Real Property Law

CPC filed a claim with Stewart Title, which had insured its mortgage. Meanwhile, in early 2009, Supreme Court dismissed Bank of New York's foreclosure action for lack of standing at the time Bank of New York commenced the action. Bank of New York then brought another foreclosure action, naming Brookhaven and CPC as defendants. In 2013, Supreme Court dismissed the 2009 foreclosure action because Bank of New York had failed to seek a default judgment against Brookhaven within one year of its default by failing to appear.

In 2014, Stewart Title, as assignee of CPC's rights to the 2007 mortgage, brought this action to cancel the Bank of New York mortgage on statute of limitations grounds. When Bank of New York and CFSB failed to appear, Stewart sought entry of a default judgment. Stewart contended that the mortgage had been accelerated in 2006, and that the statute of limitations on all mortgage payments had therefore expired. Supreme Court denied the motion and vacated the default. Stewart appealed.

In upholding Supreme Court's decision to vacate the default, the Appellate Division majority conceded that Stewart had provided adequate proof that it had served the summons and complaint on Bank of New York, but concluded that Stewart had failed to submit adequate proof of the facts constituting its claim. The Appellate Division noted that in support of its statute of limitations position, Stewart had relied on Bank of New York's 2009 foreclosure complaint. That complaint, however, did not state that Bank of New York had accelerated the mortgage in 2006, but had only stated the amount due on the mortgage on the date of default. As a result, the court held that the mortgage had not been accelerated until 2009. Using the 2009 date, the statute of limitations had not yet run on Bank of New York's mortgage.

Justice Hinds-Radix, dissenting, focused on Bank of New York's failure to establish a meritorious defense. She noted that Stewart's complaint cited not only the 2009 foreclosure complaint, but also the 2007 foreclosure complaint, in which Bank of New York had stated that it had elected to declare the entire balance due. She noted that even though the complaint had been dismissed, the statements made in the complaint counted as informal judicial admissions supporting Stewart's claim.

Email Did Not Constitute Binding Counteroffer
Greene v. Rachlin
NYLJ 10/30/17, p. 27, col. 4
AppDiv, Second Dept.
(memorandum opinion)

In purchaser's action for specific performance of an alleged sale contract, purchaser appealed from Supreme Court's grant of summary judgment to seller and the real estate broker. The Appellate Division affirmed, concluding that the email upon which purchaser relied did not constitute a binding counteroffer.

Seller engaged real estate broker to market the subject property. After purchaser submitted an offer to purchase the property for $660,000, the broker sent purchaser an email rejecting the offer and stating that sellers “have counter at $670,000 and will not accept a lower offer from anyone.” Seller's agent then sent broker an email containing terms of sale, including a purchase price of $670,000. Three days later, purchaser delivered a down payment check and a memorandum of sale. Seller then informed purchaser that there was no contract of sale, prompting purchaser to bring this action alleging breach of contract by seller and tortious interference by broker. Supreme Court awarded summary judgment to seller and broker.

In affirming, the Appellate Division emphasized that the email from the broker indicated only that the purchaser's initial offer was rejected, but did not include the terms necessary to constitute a binding and unequivocal counteroffer. In particular, the email did not include the closing date, the time and terms of payment, or the quality of title to be conveyed. As a result, the email did not satisfy the statute of frauds.