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IN THIS FORECLOSURE ACTION, DEFENDANT’S COUNTERCLAIMS FOR ABUSE OF PROCESS AND MALICIOUS PROSECUTION SHOULD HAVE BEEN DISMISSED (SECOND DEPT). ​

The Second Department, reversing (modifying) Supreme Court in this foreclosure action, determined defendant’s (Yeshiva’s) counterclaims for abuse of process and malicious prosecution should have been dismissed:

Supreme Court should have granted those branches of Maspeth’s [the bank’s] motion which were to dismiss Yeshiva’s second and third counterclaims, sounding in abuse of process and malicious prosecution, respectively. To state a cause of action to recover damages for abuse of process, a party must allege the existence of (1) regularly issued process, (2) an intent to do harm without excuse or justification, and (3) the use of process in a perverted manner to obtain a collateral objective … . Here, Yeshiva failed to allege any actual misuse of the process to obtain an end outside its proper scope … . Moreover, “[t]he elements of the tort of malicious prosecution of a civil action are (1) prosecution of a civil action against the plaintiff, (2) by or at the instance of the defendant, (3) without probable cause, (4) with malice, (5) which terminated in favor of the plaintiff, and (6) causing special injury” … . Here, Yeshiva failed to adequately allege malice on the part of Maspeth in commencing the action, a termination of the action in favor of Yeshiva, or the requisite special injury. Maspeth Fed. Sav. & Loan Assn. v Elizer, 2021 NY Slip Op 05030, Second Dept 9-22-21

 

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THE HOMEOWNERS’ ASSOCIATION ACTED WITHIN ITS AUTHORITY WHEN IT REQUIRED A HOMEOWNER TO TAKE DOWN A FENCE; HOWEVER THE AUTHORITY FOR THE HEAVY FINE (OVER $35,000) WAS NOT VALID PURSUANT TO THE REAL PROPERTY LAW (SECOND DEPT).

The Second Department, reversing (modifying} Supreme Court, determined that the homeowners’ association board (Fieldpoint) had the authority to require a homeowner to take down a fence and to fine the homeowner. However, the rule in effect at the time the fence was erected allowed only a one-time fine of $50.00. Supreme Court had awarded the homeowners’ association over $35,000. The amendment to the by-laws which provided for heavier fines was not incorporated in a recorded amended declaration as required by Real Property Law 339-u:

“‘In reviewing the actions of a homeowners’ association, a court should apply the business judgment rule and should limit its inquiry to whether the action was authorized and whether it was taken in good faith and in furtherance of the legitimate interests of the association'” … . Accordingly, a court should defer to the actions of a homeowners’ association board so long as the board acts for the purposes of the homeowners’ association, within the scope of its authority, and in good faith … .

… Fieldpoint established … that its actions in denying approval for the fence were protected by the business judgment rule … . In opposition to Fieldpoint’s prima facie showing, the plaintiffs failed to raise a triable issue of fact by submitting evidence that Fieldpoint acted “(1) outside the scope of its authority, (2) in a way that did not legitimately further the [interests of the association] or (3) in bad faith” … . Accordingly, the Supreme Court properly determined that Fieldpoint’s actions in denying approval for the fence were within the scope of its authority and taken in good faith. However, the court should have issued declarations to that effect rather than dismissing the causes of action seeking declarations to the contrary … . Ives v Fieldpoint Community Assn., Inc., 2021 NY Slip Op 05028, Second Dept 9-22-21

 

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PLAINTIFF BANK DID NOT PROVIDE AN ADEQUATE EXCUSE FOR FAILING TO TAKE A TIMELY DEFAULT JUDGMENT; THE FORECLOSURE ACTION WAS ABANDONED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the foreclosure action should have been dismissed because plaintiff’s excuse for failing to take a timely default judgment was inadequate:

To avoid dismissal of a complaint pursuant to CPLR 3215(c) as abandoned, a plaintiff must demonstrate both that there is a reasonable excuse for the delay and that the action is meritorious … . “Although the determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court, reversal is warranted if that discretion is improvidently exercised” … .

Here, contrary to the Supreme Court’s determination, the excuse for the plaintiff’s failure to take proceedings for the entry of a judgment within one year after the action was released from the foreclosure settlement conference part was not reasonable … . Throughout the course of this litigation, there were unexplained gaps of time where months of inactivity passed. Neither the need to move for the appointment of a successor guardian nor the plaintiff’s change of attorney which change occurred after the statutory one-year period had expired constitutes a reasonable excuse for the plaintiff’s failure to timely prosecute this action … . HSBC Bank USA, N.A. v Whaley, 2021 NY Slip Op 05027, Second Dept 9-22-21

 

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PLAINTIFF ATTORNEY’S QUANTUM MERUIT ACTION FOR ATTORNEY’S FEES SHOULD NOT HAVE BEEN DISMISSED ON THE GROUND THAT IT WAS PRECLUDED BY A WRITTEN CONTRACT (SECOND DEPT).

The Second Department, reversing (modifying) Supreme Court determined plaintiff-attorney’s quantum meruit action for legal services should not have been dismissed. The evidence did not demonstrate the existence of a written contract (which would preclude the quantum meruit action):

“In order to succeed on a cause of action to recover in quantum meruit, the plaintiff must prove (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services” … . Recovery under the theory of quantum meruit is not appropriate where an express contract governs the subject matter involved … .

“[A] written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” … . “[A]n unsigned contract may be enforceable, provided there is objective evidence establishing that the parties intended to be bound” … . “In determining whether the parties entered into a contractual agreement and what were its terms, it is necessary to look . . . to the objective manifestations of the intent of the parties as gathered by their expressed words and deeds” … . Gould v Decolator, Cohen & DiPrisco, LLP, 2021 NY Slip Op 05026, Second Dept 9-22-21

 

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THE GRANTOR WAS NOT THE SOLE HEIR OF THE TITLE HOLDER; THEREFORE THE DEED PURPORTING TO TRANSFER A 100% INTEREST IN THE PROPERTY WAS VOID AB INITIO (SECOND DEPT).

The Second Department determined a deed was null and void because the grantor was not the sole heir of the title holder:

By a deed dated July 25, 2012, Colie Gallman, Jr., alleged to be the sole heir of Lillian Hudson, purportedly transferred his 100% interest in certain real property owned by Hudson to the defendant. In January 2015, the plaintiff commenced this action against the defendant seeking a judgment declaring that the July 25, 2012 deed is null and void. * * *

A misrepresentation in a deed that the seller of the property is the sole heir of the holder of the title to the property renders the conveyance void ab initio … . Here, the evidence and affidavits submitted by the plaintiff to the Supreme Court during the course of motion practice in this action established that Colie Gallman, Jr., was not the sole heir of Hudson as of the date of the subject deed, and thus, the deed purporting to convey all of the interest in the subject property is void ab initio … . In opposition, the defendant failed to raise a triable issue of fact. 23A Vernon, LLC v Oneal, 2021 NY Slip Op 05017, Second Dept 9-22-21

 

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PROOF OF MAILING OF THE RPAPL 1304 NOTICE TO THE CORRECT ADDRESS WAS NOT INCLUDED IN THE INITIAL MOTION PAPERS AND THEREFORE WAS NOT PART OF PLAINTIFF’S ATTEMPT TO MAKE OUT A PRIMA FACIE CASE; IN ADDTIION, THE PROOF OF MAILING OF THE RPAPL 1304 NOTICE WAS DEFICIENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant failed to demonstrate compliance with the RPAPL 1304 notice requirements in this foreclosure action. The proof of mailing to the correct address was first provided in reply papers for the motion to confirm the referee’s report and was not part of plaintiff’s initial summary judgment motion. And the proof of mailing was not supported by proof of the affiant’s knowledge of the mailing practices and procedures of the party which actually mailed the documents:

Although Cantu [plaintiff’s default servicing officer] stated in his affidavit that the RPAPL 1304 notices were mailed by certified and first-class mail to the defendants at the property, and he attached copies of 90-day notices with corresponding certified and first-class envelopes, Cantu did not attach the 90-day notices and envelopes addressed to the property where the defendants resided or any United States Post Office documentation showing that the purported mailings to the property actually occurred … . To the extent the plaintiff relies on copies of the 90-day notices with corresponding certified and first-class envelopes addressed to the property which were submitted for the first time in its reply papers on its subsequent motion … to confirm the referee’s report, those documents were insufficient to satisfy the plaintiff’s prima facie burden on its initial motion … for summary judgment … . “A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance” … . Further, while Cantu asserted that he had personal knowledge of the plaintiff’s procedures for creating and maintaining its business records, he did not attest that he was familiar with the mailing practices and procedures of Walz, the third-party entity that he acknowledged sent the notices … . Thus, the plaintiff failed to establish proof of standard office practices and procedures designed to ensure the notices were properly addressed and mailed … . Caliber Home Loans, Inc. v Weinstein, 2021 NY Slip Op 05021, Second Dept 9-22-21

 

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A DEFENDANT IN A FORECLOSURE ACTION WHICH HAS “FAILED TO APPEAR” IS NOT ENTITLED TO NOTICE OF A MOTION TO CONFIRM A REFEREE’S REPORT, NOTWITHSTANDING DICTA IN PRIOR 2ND DEPARTMENT RULINGS; A DETAILED AND COMPREHENSIVE DISCUSSION OF THE NOTICE REQUIREMENTS WHERE A DEFENDANT IN A FORECLOSURE ACTION HAS DEFAULTED (SECOND DEPT).

The Second Department, in a comprehensive discussion of the requirements for seeking a default judgment, including the meaning of “failure to appear,” determined the party which failed to appear in this foreclosure action was not entitled to notice of a motion to confirm a referee’s report. The extensive and detailed explanation of the applicable law was deemed necessary to clear up dicta in Second Department decisions which indicated such notice was required:

CPLR 3215(g)(1) applies “whenever application is made to the court or to the clerk.” By its plain language, it merely requires the plaintiff to provide “notice of the time and place of the application” for a default judgment … , which application must be held in a location authorized by CPLR 3215(e), and supported by, among other things, “proof of . . . the amount due” … . … [T]he purpose of the notice is to provide a defaulted defendant with the “opportunity to challenge the amount of damages sought by the plaintiffs” … . Contrary to [defendant’s] contention, CPLR 3215(g)(1) does not, once triggered, require a plaintiff to provide five days’ notice of every subsequent motion or application in the action … .

The 2017 motion was not an “application” for a default judgment within the meaning of CPLR 3215(b). Rather, the 2017 motion sought confirmation of the referee’s report and entry of a judgment of foreclosure and sale, relief predicated on CPLR 4403 … . Since the 2017 motion was not an “application” within the meaning of CPLR 3215(b), the notice specified in CPLR 3215(g)(1) was inapplicable to the 2017 motion, and notice of that motion was instead governed by the general notice provisions applicable to all motions (see CPLR 2103[e]). As already observed, that section merely requires that notice be served on “every other party who has appeared” … . Since, at the time of the 2017 motion, [defendant’s predecessor] still had not made any appearance in the action, it was not, without more, entitled to notice of that motion … . 21st Mtge. Corp. v Raghu, 2021 NY Slip Op 05016, Second Dept 9-22-21

 

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THE FACT THAT THE LADDER SLID OR SHIFTED AND FELL WARRANTED SUMMARY JUDGMENT ON THE LABOR LAW 240(1) CAUSE OF ACTION; PLAINTIFF DID NOT NEED TO DEMONSTRATE THE LADDER WAS DEFECTIVE (THIRD DEPT).

The Third Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment on his Labor Law 240 (1) cause of action in this ladder-fall case. Plaintiff alleged the ladder slid or shifted and then fell. In that circumstance plaintiff does not have to demonstrate the ladder was defective and any comparative negligence on plaintiff’s part should not be considered:

Defendants argue that the statutory requirement was not met because plaintiff testified that there was no defect in the extension ladder and that it felt secure. Although defendants have produced evidence that the ladder may not have been defective, the adequacy of the ladder is not a question of fact when it “slips or otherwise fails to perform its function of supporting the worker” … . …

Although defendants cite to numerous actions on the part of plaintiff in support of this contention, including that plaintiff did not (1) use an alternative safety device or scaffold to install the guidewires, (2) have supervision or ask for assistance when using the ladder or (3) clear the snow upon which the feet of the ladder were placed, these arguments merely raise a question as to plaintiff’s comparative negligence, which will not relieve defendants from liability … . Begeal v Jackson, 2021 NY Slip Op 05000, Third Dept 9-16-21

 

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BUFFALO MAYOR’S CONSTITUTIONAL CHALLENGE TO THE ELECTION-LAW DEADLINE FOR FILING AN INDEPENDENT NOMINATING PETITION, WHICH WAS ACCEPTED BY SUPREME COURT, REJECTED BY THE 4TH DEPARTMENT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined Election Law 6-158 (9) was not unconstitutional as applied to a Buffalo mayoral race. The petitioner, who had lost in a primary, attempted to file an independent nominating petition in August but the Election Law required filing in May:

The degree of scrutiny used to analyze the constitutionality of a state election regulation depends on the severity of the regulation’s burden on the constitutional rights of candidates and their supporters … . If that burden is severe, the law “must be narrowly drawn to advance a state interest of compelling importance” … . A provision imposing “only reasonable, nondiscriminatory restrictions,” however, can be justified by a state’s “important regulatory interests” … and is subject to a review that is “quite deferential” and requires “no elaborate, empirical verification” … . The totality of a state’s overall plan of election regulation should be considered in determining the severity of the restrictions … . * * *

Because a “reasonably diligent candidate” could be expected to meet New York’s requirements for independent candidates and gain a place on the ballot … and because those requirements do not unfairly discriminate against independent candidates … , we conclude that Election Law § 6-158 (9) places only a minimal burden on the constitutional rights of those candidates and their voters. Matter of Brown v Erie County Bd. of Elections, 2021 NY Slip Op 05014, Fourth Dept 9-16-21

 

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IN THIS ELECTION LAW CASE, THE SIGNATORIES’ NAMES WERE PRINTED ON THE DESIGNATING PETITION BUT WERE INSCRIBED ON THE VOTER REGISTRATION FORMS; SUPREME COURT PROPERLY ACCEPTED PROOF THAT THE SIGNATORIES WHOSE NAMES WERE PRINTED WERE IN FACT THE SAME AS THOSE WHOSE SIGNATURES WERE ON THE REGISTRATION FORMS (FOURTH DEPT).

The Fourth Department determined Supreme Court properly received evidence that signatories whose names were printed on the independent nominating petition were in fact the same as those whose signatures were inscribed on the voter registration forms:

It is well settled that [t]o prevent fraud and allow for a meaningful comparison of signatures when challenged, a signature on a designating petition should be made in the same manner as on that signatory’s registration form” … . Nevertheless, where there is “credible evidence from the signatories or from any of the subscribing witnesses attesting to the fact that the individuals who signed the registration forms were the same individuals whose signatures appeared on the independent nominating petition,” the signatures are valid, notwithstanding a discrepancy with the voter registration forms … . Here, respondents submitted affidavits from 21 of the 47 signatories with printed signatures in which they attested that they were the same individuals whose signatures appeared on the independent nominating petition. Based on those affidavits, which the court properly received in evidence, we conclude that the court did not err in determining that petitioner failed to meet her burden of proof with respect to the invalidity of those 21 signatures … . Matter of Maclay v Dipasquale, 2021 NY Slip Op 05013, Fourth Dept 9-16-21

 

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