Opinion
CV-010629-17/NY
06-15-2018
Frances MALLOY, Plaintiff, v. Ihab TARTIR; Thor 1001 Third Avenue LLC; Royal Abstract of New York LLC; Prestige Title Agency Inc., Defendants.
Self-represented Plaintiff Frances Malloy has asserted various causes of action against Defendants Ihab Tartir, Thor 1001 Third Avenue LLC ("Thor"), Royal Abstract of New York LLC ("Royal"), and Prestige Title Agency Inc. ("Prestige"). Plaintiff alleges, in sum and substance, that Defendants improperly used her title insurance escrow deposit, meant to secure a mortgage on her property, to pay Environmental Control Board (ECB) judgments incurred by Tartir on a different property. Plaintiff moves for special preference (001), and Defendant Prestige cross-moves to dismiss the complaint (002). For the reasons set forth below, (1) Prestige's motion is granted and the Complaint is severed and dismissed against Prestige only; and (2) Plaintiff's motion for special preference is granted.
The Court reads the facts, as it must on a motion to dismiss, in the light most favorable to the non-movant Plaintiff except, as noted below, where documentary evidence refutes Plaintiff's contentions.
From August 29, 2007 to December 7, 2011, non-party St. Clair Realty LLC ("St. Clair"), whose principal is Defendant Ihab Tartir, owned a corner parcel of land located at 292 Atlantic Avenue, 294 Atlantic Avenue, 99 Smith Street, and 101 Smith Street, Brooklyn, New York (collectively the "Tartir-Thor Property"). On December 7, 2011, Thor purchased the Tartir-Thor Property in a sale authorized by a Bankruptcy Court---according to Plaintiff, free and clear of all liens (Pl Exh D , the "Bankruptcy Order"). As part of that transaction, Royal and St. Clair signed an escrow agreement providing for an escrow deposit of $36,209.00 (Pl Exhs E, F , the "Tartir-Thor Escrow Agreement").
Because this is a legal, not factual, contention, it is addressed in detail below.
On September 9, 2013, Tartir sold a different property located at 76 Nevins Street, 452 State Street, and 454 State Street, Brooklyn, New York to Plaintiff (collectively "Plaintiff's Property") . In March of 2015, Plaintiff secured a mortgage loan from non-party W Financial Fund LP using Plaintiff's Property as collateral (Complaint ¶ 6). The loan required a title report, which Prestige provided on March 6, 2015 and supplemented on March 9, 2015 (Prestige Exh B , collectively the "Title Report").
Block 178, Lot 44.
The Title Report revealed numerous potential encumbrances requiring resolution including, as relevant here, ECB judgments on multiple properties. On March 10, 2015, Plaintiff signed an escrow agreement with Prestige which acknowledged an escrow deposit of $35,017.46 for various taxes, including fees and, as relevant here, $28,000.00 for "ECB" (Complaint ¶ 6; Prestige Exh C , the "Escrow Agreement").
Plaintiff paid the mortgage loan on September 25, 2015, and filed a Satisfaction of Mortgage on September 28, 2015 (Complaint ¶ 7). However, when Plaintiff requested the return of her escrow funds from Prestige, Prestige informed Plaintiff that Prestige had, in addition to paying taxes and ECB judgments which were indisputably applicable to Plaintiff's Property, also paid ECB judgments on the Tartir-Thor Property on or about October 7, 2015 in the total amount of $24,410.15, plus service charges (id. ). Plaintiff subsequently received a refund check for the remaining balance, $6,819.85, which she cashed on November 16, 2015 (Prestige Exh E ).
When Prestige refused to return Plaintiff's escrow funds, Plaintiff commenced this action arguing, in sum and substance, that Prestige had misappropriated her funds, and that the other Defendants had negligently failed to pay the ECB violations/liens on the Tartir-Thor Property and/or improperly benefited from Plaintiff's escrow funds by applying them to the Tartir-Thor property. Prestige and Tartir answered, while Royal and Thor have defaulted. Prestige now moves pursuant to CPLR 3211(a)(1) and (7) to dismiss the Complaint.
DISCUSSION
I. Prestige's motion to dismiss
As an initial matter, and contrary to Plaintiff's position, Prestige's motion is timely. As noted on the court jacket, the Court explicitly authorized Prestige's motion on July 12, 2017, the first appearance in this action. Though the Court directed that filing by August 31, 2017, Prestige's filing several days later, on September 7, 2017, did not prejudice Plaintiff because she had over a month to respond. Additionally, Plaintiff not only responded, but also filed a motion for special preference. Accordingly, the Court will address the motion's substance.
A. CPLR 3211(a)(7)
Prestige argues that Plaintiff fails to state any cognizable cause of action against Prestige. The Court agrees to the limited extent that Plaintiff has failed to state a cause of action for conversion.
In determining a motion to dismiss a complaint pursuant to 3211(a)(7), the Court's role is deciding "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which, taken together, manifest any cause of action cognizable at law" ( African Diaspora Maritime Corp. v. Golden Gate Yacht Club , 109 AD3d 204 [1st Dept 2013] ; Siegmund Strauss, Inc. v. East 149th Realty Corp. , 104 AD3d 401 [1st Dept 2013] ). On a motion to dismiss made pursuant to CPLR 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs "the benefit of every possible favorable inference," and "determine only whether the facts as alleged fit into any cognizable legal theory" ( Siegmund Strauss , 104 AD3d 401 ; Nonnon v. City of NY , 9 NY3d 825 [2007] ).
Moreover, "[i]n assessing a motion under CPLR 3211(a)(7), ... a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" ( Mawoon v. Dot Net Inc. , 135 AD3d 656, 657 [1st Dept 2016], quoting Leon , 84 NY2d at 88 [1994] ; see High Definition MRI, P.C. v. Travelers Cos., Inc. , 137 AD3d 602, 603 [1st Dept 2016] [plaintiff's affidavit sufficiently particular to give the court and parties notice of the cause of action] ). A court may also consider plaintiff's bill of particulars to determine whether a claim is stated (see Kellogg v. All Saints Hous. Dev. Fund Co. , 146 AD3d 615, 616 [1st Dept 2017] ).
Plaintiff alleges that Prestige breached the Escrow Agreement. The elements of a breach of contract claim include the existence of a contract, the plaintiff's performance thereunder, the defendant's breach thereof, and resulting damages ( Harris v. Seward Park Hous. Corp. , 79 AD3d 425, 426 [1st Dept 2010] ). The only issue is whether Prestige breached — is sufficiently alleged through Plaintiff's contention that Prestige misapplied her escrow deposit to an property not contemplated by the Escrow Agreement or Title Report. Accordingly, the branch of Prestige's motion to dismiss Plaintiff's cause of action for breach of contract is denied.
Second, and contrary to Prestige's argument that Plaintiff has failed to state a cause of action for breach of fiduciary duty, an escrow agent owes the parties to the transaction a fiduciary duty, and therefore the agent, as a fiduciary, has "a strict obligation to protect the rights of [the] parties" for whom he or she acts as escrowee ( Greenapple v. Capital One, N.A. , 92 AD3d 548, 549 [1st Dept 2012] ). For the same reason, and contrary to Prestige's argument, Plaintiff alleges a duty sufficient to survive dismissal of her cause of action for negligence (id. ). Accordingly, the branch of Prestige's motion to dismiss Plaintiff's cause of action for breach of fiduciary duty and negligence is denied.
Finally, to the extent that Prestige seeks to dismiss Plaintiff's cause of action for conversion, "the existence of a valid, written contract governing the subject matter generally precludes recovery in quasi contract for events arising out of the same subject matter," including for conversion ( Parrott v. Logos Capital Mgt., LLC , 91 AD3d 488, 489 [1st Dept 2012] ). As discussed further below, and as acknowledged by Plaintiff, the Escrow Agreement constituted a valid contract. Accordingly, and absent substantive opposition to Prestige's argument, Plaintiff's cause of action against Prestige for conversion shall be dismissed.
B. CPLR 3211(a)(1)
Pursuant to CPLR 3211(a)(1), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that "a defense is founded upon documentary evidence." A motion to dismiss on the basis of a defense founded upon documentary evidence may be granted "only where the documentary evidence utterly refutes [the complaint's] factual allegations, conclusively establishing a defense as a matter of law," and only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" ( Mill Financial, LLC v. Gillett , 122 AD3d 98, 103, citing Art and Fashion Group Corp. v. Cyclops Production, Inc. , 120 AD3d 436 [1st Dept 2014] ; Goshen v. Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 [2002] ).
To be considered "documentary," evidence must be unambiguous and of undisputed authenticity ( Fontanetta v. Doe , 73 AD3d 78 [2d Dept 2010], citing Siegel, Practice Commentaries, CPLR C3211:10); Raske v. Next Management, LLC , 40 Misc 3d 1240(A), 2013 WL 5033149 [Sup Ct NY County 2013] ; Philips South Beach, LLC v. ZC Specialty Ins. Co. , 55 AD3d 493 [1st Dept 2008] [documentary evidence "apparently aims at paper whose content is essentially undeniable and which assuming the verity of its contents and the validity of its execution will itself support the ground on which the motion is based"] ). To constitute documentary evidence, the papers must be "essentially undeniable" and support the motion on its own ( Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc. , 120 AD3d 431 [1st Dept 2014], citing Siegel, Practice Commentaries, supra ).
1. Formation of the Escrow Agreement
As a threshold matter, Plaintiff argues that the Escrow Agreement should not be enforced because it was "signed in blank among a pile of documents presented to [P]laintiff in order to obtain a short term mortgage."
However, parties who have signed a contract are under the obligation to read it first, and cannot avoid a contract's effects on the ground that they did not read or understand the contract's contents ( Marciano v. DCH Auto Group , 14 F Supp 3d 322, 330 [SDNY 2014] [collecting New York cases]; Brandywine Pavers, LLC v. Bombard, 108 AD3d 1209 [4th Dept 2013] ["A party is under an obligation to read a document before he or she signs it, and a party cannot generally avoid the effect of a [document] on the ground that he or she did not read it or know its contents"] ).
Once a party signs a document, they are presumed to understand its contents ( Superior Officers Council Health & Welfare Fund v. Empire HealthChoice Assurance, Inc., 85 AD3d 680 [1st Dept 2011] ["[P]arties are presumed to know the contents of the agreements they have signed"] ). This obligation is not diminished when a party is provided only with a signature page or signs in blank ( Vulcan Power Co. v. Munson , 89 AD3d 494, 495 [1st Dept 2011] ; accord Dasz, Inc. v. Meritocracy Ventures, Ltd., 108 AD3d 1084 [4th Dept 2013] ; Alcolm Co. v. Bacigalupo , 105 NYS 1105, 1105 [App Term 1907] [affirming, per curiam , judgment after trial holding defendant liable for $12 out of $40 contract where defendant admittedly signed contract in blank after assurance by plaintiff that advertisement would only cost $12]; cf Marciano, 14 F Supp 3d at 330 [recognizing the existence of exceptions to this rule where wrongful or deceptive acts to induce signature are alleged] ).
Plaintiff acknowledges signing the Escrow Agreement and, indeed, explains that she "would have signed the Agreement had she been at the closing because there was no indication on the paper that liens to be satisfied were any other than [Plaintiff's Property]." In the absence of any allegations (or evidence) of wrongdoing by Prestige with respect to the Agreement's formation, the Escrow Agreement is enforceable.
2. Substance of the Escrow Agreement
The Complaint alleges that the Escrow Agreement addressed only ECB judgments related to Plaintiff's Property, and therefore that the escrow funds were incorrectly and/or negligently misapplied by Prestige to the Tartir-Thor property. Contrary to Plaintiff's allegations, however, the Escrow Agreement explicitly contemplated the application of the escrow funds to ECB judgments delineated in the Title Report and, moreover, explicitly authorized payments to clear potential encumbrances on title, including ECB judgments on other properties tied to Tartir at the time Plaintiff purchased Plaintiff's Property.
"[A] policy of title insurance is a contract by which the title insurer agrees to indemnify its insured for loss occasioned by a defect in title" ( Smirlock Realty Corp. v. Title Guar. Co., 52 NY2d 179, 188 [1981] ). Title insurance insures owners of real property against loss by reason of defective titles and encumbrances thereon ( Ben-Avraham v. Lawyers Tit. Ins. Corp. , 5 Misc 3d 791, 793 [Sup Ct NY County 2004] ). "The insurer's obligation in this regard is defined by the terms of the policy itself and is limited to the loss in value of the title as a result of title defects against which the policy insures" ( Aubuchon Realty Co. Inc. v. Fid. Nat. Tit. Ins. Co. of New York , 295 AD2d 725, 727 [3d Dept 2002] ). "As with any written instrument, the interpretation of an insurance policy is the responsibility of the court as a question of law unless there is ambiguity in the terminology used in the instrument and resolution of that ambiguity depends upon extrinsic evidence" (id. ).
A title closer will traditionally "mark-up" the title report, or review the report and mark "omit" next to the items in the report that have been disposed of, or will not appear in the policy, or will mark "except" next to an item that will not be insured against, and thus will appear as an exception to coverage in the title policy (see eg Hess v. Baccarat , 287 AD2d 834, 836 [3d Dept 2001] ; Stewart Tit. Ins. Co., Inc. v. Equit. Land Services, Inc. , 207 AD2d 880 [2d Dept 1994] ). Here, the Title Report provided that "[t]he policy will not insure against loss or damage (and the Company will not pay costs, attorneys' fees or expenses) which arise by reason of [listed] exceptions unless they are disposed of to our satisfaction" (Prestige Exh B at 8). Immediately below that provision, the Title Report then listed a litany of exceptions, including those at issue here (id. ).
Hand-written next to the first delineated exception, "Taxes, tax liens, tax sales, water rates, sewer rents and assessments wet forth in schedule herein," is "SEE HERE-IN" (id. ). The document also listed three judgments under further investigation, including two in Supreme Court, Kings County and, most notably, "Numerous Environmental Control Board judgments filed vs Ihab Tartir" (id. at p 8, ¶ 12). Accompanying these judgments was another handwritten notation: "OMIT PAID AT CLOSING" (id. ). The document also cites a photographic exhibit, again bearing an "OMIT" notation, listing $14,200.00 in total ECB violations through February 14, 2015 for the Tartir-Thor Property (id. at p 14). The violation numbers match those listed in Prestige's proof of payment.
Plaintiff does not dispute that Prestige paid these fees, plus interest. The Title Report also attaches five ECB violation reports for Plaintiff's Property against Enterprise Rent a Car totaling $2,125.00, all listed as paid, as well as several HPD violations which do not list any amount, (id. at 22-27), neither of which appear to be at issue here.
Additionally, the Escrow Agreement listed Plaintiff's Property, acknowledged an escrow amount of $35,017.46, and provided that the depositary (Prestige) would "hold the deposit as security for the production by July 1st, 2015 of the disposition of record to the satisfaction of depositary of ‘ECB 28,000.00’ and ‘NYS State Tax 3500.00’ affecting [Plaintiff's Property] " [emphasis added], plus a $50.00 service charge. ,
Written vertically alongside these amounts is "DEPOSITOR [PLAINTIFF] TO PERFORM."
The Escrow Agreement bears a notation that the tax portion was paid on March 12, 2015 (id. ).
The parties disagree as to whether the ECB liens on the Tartir-Thor property "affect[ed] Plaintiff's Property." Plaintiff, believing there to be "no ECB liens pending on [Plaintiff's Property]," paid the July 1, 2015 deadline "no mind" (Pl Opp ¶ 10). However, the Escrow Agreement, not Plaintiff's subjective beliefs, govern the parties' obligations.
The Escrow Agreement's "Terms, Covenants and Conditions" provide, in relevant part:
1. In the event that [Plaintiff] fails to comply with any of [Prestige's] obligations hereunder, and/or, if [Prestige] deems it advisable to protect the title to the insured premises or the marketability thereof, [Prestige] is authorized, without notice (i) to pay, satisfy, discharge or otherwise dispose of any of the items set forth in this Agreement, (ii) to retain counsel in connection therewith, and (iii) to pay any such expenses, disbursements and/or counsel fees incurred out of the Deposit.
The Title Report and Escrow Agreement reflected the potential that ECB judgments against Tartir's other properties could be enforced against Plaintiff's property. That is, NYC Code § 28-204.6 provides, in relevant part, that
... an environmental control board judgment against an owner for a building code violation with respect to (i) a private dwelling, a wooden-framed single room occupancy multiple dwelling, or a dwelling with a legal occupancy of three or fewer dwelling units shall constitute a tax lien on the property named in the violation with respect to which such judgment was rendered, as hereinafter provided. ***
By its plain terms, this provision — as Plaintiff correctly notes — creates a tax lien only "on the property named in the violation." However, New York City Charter § 1049-a(d)(1)(g) provides that
(g) Any final order of the [ECB] imposing a civil penalty, whether the adjudication was had by hearing or upon default or otherwise, shall constitute a judgment rendered by the board which may be entered in the civil court of the city of New York or any other place provided for the entry of civil judgments within the state, and may be enforced without court proceedings in the same manner as the enforcement of money judgments entered in civil actions ... (emphasis added; see also JT Tai & Co., Inc. v. City of New York , 85 AD3d 433, 435 [1st Dept 2011] [ECB has the authority to apply to a court of competent jurisdiction to enforce orders of greater than $25,000]; OTR Media Group, Inc. v. City of New York , 83 AD3d 451, 454 [1st Dept 2011] ).
Money judgments against an individual may, of course, be pursued "against any property which could be assigned or transferred, whether it consists of a present or future right or interest and whether or not it is vested, unless it is exempt from application to the satisfaction of the judgment" ( CPLR § 5201[b] ). This includes property owned jointly, or an interest in a partnership or corporation ( CPLR § 5201[b]-[c] ).
Thus, though no action had yet been taken to execute upon the ECB judgments, the judgments were final with the realistic potential for expedient enforcement — indeed, without the necessity for court proceedings — against Tartir, and therefore existed as a potential encumbrance upon any property he sought to transfer (see Logan v. Barretto , 251 AD2d 552, 552—53 [2d Dept 1998], citing Insurance Law §§ 1113[a][18] and 6401[b] ; see also Voorheesville Rod & Gun Club v. E.W. Tompkins Co ., 82 NY2d 564, 571 [1993] [marketability of title is concerned with impairments on title to a property, i.e., the right to unencumbered ownership and possession]; cf Butcher v. Burton Abstract Tit. Co. , 52 Mich App 98, 101—02, 216 NW2d 434, 436 [Mich Ct App 1974], citing Mayers v. Van Schaick , 268 NY 320 [1935] [ad valorem taxes not yet due are not liens or encumbrances within the meaning of a title insurance policy] ).
Accordingly, this Court finds that the documents, read together and noting the "OMIT PAID AT CLOSING" notation accompanying the "Numerous [ECB] judgments filed vs. Ihab Tartir" and additional documentation, refute Plaintiff's interpretation (Complaint ¶ 4). Specifically, the documents placed Plaintiff on notice of the purpose of the $28,000.00 portion of the escrow deposit designated as "ECB": to dispose of any and all items which might cloud title. Even if it had not, however, the Escrow Agreement explicitly authorized the use of the escrow deposit to clear any title defects which would "affect" Plaintiff's Property, which included ECB orders in effect against Tartir when he sold Plaintiff's Property to Plaintiff (Prestige Exh B ).
Plaintiff makes several arguments in opposition. First, Plaintiff argues that the title insurance policy was no long in effect on October 7, 2015, when Prestige made the ECB payments. As an initial matter, there is no evidence of any October 2, 2015 letter or October 23, 2015 phone call, nor any evidence that Prestige was a party to either. Nevertheless, accepting for the purposes of a motion to dismiss that either occurred, Plaintiff does not adequately explain why the notice would have terminated the Escrow Agreement in light of the provision that the Agreement "shall not be modified except in a writing signed by the parties." (¶ 12). Moreover, the September 28, 2015 mortgage satisfaction would only impact future title insurance policies, not any encumbrances upon Plaintiff's property contemplated by the existing title insurance policy and Escrow Agreement.
Second, Plaintiff argues that the 2011 Bankruptcy Order directed payment of the ECB judgments by other entities and, in any event, authorized a "free and clear" sale of the Tartir-Thor Property from Tartir's LLC to Thor. Though Plaintiff correctly notes that $75,000.00 was segregated from the sale proceeds for "violations," there is no basis in the record to conclude that the "violations" were related to the ECB judgments, or evidence that the Bankruptcy Order explicitly contemplated the ECB judgments (Pl Opp ¶¶ 11, 15, citing Pl Exh D ).
Moreover, whether a bankruptcy plan extinguishes a lien requires that (1) the plan is confirmed; (2) the property subject to the lien is "dealt with" by the plan; (3) neither the plan nor the order of confirmation preserves it; and, (4) as noted recently by the Second Circuit, a lienholder's presence ( In re N. New England Tel. Operations LLC , 795 F3d 343, 348 [2d Cir 2015] ["the text of the Code allows a plan to extinguish a lien only if the underlying property is "dealt with," and that condition cannot be fairly satisfied in the absence of the interested parties, including the security holder. *** Section 506(d)(2) thus preserves liens of non-participating lienholders whose liens would otherwise be extinguished solely as a result of their non-participation "] ). Here, there is insufficient evidence from which the Court can conclude that the bankruptcy sale was, in fact, "free and clear" because there is no indication that the lienholder — here, the City of New York/ECB — participated.
To the extent that Plaintiff alleges that both she and Tartir were made to pay the same ECB fines, Plaintiff does not substantiate this claim. Though Plaintiff attaches the Tartir-Thor Escrow Agreement to several database printouts of ECB charges on the Tartir-Thor Property, (Pl Exhs E, F ), there is no indication that any payments made pertained to the ECB judgments at issue here. More importantly, however, the failure of those parties to clear any defects in title pursuant to a separate agreement does not impute liability to Prestige. To the extent that Plaintiff argues that other parties' failure to take appropriate or mandated action caused her harm, she may pursue recourse against those entities; indeed, several alleged tortfeasors remain defendants in this action.
Indeed, the "proof of payment" attached by Plaintiff is, in actuality, the same proof attached by Prestige to evidence their 2015 payment of the ECB fines pursuant to the Escrow Agreement.
Accordingly, the Court finds that the documentary evidence refutes Plaintiff's allegations against Prestige, meriting dismissal of the Complaint against Prestige only.
C. Prestige request for fees
Finally, Prestige's request for attorneys' fees is denied. To the extent that Prestige's request for attorneys' fees is raised for the first time in reply, (Prestige Reply ¶ 17), it is not properly before the Court. Moreover, the request is not accompanied by a citation to any provision authorizing such fees. To the extent that it appears that Prestige is referring to paragraph two of the Escrow Agreement's "Terms, Covenants and Conditions," Prestige does not adequately explain why this action directly "aris[es] out of" "[Plaintiff's] failure to comply with its obligations under [the Escrow Agreement]."
II. Plaintiff's motion for special preference
Because other defendants remain, Plaintiff's motion for a special preference is granted. CPLR 3403 provides that cases are generally tried "in the order in which notes of issue have been filed," but make an exception for various cases including instances where the Plaintiff is at least seventy years old and where a preference would be in the interest of justice (see also 22 NYCRR 208.20 ). Plaintiff's baptismal certificate bearing a birthdate of March 5, 1923, together with her affidavit containing the same information and a statement swearing to frail health, is sufficient to satisfy her burden. To the extent that Prestige's opposition takes issue with the fact that Plaintiff has not yet filed a notice of trial, the Clerk of Court, not the parties, are required to place the matter on the trial calendar where at least one party is unrepresented ( CCA § 1301 ; see Erinna v. Ofodile , 59 Misc 3d 723 [Civ Ct NY County 2018] ).
CONCLUSION
For the foregoing reasons, it is hereby
ORDERED and ADJUDGED that the motion of Defendant Prestige Title Agency, Inc. to dismiss (002) is GRANTED, and the Complaint shall be dismissed against Prestige only, without fees or costs; and it is further
ORDERED that Plaintiff's motion for a special preference (001) is granted, and the matter shall proceed expediently to trial or, upon proof of proper service, inquest against defaulting parties on June 22, 2018 at 11 a.m. at 111 Centre St., Room 325, New York, New York; and it is further
ORDERED that the Clerk of Court shall send a copy of this decision and order to all parties forthwith; and it is further
ORDERED that Prestige shall serve this decision and order with notice of entry upon all parties within 5 days of receipt.
This constitutes the decision and order of the Court.
CPLR 2219(a) Recitation
NOTICE OF MOTION & AFFIDAVIT(S) 1: Moulinos Affirm, Exhs A-E
OPPOSITION/CROSS-MOTION 2A: Malloy Aff in Opp, Exhs A-G, 2B: Malloy Aff, Exhs A-B
REPLY/OPPOSITION TO CROSS-MOTION 3A: Moulinos Reply Affirm, Exhs A-C, 3B: