The following papers were read on this motion pursuant to CPLR 2219(a): Papers Numbered Defendants Alrema Morse-Spalding, Devon Spalding, Valerie Watson’s Motion by Order to Show Cause dated February 11, 2020 and signed by Hon. Genine D. Edwards seeking inter alia a stay of landlord-tenant proceedings, restore the deed previously set aside by the court and to allow a late answer; Attorney Affirmation of Glenn R. Meyers, Esq., in support of motion, affirmed on February 9, 2019; Affidavit of Alrema Spaulding, duly sworn on December 13, 2019; Exhibits A-H 1 Plaintiff’s Attorney Affirmation of Anthony J. Auciello, Esq., in opposition, affirmed on February 24, 2020; Exhibits A-I 2 Plaintiff’s Paulette Mckenzie, Ancillary Administrator of The Estate of Roderick Beckford’s Motion by Order to Show Cause dated February 22, 2022, seeking inter alia further opposition to foregoing defendant’s motion, lifting the stay and access to the premises to fix a leak; Affidavit of Paulette Mckenzie, Ancillary Administrator of The Estate of Roderick Beckford, sworn to on January 31, 2022; Attorney Affirmation of Anthony J. Auciello, Esq., affirmed on February 2, 2022, in support of the motion; Exhibits A-I (NYSCEFF NOS. 3-15) 3 INTERIM DECISION and ORDER Background This action was commenced by filing a complaint on June 1, 2011. The complaint alleges that on May 14, 2008, defendants fraudulently and without consideration, caused the transfer of real property by deed, which was previously owned by plaintiff Roderick Beckford, now deceased, to defendants Alrema Morse-Spalding, Devon Spalding, and Valerie Watson. The real property is located at 1302 Foster Avenue, Brooklyn, NY. The same property was bequeathed by will dated September 29, 2009, to Paulette Mckenzie, now Ancillary Administrator of The Estate of Roderick Beckford. Ms. Mckenzie possessed a Power of Attorney for Mr. Beckford at all relevant times prior to Mr. Beckford’s death and is also Mr. Beckford’s niece as well as the substituted plaintiff. Defendant Devon Spalding is the brother of Paulette Mckenzie and married to Alrema Morse-Spalding. Defendant Devon Spalding passed away and defendant Alrema Morse-Spalding is now appointed by this court, for the purposes of this litigation, as a representative for the estate of her late husband. Defendant Valerie Watson is Mr. Beckford’s daughter. Defendant Brian Figeroux, Esq, is an attorney who prepared the deed executed by the late Roderick Bedford transferring ownership to defendants Devon Spalding, Alrema Morse-Spalding, and Valerie Watson on May 14, 2008. On October 13, 2011, an answer was filed by Mr. Figeroux’s law firm on behalf of defendants Alrema Morse-Spalding. Devon Spalding and Brian Figeroux, Esq. Mr. Figeroux’s law firm did not represent defendant Valerie Watson. The answer was rejected as untimely on October 14, 2011. A default judgment was entered on February 16, 2012, which declared that the Deed dated May 14, 2008, for the premises known as 1302 Foster Avenue, Brooklyn, NY, Block 5234, Lot 52 and recorded in the Kings County Clerk office on June 4, 2008, under CRFN 2008000224160 null and void and cancelled of record pursuant to NYRPAL Art. 15. The defendants Alrema Morse-Spalding, individually and as Representative of the Estate of her husband Devon Spalding, and Valerie Watson, through new counsel, by Order to Show Cause now seeks to vacate the default judgment inter alia on the basis of fraud, and requests a hearing, and provides the court with uncertified copies of medical records from the Kings County Medical Center which reflects the following Discharge Summary dated July 14, 2011, which is approximately six weeks after the commencement of the action, regarding the late Mr. Beckford’s hospitalization at the time: Hospital Course: CC: altered mental status Hospital Course: 84 yo man with pmh of end stage Alzheimer dementia, parkinson’s dz., prior CVA, legal blindness and deaf, HTN, presents to the ED via EMS for worsening AMS for 1 month…CT scan showed old huge infarct and very atrophic brain. Patient prognosis is poor due to his Alzheimer and Parkinson. A review of the original complaint which was electronically uploaded to the court’s New York State Court Electronic System (“NYSCEF”) shows that it was captioned “Verified Complaint” but there was no verification page attached to the filed complaint. An amended complaint was electronically filed the next day, on June 2, 2011, and contained the caption “Amended Complaint” but without the word “Verified” found in the caption of the complaint. The electronically filed amended complaint did not contain a verification page. The attorney affirmation of Anthony J. Auciello, Esq., affirmed on February 24, 2020, in opposition to defendants’ motion, attached as an exhibit a hard copy of the amended complaint with a verification page which was sworn to on May 27, 2011 (Exhibit A to the Attorney Affirmation). The verification page was notarized on May 27, 2011, which is an earlier date than the date found on either the original or amended complaint. In other words, it appears that the complaint and amended complaint did not exist at the time the verification page was signed. Mr. Beckford passed away on March 25, 2012, approximately 10 months after the purported verification. An Article 81 proceeding regarding Mr. Beckford was commenced by defendant Alrema Morse-Spalding sometime around August 2011 and a cross-petition was filed by Plaintiff Paulette Mckenzie, currently the Ancillary Administrator of Mr. Beckford’s estate, in or about October 2011. (Matter of Roderick Beckford, Kings County Index No. 100157-2011). The proceeding was terminated because Mr. Beckford moved back to Jamaica, WI under unknown circumstances. An unsigned report of the Court Evaluator Kim F. Trigoboff was annexed opining, and confirming what was reflected in hospital records, that Mr. Beckford was suffering from dementia and was legally blind and deaf. The court evaluator determined that Mr. Beckford was completely dependent on others for activities of daily living. Ms. Grigoboff recommended that any power of attorney given to Paulette Mackenzie, then cross petitioner in the Article 81 proceeding, and now plaintiff administrator of the Estate of Mr. Beckford, be revoked and that in her opinion Ms. Mckenzie had breached her fiduciary duty to Mr. Beckford. It is unknown whether the Will, apparently probated in Jamaica, WI is contested. It is unknown whether there is an objection to the Ancillary Proceedings filed in Kings County Surrogate Court under File No. 2019-676. A decree granting Ancillary Probate with Letters was issued by the court on June 4, 2019 by the Hon. Margarita Lopez Torres. Issue: Was the default judgment entered on February 16, 2012, a nullity because the verification predates the complaint, and the judgment was not otherwise supported by an affidavit of merit? The standard for granting a motion for default judgment is stated in L & Z Masonry Corp. v. Mose, 167 AD3d 728, 729 [2d Dept 2018], On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant’s default (see CPLR 3215 [f]; Liberty County Mut. v. Avenue I Med., P.C., 129 AD3d 783, 784-785, 11 NYS3d 623 [2015]; Atlantic Cas. Ins. Co. v. RJNJ Servs., Inc., 89 AD3d 649, 651, 932 NYS2d 109 [2011]; Triangle Props. #2, LLC v. Narang, 73 AD3d 1030, 1032, 903 NYS2d 424 [2010]). The failure to provide “proof of the facts constituting the cause of action” can result in reversal of a trial court’s order granting default judgment. See Blam v. Netcher, 17 A.D.3d 495, 496, 793 N.Y.S.2d 464, 465, 2005 N.Y. Slip Op. 02986, 2005 WL 901909 (2005), where the appellate court reversed the trial court who caused a default judgment to be entered without “facts constituting the cause of action” being submitted either in the form of a properly verified complaint or affidavit of merit: In support of her motion for leave to enter judgment against the defendant upon her default in answering, the plaintiff failed to proffer either an affidavit of the facts or a complaint verified by a party with personal knowledge of the facts (see CPLR 3215[f]; Goodman v. New York City Health & Hosps. Corp., 2 A.D.3d 581, 768 N.Y.S.2d 365; Drake v. Drake, 296 A.D.2d 566, 745 N.Y.S.2d 712; Parratta v. McAllister, 283 A.D.2d 625, 725 N.Y.S.2d 854). Accordingly, the plaintiff’s motion should have been denied, with leave to renew on proper papers (see Henriquez v. Purins, 245 A.D.2d 337, 338, 666 N.Y.S.2d 190). However, there is significant appellate authority that even when plaintiff fails to comply with the statute requiring party seeking a default judgment to provide an affidavit of merit such default judgment is not a nullity because if the issue was timely raised the court could have denied the motion with leave to renew. Further, a reasonable excuse for the default and a meritorious defense must still be raised when timely challenging a lack of a verified complaint or affidavit of merit. See Araujo v. Aviles, 33 A.D.3d 830, 824 N.Y.S.2d 317, 318, 2006 N.Y. Slip Op. 07679, 2006 WL 3028435 (AD 2nd Dept 2006): Even if the plaintiff failed to comply with CPLR 3215(f), which requires a party seeking a default judgment to file, inter alia, ‘proof by affidavit made by the party of the facts constituting the claim, the default and the amount due,’ such noncompliance would not warrant excusing the defendant’s default or permitting him to interpose a late answer. Had the defendant opposed the plaintiff’s motion for leave to enter a default judgment on this sole ground, and if the objection under CPLR 3215(f) had merit, a point we need not decide, the motion would have properly been denied with leave to the plaintiff to renew on proper papers (see Matone v. Sycamore Realty Corp., 31 A.D.3d 721, 818 N.Y.S.2d 463; Blam v. Netcher, 17 A.D.3d 495, 496, 793 N.Y.S.2d 464; Hazim v. Winter, 234 A.D.2d 422, 651 N.Y.S.2d 149). This alleged defect would not render the default judgment a nullity nor, in the absence of a reasonable excuse and meritorious defense, entitle the defendant to vacatur of his default (see Coulter v. Town of Highlands, 26 A.D.3d 456, 809 N.Y.S.2d 466; Harkless v. Reid, 23 A.D.3d 622, 806 N.Y.S.2d 214). The court does not find the default judgment a nullity merely based upon the lack of a proper verification because remarkably, no opposition to the default judgment motion was ever filed by defendants, let alone providing the court with an affidavit showing reasonable cause for the default and a meritorious defense. See Araujo v. Aviles, supra. Also, a defective verification may only lead to a pleading being treated as a nullity if notice is given by a party that they intend to treat it as such. See Giambra v. Comm’r of Motor Vehicles, 46 N.Y.2d 743, 386 N.E.2d 251, 413 N.Y.S.2d 643 (Ct. of App. 1978). However, the defective verification is not the issue. The issue is whether this plaintiff was even aware of the complaint, and/or its filing, which implicates the jurisdiction of this court in the context of a possible fraud perpetrated upon it.1 The court takes judicial notice that Alzheimer’s dementia and Parkinson’s disease are progressive diseases. Alzheimer’s disease alone is not enough to show incapacity (See Gala v. Magarinos, 245 A.D.2d 336, 665 N.Y.S.2d 95 [AD 2nd Dept 1997], 1997 N.Y. Slip Op. 10558, 1997 WL 756640 [1997]), but given such a poor prognosis of “end stage Alzheimer dementia,” as reflected in medical records, together with Parkinson’s disease, legal blindness and deafness, such diagnosis being made a mere six weeks after the signed verification, these circumstances provide a sufficient basis to hold a hearing. This is especially so when the default judgment which set aside the deed resulted in the eventual transfer of the real property exclusively to Paulette Mckenzie, individually, who is now the Ancillary Administrator, under a Will of Mr. Beckford dated September 29, 2009, which is after the execution of the deed and before the commencement of this action. The Ancillary Administrator held a power of attorney for Mr. Beckford at the time of the commencement of this action, had a close relationship with the decedent, and it appears the decedent was dependent upon her. Because Ms. Mckenzie was a fiduciary and personally benefited from the default judgment which ultimately resulted in her complete ownership of the real property to the exclusion of Mr. Beckford’s daughter and her own brother, assuming Mr. Beckford had capacity, the burden is upon the Ancillary Administrator to show by clear and convincing evidence (Matter of Est. of Mary, 2022 N.Y. Slip Op. 01220, 2022 WL 547126 [Ap. Div. 3rd Dept 2022) that Mr. Beckford's commencement of the action and obtaining the default judgment was free of undue influence. See Matter of Nurse, 160 A.D.3d 745, 748, 75 N.Y.S.3d 545, 549, 2018 N.Y. Slip Op. 02473, 2018 WL 1734609 (2nd Dept 2018): The burden of proving undue influence generally rests with the party asserting its existence (see Hearst v. Hearst, 50 A.D.3d 959, 962, 857 N.Y.S.2d 596; Matter of Connelly, 193 A.D.2d 602, 602, 597 N.Y.S.2d 427). Where, however, the existence of a confidential relationship is established, the burden shifts to the beneficiary of the transaction to show that the transaction is fair and free from undue influence (see Matter of Albert, 137 A.D.3d 1266, 1268, 30 N.Y.S.3d 121; Matter of Boatwright, 114 A.D.3d 856, 858, 980 N.Y.S.2d 554; Matter of Connelly, 193 A.D.2d at 603, 597 N.Y.S.2d 427). "In order to demonstrate the existence of a confidential relationship, there must be evidence of circumstances that demonstrate inequality or a controlling influence" (Matter of Albert, 137 A.D.3d at 1268, 30 N.Y.S.3d 121; see Matter of Bonczyk v. Williams, 119 A.D.3d 1124, 1126, 990 N.Y.S.2d 304; Matter of Graeve, 113 A.D.3d 983, 984, 979 N.Y.S.2d 197; Matter of Nealon, 104 A.D.3d 1088, 1089, 962 N.Y.S.2d 481, affd 22 N.Y.3d 1045, 981 N.Y.S.2d 353, 4 N.E.3d 363). Further, the allegations and circumstances in this case raise multiple red flags: the mental and physical status of Roderick Beckford, along with his dependence on the Ancillary Administrator and others, at the time he is alleged to have signed the verification page and supposedly authorized the litigation; the circumstances regarding the infirm Mr. Beckford leaving the country before resolution of an Article 81 Proceeding; the defendant attorney who prepared the deed is not only an eye-witness, but it is unknown whether he represented Mr. Beckford or his co-defendants or all the parties and his firm filed an untimely answer yet never sought to extend the time to file the answer or even oppose the original motion for default judgment. ("…[a] lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact,” Rule 3.7[a], Rules of Professional Conduct [22 NYCRR 1200.0]; see also Rule 1.15(a) and 1.3(a) of the Rules of Professional Conduct [22 NYCRR 1200.0] regarding neglecting client matters). The only basis that would allow the court to vacate and set aside its prior judgement is whether a fraud has been perpetrated upon the court and/or in the interest of justice. See JPMorgan Chase Bank, Nat’l Ass’n v. Dev, 176 A.D.3d 691, 692-93, 110 N.Y.S.3d 127, 129, 2019 N.Y. Slip Op. 07059, 2019 WL 4849355 (AD 2nd Dept 2019): ‘However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment [or order] may be vacated, and a court may vacate its own judgment [or order] for sufficient reason and in the interests of substantial justice’ (40 BP, LLC v. Katatikarn, 147 A.D.3d 710, 711, 46 N.Y.S.3d 217). Although the Supreme Court retains ‘inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice’ (Galasso, Langione & Botter, LLP v. Liotti, 81 A.D.3d 884, 885, 917 N.Y.S.2d 667; see Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842; Katz v. Marra, 74 A.D.3d 888, 890, 905 N.Y.S.2d 204), ‘[a] court’s inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect’ (Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [internal quotation marks omitted]; see CitiMortgage, Inc. v. Maldonado, 171 A.D.3d 1007, 98 N.Y.S.3d 607; Aurora Loan Servs., LLC v. Dorfman, 170 A.D.3d at 788, 96 N.Y.S.3d 152). N.Y. C.P.L.R. 5015 (McKinney) Other Ground Available if Default Not Excusable? As we note in more detail in Commentary C5015:11, below, the five enumerated grounds for vacating a judgment under CPLR 5015(a), while they cover most situations, are not exhaustive. Grounds not listed in the statute may sometimes suffice for a vacatur in the interest of justice. The defendant argued that the unusual situation involved in Woodson (Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [Ct. of App. 2003]) could be taken as one of them. The court disagreed, finding nothing in the “interest of justice” argument to allow a vacatur in this case. The lower courts’ vacatur of the judgment was therefore reversed as an abuse of discretion. Based on the foregoing, it is, ORDERED, that the caption is amended, and the clerk of the court is directed to change the caption on its records, as follows: Paulette Mckenzie, Ancillary Administrator of The Estate of Roderick Beckford, Plaintiff, v. Alrema Morse-Spalding, individually, and Alrema Morse-Spalding, as Representative of The Estate of Devon Spalding, Valerie Watson and Brian Figeroux, Esq, Defendants And it is further, ORDERED, that on or before April 20, 2022, the defendants-movants and/or plaintiff shall provide the court with certified medical records and plaintiff’s counsel with copies of certified medical records of the decedent Roderick Beckford and any other certified or legally admissible documentary evidence regarding any of the issues to be raised at a hearing on defendants’ application; and it is further ORDERED, that defendants-movants and/or plaintiff may offer proof in the form of expert medical testimony and other admissible testimony regarding the decedent Roderick Beckford at a hearing to be conducted to determine whether Mr. Beckford authorized, or had the capacity to authorize, the filing of the complaint, such burden being placed on the defendants-movants, by clear and convincing evidence and if incapacity is established the court will consider using its discretion to vacate the default judgment and dismiss the complaint; and it is further ORDERED, that if incapacity is not established, the plaintiff, Ancillary Administrator of The Estate of Roderick Beckford, who individually now holds title to the real property, may offer proof in the form of expert medical testimony and other admissible testimony to show by clear and convincing evidence that commencement of the action and obtaining the default judgment was free of undue influence; and it is further ORDERED, that the hearing adjourned from February 23 to March 9 is now adjourned to April 27, 2022, in order to give the parties adequate time to prepare for a hearing, with an in-person appearance, at the Supreme Court, 360 Adams Street, Brooklyn, NY, at 9:30AM, in courtroom 349 (or other courtroom that will be posted on the door) and all attendees must meet Covil-19 protocol that may be in place on the date of the hearing. This constitutes the interim decision and order of the court. Dated: February 28, 2022
