Mortg. Elec. Registration Sys., Inc. v. McVicar

• Decision Date: 16 March 2022
• Docket Number: 2019–14011,Index No. 2788/04
• Citation: 203 A.D.3d 919,161 N.Y.S.3d 794 (Mem)
• Parties: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., etc., plaintiff, v. John P. MCVICAR, etc., defendant third-party plaintiff-appellant, et al., defendant; Kurt B. Ordenbach, et al., third-party defendants-respondents.
• Court: New York Supreme Court — Appellate Division

203 A.D.3d 919

161 N.Y.S.3d 794 (Mem)

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., etc., plaintiff,

v. John P. MCVICAR, etc., defendant third-party plaintiff-appellant, et al., defendant;Kurt B. Ordenbach, et al., third-party defendants-respondents.

2019–14011

Index No. 2788/04

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

Argued—January 31, 2022

March 16, 2022

John P. McVicar, East Hampton, NY, defendant third-party plaintiff-appellant pro se.

L'Abbate, Balkan, Colavita & Contini, LLP, Melville, NY (Matthew J. Bizzaro and Nicole Feder of counsel), for third-party defendants-respondents.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclosure a mortgage, the defendant third-party plaintiff appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated December 12, 2018. The order granted the third-party defendants’ motion for summary judgment dismissing the third-party complaint.

ORDERED that the order is affirmed, with costs.

In 2004, the plaintiff commenced an action to foreclose a mortgage (hereinafter the main action) encumbering certain real property owned by the defendant John P. McVicar (hereinafter McVicar) in East Hampton. In June 2017, McVicar commenced a third-party action against Kurt B. Ordenbach, William A. Santmyer, Jayla R. Burton, and Davidson Fink, LLP, the attorneys for the plaintiff in the foreclosure action (hereinafter collectively the third-party defendants), alleging attorney misconduct in violation of Judiciary Law § 487. The third-party defendants moved for summary judgment dismissing the third-party complaint, inter alia, on the ground of collateral estoppel. The Supreme Court granted the motion, and McVicar appeals.

Contrary to McVicar's contention, the fact that the third-party defendants’ supporting proof was placed before the Supreme Court by way of an attorney's affirmation annexing such proof, is not fatal to the motion (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Branch Servs., Inc. v. Cooper, 102 A.D.3d 645, 648, 961 N.Y.S.2d 170 ).

The Supreme Court properly granted the third-party defendants’ motion for summary judgment dismissing the third-party complaint. The third-party defendants established that McVicar was aware of the alleged violations of Judiciary Law § 487 when they occurred, and addressed them in the course of his motions for sanctions in the main action. Since McVicar had a full and fair opportunity to address the alleged violations which were the subject of his motions for sanctions, and those motions were denied, he is barred by the doctrine of collateral estoppel from relitigating those issues (see Doscher v. Mannatt, Phelps & Phillips, LLP, 148 A.D.3d 523, 523–524, 48...