
title to the Property." City's Mem., 20. This Court agrees. Title to Blackacre-and all other
properties in the Saratoga Square Urban Renewal Area subject to the Condemnation Ordervested in The City on June 27, 1995.
New York Eminent Domain Procedure Law ("EDPL") § 402(B)(5) states:
At the time and place mentioned in such notice, unless the court
shall adjourn the application to a subsequent date, and in that event
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at the time and place to which the same may be adjourned, upon
due proof of service of notice and upon filing of such petition and
proof to its satisfaction that the procedural requirements of this law
have been met, the court shall direct the immediate filing and entry
of the order granting the petition, which order the condemnor shall
file and enter together with the acquisition map and the bond or
undertaking if required, in the office of the county clerk or register
in each county in which the real property or any part thereof is
situated. Upon the filing 0/ the order and the acquisition map, the
acquisition 0/ the property in such map shall be complete and title
to such property shall then be vested in the condemnor. (emphasis
added)
The condemnor "takes title to land free of all encumbrances and inconsistent property
rights and extinguishes all estates in the property." Matter o/Ossining Urban Renewal Agency,
39 N.Y.2d 628,630 (1976). Consistent with EDPL § 402, the Condemnation Order directed that
title to the properties in the Saratoga Square Urban Renewal Area would vest in The City upon
filing with the Kings County Clerk of the Condemnation Order and the acquisition map
submitted in the condemnation proceeding (the "Acquisition Map").
The record demonstrates The City filed the Petition and Condemnation Order on June 27,
1995. See Krichmar Decl., Ex. F (certified copy of the Acquisition Map attached as exhibit B to
the Petition filed on June 27, 1995); Krichmar Reply Decl., Ex. D (the Petition filed on June 27,
1995); Heifitz Decl., Ex. 15 (Kings County Clerk's Minutes reflecting the filing of the
Condemnation Order and Petition on June 27, 1995); Jackson Aff.,
~~
3-24 (stating the manner
in which the Acquisition Map was filed complies with the usual and customary filing practices in
New York County Clerk Offices); Partridge Decl.,
~~
11-13 (demonstrating the title insurance
company employed by Plaintiff had notice that the Condemnation Order and Petition were filed
on June 27, 1995). The Acquisition Map is Exhibit B to the Petition.
Plaintiff argues The City having filed the Petition on April 3, 1995 cannot have vested
title in The City on June 27, 1995 because the court had not yet issued the Condemnation Order.
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..
Pl.'s Opp'n Mem., 11-13; Heiftiz Decl. 29-52. Plaintiffs argument, if accepted, would require
this Court to assume The City did not re-file the Petition on June 27, 1995 despite ample
evidence demonstrating not only that it did so, but also that Plaintiff s title insurance company
had notice it had in fact done so. Plaintiffs Counsel asserts The City falsified evidence to make
it appear as though the Petition was re-filed on June 27, 1995.
No support for that bald
allegation exists on this record. Heifitz Decl., ,-r 51. Indeed, Plaintiffs exhibits undermine its
accusation by demonstrating the Condemnation Order and Petition were filed on June 27, 1995.
Heifitz Decl., Ex 15. Plaintiff appears to argue the Acquisition Map filed on April 3 could not
be the same as the Acquisition Map filed with the Petition on June 27. There is no basis for that
assertion. The Condemnation Order, and, for that matter, the EDPL, direct The City to file the
only acquisition map relevant to the condemnation proceeding: the map describing the Saratoga
Square Urban Renewal Area, attached to the Petition as Exhibit B, filed on April 3, 1995 and refiled on June 27, 1995. Condemnation Order, 2-3; EDPL§§ 402(B)(2)-(5).
Plaintiff argues the Acquisition Map could not have conferred title because it was an
exhibit to the Petition and not a standalone map. (Pl.'s Opp'n Mem., 10-13; Heiftiz Decl. 2952).
Plaintiffs argument demands more than EDPL § 402(B) requires. That section does not
require the filing of a standalone acquisition map, but, rather, the filing of an acquisition map. In
this case, the Petition contained the Acquisition Map and vested title to Blackacre in The City
when it was filed on June 27, 1995.
In its unauthorized surreply, Plaintiff submits a form affidavit from Ms. Nancy Sunshine,
the Kings County Clerk, certifying that she examined the records from June 27, 1995 and was
unable to find the Acquisition Map. Pl.'s Surreply, 2. Plaintiff argues "The certification of the
Kings County Clerk ... must be credited over the declaration of The City's paralegal (who did
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not even start work for The City until 2000) that a map was filed that day." Id. The County
Clerk's form affidavit does not raise a triable issue of fact. The Acquisition Map was not a
standalone Map, but, rather, an exhibit to the Petition which the County Clerk's minutes and
other evidence verify was timely filed.
Heifitz Decl., Ex. 15; Partridge Decl.,
~~
11-13;
Krichmar Decl" Ex. F; Krichmar Reply Decl.,~~ 22-24 ; Krichmar Reply Decl., Ex. D.
Plaintiff invites this Court to adopt a new standard in evaluating condemnation actions
undertaken by The City: Perfection. The Court declines to adopt that standard. This Court finds
title to Blackacre vested in the City on June 27, 1995. Plaintiffs claims against The City must
fail because they rest on the binary assumption that Plaintiff held title to Blackacre and The City
did not. The City cannot have infringed upon Plaintiffs property rights in Blackacre because
Plaintiff has no Property interest in Blackacre. The City cannot have slandered Plaintiffs title to
Blackacre because Plaintiff has no title to Blackacre. The City complied with the EDPL in
condemning Blackacre. There exists no plausible basis to support liability against The City.
Plaintiffs title insurance company had notice of The City's filing of the Condemnation Order
and Petition in connection with the Saratoga Square Urban Renewal Project on June 27, 2011.
Partridge Dec!.,
~~
11-13, 24; Heifitz Dec!., Ex 15. Plaintiff relied upon its title insurance
company's report in closing the contract of sale with Akande. Lettire Dec!.,
~~
5-6. Akande
purportedly conveyed to Urban Builders Collective LLC property he did not own, a legal
impossibility. Plaintiffs complaint is dismissed in its entirety against The City.
3. Remaining Claims
This Court dismisses all claims over which it has original jurisdiction.
The only
remaining claims arise under the laws of New York State: violation of New York Judiciary Law
§ 487 and fraud against Defendants Arthur Forman and Akande, the latter of whom has not
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appeared in this action. This Court declines to exercise supplemental jurisdiction over the state
law claims pursuant to 28 U.S.C. § 1367(c)(3). Baylis v. Marriot Corp., 843 F.2d 658 (2d Cir.
1988) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 727 (1966) for the
proposition that "where all bases for federal jurisdiction have been eliminated from a case so that
only pendent state law claims remain, the federal court should ordinarily dismiss the state
claims"); Mauro v. Countrywide Home Loans, Inc., 727 F. Supp. 2d 145, 158-59 (E.D.N.Y.
2010) (Bianco, J.); Weissbrodv. Hous. Part ofCiv. Ct. of City ofNew York, 293 F. Supp. 2d 349,
354 (S.D.N.Y. 2003) (Berman, J.). This action is hereby dismissed in its entirety.
SO ORDERED
s/WFK
Dated: Brooklyn, New York
August 22, 2012
HON. WILLIA¥F. KUNTZ, II
United States District Judge
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