In New York City and Morristown, New Jersey, The Star Ledger
- Accused murderer Kashif Parvaiz cheated an elderly friend recovering from a stroke by taking a $2 million real estate "gift" in 2009 and not paying his bills as promised, according to a complaint filed by the man’s attorney.
- Parvaiz, 26, of Brooklyn, is accused of conspiring with Antoinette Stephen, 27, of Billerica, Mass., in the Aug. 16, 2011 shooting death on a Boonton street of his wife, Nazish Noorani, 27, who was the mother of his two children.
- Parvaiz was planning to sell the $2 million stake 74-year-old Martin Ragusa gave him in a Queens apartment building and then "disappear" with Stephen, his "alleged paramour," according to Ragusa’s attorney, James Gavin.
- Parvaiz, who was granted power of attorney by Ragusa in 2007, failed to pay Ragusa’s mortgage and credit card bills as promised, Gavin said. Ragusa presently owes $100,000 on his credit cards and "pre-foreclosure proceedings" have started on his Manhattan co-op, Gavin said.
- Ragusa’s legal action, filed in a Queens court, seeks to void the real estate gift on the grounds Parvaiz "wielded improper influence" over Ragusa when he was "a stroke victim confined to a wheelchair" and "dependent" on Parvaiz.(1)
- The real estate complaint was attached to a motion filed in Superior Court in Morristown earlier this month by Parvaiz’s attorney, Mitchell Ansell. who sought to reduce Parvaiz’s bail from $3 million to $1 million.
- Ragusa’s legal action will "tie up" the Queens property indefinitely, Ansell said. Thus, Parvaiz cannot sell it and lacks "the economic means to flee" cited by prosecutors when they requested the $3 million bail, Ansell said.
- Ansell’s brief said that if released, Parvaiz would live in Brooklyn with his parents, who have owned a grocery business there since 1986. Parvaiz would agree to house arrest with electronic monitoring that he would pay for himself, Ansell said.
- Ragusa’s attorney, Gavin, said yesterday Parvaiz continues to collect $9,000 a month in rent from the Queens apartments while he is held at the Morris County jail and he uses the money to pay his legal expenses.
- The two men became friends when Parvaiz was about 20 and was doing construction jobs in Ragusa’s Manhattan building, Gavin said. "It was a scam from the start," Gavin said. "My client had no family, was lonely and (Parvaiz) took advantage of him."
- Ragusa "felt he was supporting him in his endeavors, trying to do good in his life," Gavin said. "To this day, he can’t believe Parvaiz wasn’t at Harvard getting his Ph.D." Parvaiz falsely told friends and family members he was studying architecture at Harvard and told Ragusa he needed money to pay for his education and rent in Boston, Gavin said.
- Meanwhile, he was taking $10,000 to $15,000 a month from Ragusa’s bank accounts, accoding to the attorney. "He was setting him up to file for bankruptcy and Medicaid," Gavin said.
For the story, see Complaint: Accused Boonton murderer cheated elderly N.Y. man who gave him $2 million real estate gift.
See also, Man accused of killing his wife in Boonton made $2M real estate deal hours before shooting.
(1) There is a long history of civil lawsuits by or on behalf of vulnerable individuals who were allegedly taken advantage of by someone having a confidential relationship with them.
See Sepulveda v. Aviles, 308 AD 2d 1, 762 N.Y.S.2d 358 (NYS Sup. Ct. App. Div. 1st Dept. 2003) for one example in New York, where the co-executors of the estate of a vulnerable victim (elderly, disabled and near death) sucessfully set aside a jury verdict in favor of the alleged scammer in a dubious real estate transfer:
- Preliminarily, we note that the parties and the trial court erroneously assumed that plaintiffs bore the burden of proof on their equitable claim to rescind the transfer as the product of fraud or undue influence. "Normally, the burden of proving undue influence rests with the party asserting its existence (see, Allen v La Vaud, 213 NY 322).
However, if a confidential relationship exists, the burden is shifted to the beneficiary of the transaction to prove the transaction fair and free from undue influence (see, Matter of Gordon v Bialystoker Ctr. & Bikur Cholim, 45 NY2d 692, 699; Cowee v Cornell, 75 NY 91, 99-100; McClellan v Grant, 83 App Div 599, 602, affd 181 NY 581)." (Matter of Connelly, 193 AD2d 602, 602-603 , lv denied 82 NY2d 656 .)
In Matter of Gordon v Bialystoker Ctr. & Bikur Cholim (45 NY2d 692 ), the Court of Appeals held that in light of the fiduciary relationship between the 85-year-old donor and the defendant nursing home-donee at the time of the donor's gift of funds, the burden shifted to the home to establish that it did not acquire the donor's property by fraud, undue influence or coercion, a burden that the nursing home failed to meet. As the Gordon Court (45 NY2d at 698) explained:
"[W]here a fiduciary relationship exists between parties, `transactions between them are scrutinized with extreme vigilance, and clear evidence is required that the transaction was understood, and that there was no fraud, mistake or undue influence. Where those relations exist there must be clear proof of the integrity and fairness of the transaction, or any instrument thus obtained will be set aside or held as invalid between the parties' (Ten Eyck v Whitbeck, 156 NY 341, 353)."
Appellate courts in this state have, time and time again, applied this burden-shifting mechanism to evaluate transactions which, at least on the surface, appear to involve the exploitation of elderly or mentally incapacitated persons by those intent on violating the trust reposed in them (see Matter of Mazak, 288 AD2d 682, 684  [no basis to disturb Surrogate's finding that respondent failed to rebut presumption that conveyance by 80-year-old decedent three weeks before her death was result of controlling or undue influence]; Peters v Nicotera, 248 AD2d 969, 969-970  [nephew failed to meet burden of showing that 80-year-old aunt's execution of deed transferring house to him was not product of undue influence or coercion]; JML Invs. Corp. v Hilton, 231 AD2d 493, 493-494  [home health aide failed to meet burden of showing that 80-year-old decedent's conveyance of home to aide was not product of undue influence]; Matter of Connelly, 193 AD2d at 602-603 [beneficiary of certificate of deposit failed to sustain burden by clear and convincing evidence that creation of certificate in favor of beneficiary by decedent, who had suffered stroke only months before, was fair and free from undue influence]; see also Matter of Greiff, 92 NY2d 341, 345-347  [Appellate Division incorrectly placed burden on wife to show that prenuptial agreement was procured by fraud or overreaching; case remanded to consider whether relationship between parties was the type that requires a shifting of burden to the proponent of agreement]).
In any event, even under the erroneous burden of proof applied in this case, the jury's finding that Aviles did not obtain the property by fraud or undue influence was against the weight of the evidence. It is well settled that a jury verdict may be set aside as against the weight of the evidence only where "the jury could not have reached the verdict on any fair interpretation of the evidence" (Jamal v New York City Health & Hosps. Corp., 280 AD2d 421, 422 ; see also Matter of Clines, 226 AD2d 269, 269-270 , lv dismissed 88 NY2d 1016 ).
The jury's verdict here was completely at odds with any fair interpretation of the evidence.
Editor's Note: It appears obvious that when attempting to undo any real estate equity ripoff (including sale leaseback equity stripping ripoffs), it could be quite helpful (if not 'near crucial') in a lawsuit to void/set aside a transfer to establish the existence of either a fiduciary relationship, or a confidential relationship (the two are not the same, folks), between the victim and the scammer in order to shift the burden onto the beneficiary of the transaction (ie. the scammer) to prove the transaction was fair and free from undue influence, and consequently, not a ripoff disguised as a legitimate conveyance.