Defendant's Attorney:

Description:

New City, New York real estate lawyers represented the parties in a quite title action.

Following a trial, James Bricker, Sr. (hereinafter Bricker Sr.), and Kim Bricker were divorced by a judgment of divorce dated October 8, 2008. The judgment directed that Bricker Sr. and Kim Bricker were to jointly own Bricker's, Inc., a business that owned real property located at 500 Middletown Road, Pearl River (hereinafter the property), on which Bricker Sr. operated an auto repair shop. In a decision and order dated January 5, 2010, this Court, inter alia, modified the judgment of divorce so as to direct that Bricker Sr. would solely own Bricker's, Inc., and would pay Kim Bricker a distributive award over a period of 14 years in exchange for her share of Bricker's, Inc. (see Bricker v Bricker, 69 A.D.3d 546, 548).

Meanwhile, in March 2009, the defendant, who represented Bricker Sr. in the divorce action, moved by order to show cause for leave to file a lien against the property or, in the alternative, for leave to file a confession of judgment against Bricker Sr., for legal fees owed.

Thereafter, on March 4, 2010, the defendant and counsel for Kim Bricker appeared in the divorce action in connection with outstanding motions. The defendant raised his pending motion, inter alia, for leave to file a lien against the property. In response, the Supreme Court concluded that as a result of this Court's determination in Bricker v Bricker, the property was solely owned by Bricker Sr., and, thus, judicial approval was no longer required for the defendant to file a lien against the property. The defendant withdrew his motion based on the Supreme Court's determination. Kim Bricker's counsel did not object to the court's determination. The parties to the divorce action also agreed that Kim Bricker would receive a reduced distributive award in exchange for a mortgage executed on the property in her favor. The transcript from the proceeding on March 4, 2010, including the agreement between the parties to the divorce action, was later entered as a so- ordered stipulation on June 10, 2010.

On March 11, 2010, Bricker Sr., as sole owner of Bricker's, Inc., executed a mortgage against the property in favor of the defendant. The defendant's mortgage was recorded that day. Thereafter, on May 6, 2010, Bricker Sr., as sole owner of Bricker's, Inc., executed a mortgage against the property in favor of Kim Bricker. On January 12, 2018, Bricker Sr. died.

In July 2021, Edward Bricker and James Bricker, as co-administrators of Bricker Sr.'s estate, and Kim Bricker (hereinafter collectively the plaintiffs) commenced this action, among other things, to void the defendant's mortgage, primarily on the ground that the defendant had failed to obtain judicial consent for his mortgage in violation of 22 NYCRR 1400.5. The defendant moved, inter alia, pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In an order dated March 28, 2022, the Supreme Court, among other things, upon a decision of the same court dated March 1, 2022, granted that branch of the defendant's motion which was to dismiss the complaint. The plaintiffs appeal.

"A motion to dismiss on the ground that the action is barred by documentary evidence pursuant to CPLR 3211(a)(1) may be granted only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Qureshi v Vital Transp., Inc., 173 A.D.3d 1076, 1077; see Goshen v Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326; Leon v Martinez, 84 N.Y.2d 83, 88). Further, on a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), "the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory" (Cantor v Villuci, 212 A.D.3d 765, 766 [internal quotation marks omitted]; see Leon v Martinez, 84 N.Y.2d at 87-88). "Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Katz v DePaola, 211 A.D.3d 1020, 1021 [internal quotation marks omitted]; see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275).

Here, documentary evidence showing that Bricker Sr. consented to the defendant's mortgage, that the defendant moved for judicial approval of the defendant's mortgage, that the Supreme Court determined that judicial approval was not required, and that the defendant's withdrawal of his motion for judicial approval was authorized by the court and not objected to by Kim Bricker's counsel conclusively established that the filing of the defendant's mortgage against the property "was not without court approval in contravention of 22 NYCRR 1400.5(a)(3)" (Gross v Gross, 36 A.D.3d 318, 324). Thus, the court properly granted that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).


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Outcome: "Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was to dismiss the complaint.

The parties' remaining contentions either are without merit or need not be reached in light of our determination." Bricker v. Thorsen, 2024 NY Slip Op

04369, Index No. 34390/21, No. 2022-03692 (N.Y. App. Div. Sep 11, 2024)

Plaintiff's Experts:

Defendant's Experts:

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