The following papers numbered 1 to 7 read herein:Papers Numbered



Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4

Reply Affidavits (Affirmations)5, 6

Supplemental Affidavit (Affirmation)[*2]7

Upon the foregoing papers, defendant/third-party Global Properties and Associates, Inc. (Global) moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the third-party complaint of third-party plaintiff Ticor Title Insurance Company (Ticor) a/s/o Henry Spitzer and, pursuant to 22 NYCRR 130-2.1, awarding sanctions.

By deed dated September 27, 1976, the City of New York (the City) transferred title of the subject property, located at Grant Square in Brooklyn, to the successful bidder at a public auction, Washington Temple Church of God in Christ, Inc. (Washington Temple). The deed to Washington Temple was recorded on October 21, 1976. On March 22, 1977, the City erroneously issued a deed to the subject property at a later public auction to non-party Darrell A. Shavers. The deed to Darrell A. Shavers was recorded on June 16, 1977.

Darrell A. Shavers died on July 28, 2001. By bargain and sale deed, dated December 24, 2004, executed by Geraldine Shaver, individually and as Administratrix of the Estate of Darrell A. Shavers, and by quitclaim deed dated January 7, 2005, executed by Regina V. Shavers and Darrell V. Shavers Jr., title to the property was purportedly conveyed to Global, which paid a purchase price of $180,000. The deeds to Global were both recorded on April 1, 2005. By deed dated June 1, 2005, Global purportedly transferred title to the subject property to Spitzer for $400,000. The deed to Spitzer was recorded on June 13, 2005. In conjunction with the transaction, third-party plaintiff Ticor Title Insurance Company (Ticor) issued a title insurance policy to Spitzer.

After Washington Temple acquired the property, it was held as a vacant lot continuously used for parking. In February 2005, shortly after receiving the Shavers deeds, Global posted a sign indicating that any vehicles parked there would be towed. Thereafter, on September 27, 2005, Washington Temple commenced the instant action against Global, Spitzer and the City, seeking to quiet title. Global asserted a cross-claim against the City for damages in the event that title was declared in favor of Washington Temple. Spitzer also asserted a cross-claim against the City, virtually identical to that interposed by Global, as well as cross-claims against Global.

In August 2006, Washington Temple filed a motion for summary judgment. Various cross motions were filed by defendants. In a consent order dated January 17, 2007, all of the parties agreed that Ticor could intervene in the main action. By third-party summons and complaint dated February 16, 2007, Ticor commenced the instant third-party action against Global (the Ticor Action). In its amended third-party complaint, Ticor, as subrogee of Spitzer, seeks to recover the monies paid by Spitzer to Global on the grounds of breach of contract, breach of covenant against grantor's acts, breach of warranty, unjust enrichment and rescission.

By decision and order dated May 16, 2007, the court (Hon. Jack M. Battaglia, J.) granted Washington Temple's motion for summary judgment on its cause of action for a judgment declaring it to be owner of the property, dismissed the cross-claims asserted by Global and Spitzer against the City, denied Global's cross-motion for summary judgment against the City on the issue of liability, granted the City's motion and cross motion for summary judgment and denied Global's pre-answer motion to dismiss the third-party complaint of Ticor. Specifically, the court stated that:

"[T]here can be no recovery here by Global Properties, Spitzer, or Ticor [against the City], because a diligent search of the [*3]public record would have revealed the successive deeds to Plaintiff and Shavers, without an intervening conveyance from Plaintiff to the City. At the least, any diligent searcher would have been put to a duty to investigate whether Shaver's estate and heirs held any interest in the Subject Property to convey."

In denying Global's pre-answer motion to dismiss the third-party complaint of Ticor, the court stated:

"[T]he third-party action arises out of facts and circumstances that must be characterized as at least unusual, involving a recorded title that provided Global, Spitzer, and Ticor with constructive notice that any interest Global or Spitzer might claim in the Subject Property derived from someone who was not the owner, as well as open and obvious possession of the Subject Property by the owner at all times during the transactional history."

By decision and order dated October 14, 2008, the Appellate Division affirmed the May 16, 2007 decision, holding that Global "was charged with record notice of all matters indexed under the block and lot numbers corresponding to the premises, regardless of whether such information also appeared in its direct chain of title" (Washington Temple Church of God in Christ, Inc. v Global Props. & Assoc., Inc., 55 AD3d 727, 728 [2d Dept 2008] [internal citations omitted]). The Appellate Division explained that:

"Since it is undisputed that the deed held by Washington Temple was recorded prior to the deed issued to Shavers, Global Properties cannot claim to have lacked knowledge or notice of the deed held by Washington Temple or that Washington Temple would assert a claim for relief." (Citations omitted).

A note of issue was filed by Ticor on February 9, 2009. On March 6, 2009, Global filed a motion for summary judgment and Ticor similarly cross-moved for summary judgment. By decision dated October 2, 2009, the court (Hon. Lawrence Knipel, J.) denied both applications, finding that:

"[M]ultiple outstanding questions of fact necessitate the denial of both Global and Ticor's summary judgment motions. As previously stated, the Court and the Appellate Division found that Global is chargeable with record notice of the Washington deed. Here, there are issues of whether both Global and Ticor are charged with notice of the defect in title at the time of the sale of the property from Global to Spitzer, including whether both parties entered into the contract under a mutual mistake of fact, which consequently voids the contract under the equitable remedy of rescission, or whether the sale from Global to Spitzer was fraudulent as a matter of law. Global argues that Ticor likewise failed to conduct a thorough title examination, which is the superseding cause of Spitzer's purchase, thereby breaking any [*4]causal link between Global's conduct and the damages Ticor, as Spitzer's subrogee, alleges it suffered. Consequently, Global's causal connection to Ticor's damages is also subject to resolution by the trier of fact. The Court further finds a question of fact as to whether Ticor was required to tender both insurable and marketable title to Spitzer under the contract's terms." (Citation omitted).

The Appellate Division affirmed the decision on May 17, 2011, holding that "[u]nder the unusual and particular facts and circumstances of this case, the Supreme Court properly concluded that there were issues of fact warranting denial of the motion and cross motion for summary judgment" (Washington Temple Church of God in Christ, Inc. v Global Props. & Assoc., Inc., 84 AD3d 1066, 1067 [2d Dept 2011] [internal citations omitted]).

On November 10, 2009, Global commenced a fourth-party action against United General Title Insurance Company (United General) to recover under the policy of title insurance issued by United General to Global on April 1, 2005. By order dated October 18, 2012, this court granted United General's motion for summary judgment and dismissed the fourth-party action. The court determined that United General's obligations under the policy terminated upon the transfer of the deed to Spitzer.

On May 23, 2013, Global brought the instant, successive motion for summary judgment. Global maintains that the instant motion is based upon "newly discovered evidence" that Ticor "had actual knowledge of Washington Temple's interest in the subject property prior to insuring the subject transaction." This evidence consists of an exception in the title report concerning a "One Dollar Condemnation Clause" between the City and Washington Temple recorded in 1976 in addition to a "One Dollar Condemnation Clause" between the City and Darrell A. Shavers recorded in 1977. Global argues that in light of these competing interests stated in the title report, Ticor was on actual notice of the Washington Temple deed and thus cannot seek rescission of the contract of sale based on a mutual mistake as to the validity of Global's title.

Contrary to Global's characterization, the inclusion of the condemnation clause in the title report provided Ticor, at best, with constructive notice of the Washington Temple deed. At any rate, "[i]t is well settled that successive motions for summary judgment should not be made in the guise of motions to renew where the new material could have been submitted with the original motion for summary judgment'" (Klein v Auerbach, 1 AD3d 317, 318 [2d Dept 2003] quoting Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 135 AD2d 685, 686 [2d Dept 1987]). As demonstrated by Ticor, the title report containing the condemnation clause exceptions was provided to Global during the course of discovery in September 2006, over two years prior to Global's first motion for summary judgment. Insofar as there are no new facts alleged or newly discovered evidence uncovered since Justice Knipel's denial of Global's first summary judgment motion or the order of the Appellate Division affirming Justice Knipel's order, the instant successive motion is properly denied (see Quinn v Hillside Development Corp., 21 AD3d 406 [2d Dept 2005]).

Further, the instant summary judgment motion is untimely underCPLR 3212 (a) and Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6. CPLR 3212 (a) states: [*5]

Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

Post Note of Issue Summary Judgment Motion: In cases where the City of New York is a defendant and is represented by the Tort Division of the Corporation counsel's office, summary judgement motions may be made no later than 120 days after the filing of a Note of Issue. In all other matters, including third party actions, motions for summary judgment may be made no later than 60 days after the filing of a Note of Issue. In both instances the above time limitations may only be extended by the Court upon good cause shown.

"[S]ummary judgment motions should be timely made, or good cause shown" (Miceli v State Farm Mutual Automobile Ins. Co., 3 NY3d 725, 726 [2004]). That a summary judgment may be meritorious is not considered "good cause" (id. at 726). "[S]tatutory time frames— like court-ordered time frames—are not options, they are requirements, to be taken seriously by the parties" (id. [citation omitted]). The note of issue in this case was filed on February 9, 2009. The instant motion for summary judgment was brought on May 23, 2013, without leave and over four years following the filing of the note of issue. Global has not shown good cause for the delay. The court finds unavailing Global's argument that good cause exists because the examination before trial (EBT) of Spitzer was not held despite so-ordered stipulations directing same. In the cases cited by Global in its reply papers, good cause was found where the delay was caused by reason of the movants' efforts to obtain outstanding discovery before the summary judgment motion was brought. Here, there is no indication in the record that Global either moved to vacate the note of issue or otherwise sought to compel Spitzer's deposition between the time of the note of issue of issue filing and the instant motion. Global does not contend that Spitzer's EBT was necessary for it to make its motion for summary judgment, nor is it alleged that the delay in making the motion was caused by delays in obtaining Spitzer's EBT.

Also unavailing is Global's contention that good cause exists for the delay by reason of the time spent by Justice Knipel to determine the first motion for summary judgment, the time spent on the appeal of Justice Knipel's order, the time spent by the Appellate Division to determine the appeal and the time spent in relation to Global's fourth-party action against United General to recover under its policy of insurance. All of the foregoing was resolved, at the latest, [*6]on October 18, 2012 when this court issued its order dismissing Global's fourth-party action. There is no explanation from Global as to why its summary judgment motion was not made until May 23, 2013, more than seven months following the order dismissing the fourth-party action.

Because there is no showing of good cause for the delay, the instant summary judgment motion must be denied as untimely (Goldin v New York and Presbyterian Hosp., 112 AD3d 578 [2d Dept 2013]).

Even if the court had the discretion to consider the merits of the instant motion for summary judgment, it would find that issues of fact remain, including whether the contract of sale between Global and Spitzer may be rescinded on the ground of mutual mistake. "As a general rule, where a mistake in contracting is both mutual and substantial, there is an absence of the requisite meeting of the minds to the contract and relief will be provided in the form of rescission. The mutual mistake must exist at the time the contract is entered into and must be substantial. The effect of rescission is to declare the contract void from its inception and to put or restore the parties to status quo" (County of Orange v Grier, 30 AD3d 556, 556-557 [ 2d Dept 2006] [citations and internal quotation marks omitted]).

Global's secretary, David Damaghi, testified at his EBT that he was not aware of any title issues up until the time of closing and did not hear anything about the Darrell A. Shavers deed being outside of the chain of title until after the closing. Moreover, it is not in dispute that marketable title to the property was insured under the policy issued by United General. Spitzer was examined by Ticor in connection with his claim. Spitzer testified that he first learned of the title problem following the closing, when he visited the property with a surveyor and encountered an employee of Washington Temple. Similarly, the title report issued by Ticor's agent certified that Global had marketable title.

While both Damaghi and Spitzer testified that they were unaware of any competing interests to title, Global contends that by reason of the appearance of the condemnation clause in Spitzer's title abstract which expressly references Washington Temple, Spitzer or his attorney, who received the title report and whose knowledge may be imputed to Spitzer (see Laera v Molina, 100 AD2d 615, 616 [2d Dept 1984] Siegel v Faryniarz, 9 Misc 2d 1035, 1038 [Sup Ct, Westchester County 1957]) was put on notice of the Washington Temple interest and thus cannot claim that the transaction proceeded under a mutual mistake of fact. Citing P.K. Development Inc. v Elvem Development Corp. (226 AD2d 200 [1st Dept 1996]), Global contends that Spitzer and/or Ticor may not invoke mutual mistake to avoid the consequences of their own negligence in failing to ascertain the true state of title. However, whether the parties' failure to conduct an independent examination of title (as opposed to relying on the title companies' assurance of marketable title) constitutes a failure to exercise "ordinary care" is an issue to be resolved by the trier of fact (see generally Andre v Pomeroy, 35 NY2d 361, 364 [1974] [with respect to negligence, "even when the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law"]. Thus, there remains an issue of fact as to the existence of a mutual mistake between Global and Spitzer with respect to the validity of Global's title to the property, and the availability of the remedy of rescission (see Rodriguez v Mower, 56 AD3d 857 [3d Dept 2008] County of Orange, 30 AD3d at 557).

Accordingly, Global's motion for summary judgment is denied. That part Global's [*7]motion for an award of sanctions is denied. While Ticor's counsel failed to appear at two conferences, this court does not find that, under all of the attendant circumstances, sanctions are warranted under the guidelines of 22 NYCRR 130-2.1 [b]).

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.