Kimbrook Rte. 31, L.L.C. v Bass

Kimbrook Rte. 31, L.L.C. v Bass 2017 NY Slip Op 01083 Decided on February 10, 2017 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 10, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, CURRAN, TROUTMAN, AND SCUDDER, JJ.
137 CA 16-01213

[*1]KIMBROOK ROUTE 31, L.L.C., KIMBROOK ROUTE 31 DEVELOPMENT LLC AND PHILIP J. SIMAO, PLAINTIFFS-APPELLANTS,

v

MAUREEN T. BASS, DEFENDANT-RESPONDENT.

CENTOLELLA LYNN D'ELIA & TEMES LLC, SYRACUSE (DAVID C. TEMES OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

HANCOCK ESTABROOK, LLP, SYRACUSE (JANET D. CALLAHAN OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal from an order of the Supreme Court, Onondaga County (Deborah H. Karalunas, J.), entered September 25, 2015. The order granted defendant's motion to dismiss plaintiffs' complaint.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum: Plaintiffs commenced this Judiciary Law § 487 action against defendant based on her conduct when representing plaintiffs' adversary in a foreclosure action. We agree with plaintiffs that Supreme Court erred in granting defendant's motion to dismiss the complaint. Although plaintiffs were aware of the alleged misconduct during the pendency of the prior foreclosure action, they are not precluded from bringing a plenary action alleging a violation of Judiciary Law § 487 provided that they are not collaterally attacking the judgment from the prior action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554; Chevron Corp. v Donzinger, 871 F Supp 2d 229, 261-262; see generally Stewart v Citimortgage, Inc., 122 AD3d 721, 722). Indeed, the language of the statute does not require the claim to be brought in a pending action (see § 487; Melcher, 135 AD3d at 554). Here, plaintiffs are seeking to recover damages for additional legal fees made necessary by defendant's alleged misconduct in the foreclosure action, and they are not collaterally attacking the judgment of foreclosure (see generally Amalfitano v Rosenberg, 12 NY3d 8, 15).

We further agree with plaintiffs that the doctrine of collateral estoppel does not preclude their claim. The doctrine of collateral estoppel has two requirements: (1) "the identical issue necessarily must have been decided in the prior action and be decisive of the present action," and (2) "the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination" (Kaufman v Eli Lilly & Co., 65 NY2d 449, 455; see Ackman v Haberer, 111 AD3d 1378, 1379). In the foreclosure action, plaintiffs Kimbrook Route 31, L.L.C. (Kimbrook) and Philip J. Simao (Simao) moved before this Court to reduce the amount of the undertaking necessary to stay execution of the judgment of foreclosure pending the outcome of their appeal from that judgment. After we granted the motion in part, Kimbrook and Simao cross-moved for sanctions in this Court based on defendant's conduct in procuring an affidavit from the receiver of the property in opposition to the motion to reduce the amount of the undertaking, and we denied the cross motion. A motion for sanctions for frivolous conduct (see 22 NYCRR 130-1.1 [c]) is not the same as a cause of action for attorney misconduct (see Judiciary Law § 487). We therefore conclude that collateral estoppel does not apply, inasmuch as the identical issue was not raised in the foreclosure action (see Melcher, 135 AD3d at 553-554).

Entered: February 10, 2017

Frances E. Cafarell

Clerk of the Court