Joseph v McCauley

Annotate this Case

Download PDF

Joseph v McCauley 2021 NY Slip Op 32904(U) December 2, 2021 Supreme Court, Kings County Docket Number: Index No. 6704/13 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] KINGS COUNTY CLERK 12/16/2021 12:57 PM INDEX NO. 6704/2013 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/16/2021 At an IAS Term, Pait NJTRP of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse_, at Civic Center, Brooklyn, New York; on the 2nd day of Decen1ber, 2021. PRESENT : HON. LAWRENCE KNIPEL, Justice. -----------~--~----------~---~----~x RENEE JOSEPH, Plaintiff, - against - lridex Nci. 6704/13 HANNAH McCAULEY, Defendant. --~----~- ---------- ---~------ ------X The following e-filed papers read herein: NYSCEF Doc Ncis. NoticecifMci tion/Ordct to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations)_ Annexed._ _ __ 15-17 Opposition· (Affinnations) Annexed'- ---~- 18 Reply (Affirmations)_ Annexed_ _ _ _ __ 19 Upon the foregoing papers in this action for partition of the real property at 1161 Easl 103 rd Street in Brooklyn (Property), which the parties own as tenants in comnion, defendant Hannah McCauley (defendant) moves (in motion sequence [mot. seq.] 11) for an order, pursuant· to CPLR 3 025 (b), granting her leave. to amend her answer to include counterclaims for a constru·ctive trust and fraudulent m_isrepresentation. Defendanes Pripr Motion to Amend On May 27, 2021, defcnclant moved (in mot. seq. 10) for leave to amend her answer to assert counterclaim s for a constructivG trust and fraudulent misrepresent ation 1 of 9 [*FILED: 2] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 based entirely on an attorney affirrnation with no attached exhibits. Defense counsel failed to submit copies ofthe original pleadings or defendant's proposed amended answer containing the counterclaims which defendant sought leave to asse1t. Consequently, by an August 11, 2021 decision and order (see NYSCEF Doc No. 14), this court denied defendant's motion for le.ave to amend her answer "without prejudice to renewal upon proper papers, including the pleadings and defendant's proposed amended answer." Defendant's Instant Motion to Amend On September 27, 2021, defendant filed the instant motion seeking~ once again, leave tn mneiid her answer to assert counterclaims against plaintiff for constructive trust and fraudulent misrepresentation. Defendant's instant motion is based entirely on an attorney affinnation asserting that "[o ]n August 2, 2.013, Defendant's prior attorneyserved an answer to the Goinplaint" which "clearly asserted affinnative defenses which supports this application for amending the Answer to include constructive trust as a counterclaim." Defense counsel argues that: ''[i]t is clear that the plaintiff shall not be prejudiced by allowing the Defendant to amend the answer to include constructive trust as a counterclaim since the defense was previously raised by the Defendant and it was solely through prior counsel's failure that the affirmative defenses were not listed as counterclaim[s] originally." . . Defendant's new counsel explains that '•DcJendant's prior counsel who filed the answer ·was suspended. from the practice of iaw ; .. on· March 18, 2020." Notably, although defense couns.el rei:ercnccs and relies on the affirmative 2 2 of 9 [*FILED: 3] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 defenses in defendant's 2.013 answer, and this court's August l l, 20:21 decision and order -denied. defendant's prior motion WitlJ.out pr<;jndice: to renewal upon prop\;!r pap~rs including the pleading~ and defendanti s proposed amended answer[,f the only exhipit annexed to defense coun.scl's moving affirmatfon is the proposed amended unverified ·answcr.r l1ms,. defend.ant's .original ~nswer is not ·part of this rec_ord and cann:ot be considered by the court.. The proposed amended unverified answer denies tlle material allegcitions in the cmnplairit and asserts- three affirmative defenses, including that "P.lairififf has failed to make payments to,var.ds the - mortg~ge and inst,.1rance of the subje·ct properly~' .and "Plaintiff has failcdfo rrtakc payments towards the property taxes on .the subject property'' (NYSCEF Doc No. I 7 at i[1 3-4 ). Defendant's proposecl fitst counterclaim for fraudttknt misreprcsentati.on simply alleges that: "Plaintiff and Defendant are family members. Piaintiff ag1~ecd to purchase the property on behalf of defendanfs husband. Defertdanfs husba11d provided the funds to purchase: the properly in 1997. Plaintiff .then tran,sfo;rre_d half the interest in the propetty to the Defendant as tenants in common with no rights of survivorship with the understanding that the other half of the interest would be·heI9 in trust for Defendant and her husband. "Defendant would maintain the property and pay all bills. 1- Defendant'S 201Joriginal answer to the compfoint was riot electronically filed, _and thus, is not accessible to this Cotitt;.. since this action was .only rece1~tly converted tq electronic filing on January 26,2b2t. 3 3 of 9 [*FILED: 4] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 The Defendant resides at the property. "Now after 20 years of Defendant paying to maintain the property with no contributions from Plaintiff the Plaintiff wants to split the· property 50/50;' (id. at ilil 6-8). Defendant's proposed second counterclaim for a constructive trust simply alleges that ''Plaintiff has a duty to hold this property in constructive trust for Defendant and her husband'' (id. ati[ 10). Defense counsel makes the following factual assertions in his moving affirmation without demonstrating that he has any personal knowledge and without an accompanying affidavit from defendant:2 "[t]he Plaintiff in this matter misrepresented that he would hold this property in trust for Defendant so long as she handled the general upkeep of the property and paid off the mortgage and this is precisely what happened. "[i]n addition, the very money which made up the downpayment of this property was provided by the Defendant all with the understanding that the Plaintiff would hold the property in trust for her and take a nominal foe. "[n]ow, Plaintiff insists on half of the value of the property and seeks to kick the Defendant out of her home." Plaintiffs Opposition Plaintiff, in opposition, submits a.n attorney affirmation noting. that this action for Although defense counsel's affinna:tion states that"[(]or the reasons detailed.in ihe annexed affidavit ... Defehdarit' s application should be. granted[,]" there is no fact affidavh included With or am1exed to defendant's second rricition for leave . to amend her answer (emphasis addedr 2 4 4 of 9 [*FILED: 5] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 partition and sale of the Property was commenced in April 2013 and defendant answered the complaint in August 2013. Plaintiffs counsel further notes that ''[t]his matter was certified for trial with the service and filing ofa Note of Issue on or around January 17, 2019[,J" and was thereafter adjourned at least three times based on defense counsel's representations that defendant would be filing a motion to amend the original answer. Plaintiffs counsel explains that on May 27, 2021, the fourth adjourn date in the trial ready part, defense counsel filed the first motion (in mot. seq. lO) forleave to amend the answer. Plaintiffs counsel argues that defendant's instant motion should be clenied because "the surprise in the amei1dment is prejudicial to Plaintiff' because "[n]owhere in the Defendant's Answer, filed almost eight (8) years ago, are there allegations that would support a constructive trµst." Plaintiff's counsel asserts thatthe allegations in the original answer regarding plaintifI's failure to contribute to the mortgage and insurance are insufficient to support a claim for a constructive tmst and the original answer did not allege that "actual cash money passed from Defendant to Plaintiff in relation to the Property." Plaintiff's counsel also fails to submita copy of defendant's 2013 answer·to ·the complaint. Plaintiffs counsel argues that defendant's motion should also he denied because 'Tt]he only ostensible excuse provided by the Defendant for the delay in this amendment is that their prior counsel was suspended from the practice of law on March 18, 2020" and 5 5 of 9 [*FILED: 6] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 defendant offers ho excuse why she did not alleg,e that money exchangc::d hands from defendant to the plaintiff until this juncture, Plaintiff's counsel asserts that: ''If Defendant had in fact given Plaintiff money in relation to the Property, in the context of a partition action, the Defendant's attempt herein to amend their Answer to include these facts now, eight years into the case, after the matter has been certified for trial for eleven months, is highly prejudicial to the PlaintifC' Defendant's Reply Defendant, in reply; submitted another attorney affirmation argmng that defendant's previous counsel "did not address these constructive trust issues'' in the original answer and «[d]cfendant should not be prejudiced by prior counsel's failures." Defense counsel also asserts that ''since Plaintiffhas not conducted a single deposition or conducted any discovery in nearly a decade, it is unclear what the purported prejudice would b,e , .. " 6 6 of 9 [*FILED: 7] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 "Discussion ''Generally, [i]n the absence of prejudice or surprise to the opposingparty, leave to amend a pleading should be freely granted unless the proposed a:mendrriertt is palpably "inst1fficicnt or: patently devoid of merit,, (Sampson v ContU!o, 55 AD3d 591, 592 [200-8] "[i"ntetnal quotation marks and citations omitteql). "The decision to gri;mt or deny leave to . . amend an answer is within the trial court's discretion"to be detennined on a case by_ca:se basis (Mayers v D'Agostino, .58 NY2d 696, 698 [1982]). The Second Department has long held that H[w]hen a case. has long been certified ·as ready for tdal., judicial discretion in allowing amendments should be discreet, circumspect, prudent and cautious'·' and ''[w]here ap[artyJ has been guilty of an extended delay in moving to amend, an affidavit of reasonable excuse for the delay in 1naking the motion and one of merit should be -subinitt~d in support of. the motion" (Petricone v City.-ofNew- York; 96 AD2d 531, 533 [l983J,. aff'd_62 NY2d 661 [1984]; se~·also Schreiber...:Cross -v-State, .57 AD3:d 881, 884 [2008] [holding that "where there has l?een an unreasonable delay .in seeking leave to amend, the [claimant] must establish a reasonable exe:use for the delay, and. submit an affidavit establishing, the .medts ·of the .proposed ·a1nendment with respe_c_t to the new theories of liability"]:),. "Moreover, when , .. leave is :sought on the eve of trial; judicial discretion should be exercised sparingly" (Yong Soon Oh v Hua Jin; 124 AD3d 619;- 641 [2015] [internal q1.1otat1on marks. omitted]). In Fulford v Baker Perkins, Inc:-, (100 AD2d:· 861 [1984]), a proc~durally 7 7 of 9 [*FILED: 8] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 an;alogous case,: the Sc_cond 'Departim~nt upheld an prder· 1;>y the .tdal court denying defendant's motion for leave to amend the five years after the commencement an;;wer tq assert affjrmativ.e deJe_nses ne::1rly of the action while the case was awaiting tl'ial. The Second Department held that: "It may rca,sonab.ly be inferred that defendant was pos.scssed of the data uridedying the .defenses it belatedly seeks to introduce, either at the time of jo.i11,der of issue, or at the latest, defend.ant knew should have 'been cognizant ·of such facts by the time disclosure was conipleted; Irt sum, such defenses could readily have been pleaded earlier,. either in the -origiilal answer· ;or by-a more- ·prompt ·application to atnend that answer. Further, the explanation proffered by defendant - namely, the recent retention of new counsel is- no excuse for its i1i.:ordinate delay in moving to amend. Such neglect, coupled with the fact that plaintiff has been prejudiced by the .ex,penditlite of ti_mc and Gffo1t in preparing a case in tesponse to a pleading from which significant material was i1e¢dle:ssly omitted, constitutes sufficient. reason for Spqcial Tc;am's denial o"f.defendant,;s mcition (Fulford v. Baker Perkins; Inc., 100 AD2d 861, 861-862 [1984]; see also Civil Service E_mployees _ Assoc~ ._v CountyofNassau , 144 AD3d 1075-, 10761077 [2.016] [huldjng that Supreme. Court iinprovidently exercised its dis.cretion in granting d¢fendant's motion for leave to aniend its answer where "inotioti was ·not mad~ .until approxiinately SIX' years ·after service of "its artsw.er, after the parties had completed discovery, and after the note of jssµe ·or had been :filed[,r'- the facts Ii1 support of the proposed defense WC!rc known to defendant at the· time it Served its answ"er and rio excuse has been offered for the delay]). Here, denial of defendant's sc.cond motion for leave. to amend the answer is warranted since defendant- failed to.-$\tbniit either an affid~vit of merit or one evidencing a reas9nablc excuse. by defendant for her ·extensive delay. Furthermore, defendant was 8 of 9 [*FILED: 9] KINGS COUNTY CLERK 12/16/2021 12:57 PM NYSCEF DOC. NO. 20 INDEX NO. 6704/2013 RECEIVED NYSCEF: 12/16/2021 aware of the substance of the proposed amendments at the time she served her original answer (in August 2013) but waited until the eve of trial (eight years later) to plead them. Additionally, defense counsel's assertion that defendant's prior counsel is to blame does not constitute a reasonable excuse for defendant's inordinate delay in seeking leave to amend the answer (Schreiber-Cross v. State, ST AD3d at 885 [holding that "(t)he change of attorneys on the eve of trial is not, standing alone, a sufficiently exceptional circumstance requiring a limitation on [the court's] discretion'' in denying motion for leave to amend]). Accordingly, it is hereby ORDERED that defendant's motion (in mot. seq. 11) for leave to amend the answer is denied. This constitutes the decision and order of the court. ENTER, J. S. C. HON. LAWRENCE KNIPEL ADMINISTRATIVE JUDGE 9 9 of 9

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.