| Citicorp Trust Bank, FSB v Makkas |
| 2015 NY Slip Op 03119 [127 AD3d 907] |
| April 15, 2015 |
| Appellate Division, Second Department |
[*1]
| Citicorp Trust Bank, FSB, Appellant, v LigerieL. Makkas et al., Defendants, and Leshold Realty Corp.,Respondent. |
Akerman, LLP, New York, N.Y. (Jordan M. Smith of counsel), for appellant.
Monte J. Rosenstein, P.C. Middletown, N.Y., for respondent.
In a consolidated action, inter alia, to set aside alleged fraudulent conveyancespursuant to Debtor and Creditor Law § 276, the plaintiff appeals from (1)an order of the Supreme Court, Orange County (Marx, J.), dated April 17, 2014, whichdenied its motion to vacate its default in appearing at scheduled court conferences, andfor summary judgment dismissing the cause of action and counterclaim of the defendantLeshold Realty Corp. insofar as asserted against it on the ground that they had beenrendered academic, and (2) a judgment of the same court, also dated April 17, 2014,which, upon the order, is in favor of the defendant Leshold Realty Corp. and against it inthe principal sum of $67,120.75.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, on the facts, and in the exercise ofdiscretion, the plaintiff's motion to vacate its default in appearing at scheduled courtconferences, and for summary judgment dismissing the cause of action and counterclaimof the defendant Leshold Realty Corp. insofar as asserted against it on the ground thatthey had been rendered academic, is granted, the cause of action and counterclaim of thedefendant Leshold Realty Corp. are dismissed insofar as asserted against the plaintiff,and the order is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the orderare brought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
In order to vacate its default in appearing at scheduled court conferences, theplaintiff was required to demonstrate both a reasonable excuse and a potentiallymeritorious cause of action (see CPLR 5015 [a] [1]; Selechnik v Law Off. of HowardR. Birnbach, 120 AD3d 1220 [2014]; Robinson v Plaro Estates, Inc., 119 AD3d 542 [2014]; 9 Bros. Bldg. Supply Corp. vBuonamicia, 106 AD3d 968 [2013]; Star [*2]Indus., Inc. v InnovativeBeverages, Inc., 55 AD3d 903, 904 [2008]). The determination of whatconstitutes a reasonable excuse generally lies within the sound discretion of the trialcourt (see Madonna Mgt. Servs.,Inc. v R.S. Naghavi M.D. PLLC, 123 AD3d 986 [2014]; 9 Bros. Bldg.Supply Corp. v Buonamicia, 106 AD3d at 969). In making that discretionarydetermination, the court should consider relevant factors, such as the extent of the delay,prejudice or lack of prejudice to the opposing party, whether there has been willfulness,and the strong public policy in favor of resolving cases on the merits (see Lyubomirsky v Lubov Arulin,PLLC, 125 AD3d 614 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]).
The excuse of law office failure proffered by the plaintiff's new attorney wasreasonable under the circumstances of this case, including the departure of the attorneywho had been handling this matter from the law firm the plaintiff's title insurer hadretained to represent the plaintiff, the fact that the defaults in appearing at scheduledconferences occurred shortly after the title insurer advised the plaintiff that it would haveto obtain its own counsel, the plaintiff's active participation in the litigation for nineyears, the lack of willfulness, and the lack of prejudice to Leshold Realty, Corp.(hereinafter Leshold) (seeLyubomirsky v Lubov Arulin, PLLC, 125 AD3d 614 [2015]; Madonna Mgt. Servs., Inc. v R.S.Naghavi M.D. PLLC, 123 AD3d 986 [2014]; Shin v ITCI, Inc., 115 AD3d736 [2014]; MitraniPlasterers Co., Inc. v SCG Contr. Corp., 97 AD3d 552 [2012]; Gerdes v Canales, 74 AD3d1017 [2010]; EvolutionImpressions, Inc. v Lewandowski, 59 AD3d 1039 [2009]). In addition, theplaintiff demonstrated a meritorious defense to the cause of action and counterclaimasserted against it by Leshold. No relief is available to a judgment creditor on a cause ofaction pursuant to Debtor and Creditor Law § 276 against a party who, likethe plaintiff, is not a transferee of the assets or a beneficiary of an alleged fraudulentconveyance (see Federal Deposit Ins. Corp. v Porco, 75 NY2d 840, 842 [1990];Cahen-Vorburger vVorburger, 41 AD3d 281 [2007]). Furthermore, the plaintiff demonstrated apotentially meritorious defense to Leshold's counterclaim for a judgment declaring itslien against the subject premises superior to the plaintiff's mortgage lien by offeringevidence that both liens had been extinguished by a May 2009 tax foreclosure, theensuing conveyance of the subject premises to a third party purchaser, and a judgmentobtained by the purchaser in an action pursuant to RPAPL article 15 to quiet title.Accordingly, the Supreme Court should have granted that branch of the plaintiff's motionwhich was to vacate its default in appearing at scheduled court conferences.
The Supreme Court also should have granted that branch of the plaintiff's motionwhich was, in effect, for summary judgment dismissing the cause of action andcounterclaim of Leshold insofar as asserted against it on the ground that they had beenrendered academic. In support of that branch of its motion, the plaintiff offeredevidentiary proof that Orange County foreclosed on the subject premises for nonpaymentof property taxes on May 27, 2009, that the County conveyed the premises to athird-party purchaser on January 10, 2010, and that on May 11, 2011, a judgment wasentered in favor of the purchaser in an action pursuant to RPAPL article 15, which barredany claims by Leshold to the subject premises. Under these circumstances, the plaintiffmade a prima facie showing that any relief to which Leshold could be entitled on itscause of action pursuant to Debtor and Creditor Law § 276, and on itscounterclaim, had been rendered academic. In opposition, Leshold failed to raise a triableissue of fact. Contrary to Leshold's contention, that branch of the plaintiff's motion whichwas, in effect, for summary judgment, was not barred by the general proscription againstsuccessive motions for summary judgment, because it was predicated upon events whichoccurred after the prior motion for summary judgment was made (see Alaimo v Mongelli, 93AD3d 742 [2012]; City ofNew York v Brooklyn, LLC, 85 AD3d 707 [2011]). Moreover, Leshold failedto demonstrate that this branch of the plaintiff's motion was untimely (see Brunetti vCity of New York, 286 AD2d 253 [2001]; Cibener v City of New York, 268AD2d 334 [2000]). Eng, P.J., Dillon, Chambers and Barros, JJ., concur.