Beckford ex rel. McKenzie v. Morse-Spalding
| Decision Date | 28 February 2022 |
| Docket Number | Index No. 12435/2011 |
| Citation | 74 Misc.3d 1220 (A),162 N.Y.S.3d 689 (Table) |
| Parties | The ESTATE OF Roderick BECKFORD, BY Paulette MCKENZIE, Ancillary Administrator, Plaintiff, v. Alrema MORSE-SPALDING, Devon Spalding, Valerie Watson and Brian Figeroux, Esq, Defendants. |
| Court | New York Supreme Court |
Anthony J. Auciello, Auciello Law Group for Plaintiff Roderick Beckford
Glenn Randal Meyers, The Meyers Law Firm for Defendants Alrema Morse-Spalding, Devon Spalding, Valerie Watson and Brian Figeroux Esq.
The following papers were read on this motion pursuant to CPLR 2219(a) :
Papers Numbered
Defendants Alrema Morse-Spalding, Devon Spalding, Valerie Watson's Motion by Order to Show Cause dated February 11, 2020 and signed by Hon. Genine D. Edwards seeking inter alia a stay of landlord-tenant proceedings, restore the deed previously set aside by the court and to allow a late answer; Attorney Affirmation of Glenn R. Meyers, Esq., in support of motion, affirmed on February 9, 2019; Affidavit of Alrema Spaulding, duly sworn on December 13, 2019; Exhibits A-H 1.
Plaintiff's Attorney Affirmation of Anthony J. Auciello, Esq., in opposition, affirmed on February 24, 2020; Exhibits A-I 2
Plaintiff's Paulette Mckenzie, Ancillary Administrator of The Estate of Roderick Beckford's Motion by Order to Show Cause dated February 22, 2022, seeking inter alia further opposition to foregoing defendant's motion, lifting the stay and access to the premises to fix a leak; Affidavit of Paulette Mckenzie, Ancillary Administrator of The Estate of Roderick Beckford, sworn to on January 31, 2022; Attorney Affirmation of Anthony J. Auciello, Esq., affirmed on February 2, 2022, in support of the motion; Exhibits A-I 3. (NYSCEFF NOS. 3-15)
This action was commenced by filing a complaint on June 1, 2011. The complaint alleges that on May 14, 2008, defendants fraudulently and without consideration, caused the transfer of real property by deed, which was previously owned by plaintiff Roderick Beckford, now deceased, to defendants Alrema Morse-Spalding, Devon Spalding, and Valerie Watson. The real property is located at 1302 Foster Avenue, Brooklyn, NY. The same property was bequeathed by will dated September 29, 2009, to Paulette Mckenzie, now Ancillary Administrator of The Estate of Roderick Beckford. Ms. Mckenzie possessed a Power of Attorney for Mr. Beckford at all relevant times prior to Mr. Beckford's death and is also Mr. Beckford's niece as well as the substituted plaintiff. Defendant Devon Spalding is the brother of Paulette Mckenzie and married to Alrema Morse-Spalding. Defendant Devon Spalding passed away and defendant Alrema Morse-Spalding is now appointed by this court, for the purposes of this litigation, as a representative for the estate of her late husband. Defendant Valerie Watson is Mr. Beckford's daughter. Defendant Brian Figeroux, Esq, is an attorney who prepared the deed executed by the late Roderick Bedford transferring ownership to defendants Devon Spalding, Alrema Morse-Spalding, and Valerie Watson on May 14, 2008.
On October 13, 2011, an answer was filed by Mr. Figeroux's law firm on behalf of defendants Alrema Morse-Spalding. Devon Spalding and Brian Figeroux, Esq. Mr. Figeroux's law firm did not represent defendant Valerie Watson. The answer was rejected as untimely on October 14, 2011. A default judgment was entered on February 16, 2012, which declared that the Deed dated May 14, 2008, for the premises known as 1302 Foster Avenue, Brooklyn, NY, Block 5234, Lot 52 and recorded in the Kings County Clerk office on June 4, 2008, under CRFN 2008000224160 null and void and cancelled of record pursuant to NYRPAL Art. 15.
The defendants Alrema Morse-Spalding, individually and as Representative of the Estate of her husband Devon Spalding, and Valerie Watson, through new counsel, by Order to Show Cause now seeks to vacate the default judgment inter alia on the basis of fraud, and requests a hearing, and provides the court with uncertified copies of medical records from the Kings County Medical Center which reflects the following Discharge Summary dated July 14, 2011, which is approximately six weeks after the commencement of the action, regarding the late Mr. Beckford's hospitalization at the time:
, parkinson's dz., prior CVA, legal blindness and deaf, HTN, presents to the ED via EMS for worsening AMS for 1 month ...CT scan showed old huge infarct and very atrophic brain. Patient prognosis is poor due to his Alzheimer and Parkinson.
A review of the original complaint which was electronically uploaded to the court's New York State Court Electronic System ("NYSCEF") shows that it was captioned "Verified Complaint" but there was no verification page attached to the filed complaint. An amended complaint was electronically filed the next day, on June 2, 2011, and contained the caption "Amended Complaint" but without the word "Verified" found in the caption of the complaint. The electronically filed amended complaint did not contain a verification page. The attorney affirmation of Anthony J. Auciello, Esq., affirmed on February 24, 2020, in opposition to defendants' motion, attached as an exhibit a hard copy of the amended complaint with a verification page which was sworn to on May 27, 2011 (Exhibit A to the Attorney Affirmation). The verification page was notarized on May 27, 2011, which is an earlier date than the date found on either the original or amended complaint. In other words, it appears that the complaint and amended complaint did not exist at the time the verification page was signed. Mr. Beckford passed away on March 25, 2012, approximately 10 months after the purported verification.
An Article 81 proceeding regarding Mr. Beckford was commenced by defendant Alrema Morse-Spalding sometime around August 2011 and a cross-petition was filed by Plaintiff Paulette Mckenzie, currently the Ancillary Administrator of Mr. Beckford's estate, in or about October 2011. (Matter of Roderick Beckford , Kings County Index No. 100157-2011). The proceeding was terminated because Mr. Beckford moved back to Jamaica, WI under unknown circumstances. An unsigned report of the Court Evaluator Kim F. Trigoboff was annexed opining, and confirming what was reflected in hospital records, that Mr. Beckford was suffering from dementia and was legally blind and deaf. The court evaluator determined that Mr. Beckford was completely dependent on others for activities of daily living. Ms. Grigoboff recommended that any power of attorney given to Paulette Mackenzie, then cross petitioner in the Article 81 proceeding, and now plaintiff administrator of the Estate of Mr. Beckford, be revoked and that in her opinion Ms. Mckenzie had breached her fiduciary duty to Mr. Beckford.
It is unknown whether the Will, apparently probated in Jamaica, WI is contested. It is unknown whether there is an objection to the Ancillary Proceedings filed in Kings County Surrogate Court under File No. 2019-676. A decree granting Ancillary Probate with Letters was issued by the court on June 4, 2019 by the Hon. Margarita Lopez Torres.
The failure to provide "proof of the facts constituting the cause of action" can result in reversal of a trial court's order granting default judgment. See Blam v. Netcher , 17 AD3d 495, 496, 793 N.Y.S.2d 464, 465, 2005 NY Slip Op. 02986, 2005 WL 901909 (2005), where the appellate court reversed the trial court who caused a default judgment to be entered without "facts constituting the cause of action" being submitted either in the form of a properly verified complaint or affidavit of merit:
In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (see CPLR 3215[f] ; Goodman v. New York City Health & Hosps. Corp., 2 AD3d 581, 768 N.Y.S.2d 365 ; Drake v. Drake, 296 AD2d 566, 745 N.Y.S.2d 712 ; Parratta v. McAllister, 283 AD2d 625, 725 N.Y.S.2d 854 ). Accordingly, the plaintiff's motion should have been denied, with leave to renew on proper papers (see Henriquez v. Purins, 245 AD2d 337, 338, 666 N.Y.S.2d 190 ).
However, there is significant appellate authority that even when plaintiff fails to comply with the statute requiring party seeking a default judgment to provide an affidavit of merit such default judgment is not a nullity because if the issue was timely raised the court could have denied the motion with leave to renew. Further, a reasonable excuse for the default and a meritorious defense must still be raised when timely challenging a lack of a verified complaint or affidavit of merit. See Araujo v. Aviles , 33 AD3d 830, 824 N.Y.S.2d 317, 318, 2006 NY Slip Op. 07679, 2006 WL 3028435 (AD 2nd Dept 2006) :
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