Duryea PL, LLC v. Wright

Duryea PL, LLC v Wright (2022 NY Slip Op 51373(U)) [*1] Duryea PL, LLC v Wright 2022 NY Slip Op 51373(U) [77 Misc 3d 139(A)] Decided on December 23, 2022 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on December 23, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, CHEREÉ A. BUGGS, JJ 2021-121 K C Duryea PL, LLC, Appellant, against Delroy Wright, Individually and Doing Business as Delroy's Cafe, Respondent, Pavelle Hurd-Wright, Individually and Doing Business as Delroy's Cafe, Tenant, John Doe, Jane Doe, and XYZ Corp., Undertenants. Slochowsky & Slochowsky, LLP (John J. Cannavo of counsel), for appellant. Delroy Wright, respondent pro se. Appeals from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated February 19, 2021 and a February 26, 2021 refusal by that court to sign an order to show cause. The order dated February 19, 2021, insofar as appealed from as limited by the brief, upon, in effect, renewal, granted Delroy Wright's motion to vacate a default final judgment of that court entered November 20, 2019 against Delroy Wright and Delroy's Cafe, and to restore the case to the calendar in a holdover summary proceeding. ORDERED that the appeal from the February 26, 2021 refusal to sign the order to show cause is dismissed, as no appeal lies from a refusal to sign an order to show cause (see CCA 1702 [a] [2]; Matter of Allah v Scheinman, 61 NY2d 755 [1984]; cf. CPLR 5704 [b]); and it is further, ORDERED that the order dated February 19, 2021, insofar as appealed from, is modified by providing that, upon, in effect, renewal, Delroy Wright's motion to vacate the November 20, 2019 default final judgment and to restore the case to the calendar is granted to the extent of vacating the monetary award against Delroy Wright and Delroy's Cafe contained in the default final judgment; as so modified, the order, insofar as appealed from, is affirmed, without costs, and the matter is remitted to the Civil Court for the entry of a final judgment in accordance with the decision herein. Landlord commenced this commercial holdover proceeding against, insofar as is relevant to this appeal, Delroy Wright (tenant), individually and doing business as Delroy's Cafe, to recover possession of the premises and rent arrears totaling $28,595.74. Tenant appeared in the proceeding but failed to appear on an adjourned trial date, and, following an inquest, a default final judgment against tenant and Delroy's Cafe was entered on November 20, 2019 awarding landlord possession and arrears in the total sum of $126,829.84.[FN1] Tenant subsequently moved to vacate the default final judgment and to restore the case to the calendar, which motion was denied by order dated January 21, 2021. By order dated February 19, 2021, the Civil Court, upon, in effect, renewal, granted tenant's motion finding, in effect, that tenant had established a reasonable excuse for his default. To vacate the default final judgment pursuant to CPLR 5015 (a) (1), tenant was required to demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the proceeding (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138 [1986]). Here, while we agree with the Civil Court that tenant established a reasonable excuse for his default in failing to appear at trial (see Moorer v County of Nassau, 175 AD3d 1404 [2019]), he failed to demonstrate a potentially meritorious defense to the proceeding. Tenant's proffered defense is a claim of a constructive trust, which claim can be asserted as an affirmative equitable defense to a summary proceeding (see Fizzinoglia v Capozzoli, 58 Misc 3d 149[A], 2018 NY Slip Op 50081[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]; Freire v Fajardo, 28 Misc 3d 137[A], 2010 NY Slip Op 51453[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]; see also Nissequogue Boat Club v State of New York, 14 AD3d 542 [2005]). "Generally, a constructive trust may be imposed when property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest" (Sharp v Kosmalski, 40 NY2d 119, 121 [1976] [internal quotation marks and brackets omitted]; see Edwards v Walsh, 169 AD3d 865 [2019]; Ning Xiang Liu v Al Ming Chen, 133 AD3d 644 [2015]). "The elements of a constructive trust are (1) a fiduciary or confidential relationship; (2) an express or implied promise; (3) a transfer in reliance on the promise; and (4) unjust enrichment" (Ning Xiang Liu v Al Ming Chen, 133 AD3d at 644 [internal quotation marks omitted]; see Sharp v Kosmalski, 40 NY2d at 121). Here, tenant did not present evidence that landlord had made a promise to tenant, express or implied, to share in some interest in the subject premises, let alone that tenant's payments to landlord were made in reliance on such a promise (see Delidimitropoulos v Karantinidis, 186 AD3d 1489, 1491 [2020]; Monterosso v Garguilo, 181 AD3d 586, 587 [2020]; Seidenfeld v Zaltz, 162 AD3d 929, 935 [2018]). Therefore, tenant failed to establish a potentially meritorious constructive-trust defense. Tenant was likewise not entitled to vacatur of the default final judgment under CPLR 5015 (a) (3), as tenant failed to show that landlord had procured the final judgment by fraud, [*2]misrepresentation, or other misconduct (see Chase Home Fin., LLC v Quinn, 101 AD3d 793, 793 [2012]; Citicorp Vendor Fin., Inc. v Island Garden Basketball, Inc., 27 AD3d 608, 609 [2006]). However, it was error for the Civil Court, at inquest, to award landlord more than the amount demanded in the petition (see Mustafa v Plein, 34 Misc 3d 146[A], 2012 NY Slip Op 50166[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Port Chester Hous. Auth. v Turner, 189 Misc 2d 603 [App Term, 2d Dept, 9th & 10th Jud Dists 2001]), and it would be inappropriate for this court to restore an incorrect monetary award that has been vacated. Consequently, upon renewal, we grant tenant's motion only to the extent of vacating the monetary award against tenant and Delroy's Cafe in the default final judgment, and the matter is remitted to the Civil Court for the entry of a proper final judgment. We reach no other issue. Accordingly, the order dated February 19, 2021, insofar as appealed from, is modified by providing that, upon, in effect, renewal, Delroy Wright's motion to vacate the November 20, 2019 default final judgment and to restore the case to the calendar is granted to the extent of vacating the monetary award against Delroy Wright and Delroy's Cafe contained in the default final judgment, and the matter is remitted to the Civil Court for the entry of a final judgment in accordance with the decision herein. ALIOTTA, P.J., and BUGGS, J., concur. WESTON, J., concurs in part and dissents in part and votes to dismiss the appeal from the February 26, 2021 refusal to sign the order to show cause and to reverse the order dated February 19, 2021, insofar as appealed from, and, upon, in effect, renewal, adhere to the Civil Court's prior determination, made in a January 21, 2021 order, denying Delroy Wright's motion to vacate the default final judgment entered November 20, 2019. I agree with the majority's decision insofar as it denies a motion by Delroy Wright (tenant) to vacate the default final judgment dated November 20, 2019. However, I disagree with the majority's decision to the extent that they vacate the monetary award against tenant and Delroy's Cafe contained in the default final judgment because the propriety of the monetary award has not been raised on this appeal. The issues presented by appellant are: (1) Whether the trial court erred as a matter of law by vacating its prior order without making the requisite factual findings under CPLR 5015 (a); (2) Whether the trial court erred as a matter of law or improvidently exercised its discretion by considering tenant's pro se order to show cause when he was represented by counsel and failed to seek consent to act pro se; and (3) Did the trial court improvidently exercise its discretion by reconsidering its own prior order when doing so was unduly prejudicial to the landlord. The majority circumvents the procedural fundamentals of this court by deciding this appeal on grounds that were not raised by either party below or on appeal (see generally Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54 [2014]; Pamco Indus. v Medical Plaza Assoc., 231 AD2d 504 [1996]; Marshall v New York City Health & Hosps. Corp., 186 AD2d 542, 543-544, [1992]). This runs afoul of our basic notion of fair play and should be avoided. Appellate courts "are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519 [2019]). By deciding this [*3]appeal on a ground of its own creation, the majority has effectively denied landlord the "opportunity. . . to be heard on a question which [it] had no reason to believe was part of the litigation" (Grant v Cuomo, 130 AD2d 154, 176 [1987], affd 73 NY2d 820 [1988]). The appellant's contentions, set forth above, outline the issues appellant seeks to litigate before this court. The appellant has not raised the issue regarding the default final judgment award amount. Moreover, respondent does not assert an argument in which it opens the door for the majority to entertain discussions surrounding the default final judgment amount. I disagree with the majority's decision to send this back to the Civil Court. Recognizing the cost of litigation to both sides, and the limited judicial resources available to the New York City civil court system; I vote to adhere to the Civil Court's prior determination denying tenant's motion to vacate the default final judgment. ENTER: Paul Kenny Chief Clerk Decision Date: December 23, 2022 Footnotes Footnote 1: Though the default final judgment was entered against tenant and Delroy's Cafe, the petition did not name Delroy's Cafe as a separate legal entity and there is no indication in the record that Delroy's Cafe became a party to the instant proceeding.