Masonic Lodge v Fraternidad Realty Corp. (2022 NY Slip Op 03051)
Masonic Lodge v Fraternidad Realty Corp.
2022 NY Slip Op 03051
Decided on May 05, 2022
Appellate Division, First 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 and Entered: May 05, 2022 Before: Gische, J.P., Kern, Oing, González, Scarpulla, JJ.
Index No. 655299/17 Appeal No. 15893 Case No. 2021-04764
[*1]Masonic Lodge etc., Plaintiff-Respondent,
v
Fraternidad Realty Corp., Defendant-Appellant.
Yeskoo Hogan & Tamlyn, LLP, New York (Richard C. Yeskoo of counsel), for appellant.
Order, Supreme Court, New York County (John J. Kelley, J.). entered December 1, 2021, which denied defendant's motion for leave to amend its answer to assert an affirmative defense of collateral estoppel, unanimously reversed, on the facts, with costs, and the motion granted.
Defendant's proposed collateral estoppel defense is neither palpably insufficient nor devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]). Plaintiff's default in the related action does not bar the assertion of the defense, as plaintiff appeared in that action, but willfully and deliberately refused to participate in the proceedings, despite a full and fair opportunity to do so (Matter of Abady, 22 AD3d 71, 85 [1st Dept 2005]). Nor is the defense barred by a lack of identity of issue in the two actions (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). The plaintiffs in the related action sought a declaration that plaintiff in this action was not the rightful owner of the loan. That is the identical issue that is relevant in this action.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: May 5, 2022
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