Defendants Hometech Building Corp. (Hometech) and DAS Associates NY, LLC. (DAS) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint as asserted against them on the ground that plaintiff's action is barred by laches.

Plaintiff Monica Dunbar, a/k/a Monica Isler, commenced the instant action seeking equitable relief deeming null and void several deeds conveying the property located at 1080 Greene Avenue in Brooklyn, New York. More specifically, plaintiff seeks to set aside the 2004 conveyance of the subject property to Hometech as well as the mortgage issued to it by DAS. In the complaint, plaintiff asserts causes of action for a declaration and determination of rights to the subject property, fraud, a preliminary injunction and monetary damages arising from the alleged fraud.^[FN1] Plaintiff's action sounds in Article 15 of the Real Property Actions and Proceedings Law (RPAPL).

Plaintiff and her now deceased husband, Robert Isler, purchased the subject property as their marital home on March 20, 1970. In the complaint, plaintiff claims that her brother, defendant Bishop F.F. Best (Bishop), subsequently engaged in fraudulent conveyances and transfers of the property. Several recorded deeds are on file with the Office of the City Register of Kings County. By deed dated December 12, 1974 and recorded January 9, 1975, title to the subject property was conveyed from Robert Isler and Monica Isler to Frank Finney [*2]and Mary Russell (the parents of plaintiff and Bishop). Plaintiff submits a death certificate indicating that Frank Finney died on May 8, 1972, prior to the alleged conveyance. A deed dated January 28, 1984 and recorded October 28, 1988 conveyed title to the subject property from Frank Finney to Bishop and Mary Russell. A deed dated December 20, 1994 and recorded September 26, 1996, conveyed title to the subject property from Bishop and Mary Russell to Bishop. Mary Russell died on February 25, 1994. By deed dated February 19, 1997 and recorded April 17, 1997, title to the subject property was conveyed from Bishop and Jonathan Best as "the sole heirs at law of Mary Ruseell, deceased, who died a resident of Kings County on February 25, 1994" to Bishop. However, plaintiff alleges that at the time of Mary Russell's death, she was survived by ten children. By deed dated April 28, 2004, Bishop conveyed the subject property to Hometech. On or about April 28, 2004, Hometech obtained a mortgage loan encumbering the subject property from DAS.

Plaintiff disputes Hometech's ownership of the subject property and also any prior purported conveyances by Bishop. By decision and order dated June 6, 2005, this court granted plaintiff's motion for a preliminary injunction "enjoining and restraining defendants from transferring or conveying title to the [subject] property" and upholding the stay imposed by the Kings County Housing Court in a pending related summary proceeding commenced by Hometech against Bishop and plaintiff. Defendants now move for the relief requested herein.

In support of the motion, defendants contend that plaintiff inexcusably delayed eleven years in taking any steps to assert her ownership interest in the subject property despite being aware of her brother's claim to ownership of the premises. Defendants rely upon plaintiff's deposition testimony that she was aware that Bishop claimed to own the property since the mid-1990's. Defendants also point to plaintiff's deposition testimony that she ceased making mortgage payments on the subject property upon learning in 1999 that Bishop had secured a mortgage debt on the subject property to Delta Funding Corporation (Delta). In addition, defendants submit a copy of a stipulation of settlement dated December 20, 1994 of an eviction proceeding commenced by Bishop in the Kings County Housing Court to evict plaintiff from the premises. As such, defendants argue that the doctrine of laches is applicable resulting in a forfeiture of plaintiff's claim to ownership of the subject property. Defendants assert that they "relied in good faith on the December 12, 1974 deed recorded January 9, 1975 ... from Robert Isler and Monica Isler (a/k/a Monica Dunbar, the plaintiff herein) to Frank Finney and Mary Russell." Defendants maintain that the signatures of plaintiff and her husband on the deed were acknowledged as required by statute and constitutes "prima facie evidence that it was properly executed by the person who purported to do so." In this regard, defendants argue that they are entitled to summary judgment as a matter of law.

In opposition to the motion, plaintiff contends that issues of fact exist as to whether she took sufficient action to assert her ownership interest in the subject property. Plaintiff submits an affidavit in which she counters that she took steps to address Bishop's purported claim to ownership of the subject premises by contacting the U.S. Department of Housing [*3]and Urban Development (HUD) and informing them of her suspicions of his fraudulent acts. Plaintiff submits a copy of a letter dated April 12, 1994, from the Office of the Inspector General, Office of Investigation, noting her communication with HUD of the "apparently forged and fraudulent" filed documents and advising her that the matter had been referred to the New York County District Attorney's Office. Plaintiff claims that she believed that this action taken was sufficient to secure her rights to the subject property. Plaintiff further avers that she has resided in the subject property since purchasing it and that she continued to do so even after her husband's death. Additionally, plaintiff avers that "[i]n or about February 1999, [she] discovered that [her] brother- defendant, Bishop placed a mortgage on the subject premises and [she] responded by writing a letter to the mortgage company Delta Funding." Plaintiff submits a copy of a letter dated March 17, 1999 from Delta Funding Corporation acknowledging receipt of plaintiff's February 13, 1999 letter in which she informed it of her concern that Bishop had fraudulently acquired title to the subject property and improperly secured a mortgage from Delta. In the March 17, 1999 letter, a representative from Delta advised plaintiff to "speak with the police or seek legal advice" from an attorney to address the matter. However, plaintiff avers that at the time of her discovery of the fraudulent conveyances she was diagnosed with HIV and suffered "from profound bouts of major depression" which currently still afflict her. Plaintiff further maintains that the conveyances and transfers of the subject property were all fraudulent and attests that at the time of her death Mary Russell was survived by ten children. Finally, plaintiff contends that the doctrine of laches is inapplicable and that she immediately acted upon discovering that Bishop fraudulently claimed title to the property.

In reply, defendants submit the affidavit of Asaf Sanilovich, president of Hometech. Mr. Sanilovich avers that he "inspected the dwelling on several occasions" prior to entering into the contract to purchase the subject property. According to Mr. Sanilovich, the subject property was "vacant and in extremely poor condition" and also "[n]obody lived in the dwelling, and nobody could have lived in the dwelling." Mr. Sanilovich further avers that he entered into an agreement with Bishop to allow him to remain in "possession" of the subject property until June 1, 2004 so as to allow him to remove certain possession that he claimed were still in the building. Mr. Sanilovich avers that on June 1, 2004, Bishop denied his workers access to the subject property and, as a result, he decided to commence a summary proceeding against Bishop. Upon appearing in Housing Court, Mr. Sanilovich avers that plaintiff appeared. Mr. Sanilovich claims that he first became aware of plaintiff at this point and that he then commenced summary proceedings against her as well. In addition, Mr. Sanilovich insists that at the time of purchase of the subject premises, Hometech was unaware of plaintiff's occupancy or claim of ownership of it.

In addition, defendants contend that plaintiff admittedly failed to timely commence an action or proceeding to enforce her claim of title to the subject premises. Defendants dispute plaintiff's assertion that HUD instructed her to wait for the District Attorney's Office to contact her but instead maintain that she never followed up on her complaint. Defendant's point to the March 17, 1999 letter from Delta Funding Corporation instructing plaintiff to [*4]seek assistance from the police or an attorney and assert that plaintiff failed to seek any legal redress until the commencement of the instant action in 2004. Defendants further point out that plaintiff ceased making payments on the mortgage upon learning that her brother had taken out a mortgage on the subject property thus indicating her awareness of his claim of ownership.

Defendants contest plaintiff's averment that she and other family members lived in the subject premises since her husband's death in 1998 and assert that this contradicts her deposition testimony that she had not resided in the premises for the past five years, three years prior to Hometech's purchase of the subject property. Defendants further argue that plaintiff's alleged occupancy of the subject premises at the time of their purchase of it does not affect Hometech's bona fide status as the owner of the subject premises. Defendants claim that they relied upon the public record of title and that they had no notice of plaintiff's alleged possession or claim to ownership of the subject premises. Finally, defendants reiterate their argument that plaintiff failed to take action for eleven years to secure her claim to ownership of the subject property.

A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant directing judgment in favor of any party as a matter of law (CPLR 3212[b]; Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Failure to make a prima facie showing of entitlement to judgment as a matter of law requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986], citing to Zuckerman, 49 NY2d at 562). In determining the motion, a court must be mindful that "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978], quoting Moskowitz v Garlock, 23 AD2d 943, 944 [1965]). Moreover, the evidence must be considered in the light most favorable to the party opposing the motion (Henderson v City of New York, 178 AD2d 129, 130 [1991]). Finally, a party seeking summary judgment may not merely point to gaps in the opponent's proof but rather must adduce affirmative evidence of its entitlement to that relief (Torres v Industrial Container, 305 AD2d 136 [2003]).

Here, defendants argue that Hometech is a good faith bona fide purchaser for value and is therefore entitled to possession of the subject property despite plaintiff's claims of her interest in the subject property. In accordance with "Real Property Law § 266, a bona fide purchaser or encumbrancer for value is protected in his or her title unless he or she had previous notice of the alleged prior fraud by the seller" (Karan v Hoskins, 22 AD3d 638 [2005]; see Anderson v Blood, 152 NY 285 [1897]; Miner v Edwards, 221 AD2d 934 [1995]; Emerson Hills Realty v Mirabella, 220 AD2d 717 [1995]). "[A] person cannot be a bona fide [*5]purchaser or encumbrancer for value through a forged deed, as such a deed is void and conveys no title" (Karan, 22 AD3d at 639). Nevertheless, the focus is to be placed not upon whether Hometech's title should be disturbed but instead upon whether plaintiff's conduct was such that she forfeited her right to claim an interest in the subject property during the limitations period (Kraker v Roll, 100 AD2d 424, 432).

Moreover, " [w]hile an action under RPAPL Article 15 ... is a statutory action, it has been described as a hybrid one in which the relief awarded is in a large measure equitable in nature.' "(Washington Temple Church of God in Christ, Inc. v Global Properties and Associates, Inc., 15 Misc 3d 1142(A) [2007], quoting Dowd v Ahr, 168 AD2d 763, 765 [1990], rev'd on other grounds 78 NY2d 469 [1991]; see also Lewis v Rodriguez, 155 Misc 2d 12, 13-15 [1992]). Its equitable characteristics derive from the common law action to quiet title. (See, generally, 90 NY Jurisprudence 2d, § 509 et seq.). An action to quiet title is governed by the ten-year statute of limitations set forth in CPLR 212 (a) (Welch v Prevost Landowners Inc., 202 AD2d 803, 804-805 [1994]; James v Lewis, 135 AD2d 785 [1987]; Downes v Peluso, 115 AD2d 454 [1985]). At her deposition, plaintiff testified that she resides at the property but that she had been staying elsewhere for the past five years because she "needed to get away." To the extent that plaintiff's action is to quiet title pursuant to Article 15 of RPAPL, plaintiff failed to take any legal action to assert her ownership interest in the subject property within the limitations period.

The six-year statute of limitations period applies to all equitable actions, including, an equitable action to remove a cloud on title where the owner is out of possession (Ford v Clendenin, 215 NY 10 [1915]). Likewise, a person claiming title to real property, but not in possession thereof, must act affirmatively and within the time provided by statute (Downes, 115 AD2d 454).Plaintiff claims that the deeds recorded with the Office of the City Register, including the deed conveying the subject property to Hometech as well as the Delta mortgage executed and filed against the property were either forged or fraudulent.

Causes of action for forgery and fraud are governed by the six-year Statute of Limitations set forth in CPLR 213 (8).

Notably, " [t]o establish laches, a party must show: (1) conduct by the offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that relief is accorded the complainant.' "(Washington Temple Church of God in Christ, Inc. v Global Properties and Associates, Inc., 15 Misc 3d 1142(A) [2007], quoting Cohen v Krantz, 227 AD2d 581, 582 [1996]). Assuming that the doctrine of laches of laches applies to the instant case, the " defense of laches consists of an unreasonable delay by a plaintiff to the prejudice of the defendant' " (Washington Temple Church of God in Christ, Inc., 15 Misc 3d 1142(A), quoting Weiss v Mayflower Doughnut Corp., 1 NY2d 310, 318 [1956]). " But mere delay, however long, without the necessary elements to create an equitable estoppel, does not preclude the granting of equitable relief' " (Washington Temple Church of God in Christ, [*6]Inc., 15 Misc 3d 1142(A), quoting Weiss, 1 NY2d at 318; see also Kraker, 100 AD2d at 433). "[T]he doctrine of equitable estoppel ... should be applied with great caution when dealing with realty" (Washington Temple Church of God in Christ, Inc., 15 Misc 3d 1142(A); Huggins v Castle Estates, 36 NY2d 427, 427 [1975]; see also Lyon v Morgan, 143 NY 505, 509 [1894]; F.B. Transit Road Corp. v DRT Construction Co., 241 AD2d 930, 931 [1997]; Kraker, 100 AD2d at 433).

Plaintiff alleges that Bishop first engaged in forgery and the fraudulent transfers beginning in 1974.The court notes plaintiff's health ailments and claims of depression as a result thereof. However, plaintiff admittedly became aware of Bishop's claim to ownership of the subject property since the mid-1990's as is evidenced by her 1994 communication with HUD and her 1999 correspondence with Delta. Indeed, plaintiff was the subject of an eviction proceeding commenced against her by Bishop in the Kings County Housing Court in 1994 and signed a stipulation. Nevertheless, plaintiff failed to take any follow-up steps to assert her ownership interest and even ceased making her own mortgage payments on the subject property upon learning of the Delta mortgage encumbering the property. No statute of limitations period applies to an owner in possession of real property in an action to discharge an encumbrance on his or her title (Downes, 115 AD2d 454). Here, plaintiff testified that she stayed elsewhere for the five years proceeding the deposition and prior to the commencement of the instant action whereas in her affidavit submitted in opposition to the motion, plaintiff avers that she currently resides in the subject property since the death of her husband in 1998. In his affidavit, Mr. Sanilovich avers to the contrary that upon his inspection of the subject property he discovered that no-one resided there. Contradictory statements submitted in an affidavit in opposition to a motion for summary judgment are insufficient to raise a question of fact and constitute a "feigned factual issue designed to avoid the consequences of" an earlier statement (McGuire v Quinnonez, 280 AD2d 587 [2001]; see Barretta v Trump Plaza Hotel and Casino, 278 AD2d 262, 263 [2000]). Even if plaintiff were in possession of the subject property at the time of commencement of the instant action, she was long aware of Bishop's claim to ownership and neglected to take any legal steps to assert her own ownership rights. Hometech was unaware of plaintiff's claim to ownership at the time of its purchase of the subject property. Accordingly, the court grants summary judgment motion of Hometech and DAS dismissing the complaint as asserted against them.

ORDERED that the motion for summary judgment is granted and the complaint is dismissed as against defendants Hometech Building Corp. and DAS Associates NY, LLC.

ORDERED that the preliminary injunction issued by this court's June 6, 2005 decision and order is vacated.

E N T E R,

J. S. C.