| Debcon Fin. Servs., Inc. v 83-17 Broadway Corp. |
| 2015 NY Slip Op 01920 [126 AD3d 752] |
| March 11, 2015 |
| Appellate Division, Second Department |
[*1]
| Debcon Financial Services, Inc.,Respondent, v 83-17 Broadway Corp. et al., Appellants, et al., Defendants.Joseph Noormand, Nonparty Respondent. |
Mischel & Horn, P.C., New York, N.Y. (Scott T. Horn of counsel), forappellant 83-17 Broadway Corp.
Lawrence Spivak, Jamaica, N.Y., for appellant Demetra Sirica.
Claude Castro & Associates, PLLC, New York, N.Y. (D. Paul Martin ofcounsel), for nonparty respondent.
In an action to foreclose a mortgage, the defendant 83-17 Broadway Corp. appeals,as limited by its brief, from so much of an order of the Supreme Court, Queens County(Lane, J.), dated June 2, 2011, as denied that branch of its motion which was to rescindand vacate a judicial sale and referee's deed dated February 20, 2007, conveying the realproperty located at 35-27 31st Street in Astoria to nonparty Joseph Noormand, and todeclare 83-17 Broadway Corp. to be the owner of that property, and the defendantDemetra Sirica separately appeals, as limited by her brief, from so much of the sameorder as denied that branch of her cross motion which was to vacate her prior default inserving a responsive pleading and grant her leave to appear, answer, and interpose acounterclaim.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of 83-17 Broadway Corp.'s motion which was to rescind and vacatethe referee's deed dated February 20, 2007, conveying the real property located at 35-2731st Street in Astoria to nonparty Joseph Noormand, and to declare 83-17 BroadwayCorp. to be the owner of that property, and substituting therefor a provision holding thatbranch of the motion in abeyance pending a hearing in accordance herewith, andthereafter a new determination of nonparty Joseph Noormand's status as a bona fidepurchaser of that property; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements, and the matter is remitted to the Supreme Court, QueensCounty, for further proceedings consistent herewith.
In a prior appeal, this Court vacated a judgment of foreclosure and sale which hadbeen entered upon the default of the defendant 83-17 Broadway Corp. (hereinafterBroadway), "because no valid notice of pendency was filed at least 20 days prior to theentry of the final judgment" (Debcon Fin. Servs., Inc. v 83-17 Broadway Corp., 61 AD3d712, 714 [2009]), and remitted the matter to the Supreme Court, Queens County, forfurther proceedings (see id.). Upon remittal, Broadway moved, among otherthings, to vacate the referee's deed transferring the real property located at 35-27 31stStreet in Astoria (hereinafter the subject property) to nonparty Joseph [*2]Noormand, since, by this Court's order, the underlyingjudgment of foreclosure and sale had been vacated. However, while the prior appeal waspending, upon a motion by Noormand, inter alia, to delay the closing pendingdetermination of the prior appeal, the Supreme Court issued an order sua sponte findingNoormand to be a bona fide purchaser of the subject property.
In the order appealed from, the Supreme Court determined that, pursuant to thelaw-of-the-case doctrine, it was bound by the prior Supreme Court order to hold thatNoormand was a bona fide purchaser of the subject property. On that ground, theSupreme Court concluded that, "[h]aving failed to obtain a stay pursuant to CPLR 5519to prevent the property from being sold, Broadway [was] relegated to an action formoney damages, and would not be able to recover the real property" (see Matter ofVetri, 208 AD2d 755 [1994]). However, since the parties had not litigated the suasponte determination as to Noormand's status, application of the doctrine of law of thecase was improper (see People v Evans, 94 NY2d 499, 502 [2000]; Ramanathan v Aharon, 109AD3d 529, 530 [2013]). In any event, this Court is not bound by the SupremeCourt's prior determination finding Noormand to be a bona fide purchaser and may reachthe merits of that issue (see Mosher-Simons v County of Allegany, 99 NY2d 214,218 [2002]; Maragliano v PortAuth. of N.Y. & N.J., 119 AD3d 534, 536 [2014]; Debcon Fin. Servs.,Inc. v 83-17 Broadway Corp., 61 AD3d at 713; Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d699, 701 [2007]; Meekins vTown of Riverhead, 20 AD3d 399, 400 [2005]). We find that, in light of thenumerous relevant questions of fact apparent in the record, Broadway must have theopportunity to submit any proof it might have in opposition to the finding that Noormandwas a bona fide purchaser of the subject property (see generally Jacobs v Mostow, 23 AD3d 623, 624 [2005];Sena v Nationwide Mut. Fire Ins. Co., 198 AD2d 345, 346 [1993]). Accordingly,the matter must be remitted to the Supreme Court, Queens County, for a hearing in whichBroadway and Noormand can present evidence, and the court can determine, based onthe credible evidence, whether Noormand was a bona fide purchaser of the subjectproperty.
The Supreme Court properly denied that branch of the cross motion of the defendantDemetra Sirica which was to vacate her default on the ground that it was barred by thedoctrine of law of the case. Sirica previously moved for the same relief, which wasdenied on the merits by the Supreme Court in an order entered November 22, 2006, andSirica has not appealed from that order (see Kaygreen Realty Co., LLC v IG Second Generation Partners,L.P., 116 AD3d 667, 668-669 [2014]; cf. Ramanathan v Aharon, 109 AD3d 529, 530-531[2013]). Although, pursuant to the doctrine of law of the case, this Court is not bound bythe order entered November 22, 2006, we decline to disturb the Supreme Court'sinvocation of that doctrine (seee.g. Pastrana v Cutler, 115 AD3d 725, 727 [2014]; Romagnolo v Pandolfini, 75AD3d 632, 634 [2010]).
Broadway's remaining contentions have been rendered academic in light of ourdetermination. Rivera, J.P., Miller, Hinds-Radix and Duffy, JJ., concur.