HSBC Bank v Cadore
Annotate this CaseDecided on August 17, 2009
Supreme Court, Kings County
HSBC Bank, as Trustee for Ace Securities Corp., Home Equity Loan Trust, Series 2006-OP1 Asset Backed Through Certificates, Plaintiff,
against
Veronica Cadore, et al., Defendant.
34487/07
Plaintiff Attorney: Helmut Borchert, Esq.
Borchert, Genovesi, Laspina
Defendant Attorney Joseph McCray, Pro se
Yvonne Lewis, J.
Pro se defendant Joseph McCray moves by order to show cause for
an order, pursuant to CPLR §3212 (e), granting him partial summary judgment voiding and
setting aside two allegedly fraudulent deeds and a subsequent mortgage in this foreclosure
action. Plaintiff HSBC Bank USA (HSBC), as trustee for Ace Securities Corp., Home Equity
Loan Trust, Series 2006-OP1 Asset Backed Through Certificates, cross-moves for an order, (1)
pursuant to CPLR §3211, dismissing Mr. McCray's counterclaim as barred by res judicata
and collateral estoppel and/or dismissing the counterclaim as untimely pursuant to CPLR
§320 or, in the alternative, (2) pursuant to 22 NYCRR §202.21, vacating the note of
issue and granting plaintiff leave to serve a late reply to Mr. McCray's counterclaim challenging
the ownership of the subject premises.
BACKGROUND FACTS AND PROCEDURAL
HISTORY
The premises located at 119
MacDonough Street in Brooklyn, New York (the subject premises) is a four-unit apartment
building allegedly owned by Veronica Cadore and/or Michelle Cadore and in which Joseph
McCray, Colette Pirkle and John Pirkle (the Tenant Defendants) were tenants. The building is
the subject of a foreclosure action brought by HSBC, a foreign state banking corporation which
holds a lien against the property secured by a mortgage which was recorded March 30, 2006.
The City of New York (NYC) acquired the subject premises on April 18, 1979 by
deed recorded the same day. The NYC Department of Housing Preservation and Development
(the HPD) sold and conveyed the subject premises to Veronica Cadore by deed recorded on
April 13, 2000, although the Tenant Defendants were living in the building at the time and had
bid on the property. In 2001, the Tenant Defendants sued the HPD and Veronica Cadore seeking
to void the conveyance on the ground that the HPD failed to consider their bid and improperly
sold the building to Veronica Cadore (the HPD action). The Hon. Muriel S. Hubsher dismissed
the Article 78 part of that action as against the HPD for untimeliness (see McCray v New
York City [*2]Dept. of Hous. Preserv. & Dev., Sup Ct, Kings
County, May 17, 2002, Hubsher, J., index No. 28238/01). She also dismissed, without prejudice,
the claim against Veronica Cadore for allegedly breaching a deed provision which required her
to offer the Tenant Defendants a two-year lease, explaining that the Tenant Defendants had not
shown why the dispute could not be resolved in Civil Court, the preferred forum for
landlord-tenant disputes (see id.). The Tenant Defendants have not appealed the order
declining to award Mr. McCray legal title to the subject premises in the HPD Action.
Colette and John Pirkle, Tenant Defendants, subsequently purported to convey
whatever interests they had in the subject premises, if any, to Mr. Joseph McCray by deed
recorded July 10, 2003. Veronica Cadore also purported to convey her interest in the subject
premises, if any, to Michelle Cadore by deed recorded on January 13, 2006 by Equity Settlement
Service, Inc. (Equity). On that date Equity also recorded a mortgage which listed Michelle as
borrower and Option One Mortgage Corp. (Option One Mortgage) as lender.
HSBC initially sought to foreclose on the mortgage by filing an action, bearing
index number 28853/07, when Veronica and Michelle Cadore defaulted by failing to pay the
principal and interest owed. The Tenant Defendants were also named as defendants possessing a
possible interest in the subject premises, given their involvement in the HPD Action. When Mr.
McCray refused HSBC's request to discontinue the action due to a defect in the complaint,
HSBC commenced the instant action on September 12, 2007. Mr. McCray filed a Note of Issue
in the instant action on November 10, 2008.
THE PARTIES'
CONTENTIONS
HSBC seeks to dismiss Joseph McCray's
counterclaim pursuant to CPLR §3211 (a) (1) (5) and (a) (1) (6) as barred by the doctrines
of res judicata and collateral estoppel. It additionally argues that the counterclaim should be
dismissed as untimely and improper under CPLR §320. In the alternative, plaintiff contends
that the note of issue should be vacated, discovery should be opened, and it should be granted
leave to serve a late reply to the counterclaim, given that its current law firm was recently
retained as counsel. Plaintiff maintains that its counsel's predecessor had failed to zealously
prosecute the case by erroneously relying on prior orders, ongoing settlement negotiations with
the borrower, and confusing legislative changes regarding foreclosure to bar defendant's claims.
In seeking partial summary judgment on his counterclaim, Mr. McCray argues that
he is, as a matter of law, the title owner of the subject premises and that he acquired title to the
subject premises by adverse possession. He alleges that the Tenant Defendants, including
himself, had occupied the building without paying rent openly, hostilely, and notoriously for
over ten years and further avers that he had made necessary improvements to the property.
Plaintiff maintains that he had not executed any bond or note, nor agreed to any mortgages
against the property. He adds that Veronica and Michelle do not have, nor ever had, any legal
interest in the subject premises.
In opposition to plaintiff's cross motion, Mr. McCray argues his counterclaim is not
barred by res judicata or collateral estoppel because the HPD Action in Kings Supreme Civil
Court was heard and adjudicated by a Criminal Court Judge and was therefore void. He further
maintains that there was no valid final judgment that could bar his counterclaim because no
notice of entry was [*3]ever served or filed in the HPD Action.
Mr. McCray also requests the imposition of sanctions against plaintiff for frivolous and
vexatious litigation.
DISCUSSION
A litigant's
choice to proceed pro se has no effect on his burden to present legally competent
evidence (see Duffen v State of New York, 245 AD2d 653, 653-654 [1997]). Although
courts may afford pro se litigants some latitude, a pro se litigant has no greater
rights than any other litigant and will be held to the same standards of proof as those who are
represented by counsel (see Banushi v Lambrakos, 305 AD2d 524, 524 [2003];
Roundtree v Singh, 143 AD2d 995, 996 [1988]; Callender v Titus, 4 Misc 3d
126[A], *1 [2004]). Furthermore, a pro se litigant must still adhere to court-imposed and
statutory regulations and deadlines (see e.g. Greenfield v Gluck, 2003 NY Slip Op
50729[U] [2003] [self-represented litigant's alleged ignorance of time limit for filing summary
judgment motion did not excuse his noncompliance]).
The court first turns to plaintiff's cross motion to dismiss as a threshold matter.
HSBC advocates dismissal of Joseph McCray's counterclaim for a judgment nullifying and
vacating the deed recorded on April 9, 2000 by Veronica Cadore and setting aside the deed and
mortgage recorded on January 13, 2006.
Timeliness
Plaintiff appears to challenge the
timeliness of Joseph McCray's counterclaim by arguing that the pleading in which it was raised,
the answer, was not served within twenty days after service of the complaint, as required under
CPLR §3012 (a) (see also CPLR §302 [a]). However, the statutory section of
the CPLR pertaining to counterclaims is CPLR 3019, entitled "Counterclaims and cross-claims."
Although the statute is silent as to the time restrictions under which counterclaims must be
served, a counterclaim is generally deemed interposed as of the time the summons is filed
(see CPLR §203 [d]; Siegel, Practice Commentaries, McKinney's Cons Laws of
NY, Book 7B, CPLR §3019:8; see also Long Is. Tinsmith Supply Corp. v Westbury
Hebrew Congregation, 2009 NY Slip Op 50606[U], *5 [2009]; Proskauer Rose Goetz &
Mendelsohn v Munao, 270 AD2d 150 [2000]).
Here, HSBC served the summons and complaint on Mr. McCray on September 17,
2007. Although Mr. McCray did not serve his answer and interpose the counterclaim therein
until October 23, 2008, the counterclaim is timely. The court therefore declines to dismiss Mr.
McCray's counterclaim based on untimeliness grounds.
Collateral Estoppel and Res
Judicata
The doctrine of collateral estoppel bars "a party from
re-litigating in a subsequent action or proceeding on an issue which was clearly raised in a prior
action or proceeding and decided against that party or those in privity, whether or not the
tribunals or causes of action are the same" (Chiara v Town of New Castle, 61 AD3d 915 [2009], quoting
Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). Under New York law, courts require
proof of two elements to invoke collateral estoppel: 1) an identity of issues which were
necessarily decided in the prior action that are decisive in the present action, and 2) a full and
fair opportunity by the party against whom collateral estoppel is being invoked to have contested
the issue previously decided and now claimed to be controlling (see Comprehensive Med. Care of NY, P.C.
v Hausknecht, 55 AD3d 777, 778 [2008], citing Buechel v Bain, 97 NY2d 295,
303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999];
D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 [*4]NY2d 659, 664 [1990]). Collateral estoppel will operate to bar only
issues that were actually litigated or necessarily decided in the prior proceeding (see McGee v J. Dunn Constr. Corp.,
54 AD3d 1009, 1009-1010 [2008]; Chisholm-Ryder Co. v Sommer & Sommer, 78
AD2d 143, 144 [1980]). The party against whom preclusion is sought bears the burden of
demonstrating the absence of a full and fair opportunity to contest the prior determination (City of New York v College Point Sports
Assn., Inc., 61 AD3d 33, 42 [2009]; Buechel, 97 NY2d at 304). Although,
collateral estoppel is a flexible doctrine that should not be applied rigidly or mechanically, courts
will also weigh policy considerations such as fairness to the parties, conservation of the court
and litigants' resources, and societal interest in consistent and accurate results (see Russo v Irwin, 49 AD3d 1039,
1041 [2008]).
Here, HSBC avers that the issue of legal title over the subject premises has already
been adjudicated in the HPD Action, thus barring the success of Mr. McCray's counterclaim in
this action. In the HPD Action, the court granted the HPD's motion to dismiss on the basis of
untimeliness and determined legal title of the subject premises in favor of Veronica Cadore and
against the Tenant Defendants, including Joseph McCray. That judgment in Supreme Court,
Kings County, involved the same dispute by the same parties over legal title to the same real
property as in the instant action. As a party to the HPD Action, Mr. McCray previously had a full
and fair opportunity to litigate the issue of ownership of the subject premises, but failed to
commence the action within the Statute of Limitations therein. Raising the same issue as a
counterclaim in this action does not entitle him to a second bite of the apple. Thus, Mr. McCray
has not met his burden of showing the absence of a full and fair opportunity to litigate the issue
in this action.
Principles of res judicata also bar the instant counterclaim. Under New York's
transactional approach to res judicata, "once a claim is brought to a final conclusion, all other
claims arising out of the same transaction or series of transactions are barred even if based upon
different theories or if seeking a different remedy" (see QFI, Inc. v Shirley, 60 AD3d 656, 657 [2009], quoting
O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]). A valid final judgment thus bars
future actions between the same parties on the same cause of action (see Fogel v Oelmann, 7 AD3d
485, 486 [2004]; Field Home-Holy Comforter v DeBuono, 238 AD2d 589, 590
[1997]).
Moreover, res judicata applies not only to the parties of record in the prior action, or
administrative proceeding, but also to those in privity with them (see Matter of State of New York v Seaport
Manor A.C.F., 19 AD3d 609, 610 [2009]; see also Watts v Swiss Bank Corp.,
27 NY2d 270 [1970]). To establish privity, "the connection between the parties must be such that
the interests of the nonparty can be said to have been represented in the prior proceeding"
(Green v Santa Fe Indus., 70 NY2d 244, 253 [1987]).
The HPD Action was litigated to a final conclusion, as it was decided on
untimeliness grounds, which "is at least sufficiently close to the merits for claim preclusion
purposes to bar a second action" (see
Matter of Palm Mgt. Corp. v Goldstein, 29 AD3d 801, 804 [2006], quoting Smith v
Russell Sage Coll., 54 NY2d 185, 194 [1981]). Furthermore, although HSBC was not a party
to the HPD Action, it is clearly in privity with Veronica Cadore as it is the assignee of the
mortgage issued to her by Option One Mortgage (see McDonald v Lengel, 2 AD3d 1182, 1183 [2003]; Seaport
Manor, 19 AD3d at 610). Mr. McCray is thus barred under res judicata as well [*5]from relitigating his counterclaim regarding legal title to the subject
premises.
Although Mr. McCray argues that the judgment in the HPD Action was not entered,
the Kings Supreme Court County Clerk's records reflect that the Hon. Justice Hubsher's decision
and order was filed on June 6, 2002. Such order is not void and may have preclusive effect on
subsequent actions.
Also contrary to Mr. McCray's assertions, a civil judgment is not void merely
because it is heard by a Criminal Court Judge (see People v Fevziekinici, 191 Misc 2d
510, 516 [2002] ["The fact that for administrative purposes parts in this court are sometimes
designated as criminal or civil does not alter the jurisdiction of a Justice of the Supreme Court to
hear both civil and criminal matters."]; see also People v Schoenwandt, 12 Misc 3d 105, 106 [2006]
[criminal trial heard in courtroom of a Criminal Court Judge who had been appointed an Acting
Supreme Court Justice but still retained status as a criminal court judge with jurisdiction over
criminal matters]; People v Zimmer, 166 Misc 2d 256, 258-259 [1995]). Indeed, many
Justices in Supreme Court, Kings County, preside over both civil and criminal Supreme Court
matters (Fevziekinici, 191 Misc 2d at 516). Supreme Court Justices are vested with
inherent plenary power to fashion any remedy necessary for the proper administration of justice
(see People ex rel Doe v Beaudoin, 102 AD2d 359, 363 [1984]; see also
McKinney's Const. Art. 6 § 7). Mr. McCray's contention that a Supreme Court Justice
who usually deals with criminal matters may not adjudicate a civil action is without merit
(see Carnese v Wiegert, 273 AD 554, 556 [2000] [where a divorce judgment was signed
by a Family Court Judge as an acting Supreme Court Justice, respondent offered no factual or
legal basis showing that Family Court lacked jurisdiction]).
Joseph McCray's Motion for Partial Summary
Judgment
The Court's determination in plaintiff's favor on the cross
motion to dismiss is dispositive with respect to Mr. McCray's motion seeking partial summary
judgment on the counterclaim. Mr. McCray's arguments regarding the merits of the counterclaim
are therefore rendered moot and the court need not address them.
Mr. McCray also appears to move for the imposition of sanctions against plaintiff in
his opposition papers to plaintiff's cross motion. However, he fails to show that plaintiff's
allegedly false statements rise to the level of frivolousness required for sanctions (see 22
NYCRR §130-1.1 [c]; Drummond v Drummond, 305 AD2d 450, 451-52 [2003],
lv denied 1 NY3d 504 [2003]). Furthermore, Joseph McCray did not move for sanctions
on notice (see 22 NYCRR §130-1.1 [d]; see also Frohman v Frohman, 203
AD2d 420, 421 [1994]; Mazo v NYRAC, Inc., 191 AD2d 617, 618 [1993]). The court
must therefore, also deny Joseph McCray's request for sanctions.
The court has considered McCray's remaining arguments and finds that they are not
dispositive on the motion. The motion for partial summary judgment must be denied in its
entirety.
This constitutes the decision and order, of this court.
ENTER,
Yvonne Lewis, JSC
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