In re Rose R.

2024 NY Slip Op 05213

In the Matter of Rose R. (Anonymous). Keesha Kym Ross, respondent, Renee Oppenheimer, respondent-respondent; 554 Eastern Parkway 123, LLC, nonparty-appellant. (Matter No. 1) NYCTL 2017-A Trust, et al., plaintiffs, Rose R. (Anonymous), etc., defendant-respondent, et al., defendants; 554 Eastern Parkway 123, LLC, nonparty-appellant. (Matter No. 2)

No. 2020-07006, Index No. 100226/19

Supreme Court of New York, Second Department

October 23, 2024

Altman Schochet LLP, New York, NY (Irena Shternfeld of counsel), for nonparty-appellant.

Jan Ira Gellis, P.C., New York, NY (Andrew H. Meier of counsel) for defendant-respondent.

FRANCESCA E. CONNOLLY, J.P., ANGELA G. IANNACCI, LARA J GENOVESI, LAURENCE L. LOVE, JJ.

DECISION & ORDER

In a consolidated action to foreclose a tax lien and guardianship proceeding pursuant to Mental Hygiene Law article 81, in which Keesha Kym Ross and Renee Oppenheimer were appointed as the co-guardians of the person of Rose R., an incapacitated person, and Renee Oppenheimer was appointed as the sole guardian of the property of Rose R., nonparty 554 Eastern Parkway 123, LLC, appeals from an order of the Supreme Court Kings County (Leon Ruchelsman, J.), dated August 25, 2020. The order (1) denied the cross-motion of nonparty 554 Eastern Parkway 123, LLC, (a) to vacate so much of an order of the same court dated February 24, 2020, as granted those branches of the motion of Renee Oppenheimer which were to consolidate the guardianship proceeding, which was pending in the Supreme Court, Kings County, under Index No. 100226/19, with an action entitled NYCTL 2017-A Trust et al. v Rose R. (Anonymous), which was pending in the same court under Index No. 507623/18, and for a nunc pro tunc determination of incapacity with respect to Rose R., and (b) to transfer the action entitled NYCTL 2017-A Trust et al. v Rose R. (Anonymous) back to the originally assigned judge, and (2) granted those branches of the motion of Rose R. which were pursuant to CPLR 5015(a)(4) to vacate so much of a judgment of foreclosure and sale of the same court (Mark I. Partnow, J.) dated February 26, 2019, issued upon Rose R.'s failure to appear or answer the complaint in the action entitled NYCTL 2017-A Trust et al. v Rose R. (Anonymous), as was against Rose R. and to set aside the foreclosure sale and, thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint in the action entitled NYCTL 2017-A Trust et al. v Rose R. (Anonymous) insofar as asserted against Rose R. for lack of personal jurisdiction.

ORDERED that the order dated August 25, 2020, is affirmed, with costs payable to the defendant-respondent.

In April 2018, NYCTL 2017-A Trust and Bank of New York of Mellon (hereinafter together the foreclosure plaintiffs), commenced an action entitled NYCTL 2017-A Trust et al. v Rose R. (Anonymous) in the Supreme Court, Kings County, under Index No. 507623/18, to foreclose a tax lien encumbering premises owned by the defendant Rose R. (hereinafter the subject property). Rose R. failed to appear or answer the complaint in that action (hereinafter the foreclosure action). The Supreme Court granted those branches of the foreclosure plaintiffs' motion which were for leave to enter a default judgment against Rose R. and for an order of reference and subsequently issued a judgment of foreclosure and sale dated February 26, 2019. Nonparty 554 Eastern Parkway 123, LLC (hereinafter 554 Eastern), purchased the subject property at a foreclosure sale.

Shortly thereafter, Keesha Kym Ross commenced a guardianship proceeding pursuant to Mental Hygiene Law article 81 in the Supreme Court, Kings County, under Index No. 100226/19, seeking the appointment of a guardian of the person and property of Rose R., an alleged incapacitated person (hereinafter the guardianship proceeding). In January 2020, the Supreme Court determined that Rose R. was incapacitated within the meaning of Mental Hygiene Law article 81, appointed Ross and the court evaluator, Renee Oppenheimer, as the co-guardians of the person of Rose R., and appointed Oppenheimer as the sole guardian of the property of Rose R.

Meanwhile, in November 2019, Rose R. had moved in the foreclosure action, among other things, pursuant CPLR 5015(a)(4) to vacate so much of the judgment of foreclosure and sale as was against her and to set aside the foreclosure sale and, thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. 554 Eastern opposed the motion.

While Rose R.'s motion in the foreclosure action remained pending, Oppenheimer moved in the guardianship proceeding, inter alia, to consolidate the guardianship proceeding with the foreclosure action and for a nunc pro tunc determination that Rose R. was incapacitated as of January 2017. In an order dated February 24, 2020, the Supreme Court, in the guardianship proceeding, among other things, granted those branches of Oppenheimer's motion.

554 Eastern thereafter cross-moved to vacate so much of the February 24, 2020 order as granted those branches of Oppenheimer's motion which were to consolidate the guardianship proceeding with the foreclosure action and for a nunc pro tunc determination that Rose R. was incapacitated as of January 2017, and to transfer the foreclosure action back to the originally assigned judge. In an order dated August 25, 2020, the Supreme Court, inter alia, denied 554 Eastern's cross-motion and granted those branches of Rose R.'s motion which were pursuant to CPLR 5015(a)(4) to vacate so much of the judgment of foreclosure and sale as was against her and to set aside the foreclosure sale and, thereupon, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction. 554 Eastern appeals from the order dated August 25, 2020.

"A motion to consolidate two or more actions rests within the sound discretion of the trial court" (American Home Mtge. Servicing, Inc. v Sharrocks, 92 A.D.3d 620, 622). Where common questions of fact or law exist, a motion pursuant to CPLR 602(a) for consolidation or joinder should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion (see HSBC Bank USA, N.A. v Francis, 214 A.D.3d 58, 62; Disa Realty, Inc. v Rao, 198 A.D.3d 869, 871).

Here, the guardianship proceeding and the foreclosure action shared common questions of law and fact concerning the mental competency of Rose R., who defaulted in paying the taxes on the subject property and in answering and appearing in the foreclosure action (see Disa Realty, Inc. v Rao, 198 A.D.3d at 872; Rhoe v Reid, 166 A.D.3d 919, 921). Furthermore, consolidation will not prejudice a substantial right of the parties to the foreclosure action and will avoid unnecessary duplication of proceedings, save unnecessary costs, and prevent the injustice that would arise from divergent decisions based on the same facts (see Disa Realty, Inc. v Rao, 198 A.D.3d at 872; Rhoe v Reid, 166 A.D.3d at 921).

Contrary to the contention of 554 Eastern, this Court's decision in Matter of Joseph J. (106 A.D.3d 1004, 1005-1006) is not controlling, as the guardianship proceeding at issue...