JPMorgan Chase Bank, N.A. v. Smith

188 A.D.3d 1211

137 N.Y.S.3d 96

In the Matter of JPMORGAN CHASE BANK, N.A., etc., respondent;

v.Russell SMITH, objectant, Patricia Downs, et al., objectants-appellants;

Marisa Falero, nonparty-appellant.

(Appeal No. 1)

In the Matter of JPMorgan Chase Bank, N.A., etc., respondent-appellant;

v.Russell Smith, respondent,Patricia Downs, et al., appellants-respondents,Lisa Kyle, nonparty-appellant-respondent.

(Appeal No. 2)

2018–00736

2018–05106

Index No. 27940/08

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

Argued—November 19, 2019

November 25, 2020

Marisa Falero, Brooklyn, NY, nonparty-appellant pro se and for objectants-appellants Patricia Downs and Barbara Perry in Appeal No. 1, and for appellants-respondents and nonparty-appellant-respondent in Appeal No. 2.

Hahn & Hessen LLP, New York, N.Y. (Zachary G. Newman and Stephen J. Grable of counsel), for respondent in Appeal No.1 and respondent-appellant in Appeal No. 2.

LEONARD B. AUSTIN, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding to judicially settle an account, (1) the objectants Patricia Downs and Barbara Perry, and their attorney, nonparty Marisa Falero, appeal from a decision of the Supreme Court, Kings County (Genine D. Edwards, J.), dated November 27, 2017, and (2) the objectants Patricia Downs and Barbara Perry and nonparty Lisa Kyle appeal, and the petitioner cross-appeals, from a money judgment of the same court dated March 15, 2018. The money judgment, insofar as appealed from, upon an order of the same court dated April 4, 2017, and the decision, is in favor of the petitioner and against the objectants and nonparty Lisa Kyle in the principal sum of $40,183.25. The money judgment, insofar as cross-appealed from, failed to name the objectants' attorney, nonparty Marisa Falero, as a judgment debtor.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp. , 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the money judgment is modified, on the law and the facts, (1) by adding Marisa Falero as a jointly and severally liable judgment debtor, and (2) by reducing the amount awarded to the petitioner payable by Patricia Downs, Barbara Perry, Lisa Kyle, and Marissa Falero as costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees from the principal sum of $40,183.25 to the principal sum of $35,183.25; as so modified, the money judgment is affirmed insofar as appealed from, without costs or disbursements.

In October 2008, the petitioner, JPMorgan Chase Bank, N.A. (hereinafter JPMorgan), commenced this proceeding to judicially settle a trust account. This proceeding was related to a proceeding commenced pursuant to Mental Hygiene Law article 81 for the appointment of a guardian for the personal needs and property management of an alleged incapacitated person, who was the last income beneficiary of the trust (hereinafter underlying guardianship proceeding). The underlying guardianship proceeding was entitled Matter of Marion C.W. (Lisa K.) , and had been commenced in the Supreme Court, Kings County, under Index No. 100303/07. Russell Smith, Patricia Downs, and Barbara Perry (hereinafter collectively the objectants), the petitioners in the underlying guardianship proceeding, and remainder beneficiaries of the trust, are the objectants in this proceeding. Nonparty Lisa Kyle was also a petitioner in the underlying guardianship proceeding.

In an order dated November 2, 2012, in the underlying guardianship proceeding, the Supreme Court, among other things, granted that branch of JPMorgan's cross motion which was to enjoin the objectants and Kyle from, inter alia, filing further motions or commencing new proceedings regarding the alleged incapacitated person or the trust without leave of the court (hereinafter the filing injunction). This Court, inter alia, affirmed so much of the November 2, 2012 order as granted that branch of JPMorgan's cross motion which was for the filing injunction (see Matter of Marion C.W. [Lisa K.] , 135 A.D.3d 777, 779, 24 N.Y.S.3d 665 ).

Thereafter, in this proceeding, the objectants and Kyle moved, inter alia, to strike the note of issue filed by JPMorgan on July 14, 2016. JPMorgan cross-moved, among other things, for the imposition of sanctions against the objectants and Kyle for their violation of the filing injunction and pursuant to 22 NYCRR 130–1.1(a) for an award of costs and attorney's fees. In an order dated April 4, 2017, the Supreme Court, among other things, denied the motion of the objectants and Kyle on the ground that they failed to comply with the filing injunction and granted that branch of JPMorgan's cross motion which was pursuant to 22 NYCRR 130–1.1(a) for an award of costs and attorney's fees, directing a hearing on the issue of attorney's fees reasonably incurred by JPMorgan to be paid by the objectants and...