Lewis v. U.S. Bank Nat'l Ass'n

186 A.D.3d 694

130 N.Y.S.3d 22

Roland LEWIS, et al., Respondents-Appellants,

v.U.S. BANK NATIONAL ASSOCIATION, etc., Appellant-Respondent, et al., Defendant.

2018–11216

Index No. 522890/16

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

Submitted—March 26, 2020

August 19, 2020

Solomon & Siris, P.C., Garden City, N.Y. (Bill Tsevis of counsel), for appellant—respondent.

Korsinsky & Klein, LLP, Brooklyn, N.Y. (Michael Korsinsky and Adam M. Birnbaum of counsel), for respondents-appellants.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to quiet title to certain real property and for related declaratory relief, the defendant U.S. Bank National Association appeals, and the plaintiffs cross-appeal, from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated January 17, 2018. The order, insofar as appealed from, granted those branches of the plaintiffs' motion which were, in effect, pursuant to CPLR 3211(b) to dismiss the defendant U.S. Bank National Association's first, seventh, tenth, fifteenth, sixteenth, and twenty-seventh affirmative defenses, and denied that branch of the defendant U.S. Bank National Association's cross motion which was for leave to amend its first amended answer. The order, insofar as cross-appealed from, denied those branches of the plaintiffs' motion which were, in effect, pursuant to CPLR 3211(b) to dismiss the defendant U.S. Bank National Association's twenty-ninth and thirty-sixth affirmative defenses and denied that branch of the plaintiffs' motion which was pursuant to CPLR 3211(a)(7) to dismiss the defendant U.S. Bank National Association's counterclaim to recover damages for fraud.

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiffs' motion which were, in effect, pursuant to CPLR 3211(b) to dismiss the defendant U.S. Bank National Association's first, seventh, tenth, and sixteenth affirmative defenses, and substituting therefor provisions denying those branches of the plaintiffs' motion, and (2) by deleting that provision thereof denying that branch of the defendant U.S. Bank National Association's cross motion which was for leave to amend its first amended answer, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

This is one of two related appeals concerning ownership of a parcel of real property located in Brooklyn (hereinafter the subject property) (see Lewis v. Holliman , 186 A.D.3d 692, 130 N.Y.S.3d 27 [Appellate Division Docket No. 2019–01452 ; decided herewith] ). The plaintiff Roland Lewis (hereinafter Lewis) allegedly inherited an interest in the subject property and then obtained sole title in the early 1990s. He moved in with his then-wife, Mary Jean Holliman (hereinafter the decedent), but he later moved out due to marital discord.

Lewis commenced a divorce action against the decedent. There is no evidence in the record that a final judgment was issued in that action. However, the defendant U.S. Bank National Association (hereinafter the defendant), submitted a transcript of an inquest held in the divorce action on May 21, 2001, upon Lewis's default in appearing. The transcript indicates that Lewis was provided notice of the inquest. The transcript further indicates that a divorce was granted and the decedent was awarded the subject property as a distributive award, while Lewis was awarded commercial property in Alabama as his distributive award. The subject property was transferred into the decedent's name by deed dated October 3, 2003 (hereinafter the 2003 deed). According to Lewis, his signature on the 2003 deed was forged. In 2006, the decedent conveyed the subject property to her son Stacy Reeves, who financed his purchase with a mortgage that now belongs to the defendant.

Lewis claimed he first became aware of the 2003 deed and subsequent conveyances in 2013. In November 2013, he commenced an action (hereinafter the prior action) to quiet title against Reeves and the decedent. Upon the decedent's death, the action was discontinued against her. Lewis did not name the defendant as a party in the prior action. Upon Reeves' default, Lewis was awarded summary judgment invalidating the 2003 deed and all subsequent conveyances. Reeves's motion to vacate his default was denied. On appeal, this Court reversed on the ground that Lewis had failed to name the defendant as a necessary party (see Lewis v. Holliman , 176 A.D.3d 1048, 1048–1050, 111 N.Y.S.3d 105 ).

While that appeal was pending, Lewis and KK Greene, LLC, to whom Lewis had transferred one third of his purported interest in the subject property, commenced this action, inter alia, to invalidate the defendant's mortgage. The defendant's first amended answer asserted 37 affirmative defenses and 1 counterclaim sounding in fraud. The plaintiffs moved, in effect, pursuant to CPLR 3211(b) to dismiss all of the defendant's affirmative defenses, and moved pursuant to CPLR 3211(a)(7) to dismiss the defendant's counterclaim sounding in fraud. The defendant opposed the motion and cross-moved, among other things, for leave to amend its first amended answer to add a counterclaim, asserting that its lien was valid based upon the adverse possession of the mortgagor. The Supreme Court, inter alia, granted those branches of the plaintiffs' motion which were to dismiss the defendant's first, seventh, tenth, fifteenth, sixteenth, and twenty-seventh affirmative defenses, denied those branches of the plaintiffs' motion which were to dismiss the defendant's twenty-ninth and thirty-sixth affirmative defenses and the fraud counterclaim, and denied that branch of the defendant's cross motion which was for leave to amend its first amended answer. The defendant appeals, and the plaintiffs cross-appeal.

We disagree with the Supreme Court's determination to grant those branches of the plaintiffs' motion which were, in effect, pursuant to CPLR 3211(b) to dismiss the defendant's first, seventh, tenth, and sixteenth affirmative defenses. " CPLR 3211(b) provides that ‘[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit.’ When moving to dismiss, the plaintiff bears the burden of demonstrating that the affirmative defenses ‘are without merit as a matter of law because they either do not apply under the factual circumstances of [the] case, or fail to state a defense’ " ( Shah v. Mitra , 171 A.D.3d 971, 974, 98 N.Y.S.3d 197, quoting Bank of Am., N.A. v. 414 Midland Ave. Assoc., LLC , 78 A.D.3d 746, 748, 911 N.Y.S.2d 157 ). " ‘On a motion pursuant to CPLR 3211(b), the court should apply the same standard it applies to a motion to dismiss pursuant to CPLR 3211(a)(7), and the factual assertions of the defense will be accepted as true’ " ( Shah v. Mitra , 171 A.D.3d at 974, 98 N.Y.S.3d 197, quoting Wells Fargo Bank, N.A. v. Rios , 160 A.D.3d 912, 913, 74 N.Y.S.3d 321 ). " ‘Moreover, if there is any doubt as to the availability of a defense, it should not be dismissed’ " ( Shah v. Mitra , 171 A.D.3d at 974, 98 N.Y.S.3d 197, quoting Wells Fargo Bank, N.A. v. Rios , 160 A.D.3d at 913, 74 N.Y.S.3d 321 ).

With respect to the defendant's first affirmative defense, alleging failure to state a cause of action, no motion lies under CPLR 3211(b) to strike this affirmative defense as this amounts to an endeavor by the plaintiff to test the sufficiency of his or own claim (see Jacob Marion, LLC v. Jones , 168 A.D.3d 1043, 1044, ...