Latest decisions from the Appellate Division, Second Department

August 8, 2024 Robert Abruzzese, Courthouse Editor

The Appellate Division, Second Department, recently ruled on several cases: affirming the denial of a motion to vacate a foreclosure judgment, upholding the denial of intervention in a religious corporation dissolution case, affirming the denial of a late notice of claim against NYC, reversing the denial of a motion to join a necessary party in a property dispute, and affirming the denial of a suppression motion in a weapon possession case. Eagle file photo by Rob Abruzzese

Appellate Division affirms denial of motion to vacate foreclosure judgment

In a recent decision, the Appellate Division, Second Department, upheld a Kings County Supreme Court ruling, denying a defendant’s motion to vacate a foreclosure judgment and dismiss the complaint against them.

The case stems from a 2009 foreclosure action initiated by the Bank of New York Mellon against the defendant, who defaulted by failing to appear or answer the complaint. Despite the defendant’s subsequent efforts to challenge the foreclosure, including claims of the plaintiff’s lack of standing and a request to vacate the judgment years later, the court found the motions untimely and without merit.

The Appellate Division concurred, noting the defendant’s waiver of personal jurisdiction defenses by actively litigating and formally appearing without jurisdictional objections. Additionally, the court ruled that the defendant failed to demonstrate grounds for discretionary vacatur, including excusable default or fraud. Thus, the order denying the motion was affirmed, maintaining the foreclosure judgment.

~ Bank of New York Mellon v Taylor ~

Appellate Division upholds denial of intervention in religious corporation dissolution case

The Appellate Division, Second Department recently affirmed a Kings County Supreme Court ruling that denied a proposed intervenor’s motion to participate in the judicial dissolution proceedings of a religious corporation.

The case involves Congregation Sfard and Talmud Torah of Flatbush, which filed for judicial dissolution under Religious Corporations Law § 18 and sought permission to sell its real property. In December 2021, a proposed intervenor sought to challenge this petition and cross-moved for leave to intervene in the proceedings. The Supreme Court denied the renewed petition and deemed the intervenor’s motion academic.

The Appellate Division agreed, noting that since the renewed petition was denied, the intervenor’s request to challenge it became irrelevant. The court upheld the Supreme Court’s decision to deny the motion to intervene.

The legal standard the trial judge considered is whether the proposed intervenor has a “real and substantial interest in the outcome of the proceedings.” This standard is based on the general principle that intervention should be permitted if the intervenor can demonstrate a significant interest in the case. Since the renewed petition was denied, the judge determined that the proposed intervenor’s motion to intervene became academic, as there was no longer a pending petition to challenge.

~ Mtr of Congregation Sfard and Talmud Torah of Flatbush ~

Appellate Division upholds denial of late notice of claim against NYC

The Appellate Division, Second Department upheld a Kings County Supreme Court ruling this week that denied a petition for leave to serve a late notice of claim against the City of New York.

On Oct. 31, 2020, Mandelbaum tripped on protruding nails on the Riegelmann Boardwalk in Brooklyn, resulting in severe injuries that required multiple surgeries and extended hospital stays. She retained legal counsel on March 30, 2021, and served a notice of claim on April 21, 2021, which the City rejected the next day. Mandelbaum then sought judicial permission in June 2021 to serve a late notice of claim.

The legal issue at hand was whether Mandelbaum’s delay in serving the notice of claim was excusable and whether the city had actual knowledge of the incident within 90 days. The court considered factors including Mandelbaum’s incapacity due to her injuries, the city’s awareness of the incident, and potential prejudice to the city’s defense.

The Appellate Division affirmed the Supreme Court’s decision, stating that although Mandelbaum’s initial delay was reasonable due to her medical condition, she failed to provide a valid excuse for the delay after retaining counsel. The evidence did not show that the city had actual knowledge of the essential facts within the required timeframe, nor did Mandelbaum demonstrate that the delay would not substantially prejudice the city’s defense. The Supreme Court’s order denying the petition and dismissing the proceeding was affirmed.

~ Mtr of Mandelbaum v City of New York ~

Appellate Division reverses denial of motion to join necessary party in property dispute

The Appellate Division, Second Department reversed a Kings County Supreme Court ruling, granting Famek Management Corp.’s motion to vacate a prior order and join Eli Maor as a necessary party in a consolidated property dispute.

The case involves New Hope Missionary Baptist Church Inc., which filed an action in 2007 to quiet title to several properties in Brooklyn. Famek Management Corp., which was later permitted to intervene, sought to join Eli Maor as a necessary party after a 2016 sale of one of the disputed properties to Maor.

In May 2021, the Supreme Court denied Famek’s motion to join Maor due to Famek’s failure to appear for oral argument. Famek subsequently moved to vacate the order, citing law office failure as the reason for the missed appearance. The court, however, denied this motion in February 2023.

The Appellate Division ruled that Famek provided a reasonable excuse for its default, explaining that the missed appearance was due to inadvertent calendaring errors. The court noted that Famek’s default was an isolated incident, and Famek promptly moved to rectify it. Furthermore, the court determined that Maor was not prejudiced by the delay.

The court held that Famek’s motion to join Maor as a necessary party was meritorious, as it was essential to provide complete relief in the dispute over property ownership. As a result, the Appellate Division reversed the Supreme Court’s decision, allowing Famek to join Maor as a necessary party in the ongoing litigation.

~ New Hope Missionary Baptist Church, Inc. v 466 Lafayette, Ltd. ~

Appellate Division affirms denial of suppression motion in weapon possession case

The Appellate Division, Second Department upheld a Kings County Supreme Court ruling that denied the suppression of physical evidence in the case of Justin Orta, who was convicted of attempted criminal possession of a weapon in the second degree.

On June 8, 2017, police officers stopped Orta’s vehicle for a traffic infraction shortly before midnight. During the stop, an officer noticed Orta’s rear passenger sticking his hands out the window. The officer instructed the passenger to put his hands back inside the vehicle. When the officer approached the vehicle with a flashlight, he saw the muzzle of a gun on the floor by the passenger’s feet. The officers subsequently placed the vehicle’s occupants in custody and additional firearms were later recovered from the vehicle.

Orta’s defense argued that the use of a flashlight to look inside the vehicle constituted an illegal search. However, the Supreme Court ruled that the gun was in plain view, and thus the search was lawful. Orta subsequently pleaded guilty to attempted criminal possession of a weapon in the second degree, but appealed the decision to deny suppression of the evidence.

The Appellate Division, Second Department, concurred with the Supreme Court, ruling that the use of a flashlight did not constitute an illegal search and the police officer’s actions were justified. The court held that the police officer had the right to instruct the passenger to move his hands as a precaution and to use a flashlight to observe the vehicle’s interior. Consequently, the appellate court upheld the Supreme Court’s decision to deny the motion to suppress the physical evidence. The Appellate Division’s affirmation maintains Orta’s conviction and sentence.

~ Peo v Orta, Justin ~