Abakporo v. Abakporo

• Decision Date: 02 February 2022
• Docket Number: 2019–02812, 2019–02813,Index No. 9161/17
• Citation: 202 A.D.3d 646,163 N.Y.S.3d 137
• Parties: Rosemary ABAKPORO, appellant, v. Theophine ABAKPORO, et al., respondents, et al., defendant.
• Court: New York Supreme Court — Appellate Division

202 A.D.3d 646

163 N.Y.S.3d 137

Rosemary ABAKPORO, appellant,

v.Theophine ABAKPORO, et al., respondents, et al., defendant.

2019–02812, 2019–02813

Index No. 9161/17

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 12, 2021

February 2, 2022

Rosemary Abakporo, Jamaica, NY, appellant pro se.

Windels Marx Lane & Mittendorf, LLP, New York, NY (Christopher D. Mehno of counsel), for respondent Theophine Abakporo.

Borchert & LaSpina, P.C., Whitestone, NY (Robert W. Frommer of counsel), for respondent Tuthill Finance.

VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to impose a constructive trust on real property, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered January 14, 2019, and (2) stated portions of an order of the same court, also entered January 14, 2019. The first order entered January 14, 2019, denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a) to vacate (a) an order of the same court dated March 29, 2018, inter alia, granting that branch of the motion of the defendant Tuthill Finance which was pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against it, and denying the plaintiff's cross motion, among other things, to deem the second amended complaint properly served nunc pro tunc, and (b) an order of the same court dated April 3, 2018, granting that branch of the motion of the defendant Tuthill Finance which was to cancel the notices of pendency, and denying the plaintiff's cross motion, inter alia, to deem the second amended complaint properly served nunc pro tunc. The second order entered January 14, 2019, inter alia, granted that branch of the motion of the defendant Theophine Abakporo which was for summary judgment dismissing the amended complaint insofar as asserted against him, and denied the plaintiff's cross motion, among other things, to dismiss the complaint insofar as asserted against that defendant.

ORDERED that the first order entered January 14, 2019, is affirmed; and it is further,

ORDERED that the second order entered January 14, 2019, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendant Tuthill Finance payable by the plaintiff, and one bill of costs is awarded to the defendant Theophine Abakporo payable by the plaintiff.

The plaintiff alleges that in 1997, she and her husband, the defendant Eric Abakporo (hereinafter Eric), decided to purchase a house in Jamaica Estates. They asked Eric's brother, the defendant Theophine Abakporo (hereinafter Theophine), to obtain the mortgage and take title in his name because of Theophine's better credit rating and ability to qualify for the mortgage. The down payment was paid by the plaintiff and Eric, as were the mortgage payments, carrying costs, and improvements on the property. The plaintiff, Eric, and their children resided at the property while Theophine resided elsewhere in Queens. In December 2007, allegedly without the plaintiff's knowledge, Eric and Theophine took out a mortgage on the property with the defendant Tuthill Finance (hereinafter Tuthill).

In 2010, after Eric and Theophine defaulted on the mortgage payments, Tuthill commenced a mortgage foreclosure action against, among others, Theophine (hereinafter the foreclosure action), allegedly without notice to the plaintiff. A judgment of foreclosure and sale was entered in the foreclosure action, and a foreclosure sale was scheduled for September 22, 2017. However, Theophine and Tuthill entered into a stipulation whereby Tuthill agreed to forbear on the foreclosure provided Theophine made a payment of $450,000. The plaintiff thereafter made an unsuccessful motion to intervene in the foreclosure action.

In September 2017, the plaintiff filed a notice of pendency against the property, and commenced this action, inter alia, to impose a constructive trust on the property, for a judgment declaring that Theophine holds the property in trust only and cannot mortgage the property without her consent, and to enjoin the defendants from transferring or encumbering the property. In October 2017, the plaintiff filed an amended notice of pendency, and served an amended complaint which included a request for a preliminary injunction and a specific performance cause of action seeking to direct Theophine to convey the property to her. The plaintiff subsequently, without leave of court, served a second amended complaint which included a cause of action alleging adverse possession. In November 2017, Theophine sold the property to a nonparty, and in December 2017, Tuthill assigned the mortgage to a nonparty.

In March 2018, Tuthill moved, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against it as time-barred. The plaintiff cross-moved, inter alia, to deem her second amended complaint properly served nunc pro tunc. By order dated March 29, 2018, the Supreme Court granted Tuthill's motion and denied the plaintiff's cross motion. Also in 2018, Tuthill moved, among other things, to cancel the notices of pendency. The plaintiff again cross-moved, inter alia, to deem her second amended complaint properly served nunc pro tunc. By order dated April 3, 2018, the court, among other things, granted that branch of Tuthill's motion which was to cancel the notices of pendency, and denied the plaintiff's cross motion.

Thereafter, by notice of motion dated July 17, 2018, the plaintiff moved, in effect, pursuant to CPLR 5015(a), to vacate the March 29, 2018 and April 3, 2018 orders. In an order entered January 14, 2019, the Supreme Court denied the plaintiff's motion. The plaintiff appeals from this order.

In June 2018, Theophine moved, inter alia, for summary judgment dismissing the amended complaint insofar as asserted against him. The plaintiff cross-moved, among other things, to dismiss the complaint insofar as asserted against Theophine for lack of subject matter jurisdiction. In a second order entered January 14, 2019, the Supreme Court, inter alia, granted that branch of Theophine's motion which was for summary judgment dismissing the amended complaint insofar as asserted against him, and denied the plaintiff's cross motion, inter alia, to dismiss as duplicative of her prior motion to vacate the March 29, 2018 and April 3, 2018 orders. The plaintiff appeals from this order.

The Supreme Court properly denied the plaintiff's motion, in effect, pursuant to CPLR 5015(a), to vacate the March 29, 2018 and April 3, 2018 orders. " CPLR 5015(a) authorizes a court to relieve a party from an order or judgment, on motion, based on the existence of specified grounds including, among other things, excusable default (see id. § 5015[a][1] ); newly discovered evidence (see id. § 5015[a][2] ); fraud, misrepresentation, or other misconduct of an adverse party (see id. § 5015[a][3] ); lack of jurisdiction (see id. § 5015[a][4] ); or reversal, modification, or vacatur of a prior judgment or order upon which it is based (see id. § 5015[a][5] )" ( 21st Mtge. Corp. v. Raghu, 197 A.D.3d 1212, 1220, 154 N.Y.S.3d 84 ; see U.S. Bank N.A. v. Mitchell, 191 A.D.3d 731, 137 N.Y.S.3d 712 ).

Here, the plaintiff argued in support of her motion to vacate that Tuthill had intentionally concealed the sale of the property by Theophine and the assignment of the mortgage by Tuthill at the time of Tuthill's prior motion, inter alia, pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against it as time-barred. CPLR 5015(a)(3) permits a court to vacate a judgment or order on the basis that a party "may have been prevented from fully and fairly litigating the matter" due to fraud, misrepresentation, or other misconduct of an adverse party in obtaining the judgment or order ( Shaw v. Shaw, 97 A.D.2d 403, 403, 467 N.Y.S.2d 231 ; see Gaddy v. Freeman, 193 A.D.3d 1033, 1034, 147 N.Y.S.3d 661 ; Petrosino v. Petrosino, 171 A.D.3d 960, 962, 98 N.Y.S.3d 308 ). Pursuant to CPLR 1018, however, an action may be continued by or against the original party—the assignor/transferor—without the need for substitution of the assignee/transferee (see e.g. Copeland v. Salomon, 56 N.Y.2d 222, 232, 451 N.Y.S.2d 682, 436 N.E.2d 1284 ; J.C. Tarr, Q.P.R.T. v. Delsener, 70 A.D.3d 774, 895 N.Y.S.2d 168 ; Pritzakis v. Sbarra, 201 A.D.2d 797, 798, 607 N.Y.S.2d 470 ). Thus, although Theophine sold the property and Tuthill assigned the mortgage, Tuthill remained a proper p...