ULYSSES COMPANY INC v. Peter Morton, etc., appellant-respondent, et al., additional defendants on counterclaim. (2005)

In an action, inter alia, to determine the parties' respective rights and interests in a certain parcel of real property (1) the defendant Peter Morton appeals from stated portions of an order and judgment (one paper) of the Supreme Court, Suffolk County (Jones, Jr., J.), entered January 14, 2004, which, among other things, denied those branches of his motion and cross motion which were for summary judgment on the issue of liability on his counterclaims, to vacate a mortgage recorded by the plaintiff against the subject property, to impose sanctions upon the plaintiff, and to enjoin the plaintiff from commencing further litigation related to the subject property without prior court approval, and (2) the plaintiff cross-appeals, as limited by its brief, from stated portions of the same order and judgment which, inter alia, granted those branches of the respective motions of the defendants Gary Feldstein and Peter Morton which were for summary judgment dismissing the complaint insofar as asserted against them, denied its cross motion for summary judgment on the complaint, and enjoined it from commencing any action or proceeding related to the subject property unless a copy of the court's order and judgment is appended to the papers filed therein.

ORDERED that the order and judgment is modified, on the law, by deleting the provision thereof denying those branches of the motion and cross motion of the defendant Peter Morton which were to vacate the mortgage recorded by the plaintiff against the subject property, and substituting therefor a provision granting those branches of the motion and cross motion;  as so modified, the order and judgment is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the defendants Gary Feldstein and Peter Morton.

Contrary to the plaintiff's contentions, the Supreme Court properly concluded that the plaintiff lacked standing to maintain this action challenging the validity of the deeds to the defendants Feldstein and Morton (see Society of Plastics Indus. v. County of Suffolk, 77 N.Y.2d 761, 570 N.Y.S.2d 778, 573 N.E.2d 1034).   Moreover, the plaintiff's causes of action previously were litigated and resolved in the prior actions between the parties, and thus are barred by principles of res judicata (see Matter of Hodes v. Axelrod, 70 N.Y.2d 364, 520 N.Y.S.2d 933, 515 N.E.2d 612;  Falco v. Town of Islip, 289 A.D.2d 490, 734 N.Y.S.2d 643;  Ordenana v. Weber, 269 A.D.2d 580, 707 N.Y.S.2d 111).

The Supreme Court correctly denied those branches of the motion and cross motion of the defendant Peter Morton which were for summary judgment on the issue of liability with respect to his counterclaims.   A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Morton failed to demonstrate the absence of a triable issue of fact with regard to certain elements of his counterclaims, and therefore failed to establish his entitlement to summary judgment.   However, in view of the fact that the plaintiff recorded a mortgage against the property after a notice of pendency was filed and after the Supreme Court awarded specific performance to the defendant Feldstein, it is clear, as conceded by the plaintiff, that the mortgage could not constitute a valid encumbrance upon the title to the premises.   Therefore, the Supreme Court should have granted those branches of Morton's motion and cross motion which were to vacate the mortgage.

In view of the lengthy and repetitive history of the litigation among the parties, the Supreme Court acted appropriately in requiring the plaintiff to annex to its papers in any future action or proceeding it commences a copy of the court's order and judgment.   Furthermore, while we decline to impose sanctions in this matter, we caution the plaintiff that if the current pattern of litigation continues, sanctions may be warranted.

The parties' remaining contentions are without merit.