Hummel v. CILICI, LLC

• Decision Date: 11 March 2022
• Docket Number: 875,CA 20-01319
• Parties: John HUMMEL, Individually and as Administrator of the Estate of Eleanor Hummel, Deceased, Plaintiff-Appellant, v. CILICI, LLC, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 1591
165 N.Y.S.3d 206

John HUMMEL, Individually and as Administrator of the Estate of Eleanor Hummel, Deceased, Plaintiff-Appellant,
v.
CILICI, LLC, Defendant-Respondent.

875
CA 20-01319

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

Entered: March 11, 2022

DAVID M. KAPLAN, HORSEHEADS, FOR PLAINTIFF-APPELLANT.

KNUCKLES, KOMOSINSKI & MANFRO, LLP, ELMSFORD (JOHN E. BRIGANDI OF COUNSEL), FOR DEFENDANT-RESPONDENT.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, NEMOYER, AND CURRAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the first cause of action in the amended complaint insofar as it seeks a declaration pursuant to RPAPL article 15 concerning defendant's interest in and right to foreclose upon the property at issue and granting judgment in favor of plaintiff as follows:

It is ADJUDGED and DECLARED that defendant has no enforceable interest in the property known as 5489 Federal Road, Conesus, New York 14435, and that defendant and every person claiming under defendant, by title accruing after the filing of the judgment roll, is forever barred from asserting such a claim,

and as modified the order is affirmed without costs.

Memorandum: Defendant claims to hold a mortgage on certain real property owned by the estate of plaintiff's decedent. It is undisputed that the underlying promissory note was lost at some point between October 2011 and June 2015 while in the custody of its holder, nonparty Omat I Reo Holdings, LLC (Omat). It is also undisputed that defendant is not now, and has

165 N.Y.S.3d 208

never been, in physical possession of the original promissory note.

Plaintiff commenced the instant action against defendant following the dismissal, without prejudice, of two successive foreclosure actions against plaintiff. In his first cause of action, plaintiff sought to quiet title to the subject property—i.e., to "compel the determination of any claim [to real property] adverse to that of ... plaintiff which ... defendant makes, or ... might make" ( RPAPL 1501 [1] ; see RPAPL 1501 [5] )—by means of, inter alia, a declaration under RPAPL 1521 (1) that defendant does not own the note underlying the mortgage on the subject property and thus has no enforceable interest in the subject property, i.e., that defendant lacks standing to foreclose. Plaintiff's second cause of action sought, inter alia, a similar declaration under CPLR 3001.

Defendant moved to dismiss the amended complaint under CPLR 3211 (a) (1) and (7). Supreme Court granted the motion, and plaintiff now appeals.

Preliminarily, we reject defendant's contention that the order appealed from was entered on default and hence is not appealable. The order does not purport to have been entered on plaintiff's default, and there is no reason to infer that the order was entered on default by virtue of its passing reference to the fact that plaintiff's lawyer did not appear at oral argument. Moreover, plaintiff timely opposed defendant's motion on the merits, and his lawyer's failure to appear for oral argument on a fully briefed motion would not constitute a default in the absence of unusual circumstances not present here (see All State Flooring Distribs., L.P. v. MD Floors, LLC , 131 A.D.3d 834, 835, 16 N.Y.S.3d 539 [1st Dept. 2015] ; cf. Britt v. Buffalo Mun. Hous. Auth., 109 A.D.3d 1195, 1196, 972 N.Y.S.2d 381 [4th Dept. 2013] ).

On the merits, we agree with plaintiff that defendant's evidentiary submissions do not warrant the dismissal of the amended complaint under either CPLR 3211 (a) (1) or (7) (see generally Lots 4 Less Stores, Inc. v. Integrated Props., Inc. , 152 A.D.3d 1181, 1182-1183, 59 N.Y.S.3d 628 [4th Dept. 2017] ). Indeed, defendant's evidentiary submissions actually establish conclusively that defendant lacks standing to foreclose, i.e., lacks an enforceable interest in...