Response in Opposition

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF ALBANY

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SPRINGLAKE MANAGEMENT, LLC QUAIL

WEST, LLC; and MYOWN, LLC,

                                                                                                            Index No. 907068/2020

                                                Plaintiffs,

 

IBK PROPERTIES, LLC; and ADEBAYO ODUTAYO,

                                                Defendants.

 

 

ADEBAYO ODUTAYO’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT AND DISMISSAL OF DEFENDANTS’COUNTERCLAIMS

 

NOW COMES Adebayo Odutayo, Defendants, and file this Response in Opposition to Plaintiffs’ Motion for Summary Judgment and Dismissal of Defendants’ Counterclaims, and for cause would show this Honorable Court as follows:

1. Plaintiffs have failed to meet the required standard for a motion for summary judgment.
2. P.L.R. § 3212(b) provides, inter alia, that a motion for summary judgment “shall be denied if any party shall allow facts sufficient to require a trial of any issue of fact.”
3. As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853; Zuckerman v City of New York, 49 N.Y.2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404).
4. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 N.Y. 118). This drastic remedy should not be granted where there is any doubt as to the existence of such issues (Braun v. Carey, 280 App. Div. 1019), or where the issue is “arguable” (Barrett v. Jacobs, 255 N.Y. 520, 522); “issue-finding, rather than issue-determination, is the key to the procedure” (Esteve v. Avad, 271 App. Div. 725, 727).
5. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562).
6. There is an issue of fact pertaining to the loan of $1.7 million that Mr. Judd Feinman took on the properties sold to Adebayo.
7. Section 13 of the contract between Plaintiffs and Adebayo labelled as “Plaintiffs’ Exhibit A” provides as follows:

The Seller represents and warrants that it has a marketable title and that there are no liens or encumbrances upon the Premises, except for those set forth in this Agreement. The parties agree not to permit or suffer any liens or encumbrances to attach or remain on said Premises as a result of their activities, or in any manner alienate the title thereto during the terms of this Agreement. The parties acknowledge that there exists an outstanding mortgage against the property held by Pioneer Bank.

8. The loan of $1.7 million that Mr. Judd Feinman took on the properties sold to Adebayo was a breach of Section 13 of the contract.
9. We recently restated the principles applicable to the disposition of motions for summary judgment in Friends of Animals v Associated Fur Mfrs.(46 N.Y.2d 1065, 1067-1068): “To obtain summary judgment it is necessary that the movant establish his cause of action or defense `sufficiently to warrant the court as a matter of law in directing judgment’ in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must `show facts sufficient to require a trial of any issue of fact’ (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form (e.g., Phillips v Kantor & Co., 31 N.Y.2d 307; Indig v Finkelstein, 23 N.Y.2d 728; also CPLR 3212, subd [f]).” We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord v Swift & Muller Constr. Co., 46 N.Y.2d 276, 281-282; Fried v Bower & Gardner, 46 N.Y.2d 765, 767; Platzman v American Totalisator Co., 45 N.Y.2d 910, 912; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 N.Y.2d 285, 290).
10. During the 2012 purchase transaction of 274 Third Street, Albany, NY, Judd Feinman advised Adebayo that he did not need an attorney and Adebayo closed on the property without one. The property was paid off earlier than scheduled and Adebayo received the title without any issues.
11. Adebayo was able to get insurance in his own name, provided the necessary paperwork by Judd Feinman, and did not face any problems. Based on this experience, Adebayo trusted Judd Feinman when he offered four other properties in 2015.
12. However, Judd Feinman did not show the properties to Adebayo, and Adebayo did not see them until after signing the contract to purchase them. Adebayo trusted Judd Feinman because of the previous transaction, and he did not have any reason to distrust him.
13. Judd Feinman’s statement that the 2015 contract could not have been filed and would not have been accepted by the Albany Clerk’s office further speaks to Judd Feinman’s intent to defraud Adebayo by creating a contract he knew would not be accepted for filing.
14. In contrast, Judd Feinman filed whatever he needed to file for the 2012 purchase, and Adebayo was able to get his own insurance for the property. Adebayo avers that Judd Feinman defrauded him by creating a contract he knew would not be accepted for filing, and the community has a negative perception of him, calling him a “predatory slumlord” and “criminal.” Judd Feinman received over $403,000 under false pretenses in the sale of the four properties.
15. Adebayo avers that he did not contest his responsibility to pay property taxes and insurance but contested that he did not receive any insurance information for the properties that he had been paying for. Adebayo knew the properties were insured but questioned why Judd Feinman was adamant in his refusal to disclose any of the insurance information to him.
16. Judd Feinman never disclosed the insurance company’s name to Adebayo. Adebayo learned the name of the insurance company was Empire Insurance during this case.
17. Adebayo’s wife advised him that he was paying the insurance premiums for the four properties he was in the process of purchasing and for a few of Judd Feinman’s other properties that had nothing to do with him, which is why Judd Feinman was adamant in his refusal to allow him to file a claim for repairs with the Empire Insurance company.
18. Judd Feinman, who was already convicted in federal court and served two years in a federal prison and three years supervised release for fraud, created a letter he submitted into evidence from Empire Insurance dated August 25, 2021, which did not answer Adebayo’s questions about the number of properties on the policy that he was paying.
19. Adebayo was perplexed when Judd Feinman repeatedly refused to allow him to use the insurance. Despite Adebayo’s requests to use the insurance, Feinman cited the $10,000 insurance deductible and insisted on making a quick fix to the property himself. Feinman’s history as a notorious slumlord concerned Adebayo, as his method of making quick fixes for the past 40 years had put tenants at risk of injury, as evidenced by Exhibit C.
20. Adebayo requested that the property be inspected and repaired by a professional insurance adjuster, not by a slumlord who only cared about saving money. Feinman had told the court that he had fixed and rehabilitated the properties, yet he had not provided any supporting documentation, such as bills, invoices, canceled checks, or credit card statements, to substantiate his claims.
21. The only evidence Feinman had submitted to the court was a spreadsheet he had created, an email he had sent to his attorney, and a fraudulent letter he had fabricated claiming to be from Empire Insurance.
22. In contrast, Adebayo had provided more than 100 canceled checks, invoices, text messages, recorded telephone calls, email messages, and the words of Feinman’s former employees and tenants, who were willing to testify on his behalf. Adebayo’s documentation provided strong evidence of what had actually transpired.
23. Adebayo avers that Feinman lied effortlessly and often, and that he had neither advised nor encouraged Adebayo to retain an outside attorney for the 2015 purchase. Feinman had said that Adebayo needed to use his attorney, Brian Bronsther, which Adebayo did.
24. At the time of the 2015 closing, Feinman had informed Adebayo that the outstanding mortgage on the four properties was with Pioneer Bank, with a balance of $550,000. Feinman had assured Adebayo that upon payment of $620,000, Adebayo would become the owner of the properties, and the titles for the four properties would be transferred to him. Adebayo had trusted Feinman due to their previous successful transaction in 2012, where the title was transferred without any issues.
25. However, as of 2018, there was an outstanding mortgage balance of at least $1,750,000, as Feinman had violated another aspect of his own contract by encumbering the four properties with at least one new loan since the contract signing.
26. During the entire closing, Feinman and Adebayo’s attorney, Brian Bronsther, had distanced themselves from each other. Bronsther had stayed in a different room while Feinman read the contract to Adebayo. Adebayo now believed that Bronsther had done this to distance himself from the felonies Feinman was committing to defraud Adebayo.
27. Feinman and his current attorney, Caroline George, had tried to persuade the court that the $1,750 check Adebayo had written to Bronsther for representing him was for insurance or credited back to him at the closing. Adebayo knew, however, that the check was for what the memo line stated: for Feinman.
28. Adebayo claims that Judd Feinman did not credit them any money during the closing and instead, defrauded them by keeping their money.
29. Adebayo accuses Feinman of committing several financial misconducts and asserts that Feinman’s actions indicate his intent to defraud them and other people. Adebayo also points out that Feinman did not provide any logical explanation or authentic evidence to support his claims in court.
30. Feinman manufactured all the evidence he provided to the court. Adebayo avers that they had paid over $403,000.00 to Feinman, with the last payment being made in July 2020, and that Feinman refused to allow them access to the property insurance to file a claim.
31. Adebayo also notes that the contract provided that the insurance binder would be attached to the contract and supplied yearly upon request. Furthermore, Adebayo claims that the contract prohibited both the seller and purchaser from encumbering the properties with loans that were not already outlined in the contract.
32. However, Feinman’s contract did not list the $550,000.00 balance he owed when Adebayo signed the contract to purchase the properties in 2015. Adebayo accuses Feinman of being a scam artist and a slumlord who conjured up evidence to support his case.
33. Adebayo also asserts that Feinman did not provide any authentic evidence such as canceled checks, authentic documents from the insurance company, Pioneer bank, Home Depot, Lowes, text messages, or emails. Finally, Adebayo avers that they were aware they would not receive the titles to the properties until they paid $620,000.00 and that Feinman was not supposed to secure a $1,750.000.00 loan in 2018 using the same four properties that he sold to Adebayo in 2015.
34. Plaintiffs cannot be said to have performed their contractual obligations when Mr. Judd Feinman took a mortgage of $1.7 million on the properties they sold to Adebayo, breaching Section 13 of the contract.
35. As non-movants of the motion for summary judgment, Adebayo has fulfilled his burden of proving that indeed there exists a genuine triable issue of material fact.

REASONS WHEREFORE, PREMISES CONSIDERED, Adebayo Odutayo respectfully requests this Honorable Court to DENY Plaintiff’s Motion for Summary Judgment and Dismissal of Defendants’ Counterclaims.

 

Dated this _____ day of April, 2023.

 

Respectfully Submitted,

 

 

 

___________________________________

Adebayo Odutayo,

Defendant in pro per

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