| South Point, Inc. v Redman |
| 2012 NY Slip Op 03165 [94 AD3d 1086] |
| April 24, 2012 |
| Appellate Division, Second Department |
| South Point, Inc., Appellant, v Thanya Redman et al.,Defendants, and Helen M. Prescod, Respondent. |
—[*1] Cheng & Fasanya, LLP, Rosedale, N.Y. (Ade Fasanya and Dawn M. Shammas of counsel),for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Queens County (Gavrin, J.), dated May 25, 2011, which denied its motion pursuant toCPLR 3211 (b) to dismiss the affirmative defense asserted by the defendant Helen M. Prescodand granted the application of the defendant Helen M. Prescod, in effect, pursuant to 22 NYCRR130-1.1 for an award of an attorney's fee incurred in defense of the motion in the sum of$1,543.75.
Ordered that on the Court's own motion, the notice of appeal from so much of the order datedMay 25, 2011, as granted the application of the defendant Helen M. Prescod, in effect, pursuantto 22 NYCRR 130-1.1 for an award of an attorney's fee incurred in defense of the plaintiff'smotion in the sum of $1,543.75 is deemed an application for leave to appeal from that portion ofthe order, and leave to appeal is granted (see CPLR 5701 [a]); and it is further,
Ordered that the order is modified, on the facts and in the exercise of discretion, by deletingthe provision thereof granting the application of the defendant Helen M. Prescod, in effect,pursuant to 22 NYCRR 130-1.1 for an award of an attorney's fee incurred in defense of theplaintiff's motion in the sum of $1,543.75, and substituting therefor a provision denying theapplication; as so modified, the order is affirmed, without costs or disbursements.
The Supreme Court erred in determining that the doctrine of law of the case precluded thegranting of the plaintiff's motion pursuant to CPLR 3211 (b) to dismiss the affirmative defenseasserted by the defendant Helen M. Prescod. The doctrine of law of the case "applies todeterminations which were necessarily resolved on the merits in [a] prior order" (Hampton Val. Farms, Inc. v Flower &Medalie, 40 AD3d 699, 701 [2007]; see Lehman v North Greenwich Landscaping, LLC, 65 AD3d 1293,1294 [2009]). Here, contrary to the Supreme Court's determination, the prior order at issue didnot address the merits of Prescod's affirmative defense (see Lehman v North GreenwichLandscaping, LLC, 65 AD3d at 1294).
Nevertheless, we affirm the denial of the plaintiff's motion to dismiss Prescod's affirmativedefense, albeit on a different ground from that relied upon by the Supreme Court (see [*2]Montalvo v Nel Taxi Corp., 114 AD2d 494, 494 [1985]; seealso Menorah Nursing Home v Zukov, 153 AD2d 13, 19 [1989]). "A party may move forjudgment dismissing one or more defenses, on the ground that a defense is not stated or has nomerit" (CPLR 3211 [b]). Upon such a motion, the movant bears the burden of demonstrating thata defense is not stated or is without merit as a matter of law (see Butler v Catinella, 58 AD3d 145, 148 [2008]; Vita v New York Waste Servs., LLC,34 AD3d 559, 559 [2006]). The nonmoving defendant is "entitled to the benefit of everyreasonable intendment of its pleading, which is to be liberally construed. If there is any doubt asto the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 AD3d 741, 743 [2008];see Butler v Catinella, 58 AD3d at 148).
Here, the plaintiff failed to satisfy its burden of demonstrating as a matter of law that thedefense at issue was without merit. The defense was premised on Prescod's claim that she has avalid mortgage on the subject property with priority over the plaintiff's mortgage. Although theplaintiff raised numerous issues of fact regarding the validity of Prescod's mortgage, the mannerin which it was procured, and the extent to which its existence was disclosed to the plaintiff'spredecessor in interest, the plaintiff failed to offer evidence demonstrating as a matter of law thatPrescod's defense was without merit (cf. Vita v New York Waste Servs., LLC, 34 AD3dat 559). Accordingly, the plaintiff was not entitled to the relief sought.
Although the plaintiff's motion was not ultimately meritorious, the plaintiff's motion cannotbe characterized as frivolous, as it was neither "completely without merit in law" or fact norundertaken primarily to delay or harass (22 NYCRR 130-1.1; cf. Caplan v Tofel, 65 AD3d 1180, 1181 [2009]). Accordingly, theSupreme Court improvidently exercised its discretion in granting Prescod's application, in effect,pursuant to 22 NYCRR 130-1.1 for an award of an attorney's fee incurred in defense of theplaintiff's motion in the sum of $1,543.75. Balkin, J.P., Belen, Hall and Miller, JJ., concur.