The motion by order to show cause by plaintiffs for an order pursuant to C.P.L.R. Article 63, enjoining and restraining the defendant and/or her principals, agents, servants, employees, attorneys, successors, assigns, and/or any other person acting or proposing to set forth by or on behalf of defendant, during the pendency of this action from terminating and/or interfering or attempting to terminate any right or interest of the plaintiffs in the premises known as 945 East [*2]231st Street in Bronx County, instituting any and all judicial proceedings and seeking to evict or remove the plaintiffs from said premises and/or terminate plaintiffs' use and occupancy of said premises, and to consolidate the landlord/tenant eviction action with Index Number 59146-06 of the Housing Court of the City of New York, Bronx County, with this action, is granted.

The motion by defendant to dismiss plaintiffs' complaint pursuant to C.P.L.R. §3211(a)(1) and (7) on the grounds that a defense is founded upon documentary evidence and the pleading fails to state a cause of action, is denied.

The plaintiffs, who are husband and wife, commenced an action to rescind the deed to the subject property, a single family home, and for a constructive trust or monetary damages based upon defendant's alleged fraudulent representation in the conveyance of defendants' interest in the premises. Plaintiffs contend that on September 2, 2003, they conveyed their interest in the subject property to the defendant, who is the mother of plaintiff Merlyn Stephenson, with the intention of refinancing the property so that the equity could be used as a down payment to purchase another house for the defendant. Plaintiffs assert that because Merlyn Stephenson was unemployed and Jerry Stephenson's credit rating was low, the parties agreed to deed the property to defendant to obtain a favorable interest rate in refinancing the home and they would continue to make the mortgage payments as they were previously doing.

Plaintiffs assert that in July 2006, they learned that defendant was seeking to enforce the deed transfer when they were served with a Notice of Termination to evict them from the house. That action is currently pending in Housing Court. Plaintiffs now move to consolidate this action with the action pending Housing Court and assert that if that action is permitted to go forward and they are evicted from the premises, they will be irreparably harmed as it is possible that their cause of action to rescind the 2003 deed, pending in Supreme Court, could be favorable to them.

Defendant opposes the motion and requests that the Housing Court action to evict the plaintiffs continue to go forward as it is ready for trial. In her affidavit, defendant asserts that plaintiffs sold their interest in the subject house to her in exchange for $7,400.32. She denies that there was an oral agreement to reconvey interest back to them and that the plaintiffs stopped paying rent to her in August of 2006. Accordingly, she commenced the action in Housing Court to evict the plaintiffs from the premises.

Until a determination is made with respect to the proceeding commenced by the plaintiffs in Supreme Court for recision of the deed to the subject property, the Housing Court action should not proceed. It would be unjust if the plaintiffs are evicted and it is determined at a later date in this court that they are partial owners of the property.

Accordingly, plaintiffs' motion is granted in its entirety and the Housing Court action currently pending under index number 59146-06 is hereby consolidated with this action pursuant [*3]to C.P.L.R. §602(b).^[FN1]

The motion by the defendant to dismiss plaintiffs' complaint is hereby denied. Defendant asserts that even though the parties were not represented by counsel at the closing of title, they fully understood the purported transaction and that the plaintiffs knew or should have known that by signing the deed, they would be conveying their ownership interest. She further asserts that the exhibits annexed to her motion papers settle all of the factual issues as a matter of law. In support of her motion, defendant submits a copy of the deed dated September 2, 2003 as well as the certificate of title and copies of several checks.

Plaintiffs oppose the motion and argue that a question of fact exists over the circumstances leading up to and after the conveyance of plaintiffs' interest in the subject premises to the defendant. Accordingly, dismissal is not warranted and reading the complaint in a light most favorable to the plaintiffs, this court chould find that the property was held by the defendant in trust for the benefit of the plaintiffs.

Although defendant asserts that all factual issues are resolved as a matter of law based upon the documents submitted by her, this court finds that there are issues of fact and the deed submitted by the defendant does not resolve all issues as a matter of law. The parties allege a vastly different set of facts which led up to the conveyance of the subject property and thereafter. Defendant contends that there was no need for plaintiffs to sign the deed over to the defendant in order to secure a loan at a favorable rate and annexes an expert affidavit to her reply papers attesting to this fact. However, the intent of the parties in conveying title to the property and the purpose for said conveyance are not matters that can be resolved by this court based upon the submission of the deed alone.

Accordingly, the motion by defendant to dismiss plaintiffs' complaint, is denied.

This constitutes the decision and order of the court.

Dated March 7, 2007