I.INTRODUCTION

Plaintiff Martinez's Order to Show Cause, seeking to renew plaintiff's prior Order to Show Cause (which Justice Patricia Williams had signed on September 2, 2010 and decided on September 20, and November 9, 2010) was granted in an interim Order by this Court dated June 30, 2011, to the extent that the matter was set down for a hearing to assist the Court in making certain factual determinations. Plaintiff had sought renewal since Defendants failed to disclose that, on September 2, 2010, the same day that the Order to Show Cause was signed by Justice Williams, Defendants Arrisini and Vanessa Carney conveyed the property, by a Quit Claim deed, to the Intervener, Michael Katz, through his corporation, 2788 Kingsbridge Terrace Corporation.

Consequently, there were several Court appearances between August 8, 2011, through February 22, 2012, wherein the parties were heard, and the Court became aware that there were other relevant related cases pending, including a mortgage foreclosure and tax foreclosure action. The Court also determined that not all interested parties were present, and was concerned that there might need to be representation for Shariffa Carney, who was rumored to be deceased.

Since the Court wished to bring this long dispute over the subject property to a fair resolution, the Court issued an Interim Order dated May 29, 2012, appointing Mark Goldstein, Esq., to serve as Guardian Ad Litem ("GAL").

Therein, the Court ordered the GAL to investigate several issues and to report to the Court by September 2012, regarding the plaintiff's pending Order to Show Cause, which among other things, requested that the Executor's Deed, mortgages, and Quitclaim Deed be declared null and void, dismissal of the mortgage foreclosure action, and specific performance on the contract for sale of the real property that is the subject of this action.

Mr. Goldstein submitted his reports, and based on his thorough investigation, all interested parties are now before the Court. The above-entitled actions were consolidated for joint trial pursuant to the parties' Stipulation dated December 2, 2012.^[FN1] It is noted that Arrisini [*2]and Vanessa Carney appeared Pro Se. The attorney for The Estate of John P. Carney, Shariffa Carney and her counsel, Michael Katz and 2788 Kingsbridge Terrace Corporation (2788 Kingsbridge) by counsel, and NYCTL 2010-A Trust And The Bank Of New York Mellon, As Collateral Agent And Custodian by counsel, all appeared. All other defendants failed to appear although duly noticed of the pending actions and Renewal of the Order to Show Cause against them.

The Court has determined that a hearing is not warranted, based on the GAL's reports, and the representations made by the parties when they were heard in Court during many appearances; the parties have agreed that no hearing is necessary. However, the Court gave the parties who will be affected by an Order on Plaintiff's Renewal of the Order to Show Cause, and the GAL's reports, the opportunity to submit supplemental papers. Katz (who had previously filed opposition to the renewal of the Order to Show Cause and objections to the GAL's reports), filed furtheropposition and reply. Shariffa Carney filed further papers in support of and in response; and Plaintiff filed papers in reply. Arrisini and Vanessa Carney, and The Estate of John P. Carney, although given the opportunity to file responsive papers, have failed to do so.

Based on the aforementioned papers, the plaintiff's request to renew the prior Order to Show Cause that was originally heard on September 20, 2010, is granted, as there were pertinent facts that were not set forth before Justice Williams that would have certainly affected her Decision and Order dated November 9, 2010. Upon renewal, for the reasons set forth herein, the branch of the motion seeking specific performance on the contract of sale is denied; and the lis pendens is cancelled. However, the relief granted is that the subject mortgages and accompanying promissory notes, the Executor's Deed, and the Quitclaim Deed, are deemed null and void; and that plaintiff is entitled to reasonable attorneys' fees, costs, and sanctions, as set forth more fully herein. Further, this Court grants dismissal of the mortgage foreclosure action. The GAL is appointed as Trustee of the testamentary Trust under Article Sixth of the Will.

II.FACTS

This action stems from plaintiff Jose Martinez's attempt to purchase certain real property, located at 2788 Kingsbridge Terrace, Bronx County ("subject property"), on August 24, 2005, from four members of the Carney family: John Carney, the husband of Betty Carney; Arrisini Carney, their son; and Shariffa and Vanessa Carney who are Arrisini's two daughters.

Betty Carney died testate on February 20, 1986. Under the terms of her Will, John

Carney, her husband, had a life interest in certain properties, but not the subject property, only access to its garage. Article Sixth of the Last Will and Testament of Betty L. Carney (the Will) provided that Arrisini had a life income interest in the subject property which was to be held in Trust by Trustees. Shariffa and Vanessa were allowed to occupy the first floor and second floor, respectively, and, upon Arrisini's death, the subject property was to be transferred jointly to Shariffa and Vanessa Carney, Betty Carney's granddaughters. The Will also provided that, upon John Carney's death, Arrisini would substitute as Co-Executor and Co-Trustee in his place. The [*3]other Co-Executor and Co-Trustee attorney, Allan Levine, was never a party to the sale of the subject property. Further, John Carney and Allan Levine, Esq., never obtained Letters of Co-Trusteeship for the Article Sixth Trust, and only John Carney took action as an unauthorized Trustee with regards to the subject property.

Probate Petition and Notice of Probate were filed with the Bronx County Surrogate's Court on April 8, 1988, naming John Carney and Allen Levine as Co-Executors and Co-Trustees. It also requested that Letters of Testamentary be issued to John Carney and Allan Levine and that Letters of Trusteeship be issued to John Carney and Allan Levine under the Article Third and to Allan Levine under the Article Eleventh. On April 14, 1988, the Surrogate's Court issued Letters of Co-Testamentary and Co-Trusteeship to the Petitioners. However, the Letters of Trusteeship were limited to Articles Third and Eleventh Trusts. The Surrogate's Court provided a letter to the GAL stating that no application for Letters of Trusteeship were issued under Article Sixth of the Will ^[FN2].

Notwithstanding that no Trust was established and funded in accordance with Article Sixth of the Will with regards to the subject property, a contract for sale of said property was executed on or about March 22, 2005, between plaintiff Martinez and allegedly the four Carneys. Although a closing date on the sale of the property was scheduled, and attended by signatories on the contract, the closing did not occur, because it was alleged that Shariffa did not have proper identification.

During the pendency of the proceedings before this Court, Arrisini and Vanessa advised the Court that they did not now know the whereabouts of Shariffa, and that she might be dead. In light of that information, among other things, the Court appointed the GAL, who was able to locate Shariffa Carney. Shariffa Carney thereafter filed an answer, counterclaims, crossclaims and third-party claims in this action, and papers in support of the renewal application and the GAL's reports. In pertinent part, Shariffa stated that she did not recall signing a contract for the sale of the subject property or attending a closing, but indicated the signature looked like hers. Further, she did not recall ever being present at a closing where she was asked for identification and could not produce one, since at the time of the closing she had valid identification. She was unaware that two mortgages were placed on the property and never received any portion of the loan proceeds.

Plaintiff filed a Notice of Pendency on October 28, 2005, on the subject property after several failed attempts to close on it. Thereafter, he commenced this lawsuit in November 2005, seeking, among other things, specific performance of the contract for sale of the subject property. The contract provided, in relevant parts, that in the event that the seller was unable to remove any impediment to the conveyance of title, the contract would be cancelled and the downpayment returned to the seller. Therefore, the remedy available under the terms of the contract was the return of the $25,000.00 down payment to plaintiff, and that Sellers shall pay the net cost for the title examination not to exceed $250.00.

John Carney died in February 2007, and no successor Letters of Executor and/or Trustee were issued to anyone. On March 28, 2008, Arrisini Carney conveyed the subject property to himself and Vanessa Carney, by an Executor's Deed, for no consideration. The Deed was filed [*4]with New York City Department of Finance, Office of the City Register. Also on March 28, 2008, Katz gave Arrisini and Vanessa Carney a mortgage on the property for $300,000.00, and, on the same day, filed it with New York City Department of Finance Office of the City Register. Under the terms of the promissory note, which named Katz as the Nominee, the payments would commence on November 1, 2008, and end on March 31, 2009, with an interest rate of 14% pre annum, and a default rate of 16%. The title insurance company was Stewart Title Insurance Company. A Personal Guarantor for the $300,000.00 loan was Alphonso Gill, whom Vanessa Carney claims gave her and Arrisini, $90,000.00 (the total amount then received from both loans), and then demanded that a substantial portion of that loan be wire transferred to him for repairs to the property, which were never done.

The GAL furnished the Court with the records of the wire transfer which showed that Katz transferred money from his Attorney Trust Account to a Merrill Lynch account, and that a text was to be sent to the Arrisini and Vanessa Carney for further credit to Carney Holdings LLC. There was an accompanying handwritten instruction signed by Arrisini and Vanessa Carney authorizing that the net loan proceeds in the amount of $277, 500.00 be wired to the Merrill Lynch account, less $88,406.85 in disbursements to Magic Land Abstract LLC.^[FN3]

On July 15, 2008, Katz gave Arrisini and Vanessa Carney another mortgage for $50,000.00, which was filed with New York City Department of Finance Office of the City Register. The Mortgage, dated July 15, 2008, was signed by Arrisini and Vanessa Carney and acknowledged and notarized by Katz. Under the terms of the promissory note, which named Katz as the Nominee, the payments would commence on March 1, 2009, and end on July 31, 2009, with an interest rate of 14% pre annum, and a default rate of 24%. The title insurance company was Stewart Title Insurance Company. A Personal Guarantor for the $50,000.00 loan was Alphonso Gill ^[FN4].

On September 2, 2010, by means of a Quit Claim deed that was later filed with New York City Department of Finance Office of the City Register, Arrisini and Vanessa Carney conveyed the subject property to "2788 Kingsbridge Terrace Corporation, c/o Michael Katz, 603 Third Avenue - 23rd Floor, New York, NY 10017 (hereinafter referred to as the "Grantee")." A review of the Quit Claim deed shows that it too was notarized by Katz.^[FN5]

In April 2010, Katz had filed a motion seeking to amend the caption to include him as a party defendant, to permit him to intervene and for a declaratory judgment that he has a beneficial ownership interest in the subject premises. At the time of filing his motion to intervene, Katz had commenced a foreclosure proceeding against Arrisini and Vanessa Carney for defaulting on the mortgages. In an order dated June 28, 2010, Katz's motion to intervene was granted on default. [*5]

In Katz's previously submitted opposition to the instant Renewal to the Order to Show Cause, in his supplemental opposition, and in his objections to the GAL's reports, Katz conceded that he and the 2788 Kingsbridge Terrace Corporation are one and the same, when he admitted that he "was merely doing what he could to protect his interest of more than $350,000.00 in the property." Furthermore, Katz conceded that the Quitclaim Deed was executed while "the parties were aware and had notice of Plaintiff's claim," and that he knew that "there was already a Notice of Pendency indexed against the property regarding the litigation. As such, the Quite [sic] Claim Deed was accepted subject to this action." He concedes that the Quitclaim Deed may be void.

During the course of his investigation, the GAL interviewed Vanessa Carney who told him that she and her father received $90,000.00 from Alphonso Gill, whom she believed was involved with Katz. Mr. Gill had Katz wire money to Carney Holdings LLC, ostensibly to do repairs to the house, but no repairs were done. She stated that Katz deceived them and kept giving them documents to sign, that he knew about Betty Carney's Will and that Shariffa Carney was a beneficiary. She further stated that she learned that Alphonso Gill was later incarcerated for mortgage fraud.

Arrisini and Vanessa Carney both represented to this Court that Katz was their lawyer during all their transactions with him. Katz denied holding himself out as the Carneys' attorney, and indicated he only wired the net proceeds to Carney Holding LLC because he was directed to do so.

Katz's filed objections to the GAL's reports based mainly on the fact that he was not interviewed by the GAL to correct certain facts he claims to be false. Katz stated that Alphonso Gill was prosecuted in the United States District Court for the Eastern District of New York, and that he may still be incarcerated for crimes involving financial improprieties. He denied that he held himself out as counsel for Arrisini and Vanessa Carney, but acknowledge that he funded a mortgage in 2007 for property on Alexander Avenue, Bronx, which was Betty Carney's address on her Will. He claimed that the Carney Holdings, LLC was a business arrangement between Alphonso Gill and the Carneys.

Katz, in his affidavit, claims that Mr. Gill was a mortgage broker for Wells Fargo who was the connection between him, the Carneys and the property. Carney Holding LLC was a business arrangement between Mr. Gill and the Carneys, but he alleges that he did not form the business or know particulars regarding their arrangement. Katz stated that Mr. Gill coordinated the transaction, and that he only met the Carneys briefly at the closings. He acknowledged that it was a mistake to notarize the Quitclaim Deed. He stated that he, Vanessa Carney, and an off-duty police officer, looked for Shariffa Carney, and he compensated Vanessa for the day she spent doing so.

During the pendency of these proceedings, at this Court's directive, and with plaintiff's consent, prior counsel for John Carney, Trevor Reid Esq., turned over to the GAL, plaintiff's down payment of $25,000.00, in open court, to be placed in his escrow account. The parties agreed that a portion may be used for the cost of the inspection and appraisal on the subject property. Also, the parties agreed that plaintiff's entire down payment would be returned to plaintiff, from the proceeds obtained from the sale of the subject property, if the Court found that [*6]his contract of sale, and the mortgages, and deeds, were null and void.^[FN6] The inspection and appraisal reports on the property revealed that the property has been abandoned for a number of years, and is in need of repairs and renovations, which has substantially caused a depreciation in its market value.^[FN7]

The allegations of the various parties with regards to the subject property is infused with misrepresentations, fraud, undue influence, and conflict of interest, between the Carneys and Katz, an attorney.

III.ANALYSIS

Firstly, the Pro Se Carneys claimed on the record in open court, and in their statements to the GAL, that Katz acted as their counsel in the disposition of the subject property. From the circumstances involving the transaction concerning this property, wherein the Carneys had no other attorney, there is basis for their claim that Katz gave them legal counsel, although Katz denies it. It appears that Katz was involved with the Executor's Deed that Arrisini signed, since the Deed and first mortgage were filed on the same date, by the same title company, and contained the same notary public's acknowledgment.

The facts suggest that, at a minimum, Katz participated as an advisor to the Carneys, who relied on his advise to transfer the subject property by Executor's Deed to Vanessa and Arrisini Carney, and to mortgage the property to him. Katz did so despite the fact that he knew that Shariffa had an interest in the property (as evidenced by the fact that he went searching for her with Vanessa Carney and an off-duty police officer).

Katz admits that he prepared the "loan documents and the Quitclaim deed and related transfer tax returns... All of the loan documents were necessary to protect [his] interests as lender." (See Katz Affidavit, dated Nov. 13, 2012). Furthermore, the $50,000.00 mortgage, and the Quitclaim Deed from Arrisini and Vanessa Carney, to 2788 Kingsbridge Terrace Corp., c/o Michael Katz, subject to both mortgages of Katz, which Alphonso Gill personally guaranteed, were notarized by Katz. His notarization of the mortgage, promissory note, and Deed, raises ethical and legal concerns, since he had an economic interest in the transactions; and Katz' actions — violative of Notary Public License Law and RPAPL § 301(2) — make those documents void. See Matter of Estate of William A. Barrie, 134 Misc 2d 440, 511 N.Y.S. 2d 524 (Surrogate's Court, Nassau County 1987).

Also, the Court is deeply troubled about the money wire transfers to Alphonso Gill, from Katz, which left Vanessa and Arrisini Carney with only $90,000.00 of the total loan proceeds— under the guise of Gill making repairs to the house which he did not perform.

During the course of the GAL's investigation, he reviewed action three, NYCTL 2010-A Trust and The Bank of New York Mellon, As Collateral Agent and Custodian v. 2788 Kingsbridge Terrace Corp., et al, Index No. 304342/2011, which seeks foreclosure on a tax lien [*7]against the subject property for unpaid real estate taxes. The GAL noted that the Complaint is deficient since it does not name all the necessary and interested parties, such as the Estate of Betty Carney, the Trustee of the Article Sixth Trust, and Shariffa Carney. Since the notice of assessment of taxes, and the Summons and Complaint, were not served on all the parties having an ownership interest in the property, the Complaint may be subject to dismissal.

In addition, the GAL noted that the Complaint is also deficient since it does not adequately identify the tax periods for which the plaintiff is claiming that money is owed, fails to set forth the fair market value, the assessed value, the tax rate and additional charges — which are necessary in calculating the correct amount owed. In this decision, this Court need not make a determination on all the issues raised.

However, this Court grants Mark Goldstein, as Trustee, the authority to challenge the matter, satisfy any legitimate tax lien out of the proceeds of the sale of the property, redeem the property, and otherwise settle the issues. To that end, within 30 days from the date that Counsel for Plaintiff, NYCTL 2010, is served with a copy of this Order, Counsel in that matter shall meet and confer with Mr. Goldstein, with a view towards trying to resolve the matter in an expedited fashion. (For instance, Counsel may agree to payment of the principal amount of tax owed, and leave for the Court to determine the amount of interest, attorneys' fees, and other charges — if the latter cannot be agreed upon).

This Court has general original jurisdiction in law and equity and has concurrent jurisdiction with other courts, such as Surrogate Court, and is only limited in matters of exclusive jurisdiction conferred on the federal courts or in actions for money damages against the state which can only be heard in the Court of Claims. See Art. V1, § 7(a) of the New York State Constitution. Pollicinia, v. Misericordia Hospital Medical Center and Hospital of the Albert Einstein College of Medicine, 82 NY2d 332, 624 N.E.2d 974, 604 N.Y.S.2d 879 (1993); Kagen v. Kagen, 21 NY2d 532 (1968); Matter of Malloy, 278 NY 429, 432 (1938).

Since the Estate of Betty L. Carney had been probated and an accounting was filed, the Co-Executors and Co-Trustees are deceased, and the only remaining issues stemming from the Estate is the Testamentary Trust of Article Sixth, which involves disputes amongst the living, the beneficiaries of the Trust situs, this Court will extend its jurisdiction over the testamentary Trust and the beneficiaries of the Trust.

Surrogate's Court Procedure Act § 1502(1) ("Appointment of trustee") allows this Court to appoint a trustee or successors, or co-trustees, when no trustee is able to act or one of the trustees is unable to act and a successor trustees is necessary to execute the trust or execute any power created by a will or lifetime trust. Here, both the nominated Co-Trustees, John Carney and Allan Levine, Esq., are deceased. The nominated successor Trustee, Arrisini Carney, never obtained Letters of Trusteeship, and attempted to terminate the Trust without any Court Order or Decree, (based upon his action of executing the Executor's Deed, loan documents placing two mortgages on the property, and executing the Quitclaim Deed) in contravention of the Trust; he is therefore disqualified to serve as a Trustee. See EPTL § 7-2.6.

This Court finds that a Trustee is needed, and hereby appoints the GAL, Mark Goldstein, Esq., as the Trustee; and notes that all interested parties agreed to his appointment, by their Stipulation dated February 20, 2013. See SCPA §1502. (The parties agreed to his appointment as long as this Court determined that the mortgages and deeds are null and void, and that the [*8]Trustee should be appointed to fulfill the purpose of the Will and the Trust created for the subject property).

Estates, Powers and Trusts Law ("EPTL") § 7-9 provides the general rule that a trust can only be terminated upon the consent of all interested persons only during the grantor's lifetime and with her consent.

EPTL 7-1.19 "Application for termination of uneconomical trust", passed in 2004, applies to trusts, whenever created, and provides that any trustee or beneficiary may make an application, upon notice as the court directs, to terminate the trust, before the Surrogate's Court having jurisdiction over the trust. The court may terminate the trust where the continuation of the trust is economically impracticable, the express terms of the disposing instrument do not prohibit its early termination, and such termination would not defeat the specified purpose of the trust and would be in the best interests of the beneficiaries. EPTL 7-1.19 is a narrow exception to general rule pursuant to EPTL § 7-9 that a trust is indestructible. See Matter of Keriotis, 22 Misc 3d 1121(A), 880 N.Y.S.2d 873, 2009 NY Slip Op 50212(U) (Surrogate Court, Kings County 2009).

EPTL § 7-2.4 "Act of trustee in contravention of trust" makes voidable any sale, conveyance, or other action by the trustee that is in contravention of the trust.

Shariffa Carney, in her papers in support of the renewal application and the GAL's reports, consents to the appointment of the GAL as trustee, the termination of the trust, and the sale of the property. However, Arrisini and Vanessa Carney and the Estate of Betty Carney failed to respond to the application and recommendations. But, they did consent to the appointment of the GAL as Trustee. Here, Arrisini was never appointed as a trustee, nor did he or Vanessa seek a Court Order or Decree to have the Trust terminated. As such, any action taken by them with regards to the property is void.

Based upon the inspection and appraisal reports obtained by the GAL, it appears that it is not economical to expend money to administer the Trust, since the situs of the Trust, the property, has been abandoned for years, its value has significantly depreciated and no monies exist to do the needed repairs and renovations; and it is encumbered by a tax lien.

Further, the purpose of the Trust has long been abandoned by Arrisini and Vanessa Carney, in that Arrisini had a life estate and was to receive the income the property generated, while John Carney was to have full access to the garage and Shariffa and Vanessa Carney were to occupy the first and second floor, respectively, and upon Arrisini's death, the property was to be transferred to both of Arrisini's daughters (Vanessa and Shariffa). Arrisini and Vanessa Carney's actions in attempting to deed the property and obtain loans encumbering the property — to the exclusion of Shariffa — defeat the Trust purpose. As such, the newly-appointed Trustee is authorized to terminate the Trust and sell the property.

Under the circumstances, Katz, an attorney, knew or should have know that Arrisini and Vanessa Carney did not have the power or the authority to encumber the subject property, since Katz had a prior real estate transaction with them regarding other property bequeathed to them under the Will of Betty L. Carney. Defendant Katz had a duty to inquire and get proof of Letters Testamentary and Trusteeship from Arrisini, especially when he gave Arrisini and Vanessa Carney a mortgage the same day that Arrisini executed an Executor Deed to himself and Vanessa, knowing that the property was a part of the Estate of Betty Carney and disposed of [*9]under her Last Will and Testament through a testamentary Trust. As such, the Executor's Deed, the two mortgages, and the Quitclaim Deed are void, pursuant EPTL § § 7-2.3 and 7-2.4.

Likewise, the contract for the sale of the house to plaintiff, Jose Martinez, cannot be enforced as any such sale is voidable, pursuant to EPTL § 7-2.4, because the purported Sellers did not have the power to sell the property, which was bequeathed pursuant to the testamentary Trust of Article Sixth of the Will. None of the Carneys were issued Letters of Trusteeship, which would have given them the authority to create, fund, convey title to the property, and terminate the Trust. It is noted that EPTL § 7-3.2 provides relief in certain circumstances to bona fide purchasers who do not have notice of a trust.

However, it appears that plaintiff should have been aware that the subject property belonged to the Estate of Betty Carney, since title of the subject property was in the name of Betty Carney and the contract of sale listed the Carneys as Trustees and beneficiaries. Therefore, plaintiff had knowledge that he was dealing with a testamentary Trust, and his failure to review the Will and ascertain whether the Carneys had the necessary letters from Surrogate Court to convey title of the property, should not enure to his benefit. Regardless, the Court finds that the lack of the issuance of Letters of Trusteeship to any of the Carneys, makes the contract of sale null and void. Furthermore, the terms of the contract provide for the return of the $25,000 down payment if title cannot be conveyed, not the remedy of specific performance.

EPTL § 7-2.4 provides, in sum and substance, that if a trust is expressed in an instrument, such as a Will, creating the estate of the trustee, then every sale, conveyance or other act of the trustee in contravention of the trust, except as authorized by that Article and by any other provision of the law, is void. Herein, the Article Sixth Trust under Betty Carney's Will created a irrevocable Trust, and, although there are limited exceptions to the termination of an irrevocable trust, none of those exceptions apply herein.

Because the Will created a Trust of the subject property, EPTL § 7-1.19 is controlling as to when the Trust can be terminated. None of the requirements of EPTL § 7-1.19 were met by the Carneys in this case: letters of trusteeship were never sought and issued, a trust was never created, and no application to terminate the Trust (by the Carneys act of attempting to convey the title of the property) was made to the Court, and no order or decree terminating the Trust was issued.

Therefore, the Court finds that no authority existed for any of the Carneys to have engaged in the transactions regarding the property. Their attempts to deed, sell, and mortgage the real property are a nullity. Consequently, the lis pendens is cancelled; and the mortgage foreclosure action is dismissed.

Regarding the distribution of the situs of the Trust (the proceeds from the sale of the property), Arrisini and Vanessa Carney's aforementioned actions of executing the Executor Deed and Quitclaim Deed and mortgaging the property for a total of $350,000.00 — all to the exclusion of Shariffa Carney — deprive both of them of any equitable interest in a share of the monies which would be generated from the sale of the property. Although Arrisini and Vanessa Carney, in open court on the record and in their statements to the GAL, claimed that they did not receive most of the loan proceeds on the mortgages, that was a choice they made as to how to allocate or use the proceeds. The pertinent aspect is that none of the loan proceeds was shared with Shariffa Carney. Since both Arrisini and Vanessa Carney, beneficiaries of the Trust, have "unclean [*10]hands", they are barred from any recovery from the proceeds of the sale of the subject property.

As far as plaintiff's request for attorneys' fees, costs, and sanctions, it is noted that Judge Williams already decided that "given the intransigence and violation of court orders in this matter, [Arrisini and Vanessa] Carney defendants will pay the attorney's fees of the plaintiff in an amount to be determined at a hearing to be held before this Court." (See Judge Williams Order, dated Nov. 9, 2010).

Further, as to Katz' and 2788 Kingsbridge's liability for attorneys' fees, costs, and sanctions, he is also deemed liable to plaintiff because of his misrepresentations, including his willful failure to inform Justice Williams, during the pendency of the plaintiff's prior Order to Show Cause, that on September 2, 2010, Defendants, Arrisini and Vanessa Carney, had already conveyed the property, by a Quit Claim deed, to Katz, through his corporation, 2788 Kingsbridge Terrace Corporation.

The Court will determine the amount of attorneys' fees, costs, and sanctions, to be awarded to plaintiff upon being presented with a copy of plaintiff's proposed Order relative thereto, served with notice of settlement, together with his attorney's Affidavit of legal services, as further provided for herein. If Arrisini and Vanessa Carney, or Katz / 2788 Kingsbridge, request to be further heard on the matter, they shall so advise the Court as part of their response to those papers.

IV.CONCLUSION

Accordingly, the branch of plaintiff's Order to Show Cause seeking to renew is granted. The branch seeking specific performance on the contract of sale is denied; and the lis pendens is cancelled. However, the relief granted is that the subject mortgages and accompanying promissory notes, the Executor's Deed, and the Quitclaim Deed, are deemed null and void; and that plaintiff is entitled to reasonable attorneys' fees, costs, and sanctions, as set forth more fully herein. Further, this Court grants dismissal of the mortgage foreclosure action. The GAL is appointed as Trustee of the testamentary Trust under Article Sixth of the Will.

Accordingly, it is hereby:

ORDERED, that the conveyance from Arrisini Carney to Arrisini Carney and Vanessa Carney, for no consideration, by an Executor's Deed, dated March 28, 2008, and filed with New York City Department of Finance Office of the City Register under Document Identification Number 2008033100303001 and City Register File Number 2008000136993, (Block 3253, Lot 97), is hereby declared null and void; and the Clerk of the Office of the City Register of the City of New York shall so mark his records accordingly; and it is further

ORDERED, that the mortgage on the property for $300,000.00, dated March 28, 2008, which was filed with New York City Department of Finance Office of the City Register under Document Identification Number 2008033100303002 and City Register File Number 2008000136994, is hereby declared null and void; and the Clerk of the Office of the City Register of the City of New York shall so mark his records accordingly; and it is further

ORDERED, that the mortgage for $50,000.00, dated July 15, 2008, which was filed with New York City Department of Finance Office of the City Register under Document Identification Number 2008072100797001, and City Register File Number 2008000297397, is hereby [*11]declared null and void; and the Clerk of the Office of the City Register of the City of New York shall so mark his records accordingly; and it is further

ORDERED, that the conveyance of the subject property, known as 2788 Kingsbridge Terrace, Bronx, New York (Block 3253, Lot 97), from Arrisini Carney and Vanessa Carney for no consideration, by Quitclaim Deed, dated September 2, 2010, to "2788 Kingsbridge Terrace Corporation, c/o Michael Katz, 603 Third Avenue - 23rd Floor, New York, NY 10017," which was filed with New York City Department of Finance Office of the City Register under Document Identification Number 2010100400968001 and City Register File Number 2010000334539, is hereby declared null and void; and the Clerk of the Office of the City Register of the City of New York shall so mark his records accordingly; and it is further

ORDERED, that any and all mortgage foreclosure actions, including action two, having Index number 380459/09, by Katz, regarding the subject property, are hereby dismissed, and the Clerk shall mark the Court's records accordingly; and it is further

ORDERED, that defendants, Arrisini and Vanessa Carney, are prohibited from entering into any other transactions (including deeds and mortgages) regarding the subject property, other than to clear the title pursuant to the terms of the Last Will and Testament of Berry L. Carney, or as otherwise directed by this Court; it is further

ORDERED, that Plaintiff Jose Martinez's subject contract for sale is hereby declared void; and it is further

ORDERED, that the Lis Pendens filed by plaintiff on or about October 28, 2005, is cancelled and plaintiff is prohibited from filing any further Lis Pendens regarding the subject voided contract for sale; and it is further

ORDERED, that the Guardian ad Litem, Mark Goldstein, is appointed Trustee under Article Sixth of the Last Will and testament of Betty L. Carney, and, as such, is authorized and directed to take all actions necessary to fund the Trust with the subject property located at 2788 Kingsbridge Terrace, Bronx County, New York; and file any appropriate papers in the Surrogate's Court relative thereto; and it is further

ORDERED, that Mark Goldstein, as Trustee, is authorized and directed to terminate the Trust, and sell the property located at 2788 Kingsbridge Terrace, Bronx, New York, at fair market value; and, in that regard, to use the services of a licensed real estate broker, if he deems it appropriate, and he shall give the plaintiff the full and fair opportunity to purchase the property at a fair market value, and have the right of first refusal; and to take any and all actions to remove any encumbrances on the property, to effectuate the Trustee's ability to transfer title, including but not limited to, challenging and/or satisfying any and all tax liens against it; and it is further

ORDERED, that Mark Goldstein shall settle, on notice, separate Orders for Letters of Trusteeship, and legal fees as GAL and Trustee, including his Affidavit of legal services; and it is further

ORDERED, that the Trustee shall place the proceeds from the sale of the property into his escrow account, and, from the money he holds, he is authorized: to pay all appropriate liens placed against said property; to return to plaintiff Jose Martinez, his $25,000 deposit; to pay his own fee as the Trustee and his legal fees as GAL, (to the extent that these are approved by the Court); and he shall turn over the remaining moneys to Shariffa Carney, who is the person herein determined to be the only legitimate beneficiary of the testamentary Trust; it is further [*12]

ORDERED, that plaintiff shall settle, on notice, an Order for payment of his title costs in the amount of $250, and his legal fees for the costs to litigate this matter, including his attorney's Affidavit of legal services; whereupon this Court may make a determination as to the amounts to be paid therefor by Arrisini and Vanessa Carney and/or Intervener Katz, and 2788 Kingsbridge Terrace Corp.; and it is further

ORDERED, that attorney for plaintiff is directed to serve a copy of this Decision and Order, with Notice of Entry, upon all parties, the GAL, and the Bronx Surrogate's Court (to be referenced in the file of decedent Betty L. Carney).

Date:May 31, 2013_____________________________

SHARON A.M. AARONS, J.S.C.