Gafni v. Refunds (2025)

Case details
Full caption
Morris Gafni v. Rapid Foreclosure Refunds et al.
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
2025
Disposition
Motion Granted
© 2025 Thomson Reuters. No claim to original U.S. Government Works.Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC,YORAM GAFNI, JOHN DOE, and MARY DOE, Defendants.Supreme Court, Queens County, New York. | November 21, 2025 | Slip Copy | 2025 WL 3292291Document Detailsstandard Citation:Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAMGAFNI, JOHN DOE, & MARY DOE, Defendants., No. 703853/2024,2025 WL 3292291 (N.Y. Sup. Ct. Nov. 21, 2025)All Citations:Slip Copy, 2025 WL 3292291 (Table), 2025 N.Y. Slip Op. 51864(U)Search DetailsSearch Query:adv: (openai "artificial intelligence" chatgpt "google gemini" "westlawcocounsel" "large language model") (hallucinat! fake fictitious spuriousnonexistent "non-existent" "made up" imagined /p (gpt ai "artificialintelligence" chatgpt chaton perplexity openai copilot "google gemini""google bard" grok "mata v. avianca" claude llm llms)) (hallucinat! fakefictitious spurious nonexistent "non-existent" "made up" imagined) +3(precedent case "legal authority" "legal case") & DATE(aft 1/1/2023)Jurisdiction:New YorkDelivery DetailsDate:November 27, 2025 at 12:52 PMDelivered By: Client ID:NOCLIENTIDOutlineAttorneys and LawFirms (p.1)Opinion (p.1)All Citations (p.8)
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.12025 WL 3292291Unreported DispositionNOTE: THIS OPINION WILL NOT APPEARIN A PRINTED VOLUME. THE DISPOSITIONWILL APPEAR IN THE REPORTER.This opinion is uncorrected and will not bepublished in the printed Official Reports.Supreme Court, Queens County, New York.Morris Gafni, Plaintiff,v.Rapid Foreclosure Refunds LLC,YORAM GAFNI, JOHN DOE,and MARY DOE, Defendants.Index No. 703853/2024|Decided on November 21, 2025Attorneys and Law FirmsFor Plaintiff Morris Gafni:NINA KHAIMOVALAW OFFICE OF NINA KHAIMOVA, P.C.8515 Main Street, Suite 4, Briarwood, NY 11435718-551-2430nina@khaimlaw.comFor Defendant Yoram Gafni:YORAM GAFNIPro SeOpinionKaren Lin, J.*1 The following e-filed documents, listed byNYSCEF document number (Motion 004) 59, 60, 61,62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 79, 80, 84, 85,86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 were readon this motion to/for JUDGMENT - SUMMARY.Upon the foregoing documents, it is ordered thatplaintiff Morris Gafni's motion and defendant YoramGafni's cross-motion are determined as follows:Plaintiff Morris Gafni commenced this action on July31, 2024, seeking declaratory and injunctive relief toremove the Memorandum of Lease dated November16, 2023, and recorded on November 29, 2023, inthe City Register of the City of New York, QueensCounty, under CRFN 2023000313206, for the subjectproperty located at 147-12 75th Avenue, Flushing,New York 11367 (Block: 6683, Lot: 5) (hereinafterthe Property). Plaintiff moves for an order: i) pursuantto CPLR 3212, granting summary judgment againstdefendant Yoram Gafni for the relief sought in thecomplaint and dismissing the affirmative defenses; ii)pursuant to CPLR 3211, dismissing the counterclaims;iii) pursuant to CPLR 3215 (a), for default judgmentagainst defendant Rapid Foreclosure Refunds LLC(hereinafter Rapid Foreclosure) and Yoram Gafni; iv)terminating and canceling the Memorandum of Lease;v) pursuant to Real Property Law (RPL) § 329 toremove the Memorandum of Lease; and vi) grantingspecial damages in an amount to be determined by thisCourt for defendants' slander of title claim.Defendant Yoram Gafni, appearing pro se, opposesand cross-moves for an order: i) denying plaintiff'smotion for summary judgment and default judgmentin its entirety; ii) pursuant to CPLR 3211 (a) (7) and3212, dismissing plaintiff's complaint for failure tostate a claim upon which relief can be granted; iii)pursuant to CPLR 3211 (a) (8) and 1001 (a), dismissingplaintiff's complaint for failure to join necessaryparties; iv) damages for emotional distress and health-related issues; and v) pursuant to 22 NYCRR §130-1.1, sanctioning plaintiff and plaintiff's counselfor frivolous litigation tactics. Defendant YoramGafni also seeks relief on behalf of defendant RapidForeclosure, which is appearing without an attorney,for time to either obtain legal representation or dissolvethe LLC, contending that "the financial constraints andidentical interests of the sole member and the LLC, prose representation should be permitted."The underlying facts are as follows. On May 25, 1972,plaintiff Morris Gafni and Doris Gafni purchased theProperty jointly as husband and wife. The deed wasrecorded on May 30, 1972 (hereinafter the 1972 Deed).
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.2On October 1, 2023, Doris Gafni, with power ofattorney to act on Morris Gafni's behalf, executed alease agreement dated October 1, 2023 (hereinafterthe lease), as the landlord that leased the Property todefendant Yoram Gafni, their son, as the tenant. Thelease reflects a lease term of 25 years, commencingOctober 1, 2023 through September 30, 2048, with anannual rent of one dollar ($1.00) per year. The leasecontained a purchase option, which states: "YoramGafni shall have the option to purchase the demisedproperty, located at 147-12 75th Avenue, Flushing,New York 11367 at any time during this lease forOne ($1.00) Dollar by giving notice of such exerciseof this option to Doris Gafni and/or Morris Gafni."The lease also contained a right of first refusal whichprovided that, upon receiving written notice of a bonafide written offer or purchase agreement for the saleof the Property, Yoram Gafni "shall have the right tonotify Landlord that it is exercising its Right of FirstRefusal and will purchase the Property for the purchaseprice of One ($1.00) Dollar." On the same date,October 1, 2023, defendant Yoram Gafni assignedthe lease between himself, as tenant, and DorisGafni, as landlord, to defendant Rapid Foreclosure.Also on the same date, defendant Rapid Foreclosureentered into a lease with defendant Yoram Gafni,wherein defendant Rapid Foreclosure represents itselfas landlord and defendant Yoram Gafni as tenant.Defendants then recorded this lease between defendantRapid Foreclosure as landlord and defendant YoramGafni as tenant, in a Memorandum of Lease datedNovember 16, 2023 (hereinafter Memorandum ofLease), on November 29, 2023. On July 8, 2024,defendant Yoram Gafni sought to exercise his rightunder the lease to purchase the Property for $1.00.On July 17, 2024, Morris Gafni, through his attorney,rejected Yoram Gafni's exercise of the purchase option.Summary Judgment on Plaintiff's Causes of Action*2 It is well established that the proponent of asummary judgment motion must establish a primafacie case showing of entitlement to judgment asa matter of law, submitting sufficient evidence todemonstrate the absence of any material issues offact (see Alvarez v Prospect Hospital, 68 NY2d 320[1986]). Once this demonstration has been made, theburden shifts to the party opposing the motion forsummary judgment to produce evidence, in admissibleform, sufficient to establish the existence of materialissues of fact which require a trial of the action (seeZuckerman v City of New York, 49 NY2d 557 [1980]).Where there is no genuine issue to be resolved at trial,the case should be summarily decided (see Andre vPomeroy, 35 NY2d 361, 364 [1974]).Cancellation of the Memorandum of LeaseThe Court will first address plaintiff's first causeof action to cancel the Memorandum of Lease. Insupport of the motion, plaintiff submits, among otherthings: i) his affidavit in support; ii) an attorneyaffirmation in support; iii) the 1972 Deed; iv) theMemorandum of Lease; v) email correspondencebetween plaintiff's counsel and defendant YoramGafni; vi) email correspondence with Part 24; vii) aMedicare letter addressed to plaintiff dated November8, 2024; viii) an envelope and notice of purchase datedJuly 8, 2024; ix) defendant Yoram Gafni's demand toclose dated July 15, 2024; x) adjournment requests;and xi) defendant Yoram Gafni's consent on NYSCEF.Plaintiff attests in his affidavit that he is 93 yearsold, that defendant Yoram Gafni is his son, andthe recording of the Memorandum of Lease on theProperty has clouded the Property's title. Plaintifffurther attests that he has never heard of defendantRapid Foreclosure, that Rapid Foreclosure is not theowner of the Property, and the 1972 Deed is the lastdeed of record, which shows that he is the proper ownerof the Property with his late wife, Doris Gafni, whopassed away on October 15, 2023. Plaintiff attests thatsince he is the owner of record of the Property, heis the only party who has authority to enter into anyleases. Accordingly, defendant Rapid Foreclosure is"not in any position to enter into any leases or OPTIONTO PURCHASE agreements." Plaintiff further atteststhat he wishes to sell the Property and distributethe proceeds among his grandchildren, includingdefendant Yoram Gafni's son, before he passes away.Upon review of the submissions presented, includingthe 1972 Deed as the last recorded deed, plaintiffhas demonstrated, prima facie, that he is the properowner and his entitlement, as a matter of law, to thecancellation of the Memorandum of Lease.A deed is documentary evidence of ownership (seeFleming v Kamden Props., LLC, 41 AD3d 781, 782
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.3[2d Dept 2007]; Rodriguez v Peterson, 163 AD2d 467,468 [2d Dept 1990]; Peldman v Podolsky, 148 AD2d686, 687 [2d Dept 1989]). Conveyance of propertyto a husband and a wife creates a tenancy by theentirety (see Cruz v Cruz, 213 AD3d 805, 806 [2d Dept2023]; Ciaccio v Wright-Ciaccio, 211 AD3d 900, 902[2d Dept 2022]; Scarison, Inc. v Paracha, 7 AD3d605, 606 [2d Dept 2004]). Where property is held ina tenancy by the entirety and one spouse dies, thesurviving spouse receives the fee interest in its entiretyby operation of law, free and clear of any debts, claims,liens or other encumbrances as against the deceasedspouse (see Ciaccio, 211 AD3d at 903; Cormack vBurks, 150 AD3d 1198, 1199 [2d Dept 2017]; Lacroixv Limogene, 132 AD3d 817, 818 [2d Dept 2015]).Where an instrument is improperly recorded related toreal property or interest, RPL § 329 provides for thecancellation of such instrument of record by the owner,stating:*3 An owner of real property or of any undividedpart thereof or interest therein or an owner of rentto accrue from a tenancy or subtenancy thereof, maymaintain an action to have any recorded instrument inwriting relating to such real property or interest therein,other than those required by law to be recorded, or anyrecorded assignment of rent to accrue from a tenancyor subtenancy of such property or interest thereindeclared void or invalid, or to have the same canceledof record as to said real property, or his undivided partthereof or interest therein, or as to the rent to accruetherefrom belonging to him.Here, it is uncontroverted that the last recorded deedwas the 1972 Deed, which reflects that the Propertywas conveyed to "MORRIS GAFNI AND DORISGAFNI, his wife" as tenants by the entirety. WhenDoris Gafni died on October 15, 2023, the Propertypassed to Morris Gafni, who received the fee interestin its entirety by operation of law. Where, as here, therecord reflects that no subsequent deeds were recorded,and no documentary evidence of the conveyanceof ownership to defendant Rapid Foreclosure on orprior to the date of the Memorandum of Lease, theMemorandum of Lease is improper as it misrepresentsthat defendant Rapid Foreclosure is the landlord.Accordingly, plaintiff has demonstrated, prima facie,that he is the proper owner in fee of the Property,not defendant Rapid Foreclosure, and, therefore, theMemorandum of Lease should be canceled, pursuantto RPL § 329. The burden then shifts to defendantYoram Gafni to produce evidence, in admissible form,sufficient to raise a triable issue of material fact.In his opposition and cross-motion, defendant YoramGafni submits, among other things, i) a power ofattorney dated December 15, 2017; ii) the leasebetween Doris Gafni and Yoram Gafni dated October1, 2023; iii) the assignment and assumption ofthe lease; iv) the lease between defendants RapidForeclosure and Yoram Gafni dated October 1, 2023;and v) the notice to exercise of option dated July8, 2024. Upon review of the submissions presented,defendant Yoram Gafni has failed to raise a triableissue of material fact. Significantly, defendant YoramGafni raises no opposition to plaintiff's contentionthat neither Rapid Foreclosure nor he are the recordowners and lacked the standing or the authority torecord the Memorandum of Lease against the Property.Defendant Yoram Gafni provides no evidence, suchas a valid deed, that defendant Rapid Foreclosurepossessed any ownership interest in the Property as thelandlord on or prior to the date of the Memorandumof Lease. Although defendant Yoram Gafni proffersthe assignment and assumption of the lease betweenhim, as the tenant, and defendant Rapid Foreclosure,on October 1, 2023, as evidence of ownership rights,defendant Yoram Gafni was only able to assign hisrights and interest as the tenant (see TPZ Corp.v Dabbs, 25 AD3d 787, 789 [2d Dept 2006]; Inre Stralem, 303 AD2d 120, 122 [2d Dept 2003]).Inasmuch as defendant Yoram Gafni contends that heexercised a purchase option pursuant to the lease terms,the record clearly reflects that he did not attempt toexercise this option until July 8, 2024, which wasmonths after the Memorandum of Lease at issue wasrecorded on November 29, 2023.While defendant Yoram Gafni contends, among otherthings, that summary judgment is premature because ofdiscovery, the mere hope or speculation that evidencesufficient to defeat the motion for summary judgmentmight be uncovered during further discovery is aninsufficient basis to deny the motion (see Hope v OurHoly Redeemer Roman Catholic Church, 219 AD3d595, 596 [2d Dept 2023]). Accordingly, the branch ofplaintiff's motion for summary judgment to cancel the
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.4Memorandum of Lease is canceled pursuant to RPL §329 is granted.*4 Slander of TitleThe Court will next address plaintiff's second causeof action for slander of title. "The elements of acause of action to recover damages for slander oftitle are (1) a communication falsely casting doubt onthe validity of [the] complainant's title, (2) reasonablycalculated to cause harm, and (3) resulting in specialdamages" (Irizarry v Rosselli, 229 AD3d 778, 780 [2dDept 2024], quoting 39 Coll. Point Corp. v TranspacCapital Corp., 27 AD3d 454, 455 [2d Dept 2006])."The wrongful filing for record of a document whichcasts a cloud upon another's title to or interest inrealty is clearly such an act of publication as togive rise to an action for slander of title, if provabledamages result" (id.). "It has generally been held thatthe cause of action to recover damages for slander oftitle based upon the recording of an unfounded claimto the property of another does not arise until damagesactually result, so that the period of limitations beginsto run, not from the date of the initial recording, butfrom the time a prospective sale is lost because ofthe cloud on plaintiff's title" (Hanbidge v Hunt, 183AD2d 700, 701 [2d Dept 1992]). Upon review of thesubmissions presented, plaintiff has failed to make asufficient showing of damages and establish, primafacie, his entitlement to judgment as a matter of law forslander of title. Accordingly, the branch of plaintiff'smotion for summary judgment for slander of title isdenied.Summary Judgment on Defendant Yoram Gafni'sAffirmative DefensesThe Court now turns to the branch of plaintiff'smotion seeking dismissal of defendant Yoram Gafni'saffirmative defenses. In his verified amended answerand counterclaims, defendant Yoram Gafni lists elevenaffirmative defenses, which are "1) Failure to statea claim upon which relief may be granted; 2)Plaintiff's own conduct, or by the conduct of its agents,representatives, and consultants bar this action; 3)Plaintiff lacks of capacity and or standing to sue asDefendant exercised defendant's option to purchasethe demised property from the Plaintiff; 4) Waiverand estoppel; 5) Plaintiff's Unclean Hands; 6) Plaintifffailed to comply with his own obligations; 7) Claimsare barred in whole or in part by the existence of alease dated October 1, 2023 in which plaintiff is aparty, agreed to same, and has a copy of said lease; 8)Plaintiff has failed to name an indispensable party tothe lawsuit; 9) Plaintiff does not have standing to bringthis complaint in that he is not the current full Legaland Equitable owner of the property; 10) Plaintiff hasfailed to meet all conditions precedent to bringing thisaction. By failing to attach a document upon which itrelies; and 11) Plaintiff failed to notify the Defendant,Yoram Gafni, prior to his attempt to sell the propertyas required."Under CPLR 3211 (b), "[a] party may move forjudgment dismissing one or more defenses, on theground that a defense is not stated or has no merit."A court should grant a motion to dismiss affirmativedefenses if the "defenses are without merit as amatter of law because they either do not apply underthe factual circumstances of [the] case, or fail tostate a defense" (Bank of Am., N.A. v 414 MidlandAve. Assocs., LLC, 78 AD3d 746, 748 [2d Dept2010]). "[W]here affirmative defenses 'merely pleadconclusions of law without any supporting facts,' theaffirmative defenses should be dismissed pursuantto CPLR 3211 (b)" (id. at 750, quoting Fireman'sFund Ins. Co. v Farrell, 57 AD3d 721, 723 [2d Dept2008]). However, "it is well established that a partymay 'remedy any defects' in a pleading by submittingevidence in opposition to a motion to dismiss" (Lewisv U.S. Bank N.A., 186 AD3d 694, 697 [2d Dept 2020],quoting Benjamin v Yeroushalmi, 178 AD3d 650, 653[2d Dept 2019]).*5 In the case at bar, defendant Yoram Gafni'sverified amended answer and counterclaims merelyplead conclusions of law without any supportingfacts. However, to the extent defendant Yoram Gafniremedies these defects in his opposition papers andprovide factual support, it will be considered.First Affirmative Defense: "Failure to state a claimupon which relief may be granted."Defendant Yoram Gafni contends that plaintiff"completely ignored the existence of the leaseagreement in his complaint, omitting its key terms,including Bond requirement, the option to purchase,prepaid rent for the entire lease term, the right offirst refusal, and the ability to sublet or assign the
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.5property without prior consent." He further contendsthat plaintiff failed to allege any breach of lease termsor failure to fulfill lease obligations. Here, plaintiff hasestablished that plaintiff is the proper owner in fee ofthe Property, pursuant to the 1972 Deed, and as thesurviving spouse after Doris Gafni passed away onOctober 15, 2023. Accordingly, the first affirmativedefense is dismissed.Second Affirmative Defense: "Plaintiff's own conduct,or by the conduct of its agents, representatives, andconsultants bar this action."Defendant Yoram Gafni failed to address and remedythe second affirmative defense with any factualsupport. Where, as here, the affirmative defense ismerely plead as a conclusion of law without anysupporting facts, such defense is dismissed.Third Affirmative Defense: "Plaintiff lacks of capacityand or standing to sue as Defendant exerciseddefendant's option to purchase the demised propertyfrom the Plaintiff."Defendant Yoram Gafni contends that plaintiff failedto take any steps to involve the estate of Doris Gafniin this lawsuit as a necessary party. Here, as previouslyset forth, plaintiff has established that he is the properowner in fee of the Property, having received the feeinterest in its entirety by operation of law upon his wifeDoris Gafni's death. Accordingly, as plaintiff avers, theestate of Doris Gafni is not a necessary party. Further,RPL § 329 authorizes the owner to commence suchaction as here where the owner is seeking to cancelan instrument of record (see RPL § 329; Silverberg vBank of NY Mellon, 165 AD3d 1193, 1193 [2d Dept2018]). Accordingly, the third affirmative defense isdismissed.Fourth Affirmative Defense: "Waiver and estoppel."Defendant Yoram Gafni contends that plaintiff's failureto object to the leases on October 1, 2023, coupled withhis acceptance of lease benefits, constitutes waiver andestoppel. "A valid waiver requires no more than thevoluntary and intentional abandonment of a knownright which, but for the waiver would have beenenforceable" (Golfo v Kycia Assoc., Inc., 45 AD3d531, 532 [2d Dept 2007], quoting Nassau Trust Co.v Montrose Concrete Prods. Corp., 56 NY2d 175,184 [1982]). A waiver "is not created by negligence,oversight, or thoughtlessness, and cannot be inferredfrom mere silence" there must be proof that there wasa voluntary and intentional relinquishment of a knownand otherwise enforceable right (id. at 533, quotingPeck v Peck, 232 AD2d 540, 540 [2d Dept 1996]).Where, as here, there is no evidence that plaintiffwaived his ownership rights to the Property, the fourthaffirmative defense is dismissed (see Bank of Am., N.A.v 414 Midland Ave. Assoc., LLC, 78 AD3d 746, 750[2d Dept 2010]).*6 Fifth Affirmative Defense: "Plaintiff's UncleanHands."Defendant Yoram Gafni contends that his father,Morris Gafni's, "attempt to mislead the court bydenying his knowledge and possession of leasedocuments constitutes bad faith, barring him fromequitable relief." Where, as here, the fifth affirmativedefense does not apply under the factual circumstancesof the case, such defense is dismissed (see SeagirtRealty Corp. v Chazanof, 13 NY2d 282, 285 [1963]).Sixth Affirmative Defense: "Plaintiff failed to complywith his own obligations."Defendant Yoram Gafni contends, pursuant to theterms of the lease executed by Doris Gafni and YoramGafni, that plaintiff failed to post a bond in the sumof the market value of the premises. Where, as here,the instant action seeks to cancel the Memorandumof Lease between defendants Rapid Foreclosure andYoram Gafni pursuant to RPL § 329, this defenseis inapplicable. Accordingly, the sixth affirmativedefense is dismissed.Seventh Affirmative Defense: "Claims are barred inwhole or in part by the existence of a lease datedOctober 1, 2023 in which plaintiff is a party, agreed tosame, and has a copy of said lease."As argued in his sixth affirmative defense, defendantYoram Gafni contends that plaintiff "willinglyexecuted, via the Power of attorney he freely gaveDoris Gafni, his wife, the lease agreement, whichincludes clear provisions that contradict his claims."However, at issue in this action is the cancellationof the Memorandum of Lease between defendantsRapid Foreclosure and Yoram Gafni, wherein it was
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.6disputed whether Rapid Foreclosure was the landlordwith any ownership interest in the Property at the timeit was signed and recorded. Accordingly, the seventhaffirmative defense is dismissed, as it is inapplicable.Eighth Affirmative Defense: "Plaintiff has failed toname an indispensable party to the lawsuit."As explained above in dismissing the third affirmativedefense, the estate of Doris Gafni is not a necessaryparty. Accordingly, the eighth affirmative defense isdismissed.Ninth Affirmative Defense: "Plaintiff does not havestanding to bring this complaint in that he is notthe current full Legal and Equitable owner of theproperty."As explained above in dismissing the first affirmativedefense, plaintiff has established that plaintiff is theproper owner in fee of the Property, pursuant to the1972 Deed, and as the surviving spouse of DorisGafni. Accordingly, the ninth affirmative defense isdismissed.Tenth Affirmative Defense: "Plaintiff has failed to meetall conditions precedent to bringing this action. Byfailing to attach a document upon which it relies."No factual support has been presented regarding thispurported affirmative defense. Where, as here, theaffirmative defense is merely plead as a conclusionof law without any supporting facts, such defense isdismissed.Eleventh Affirmative Defense: "Plaintiff failed to notifythe Defendant, Yoram Gafni, prior to his attempt to sellthe property as required."*7 Defendant Yoram Gafni contends that plaintiff'sactions in publicly listing the property for sale violatedhis contractual right of first refusal as well asconstituted a material breach of the lease executed byDoris Gafni and Yoram Gafni. Where, as here, theinstant action is to cancel the Memorandum of Leasebetween defendants Rapid Foreclosure and YoramGafni, this defense is inapplicable. Accordingly, theeleventh affirmative defense is dismissed.Defendant Yoram Gafni's CounterclaimsPlaintiff also moves to dismiss defendant YoramGafni's counterclaims sounding in defamation for:i) "damages, special damages, actual damages andpunitive damages totaling One Million ($1,000,000)Dollars" for plaintiff's false written statement to familymembers and home health aides on June 18, 2024,that Yoram Gafni "falsified documents and committeda big fraud"; and ii) "damages, special damages,actual damages and punitive damages totaling OneMillion ($1,000,000) Dollars" for plaintiff's falsewritten statement to family members and home healthaides that Yoram Gafni "hit him twice and he haswitnesses.""A cause of action contained in a counterclaim shallbe treated, as far as practicable, as if it were containedin a complaint" (Banschick v Johnson, 222 AD3d608, 611 [2d Dept 2023]). "On a motion to dismissa counterclaim a court must accept as true the factsas alleged in the pleading, accord the pleader thebenefit of every possible favorable inference, anddetermine only whether the facts as alleged fit withinany cognizable legal theory" (Shah v Mitra, 171 AD3d971, 973 [2d Dept 2019], quoting Wand, Powers &Goody, LLP v Yuliano, 144 AD3d 1017, 1018 [2016])."At the same time, however, allegations consisting ofbare legal conclusions as well as factual claims flatlycontradicted by documentary evidence are not entitledto any such consideration" (Simkin v Blank, 19 NY3d46, 52 [2012], quoting Maas v Cornell Univ., 94 NY2d87, 91 [1999] [internal quotation marks omitted])."The elements of a cause of action for defamation are(a) a false statement that tends to expose a person topublic contempt, hatred, ridicule, aversion, or disgrace,(b) published without privilege or authorization toa third party, (c) amounting to fault as judged by,at a minimum, a negligence standard, and (d) eithercausing special harm or constituting defamation perse" (Banschick, 222 AD3d at 610-611). "Further, thecomplaint in a defamation action must set forth theparticular words allegedly constituting defamation,and it must also allege the time when, place where,and manner in which the false statement was made,and specify to whom it was made" (Sternberg vWiederman, 225 AD3d 820, 821 [2d Dept 2024],quoting Kimso Apts., LLC v Rivera, 180 AD3d 1033,1034 [2d Dept 2020]).
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.7Here, defendant Yoram Gafni fails to allege theparticular defamatory words, the time when, placewhere, and manner in which such purported falsestatements were made. Accordingly, the first andsecond counterclaims are dismissed (see Sternberg,225 AD3d at 821).Default Judgment Against Defendant RapidForeclosure and Yoram GafniIt is well settled that a limited liability company (LLC)may only appear by an attorney (see CPLR 321 [a];Michael Reilly Design, Inc. v Houraney, 40 AD3d592, 593-94 [2d Dept 2007] ["the LLC may onlybe represented by an attorney and not by one of itsmembers"]). The failure of a corporate defendant tocomply with CPLR 321 (a) warrants default judgment(see Pisciotta v Lifestyle Designs, Inc., 62 AD3d 850,853 [2d Dept 2009]; Jimenez v Brenillee Corp., 48AD3d 351 [1st Dept 2008]; Mail Boxes Etc. USA, Inc.v Higgins, 281 AD2d 176 [1st Dept 2001]). "On amotion for leave to enter a default judgment pursuantto CPLR 3215, the movant is required to submit proofof service of the summons and complaint, proof of thefacts constituting its claim, and proof of the defaultingparty's default in answering or appearing" (AtlanticCas. Ins. Co. v RJNJ Servs., Inc., 89 AD3d 649, 651[2d Dept 2011]; see CPLR 3215 [f]; Peak Prop. & Cas.Ins. Corp. v Rodriguez, 230 AD3d 512, 514 [2d Dept2024]; Lugo v Corso, 215 AD3d 944, 945 [2d Dept2023]).*8 Here, it is undisputed that defendant RapidForeclosure, a LLC, has not appeared by counsel.Plaintiff further submits an affidavit of service datedMarch 8, 2024, demonstrating proper service ondefendant Rapid Foreclosure.1 Upon review of thesubmissions, plaintiff has also established proof of thefacts constituting his claim. Accordingly, the branchof plaintiff's motion for default judgment is granted asagainst defendant Rapid Foreclosure. To the extent thatplaintiff seeks a default judgment against defendantYoram Gafni, in his individual capacity, it is denied ashe has appeared and answered in this action.For all the reasons stated, plaintiff's motion is grantedto the extent that summary judgment is granted inplaintiff's favor as against defendant Yoram Gafnion the first cause of action, the first to eleventhaffirmative defenses are dismissed, the first and secondcounterclaims are dismissed, and default judgment isgranted as against defendant Rapid Foreclosure only.Defendant Yoram Gafni's Cross-MotionIn light of the foregoing determination, the onlyremaining branch from defendant Yoram Gafni's cross-motion pertains to sanctioning plaintiff and plaintiff'scounsel for frivolous litigation tactics, pursuant to 22NYCRR § 130-1.1.A court, may, in its discretion, impose sanctions forfrivolous conduct (see 22 NYCRR 130-1.1 [b], [d];Santaliz v OR FM Assoc, 2024 NY Slip Op 50794(U),*6 [2d Dept 2024]; M&T Bank v Friedmann, 217AD3d 934, 936 [2d Dept 2023]). "[C]onduct isfrivolous if: (1) it is completely without merit in lawand cannot be supported by a reasonable argument foran extension, modification or reversal of existing law;(2) it is undertaken primarily to delay or prolong theresolution of the litigation, or to harass or maliciouslyinjure another; or (3) it asserts material factualstatements that are false" (Santaliz, 2024 NY Slip Op50794(U) at *7, quoting 22 NYCRR 130-1.1 [c]).Here, plaintiff has presented a non-frivolous claim thatdoes not present as rising to the level of sanctionableconduct. Accordingly, defendant Yoram Gafni's cross-motion is denied in its entirety.Papers SubmittedUnder the Rules of the Chief Administrative Judge,attorneys and parties are required to ensure that papersthey prepare and sign are reviewed for accuracy,certifying by signing that the paper does not containany false or frivolous authority or argument (see 22NYCRR §§ 130-1.1, 130-1.1a). Parties appearing prose are required to comply with the same rules, areafforded no greater rights than other litigants, and areexpected to present legally competent evidence (seeMatter of Martinez v Gaddy, 223 AD3d 816, 819[2d Dept 2024]; Benedetto v Tannenbaum, 186 AD3d1596, 1598 [2d Dept 2020]; Duffen v State, 245 AD2d653, 653 [3d Dept 1997]). Courts utilize and expendsignificant time and resources in carefully reviewingall of the parties' submissions.Upon review of the papers submitted in the instantmotion and cross-motion, defendant Yoram Gafni, a
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.8former attorney,2submitted a combined total of 87pages (Memorandum of Law 1 of 2, Memorandumof Law 2 of 2, Affidavit of Yoram Gafni 1 of 2, andAffidavit of Yoram Gafni 2 of 2 [NYSCEF Doc Nos.85-88]), which contain fictitious or fabricated citationsto authority (commonly known as hallucinations),citations to cases which do not exist, as wellas cases which do not stand for the propositioncited or are wholly unrelated to the issues inthis matter. Notwithstanding these fatal flaws, theCourt nevertheless proceeded to consider defendantYoram Gafni's arguments on their merits. The Court,however, issues a strong admonition against the furthersubmission of papers containing fictitious or fabricatedmaterial: such conduct is wholly unacceptable andmay result in the imposition of sanctions or otherappropriate measures, including the refusal to considerany such filings.*9 ConclusionAccordingly, it is herebyORDERED that the branch of plaintiff Morris Gafni'smotion for summary judgment on the first cause ofaction is granted; and it is furtherORDERED that, pursuant to RPL § 329, theMemorandum of Lease dated November 16, 2023,and recorded on November 29, 2023, in the CityRegister of the City of New York, Queens County,under CRFN 2023000313206, for the subject propertylocated at 147-12 75th Avenue, Flushing, New York11367 (Block: 6683, Lot: 5), is canceled of record; andit is furtherORDERED that the Office of the City Register of theCity of New York is directed to mark as discharged ofrecord said Memorandum of Lease, upon service of acopy of this Order with Notice of Entry and upon thepayment of any applicable costs; and it is furtherORDERED that the branch of plaintiff Morris Gafni'smotion for summary judgment on the second cause ofaction is denied; and it is furtherORDERED that the branch of plaintiff Morris Gafni'smotion for summary judgment on defendant YoramGafni's affirmative defenses is granted, and the first,second, third, fourth, fifth, sixth, seventh, eighth, ninth,tenth, and eleventh affirmative defenses are dismissed;and it is furtherORDERED that the branch of plaintiff Morris Gafni'smotion for summary judgment to dismiss defendantYoram Gafni's counterclaims is granted, and the firstand second counterclaims are dismissed; and it isfurtherORDERED that the branch of plaintiff Morris Gafni'smotion for default judgment is granted only as againstdefendant Rapid Foreclosure; and it is furtherORDERED that defendant Yoram Gafni's cross-motion is denied in its entirety; and it is furtherORDERED that any requested relief and/or remainingcontentions not expressly addressed herein havenonetheless been considered and are hereby expresslyrejected; and it is furtherORDERED that plaintiff Morris Gafni shall serve acopy of this Decision and Order with Notice of Entryupon defendants within twenty (20) days from the dateof entry; and it is furtherORDERED that the Clerk is directed to enterjudgment accordingly.This constitutes the Decision and Order of the Court.Dated: November 21, 2025Long Island City, New YorkHon. Karen LinJustice of the Supreme CourtAll CitationsSlip Copy, 2025 WL 3292291 (Table), 2025 N.Y. SlipOp. 51864(U)Footnotes
Morris Gafni, Plaintiff, v. Rapid Foreclosure Refunds LLC, YORAM..., Slip Copy (2025)2025 N.Y. Slip Op. 51864(U) © 2025 Thomson Reuters. No claim to original U.S. Government Works.91By stipulation dated August 15, 2024, defendants accepted service of the summons and complaint on saiddate, stipulated to "appear or/and more within 20 days of service," and waived claims to personal jurisdiction.2Upon review of public attorney registration records, defendant Yoram Gafni's attorney registration indicatesthe following status, "Resigned from bar — disciplinary reason."End of Document© 2025 Thomson Reuters. No claim to original U.S.Government Works.
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