Preview
FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
LEE PORAZZO and GLORIA OLIVERAS,
Index. No.
Plaintiffs,
-against-
HOULIHAN LAWRENCE, INC., GLORIA WILBURN, SUMMONS
and OLIVER YOURKE, as Executor of the ESTATE OF
ESTER YOURKE
Defendant.
TO THE ABOVE-NAMED DEFENDANT(S):
YOU ARE HEREBY SUMMONED to answer the coinplaint in this action and to serve
a copy of your answer, or, if the coinplaint is not served with this summons, to serve a notice of
appearance, on the Plaintiffs attorney within 20 days after the service of this summons, exclusive
of the day of service (or within 30 days after the service is complete if this summons is not
personally delivered to you within the State of New York); and in case of your failure to appear or
answer, judgment will be taken against you by default for the relief demanded in the coinplaint.
The basis of the venue designated is Westchester County, New York, as the plaintiff and
the defendant are located there and the cause of action arose th e
Dated:
Leonar sq.
LEO R AC ASSO ATES
Atto . eys for Plai iff
505 Park Avenue, 18th Floor
New York, NY 10022
(212) 754-4050
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
LEE PORAZZO and GLORIA OLIVERAS,
Index. No.
Plaintiffs,
-against-
VERIFIED
COMPLAINT
HOULIHAN LAWRENCE, INC., GLORIA WILBURN,
and OLIVER YOURKE, as Executor of the ESTATE OF
ESTER YOURKE,
Defendants.
Plaintiffs LEE PORAZZO and GLORIA OLIVERAS by and through their undersigned attorneys,
Leonard Zack & Associates, as and for their verified complaint respectfully alleges as follows:
PARTIES AND VENUE
1. Plaintiffs, LEE PORAZZO ("Porazzo") and GLORIA OLIVERAS ("Oliveras") are natural
persons residing in the State of New York at 23 Bowbell Road, White Plains, NY 10607.
("Defendant"
2. Defendant HOULIHAN LAWRENCE, INC. or "Houlihan") is, upon
information and belief, a corporation duly organized and existing under the laws of the
State of New York.
3. Defendant Houlihan is duly authorized to and conducts business in the State of New York
and maintains an office at 237 Mamaroneck Avenue, White Plains, NY 10605.
4. Defendant GLORIA WILBURN ("Wilburn") is a natural person duly licensed and
authorized, under New York law, as a real estate broker.
5. Upon information and belief, Defendant OLIVER YOURKE is the Executor of the
ESTATE OF ESTER YOURKE and is a natural person residing in the State of New York.
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6. Venue is proper in Westchester County, pursuant to C.P.L.R. §503, because the Plaintiff is
located there, the Defendant maintains a place of business in Westchester County, and the
cause of action arose there.
JURY DEMAND
7. Plaintiff hereby demands a trial by jury.
FACTS
8. On or about 2014, Plaintiffs decided to purchase a home.
9. Plaintiffs were only interested in purchasing a property with a sewage system.
10. On or about August 2014, Porazzo saw a listing ("the listing") for 23 Bowbell Road, White
Plains, NY 10607 ("the Property") on a real estate listing website, MLS.
11. The listing indicated that Wilburn was the listing agent and Houlihan was the listing office.
12. The listing indicated that the Property had a sewer system. A copy is attached hereto as
Exhibit A.
13. Upon information and belief, the Property was an exclusive listing of Houlihan through its
broker, Wilburn.
14. Throughout the sale and negotiations, the Property was represented to have a sewage
system.
15. On or about August 5, 2014, the Plaintiffs and the Estate of Ester Yourke through OLIVER
YOURKE entered into a Contract of Sale for the Property ("Contract of Sale") for a
purchase price of $382,000.
16. The sale of the property closed on or about December 2014.
2
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17. On or about February 2018, Plaintiffs discovered that the Property was not connected to
the sewer system, and, the Property actually had a septic tank system for waste water
removal.
FIRST CAUSE OF ACTION
(Pursuant To General Business Law § 350 Against Wilburn and Henlihan)
18. Plaintiffs repeat and re-allege the allegations set forth above as though fully set forth
herein.
19. Wilburn's and Houlihan's listing of the property was false and misleading in a material
respect as to the lack of a sewage connection to the Property.
20. Wilburn and Houlihan knew or should have known that the Property was not as advertised,
but rather had a septic tank system, thus, their acts of advertising the Property were in
reckless disregard of the truth.
21. The Plaintiffs relied upon the statements contained in the listing for the Property, with
respect to the sewer connection of the Property, in making their decision to purchase the
Property.
22. By virtue of the foregoing, the Plaintiffs have been damaged and are entitled to judgment
attorneys'
against Wilburn and Houlihan for the sum of $30,000, treble damages, and fees
in accordance with statute, plus appropriate interest thereon.
SECOND CAUSE OF ACTION
(Fraudulent Misrepresentation)
23. Plaintiffs repeat and re-allege the allegations set forth above as though fully set forth herein.
24. Wilburn and Houlihan knew or should have known the Property was not coililected to the
sewer system and in fact had a septic tank system, yet they continuously and fraudulently
misrepresented that the Property was connected to the sewer system.
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25. Specifically, Wilburn and Houlihan authored advertisements and listings for the Property,
which were available over the internet, fliers and multiple listing sheets, stating that the
Property was connected to the sewer system when they knew or should have known that
the Property actually had a septic tank system.
Plaintiffs'
26. Such fraudulent misrepresentations were material to the decision to purchase the
Property.
27. The Plaintiffs justifiably relied upon such fraudulent misrepresentations, to their detriment,
in entering into the Contract of Sale for the Property.
28. By virtue of the foregoing, the Plaintiffs have been damaged and are entitled to judgment
against Wilburn and Houlihan for the sum of $30,000 and punitive damages in the amount
of $50000.
THIRD CAUSE OF ACTION
Reformation of the Contract of Sale for Mutual Mistake Against the Estate of Ester
Yourke
29. Plaintiffs repeat and re-allege the allegations set forth above as though fully set forth
herein.
30. The Plaintiffs purchased the Property under the mistake of fact that the Property was
connected to the city sewer system and did not have a septic tank system.
31. The Estate of Ester Yourke through Oliver Yourke as Executor sold the Property to the
Plaintiffs under the mistake of fact that the Property was connected to the city sewer
system.
32. In light of the Property actually having a septic tank system, the belief that the Property
was connected to the city sewer system was both a material and substantial mistake of
fact.
4
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33. The Plaintiffs and the Estate of Ester Yourke through Oliver Yourke as Executor entered
into the Contract of Sale under a mutual, material, and substantial mistake of fact.
34. By virtue of the foregoing, the Plaintiffs are entitled to reformation of the Contract of
Sale to reflect the Property's lack of a connection to the city sewer system, and
commensurate purchase price for the condition of $352,000.
WHEREFORE, Plaintiff respectfully requests Judgment against Defendants as follows:
i. An award of damages for the first cause of action in the amount of $30,000 and
attorneys'
treble damages and fees in accordance with statute;
ii. An award of damages for the second cause of action in the amount of $30,000 and
$50,000 in punitive damages;
iii. On the third cause of action, reformation of the Contract of Sale to reflect the lack
of a city sewer connection and commensurate purchase price of $352,000;
iv. An award of costs and disbursements of this action incurred by Plaintiff in the
prosecution of this action from all Defendants; and
v. All other relief that the Court deems just and proper.
Dated:
New York, New York
Leona Za , Esq.
LE AR ZAC ASS CIATES
Att rneys for Plaintiff
505 Park Avenue, 18th Flo6r
New York, NY 10022
(212) 754-4050
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VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
GLORIA OLIVERAS, being duly sworn, deposes and says:
That she is the Plaintiff in the above-named proceeding that the foregoing
Summons and Complaint is true to her own knowledge, except as to those matters therein
stated to be alleged on information and belief, and that she believes those matters to be
true.
Ól ria Olivares
Sworn to before me is
day of , 20
LEONARDZACK
- Stateof NewYork
Notary Public
NO,02ZA6028140
Qualified In NewYorkCounty
My CommissionExpiresJul 19, 2021
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NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018
VERIFICATION
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
LEE PORRAZZO, being duly sworn, deposes and says:
That he is the Plaintiff in the above-named that the
proceeding foregoing
Summons and Complaint is true to his own knowledge, except as to those matters therein
stated to be alleged on information and belief, and that he believ ose matters to be
true.
Lee Porrazzo
Sworn to before me this
day o ()
d , 20 l
N (def X lic
Notary Pubik - ‰te of New York
N0, ORA0028140
Qualified In NewYorkCautity
My Commission ExpirobJul19, fdfi
8 of 8
Preview
FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER LEE PORAZZO and GLORIA OLIVERAS, Index. No. Plaintiffs, -against- HOULIHAN LAWRENCE, INC., GLORIA WILBURN, SUMMONS and OLIVER YOURKE, as Executor of the ESTATE OF ESTER YOURKE Defendant. TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE HEREBY SUMMONED to answer the coinplaint in this action and to serve a copy of your answer, or, if the coinplaint is not served with this summons, to serve a notice of appearance, on the Plaintiffs attorney within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the coinplaint. The basis of the venue designated is Westchester County, New York, as the plaintiff and the defendant are located there and the cause of action arose th e Dated: Leonar sq. LEO R AC ASSO ATES Atto . eys for Plai iff 505 Park Avenue, 18th Floor New York, NY 10022 (212) 754-4050 1 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER LEE PORAZZO and GLORIA OLIVERAS, Index. No. Plaintiffs, -against- VERIFIED COMPLAINT HOULIHAN LAWRENCE, INC., GLORIA WILBURN, and OLIVER YOURKE, as Executor of the ESTATE OF ESTER YOURKE, Defendants. Plaintiffs LEE PORAZZO and GLORIA OLIVERAS by and through their undersigned attorneys, Leonard Zack & Associates, as and for their verified complaint respectfully alleges as follows: PARTIES AND VENUE 1. Plaintiffs, LEE PORAZZO ("Porazzo") and GLORIA OLIVERAS ("Oliveras") are natural persons residing in the State of New York at 23 Bowbell Road, White Plains, NY 10607. ("Defendant" 2. Defendant HOULIHAN LAWRENCE, INC. or "Houlihan") is, upon information and belief, a corporation duly organized and existing under the laws of the State of New York. 3. Defendant Houlihan is duly authorized to and conducts business in the State of New York and maintains an office at 237 Mamaroneck Avenue, White Plains, NY 10605. 4. Defendant GLORIA WILBURN ("Wilburn") is a natural person duly licensed and authorized, under New York law, as a real estate broker. 5. Upon information and belief, Defendant OLIVER YOURKE is the Executor of the ESTATE OF ESTER YOURKE and is a natural person residing in the State of New York. 2 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 6. Venue is proper in Westchester County, pursuant to C.P.L.R. §503, because the Plaintiff is located there, the Defendant maintains a place of business in Westchester County, and the cause of action arose there. JURY DEMAND 7. Plaintiff hereby demands a trial by jury. FACTS 8. On or about 2014, Plaintiffs decided to purchase a home. 9. Plaintiffs were only interested in purchasing a property with a sewage system. 10. On or about August 2014, Porazzo saw a listing ("the listing") for 23 Bowbell Road, White Plains, NY 10607 ("the Property") on a real estate listing website, MLS. 11. The listing indicated that Wilburn was the listing agent and Houlihan was the listing office. 12. The listing indicated that the Property had a sewer system. A copy is attached hereto as Exhibit A. 13. Upon information and belief, the Property was an exclusive listing of Houlihan through its broker, Wilburn. 14. Throughout the sale and negotiations, the Property was represented to have a sewage system. 15. On or about August 5, 2014, the Plaintiffs and the Estate of Ester Yourke through OLIVER YOURKE entered into a Contract of Sale for the Property ("Contract of Sale") for a purchase price of $382,000. 16. The sale of the property closed on or about December 2014. 2 3 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 17. On or about February 2018, Plaintiffs discovered that the Property was not connected to the sewer system, and, the Property actually had a septic tank system for waste water removal. FIRST CAUSE OF ACTION (Pursuant To General Business Law § 350 Against Wilburn and Henlihan) 18. Plaintiffs repeat and re-allege the allegations set forth above as though fully set forth herein. 19. Wilburn's and Houlihan's listing of the property was false and misleading in a material respect as to the lack of a sewage connection to the Property. 20. Wilburn and Houlihan knew or should have known that the Property was not as advertised, but rather had a septic tank system, thus, their acts of advertising the Property were in reckless disregard of the truth. 21. The Plaintiffs relied upon the statements contained in the listing for the Property, with respect to the sewer connection of the Property, in making their decision to purchase the Property. 22. By virtue of the foregoing, the Plaintiffs have been damaged and are entitled to judgment attorneys' against Wilburn and Houlihan for the sum of $30,000, treble damages, and fees in accordance with statute, plus appropriate interest thereon. SECOND CAUSE OF ACTION (Fraudulent Misrepresentation) 23. Plaintiffs repeat and re-allege the allegations set forth above as though fully set forth herein. 24. Wilburn and Houlihan knew or should have known the Property was not coililected to the sewer system and in fact had a septic tank system, yet they continuously and fraudulently misrepresented that the Property was connected to the sewer system. 3 4 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 25. Specifically, Wilburn and Houlihan authored advertisements and listings for the Property, which were available over the internet, fliers and multiple listing sheets, stating that the Property was connected to the sewer system when they knew or should have known that the Property actually had a septic tank system. Plaintiffs' 26. Such fraudulent misrepresentations were material to the decision to purchase the Property. 27. The Plaintiffs justifiably relied upon such fraudulent misrepresentations, to their detriment, in entering into the Contract of Sale for the Property. 28. By virtue of the foregoing, the Plaintiffs have been damaged and are entitled to judgment against Wilburn and Houlihan for the sum of $30,000 and punitive damages in the amount of $50000. THIRD CAUSE OF ACTION Reformation of the Contract of Sale for Mutual Mistake Against the Estate of Ester Yourke 29. Plaintiffs repeat and re-allege the allegations set forth above as though fully set forth herein. 30. The Plaintiffs purchased the Property under the mistake of fact that the Property was connected to the city sewer system and did not have a septic tank system. 31. The Estate of Ester Yourke through Oliver Yourke as Executor sold the Property to the Plaintiffs under the mistake of fact that the Property was connected to the city sewer system. 32. In light of the Property actually having a septic tank system, the belief that the Property was connected to the city sewer system was both a material and substantial mistake of fact. 4 5 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 33. The Plaintiffs and the Estate of Ester Yourke through Oliver Yourke as Executor entered into the Contract of Sale under a mutual, material, and substantial mistake of fact. 34. By virtue of the foregoing, the Plaintiffs are entitled to reformation of the Contract of Sale to reflect the Property's lack of a connection to the city sewer system, and commensurate purchase price for the condition of $352,000. WHEREFORE, Plaintiff respectfully requests Judgment against Defendants as follows: i. An award of damages for the first cause of action in the amount of $30,000 and attorneys' treble damages and fees in accordance with statute; ii. An award of damages for the second cause of action in the amount of $30,000 and $50,000 in punitive damages; iii. On the third cause of action, reformation of the Contract of Sale to reflect the lack of a city sewer connection and commensurate purchase price of $352,000; iv. An award of costs and disbursements of this action incurred by Plaintiff in the prosecution of this action from all Defendants; and v. All other relief that the Court deems just and proper. Dated: New York, New York Leona Za , Esq. LE AR ZAC ASS CIATES Att rneys for Plaintiff 505 Park Avenue, 18th Flo6r New York, NY 10022 (212) 754-4050 6 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) GLORIA OLIVERAS, being duly sworn, deposes and says: That she is the Plaintiff in the above-named proceeding that the foregoing Summons and Complaint is true to her own knowledge, except as to those matters therein stated to be alleged on information and belief, and that she believes those matters to be true. Ól ria Olivares Sworn to before me is day of , 20 LEONARDZACK - Stateof NewYork Notary Public NO,02ZA6028140 Qualified In NewYorkCounty My CommissionExpiresJul 19, 2021 7 of 8 FILED: WESTCHESTER COUNTY CLERK 11/12/2018 11:53 AM INDEX NO. 68853/2018 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/12/2018 VERIFICATION STATE OF NEW YORK ) ) ss.: COUNTY OF NEW YORK ) LEE PORRAZZO, being duly sworn, deposes and says: That he is the Plaintiff in the above-named that the proceeding foregoing Summons and Complaint is true to his own knowledge, except as to those matters therein stated to be alleged on information and belief, and that he believ ose matters to be true. Lee Porrazzo Sworn to before me this day o () d , 20 l N (def X lic Notary Pubik - ‰te of New York N0, ORA0028140 Qualified In NewYorkCautity My Commission ExpirobJul19, fdfi 8 of 8