We just defeated a lender’s summary judgment motion in a commercial foreclosure action before Justice Pfau in Kings County Supreme Court. Previously the client/property owner had another attorney and had defaulted by failing to oppose the lender’s summary judgment motion. That attorney was later disbarred for unrelated reasons. The lender then moved for a final judgment of foreclosure and sale. The client then retained Lanin Law P.C. and we made a cross-motion to vacate his default. The motion was heavily contested by Flushing Savings Bank’s counsel. After oral argument before Justice Hinds-Radix, the Kings Supreme Court granted the cross-motion to vacate and denied the bank’s motion, finding that we had established a meritorious excuse based on the situation with the prior attorney and a meritorious defense based on settlement negotiations and the bank’s conduct.
Subsequently, the loan was assigned to a new lender who filed another summary judgment motion in which it tried to argue the question of the meritorious defense all over again. The motion was heard by Justice Pfau since Justice Hinds-Radix was appointed to the Appellate Division, Second Department. Justice Pfau issued a ruling denying the new lender’s motion holding that the doctrine of the law of the case applies and the Court’s prior decision on the meritorious defense still stands. The Court cited RPG Consulting, Inc. v. Zormati, 82 A.D.3d 739 (2d Dept. 2011). Result: lender’s motion for summary judgment denied; client happy.
The Court also awarded our client costs because the plaintiff’s counsel had submitted a lengthy 61 page reply affirmation principally trying to reargue that the earlier cross-motion to vacate should not have been granted, without having appealed the prior order, and in violation of the page limit in Rule 17 of the Rules of the Commercial Division of the Supreme Court (202.70[g][iii]). The court held that the motion was “patently meritless and plaintiff’s counsel flouted Rule 17 with no justification.”