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Rosenzweig v. Givens

January 8, 2009


Defendant appeals from an order of the Supreme Court, New York County (Barbara R. Kapnick, J.), entered October 4, 2007, which granted plaintiff summary judgment on his claim to foreclose certain mortgages, dismissed defendant's first, second and third affirmative defenses and two counterclaims, and struck her claim for punitive damages.

The opinion of the court was delivered by: Moskowitz, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Angela M. Mazzarelli, J.P., David Friedman, John W. Sweeny, Jr., Karla Moskowitz, JJ.

Ind. 114693/05

Given the highly unusual circumstances of this case, we do not believe that the motion court should have granted summary judgment to plaintiff at this early juncture, prior to discovery. Plaintiff Joseph Rosenzweig commenced this action to foreclose on two mortgages he issued to defendant Radiah Givens on May 10, 2002, in connection with the balance due on defendant's alleged purchase of a condominium apartment. The apartment secured the loans. It is undisputed that defendant herself has never made a mortgage payment.

However, these were no ordinary, arms-length mortgages. At the time plaintiff, an attorney, issued the mortgages, he was involved in a romantic relationship with defendant, a student 19 years younger. Unlike most mortgage transactions, it was plaintiff who paid the 10% down payment on the property. After the closing, plaintiff also paid the carrying costs on the apartment and most household expenses.

Plaintiff had his long-term friend and colleague, attorney Thomas Gazianis, represent defendant at the apartment's closing and both plaintiff and defendant in connection with the loans. At or directly after the May 10, 2002 closing, the parties signed a letter, as "accepted and agreed to," acknowledging Gazianis's joint representation in connection with plaintiff's loans to defendant, and of defendant in connection with her purchase of the apartment. Gazianis noted in the letter that he had a prior social and working relationship with plaintiff and recommended that both parties obtain separate counsel as a potential conflict existed. The letter also described the transaction between the parties as two mortgage loans being made to defendant "by Joseph I. Rosenzweig, in the combined amount of $285,300, and in connection with the mortgage and Note [defendant] has given to Mr. Rosenzweig therewith."

Unbeknownst to defendant at the time, plaintiff was married with children.

Almost two years later, on or about April 13, 2004, the parties married in Jamaica. Plaintiff was still married to another woman. The Marriage Register reflects that plaintiff identified himself as a bachelor and attorney. On April 19, 2005, plaintiff forged defendant's signature on a loan application for $150,000 that the apartment was to secure.

Plaintiff did not record the second mortgage until July 7, 2005, over three years after the closing. Defendant contends that plaintiff did this after she had found out that he had forged her signature on the loan application and after plaintiff's bigamous marriage became known to plaintiff's first wife. Plaintiff contends that he did not record the second mortgage until three years later to avoid certain taxes.

Eventually, defendant discovered that plaintiff was already married. In February 2007, the parties' bigamous marriage was annulled.

Defendant contends that the apartment was a gift to her from plaintiff. She contends that she was a student at the time of the transaction and that plaintiff knew she could not make the monthly payments. In support, defendant points out that the plaintiff paid the monthly expenses on the apartment including maintenance, household and related charges. Defendant also notes that plaintiff never asked her for mortgage payments until after she discovered his duplicity. Defendant explains that plaintiff induced her to sign the mortgage documents by claiming her signature was necessary to effectuate the gift. She says she never questioned this because he was a lawyer and she loved and trusted him. She claims she never would have signed had she known these were mortgage documents because she could not afford to make the monthly payments.

In her answer, defendant asserted affirmative defenses sounding in fraud and bad faith and two counterclaims. The first counterclaim is for fraudulent inducement to marry. The second counterclaim relates to plaintiff's fraud in inducing her to enter into ...

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