CPLR § 3026; CPLR § 6514; 22 NYCRR 130-1.1; CPLR § 5701; Standing

CPLR § 3026 Construction

CPLR § 6514 Motion for cancellation of notice of pendency

(c) Costs and expenses

22 NYCRR 130-1.1 Costs; sanctions

Congel v Malfitano,
2009 NY Slip Op 03122 (App. Div., 2nd, 2009)

On a motion to dismiss a complaint for failure to state a cause of action, the challenged [*2]pleading is to be construed liberally (see CPLR 3026; Leon v Martinez, 84 NY2d 83, 87; Bernberg v Health Mgt. Sys., 303
AD2d 348, 349). Accepting the facts alleged as true, and according the
plaintiff the benefit of every possible favorable inference, the court
must determine only whether the facts alleged fit within any cognizable
legal theory (see Leon v Martinez, 84 NY2d at 87-88; Bernberg v Health Mgt. Sys., 303
AD2d at 349). However, where, as here, the moving party has submitted
evidentiary material, the court must determine whether the proponent of
the pleading has a cause of action, not whether he or she has stated
one
(see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Pincus v Wells, 35 AD3d 569, 570).

The defendant waived the defense of lack of standing by failing
to raise it in his answer or in his initial moving papers to dismiss
the complaint
(see Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; Lewis v Boyce, 31 AD3d 395, 396). In any event, contrary to the defendant's contention, the plaintiffs possess standing (see Benedict v Whitman Breed Abbott & Morgan, 282 AD2d 416, 418; Shea v Hambro Am., 200 AD2d 371, 372).

However, the Supreme Court should not have awarded the
plaintiffs costs and disbursements under CPLR 6514(c). CPLR 6514(c)
authorizes an award of costs and disbursements if the cancellation of
the notice of pendency is made pursuant to that section. Here, however,
the Supreme Court invoked its "inherent power," and not CPLR 6514, to
cancel the notice of pendency
(see Nastasi v Nastasi, 26 AD3d 32,
36; 13-65 Weinstein, Korn, & Miller, New York Civil Practice: CPLR
¶ 6514.11 [2008]). Thus, the Supreme Court had no authority to
award costs and disbursements under CPLR 6514(c) (see Ryan v La Rosa, 22
Misc 2d 125), and the plaintiffs never requested costs pursuant to 22
NYCRR 130-1.1
. Accordingly, the Supreme Court should have denied that
branch of the plaintiffs' motion.
[*3]

In order to determine the
amount of costs and disbursements to which the plaintiffs were
purportedly entitled, the Supreme Court appointed a referee and
directed the defendant to pay the referee's fee. Despite our conclusion
that the hearing should not have been held in the first instance, it
has already taken place. Accordingly, we direct the plaintiffs to pay
one half of the referee's fee and the defendant to pay one half of the
referee's fee.

CPLR § 5701 Appeals to appellate division from supreme and county courts

(a) Appeals as of right
2. from an order not specified in subdivision (b), where the motion it decided was made upon notice and it:

(v) affects a substantial right

(c) Appeals by permission

Robertson v United Equities, Inc., 2009 NY Slip Op 03149 (App. Div., 2nd, 2009)

The appeal from so much of the amended order as directed a hearing
to aid in the disposition of the motion of the defendant United
Equities, Inc., which was for an award of an attorney's fee and to
impose a sanction against the plaintiffs and/or their attorney,
pursuant to 22 NYCRR 130-1.1, is not appealable as of right, as it did
not determine that motion and did not affect a substantial right
(see CPLR 5701[a][2][v], [c]; Youngquist v Youngquist, 44 AD3d 1034, 1035), and leave to appeal [*2]has not been granted from that portion of the amended order.
Furthermore, the appeal from so much of the amended order as,
sua sponte, directed dismissal of the complaint insofar as asserted
against the defendant United Equities, Inc., is not appealable as of
right, as it did not decide a motion made upon notice
(see CPLR 5701[a][2], [c]; Consolidated Resources, LLC v 21-220-230 Owner's Corp., 59 AD3d 579), and leave to appeal has not been granted from that portion of the amended order.

The bold is mine.

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