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FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018
NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019
STATE OF NEW YORK
SUPREME COURT COUNTY OF ONONDAGA
_______________.
BRIAN C. PRUSIK,
Plaintiff
vs.
LIBERTY MUTUAL INSURANCE GROUP INC., Hon. Deborah H. Karalüñas
and IndexNo.:8588/2018
RJI No.: 33-19-0215
GEDDES FEDERAL SAVINGS AND LOAN
ASSOCIATION,
Defendants.
__________________________________ .
MEMORANDUM OF LAW_IN OPPOSITION TO PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND IN SUP_PORT OF PLAINTIFFS MOTION TO DISMISS
AND CROSS-MOTION FOR S__UMMARY JUDGMENT
Dated: June 26, 2019
Daniel F. Mathews, Esq.
The Mathews Law Firm PLLC
913-919 University Building
120 E. Washington Street
Syracuse, New York 13202
(315) 471-2188
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PRELIMINARY STATEMENT
Defendant Geddes Federal Savings and Loan Association (herciñafter Geddes) submits
this Memorandum of Law in Opposition to the Plaintiff's Motion for Summary Judgment on his
third Cause of Action against Geddes for Conversion; his Fourth Cause of Action against Geddes
for Trespass; and his Fifth Cause of Action against Geddes for Violation of RPAPL §1308; and
in support of Geddes Motion to Dismiss the Complaint herein on the basis of Res Judicata and/or
Collateral Estoppel; to Dismiss the Complaint for Failure to State a Cause of Action; and in
Geddes'
Support of Defendant Motion for Summary Judgment on its claims for Breach of
Contract and Conversion; and of such other and further relief as to the Court may seem just and
proper.
STATEMENT OF FACTS
On May 12, 2014, Plaintiff Brian Prusik re-fiñañced property consisting of a single family
residence located at 121 Slosson Road in West New York in order to remove his ex-
Monroe,
wife from liability. Defendant Geddes was the holder of the Note and Mortgage on that property.
At the time of the re-finance, the property was encumbered by a collateral mortgage held by Key
Bank n the amount of $590,000.00. The Key Bank mortgage was subordinated at the time of the
re-finance to put it behind the Geddes mortgage and subordinate thereto. A month later, on June
19, 2014, Prusik purchased a second home with his girlfriend located on Ramsey Drive in
Bridgeport. This mortgage was also held by Defendant Geddes. In October of 2015, Plaintiff
Prusik stopped making payments on his mortgage on the Slosson Road property, and Geddes sent
a demand letter for payment. On March 3, 2016, Prusik filed for Chapter 7 Bankruptcy protection
in the Eastern District of New York, based upon his residence being at Ramsey Drive,
Bridgeport, New York. In his Bankruptcy Petition, Plaintiff Prusik stated his intention to
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reaffinn the debt and retain the property on Ramsey Drive, Bridgeport, New York with his
girlfriend, and to surrender the 121 Slosson Road property back to Defendant Geddes. At the
time of his Bankruptcy filing, Plaintiff Prusik claimed $700.00 worth of assets at the 121 Slosson
Road property. Defendant Geddes took all steps necessary to assist Plaintiff Prusik in entering a
Reaffirmation Agreemeñt for the Ramsey Drive property so he could save that home. That
Reaffirmation Agreement needed to be filed with the Bankruptcy Court before Plaintiff Prusik
would be granted a discharge in Bankruptcy. The Reaffirmation Agreement was filed with the
Bankruptcy Court, and Plaintiff Prusik received a Chapter 7 Bankruptcy Discharge, essentially
wiping out all of his debts. While this was occurring, Defendant Geddes was taking steps to
receive the deed in lieu of foreclosure from Prusik, pursuant to his stated intention in the
Bankruptcy Petition. Because the Key Bank mortgage for $590,000.00 was subordinate to the
Geddes mortgage, the Key Bank lien would need to be released from the 121 Slosson Road
property before Geddes could accept the deed in lieu of foreclosure. A full foreclosure would cut
off the Key Bank lien, but Prusik and his attorney agreed to tender a deed in lieu of foreclosure to
shorten the process. Meanwhile, in August of 2016 the property sustained significant damage
due to a break in and vandalism, which according to Prusik caused over $100,000.00 in damages
to the house. Prusik never notified Geddes of the damage until November of 2016, and only after
he had negotiated an insurance settlement of $49,000.00, which was reduced to $34,000.00 after
depreciation. Prusik was issued the insurance proceeds check for $34,000.00 in both his name
Geddes'
and Defendant name. Simultaneously, Geddes was negotiating with Key Bank in order
to obtain a release of the mortgage to accept the deed in lieu of foreclosure from Prusik. On
February 22, 2017, Geddes was able to obtain the Release from Key Bank, but had to pay
$8,000.00 to Key for same. Geddes then informed Prusik that Geddes could now accept the deed
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in lieu of foreclosure as the Key Bank lien was no longer an encumbrance on the property.
Geddes also informed Prusik that the insurance proceeds check needed to be turned over to
Geddes based upon the significant damage to the collateral, and the default of the mortgage, and
that Geddes was to apply same to the mortgage balance based upon the contract terms in the note
and mortgage. Prusik refused to turn the check over to Geddes, instead claiming that he was
entitled to the money. When Geddes refused to allow Prusik to keep the insurance proceeds,
Prusik then refused to tender the deed in lieu of foreclosure, necessitating a full foreclosure.
Prusik through his attorneys, fought the initial foreclosure based upon an automatic stay in
bankruptcy, which the Bankruptcy Trustee himself felt was unnecessary, as there was a stated
intention to surrender the property, and no equity in same. In any event, based upon Prusik's
objection, the initial foreclosure proceeding was discontinued, the stay was lifted in Bankruptcy
Court, and a second foreclosure proceeding was commenced. While all of the needless legal
maneuvers were taking place, only because Prusik demanded a $34,000.00 windfall, the New
York Zombie Property legislation, RPAPL §l308, took effect. This statute mandated that lenders
abandoned'
secure, inspect and maintain 'vacant and houses. The 121 Slosson Road property fell
into that category based upon the enumerated factors in that statute. Geddes, as mandated by
statute, took steps to secure and maintain the collateral. During the course of the proceedings, the
property was broken into at least 5 times, resulting in what Plaintiff estimated to be over
$100,000.00 in damages after the first incident alone. Once the Bankruptcy stay was lifted in
June of 2017, the property mañagement company cut the lawn, secured the property, and remove
rubbish and debris, all of which is required by statute. In addition, after the Bankruptcy stay was
lifted, the second foreclosure action was brought, which contained a cause of action for the
foreclosure, and an additional cause of action for Prusik to turn over the insurance proceeds tha
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the had wrongfully converted. Prusik defaulted in Answering the second foreclosure action, but
did have his attorneys at Wood Oviatt prepare an affidavit in opposition to the default judgment
application. In that affidavit, Prusik addressed the missing items from the property that are the
basis of the instant action. He also addressed those items in his motion argument. Curiously,
Prusik did not address his default in Answering. The Court found that Prusik was in default, and
also found his arguments about allegedly missing items unpersuasive, and informed Prusik that
he may be collaterally estopped from raising them in a future proceeding, as he had a full and fair
opportunity to raise them in the second foreclosure proceeding and failed to due so. Geddes was
granted a judgment of foreclosure, and an Order requiring Prusik to turn over the insurance
proceeds check to Geddes. Liberty Mutual, the insurer of the property, reissued the check
directly to Geddes based upon Judge McCarthy's Order. Because Plaintiff Prusik refused to
tender the deed in lieu of foreclosure, although he stated his intention to surrender the property to
Geddes in his Bankruptcy Petition, Geddes expended the sum of $12,415.00 to complete the
foreclosure and obtain possession of the property, and the wrongfully converted insurance
proceeds check, and an additional $8,000.00 (unnecessarily), to obtain the release of the Key
Bank mortgage based upon Prusik's representations. Plaintiff Prusik then commenced this
proceeding alleging that Geddes or its agents stole over $200,000.00 in personal property from
the property that he only visited occasionally, had no utilities, and had sustained in his estimation
over $100,000.00 in damages due to vandalism a year prior. Prusik provides no proof of this
allegation, other than conjecture. Any actions taken by Geddes in this action were in good faith,
and in reliance on the representations of Prusik, and in conformity with the terms of the mortgage
contract and New York Real Property Actions and Proceedings Law and its mandates.
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PLAINTIFF'S CLAIMS ARE BARRED BY RES JUDICATA
and/or
COLLATERAL ESTOPPEL
Both Prusik and Geddes were parties to the prior proceeding, which resulted in a final
judgment, and Plaintiff's current claim against the bank could have been asserted in the prior
litigation, and in fact was raised in his opposition to the motion for default judgment. Prusik did
not object to the entry of the Order and Judgment, nor did he appeal therefrom. See, Neieidi v.
Reoublic Nat. Bank of New York (2 Dept. 1996) 227 A.D.2d 392, 642 NYS2d 61.
Default judgment, establishing grantee's undivided one-half interest in premises, was res
judicata barring grantor's subsequent action to set aside deed as fraudulent; grantor had appeared
in prior action and was served with a copy of judgment, but neither had opposed its entry nor
sought to appeal from it. Burden v. Graves (2 Dept. 2005) 23 Add 421, 805 NYS2nd 583.
Res judicata doctrine is applicable to a judgment taken by default which has not been
vacated, as well as to defenses which were or could have been raised in the action. Santiago v.
(2nd
Lalani Deot. 1998) 256 AD2d 397. 681 NYS 2d 577
Default judgment in action by building contractor against school district for final payment
due under contract for construction of high school athletic facility was res judicata as to school
district's subsequent action against surety on contractor's performance bond for damages
allegedly arising from contractor's defective performance. New Paltz Cent. School Dist. v.
(3d
Reliance Ins. Co. Dept. 1983) 97 AD2d 566, 467 NYS2d 937.
Where general contractor suit against subcontractor was dismissed in bankruptcy court
because of general contractors default, judgment was res judicata on general contractors claims
and they could not be subsequently raised by general contractor as defenses, setoffs, and
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counterclaims in subcontractor's suit against general contractor. Firedoor Corp of America Inc. v.
(l"
Merlin Industries. Ltd Dept 1982) 86 AD2d 577, 446 NYS2d 325.
In the instant case. Prusik not only filed an attorney prepared affidavit in opposition to the
motion for default judgment, but stated in his affidavit "The plaintiff's claim for any alleged
insurance proceeds in not properly part of this motion and any such relief should not be granted
until a separate action for that claim is brought and I have an opportunity to respond to such
action, as I may have defenses and/or counterclaims to any such action which I have not had the
opportunity to raise". The Court, despite this argument, granted Geddes a judgment of
foreclosure and an Order to turn over the insurance proceeds check. In fact, the Court, in its
bench Decision and Order, attached to the Judgment of Foreclosure and Sale, stated in part ". .
.Now, Insofar as any claims he has for personal property damage, he may be able to proceed in a
separate action but I highly doubt it because I find he's in default in answering this complaint. . . .
Now I indicated that you may not have a right to sue for personal property because you didn't
answer, and in that answer, if you had served one, you could have served a counterclaim for
personal property damage. You may be bound by the doctrine of collateral estoppel and res
judicata because you could have raised it as to any personal property claim, but if you file that in
a court of competent jurisdiction, I'm sure it will be raised by plaintiff here, doctrine of res
judicata, collateral estoppel". See Decision and Order of Hon James McCarthy annexed to the
Judgment of Foreclosure, at Exhibit "X". Plaintiff Prusik neither opposed the entry of the Order
nor appealed from it. Plaintiffs claims against Defendant Geddes must be dismissed.
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PLAINTIFF'S COMPLAINT FAILS TO STATE A CAUSE OF ACTION
Plaintiff only offers conjecture that Defendant Geddes or its agents stole items of personal
property from the premises at 121 Slosson Road. This property was broken into by unknown
third parties no less than five (5) different times during the course of this proceeding. There is no
proof in the record that Geddes nor its agents removed any of the personal property in the
residence, only rubbish and debris. Plaintiff has offered no proof that Geddes nor its agent took
any of the 459 enumerated items he alleges were stolen.
"[B]are legal conclusions and factual claims which are flatly contradicted by the evidence
motion"
are not presumed to be true on such a (Palazzolo v. Herrick. Feinstein, LLP, 298 A.D.2d
372, 751 N.Y.S.2d 401). If the documentary proof disproves an essential allegation of the
complaint, dismissal pursuant to CPLR 3211 (a)(7) is warranted even if the allegations, standing
alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v.
Sterling Doubledav Enters., LP, 19 A.D.3d 660, 661, 799 N.Y.S.2d 65). Cited from ; Peter F.
Gaito Architecture, LLC v. Simone Dev. Corp., 46 A.D.3d 530, 846 N.Y.S.2d 368.
Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves
an essential allegation of the complaint, even if the allegations of the complaint, standing alone,
could withstand a motion to dismiss for failure to state a cause of action (see Deutsche Bank
Natl. Trust Co. v. Sinclair, 68 A.D.3d 914, 891 N.Y.S.2d 445; Peter F. Gaito Architecture. LLC
v. Simone Dev. Corn., 46 A.D.3d 530, 846 N.Y.S.2d 368; McGuire v. Sterling Doubleday
]inters.. L.P., 19 A.D.3d 660, 799 N.Y.S.2d 65).
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Dismissal of Conversion Claim:
"In order to establish a cause of action to recover damages for conversion, 'the plaintiff
must show legal ownership or an immediate superior right of possession to a specific identifiable
thing and must show that the defendant exercised an unauthorized dominion over the thing in
rights' "
question ... to the exclusion of the plaintiff s ( Messiah's Covenant Community Church v.
Weinbaa74 A.D.3d 916, 919, 905 N.Y.S.2d 209, quoting Independence Discount Corp. v.
Bressner, 47 A.D.2d 756, 757, 365 N.Y.S.2d 44; see State of New York v. Seventh Regiment
Fund, 98 N.Y.2d 249, 259, 746 N.Y.S.2d 637, 774 N.E.2d 702; Fitzoatrick House III, LLC v.
Neighborhood Youth & Family Servs., 55 A.D.3d 664, 868 N.Y.S.2d 212).
Plaintiff has failed to show that Geddes or its agent exercised dominion or control over
any of the 459 items that he alleges were stolen. He offers conjecture, but no proof. The affidavit
of Mark Bright, who worked for the property mañagêmêñt company, swears that none of the
enumerated items on Plaintiffs list of 459 items were in the property when the rubbish and debris
were removed. Plaintiff fails to state a cause of action for conversion.
Dismissal of Trespass Claim:
The essential elements of a cause of action sounding in trespass are the intentional entry onto the
land of another without justification or permission (see Marone v. Kally, 109 A.D.3d 880, 971
N.Y.S.2d 324; Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 101 A.D.3d 853, 956
N.Y.S.2d 102). Korsinky v. Rose. 120 A.D 3d 1307, 993 N.Y.S.2d 92.
The mortgage contract itself, signed by Plaintiff, contains a provision at Paragraph 9,
which authorized Geddes to enter the property to preserve and maintain the asset. "Lender may
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do and pay for whatever is reasonable and appropriate to protect Lender's interest in the Property
and Lender's rights under this Security Instrument. Lender's actions may include, but are not
limited to: (a) protecting and/or assessing the value of the Property (b) securing and/or repairing
the Property; (c) paying sums to eliminate any Lien against the Property that may be equal or
superior to this Security Instrument; (d) appearing in court; and (e) paying reasonable attorneys
fees to protect its interest in the Property and/or rights under this Security Instrument, including
its secured position in a bankruptcy proceeding. Lender can also enter the property to make
repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate
building or other code violation or dangerous conditions, have utilities turned on or off, and take
any other action to secure the Property". See mortgage contract signed by Plaintiff at Exhibit
"A", Paragraph 9.
Further, New York Real Property Actions and Proceedings Law §1308, the so called
Property"
"Zombie legislation, which took effect in December of 2016, mandated that Geddes
inspect, secure and maintain the property once the loan became 90 days past due. Geddes
performed the necessary inspections of then property pursuant to RPAPL §1309 and determined
that the property was vacant based upon the enumerated factors in RPAPL §l309 (C).
Preview
FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA _______________. BRIAN C. PRUSIK, Plaintiff vs. LIBERTY MUTUAL INSURANCE GROUP INC., Hon. Deborah H. Karalüñas and IndexNo.:8588/2018 RJI No.: 33-19-0215 GEDDES FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendants. __________________________________ . MEMORANDUM OF LAW_IN OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND IN SUP_PORT OF PLAINTIFFS MOTION TO DISMISS AND CROSS-MOTION FOR S__UMMARY JUDGMENT Dated: June 26, 2019 Daniel F. Mathews, Esq. The Mathews Law Firm PLLC 913-919 University Building 120 E. Washington Street Syracuse, New York 13202 (315) 471-2188 1 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 PRELIMINARY STATEMENT Defendant Geddes Federal Savings and Loan Association (herciñafter Geddes) submits this Memorandum of Law in Opposition to the Plaintiff's Motion for Summary Judgment on his third Cause of Action against Geddes for Conversion; his Fourth Cause of Action against Geddes for Trespass; and his Fifth Cause of Action against Geddes for Violation of RPAPL §1308; and in support of Geddes Motion to Dismiss the Complaint herein on the basis of Res Judicata and/or Collateral Estoppel; to Dismiss the Complaint for Failure to State a Cause of Action; and in Geddes' Support of Defendant Motion for Summary Judgment on its claims for Breach of Contract and Conversion; and of such other and further relief as to the Court may seem just and proper. STATEMENT OF FACTS On May 12, 2014, Plaintiff Brian Prusik re-fiñañced property consisting of a single family residence located at 121 Slosson Road in West New York in order to remove his ex- Monroe, wife from liability. Defendant Geddes was the holder of the Note and Mortgage on that property. At the time of the re-finance, the property was encumbered by a collateral mortgage held by Key Bank n the amount of $590,000.00. The Key Bank mortgage was subordinated at the time of the re-finance to put it behind the Geddes mortgage and subordinate thereto. A month later, on June 19, 2014, Prusik purchased a second home with his girlfriend located on Ramsey Drive in Bridgeport. This mortgage was also held by Defendant Geddes. In October of 2015, Plaintiff Prusik stopped making payments on his mortgage on the Slosson Road property, and Geddes sent a demand letter for payment. On March 3, 2016, Prusik filed for Chapter 7 Bankruptcy protection in the Eastern District of New York, based upon his residence being at Ramsey Drive, Bridgeport, New York. In his Bankruptcy Petition, Plaintiff Prusik stated his intention to 2 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 reaffinn the debt and retain the property on Ramsey Drive, Bridgeport, New York with his girlfriend, and to surrender the 121 Slosson Road property back to Defendant Geddes. At the time of his Bankruptcy filing, Plaintiff Prusik claimed $700.00 worth of assets at the 121 Slosson Road property. Defendant Geddes took all steps necessary to assist Plaintiff Prusik in entering a Reaffirmation Agreemeñt for the Ramsey Drive property so he could save that home. That Reaffirmation Agreement needed to be filed with the Bankruptcy Court before Plaintiff Prusik would be granted a discharge in Bankruptcy. The Reaffirmation Agreement was filed with the Bankruptcy Court, and Plaintiff Prusik received a Chapter 7 Bankruptcy Discharge, essentially wiping out all of his debts. While this was occurring, Defendant Geddes was taking steps to receive the deed in lieu of foreclosure from Prusik, pursuant to his stated intention in the Bankruptcy Petition. Because the Key Bank mortgage for $590,000.00 was subordinate to the Geddes mortgage, the Key Bank lien would need to be released from the 121 Slosson Road property before Geddes could accept the deed in lieu of foreclosure. A full foreclosure would cut off the Key Bank lien, but Prusik and his attorney agreed to tender a deed in lieu of foreclosure to shorten the process. Meanwhile, in August of 2016 the property sustained significant damage due to a break in and vandalism, which according to Prusik caused over $100,000.00 in damages to the house. Prusik never notified Geddes of the damage until November of 2016, and only after he had negotiated an insurance settlement of $49,000.00, which was reduced to $34,000.00 after depreciation. Prusik was issued the insurance proceeds check for $34,000.00 in both his name Geddes' and Defendant name. Simultaneously, Geddes was negotiating with Key Bank in order to obtain a release of the mortgage to accept the deed in lieu of foreclosure from Prusik. On February 22, 2017, Geddes was able to obtain the Release from Key Bank, but had to pay $8,000.00 to Key for same. Geddes then informed Prusik that Geddes could now accept the deed 3 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 in lieu of foreclosure as the Key Bank lien was no longer an encumbrance on the property. Geddes also informed Prusik that the insurance proceeds check needed to be turned over to Geddes based upon the significant damage to the collateral, and the default of the mortgage, and that Geddes was to apply same to the mortgage balance based upon the contract terms in the note and mortgage. Prusik refused to turn the check over to Geddes, instead claiming that he was entitled to the money. When Geddes refused to allow Prusik to keep the insurance proceeds, Prusik then refused to tender the deed in lieu of foreclosure, necessitating a full foreclosure. Prusik through his attorneys, fought the initial foreclosure based upon an automatic stay in bankruptcy, which the Bankruptcy Trustee himself felt was unnecessary, as there was a stated intention to surrender the property, and no equity in same. In any event, based upon Prusik's objection, the initial foreclosure proceeding was discontinued, the stay was lifted in Bankruptcy Court, and a second foreclosure proceeding was commenced. While all of the needless legal maneuvers were taking place, only because Prusik demanded a $34,000.00 windfall, the New York Zombie Property legislation, RPAPL §l308, took effect. This statute mandated that lenders abandoned' secure, inspect and maintain 'vacant and houses. The 121 Slosson Road property fell into that category based upon the enumerated factors in that statute. Geddes, as mandated by statute, took steps to secure and maintain the collateral. During the course of the proceedings, the property was broken into at least 5 times, resulting in what Plaintiff estimated to be over $100,000.00 in damages after the first incident alone. Once the Bankruptcy stay was lifted in June of 2017, the property mañagement company cut the lawn, secured the property, and remove rubbish and debris, all of which is required by statute. In addition, after the Bankruptcy stay was lifted, the second foreclosure action was brought, which contained a cause of action for the foreclosure, and an additional cause of action for Prusik to turn over the insurance proceeds tha 4 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 the had wrongfully converted. Prusik defaulted in Answering the second foreclosure action, but did have his attorneys at Wood Oviatt prepare an affidavit in opposition to the default judgment application. In that affidavit, Prusik addressed the missing items from the property that are the basis of the instant action. He also addressed those items in his motion argument. Curiously, Prusik did not address his default in Answering. The Court found that Prusik was in default, and also found his arguments about allegedly missing items unpersuasive, and informed Prusik that he may be collaterally estopped from raising them in a future proceeding, as he had a full and fair opportunity to raise them in the second foreclosure proceeding and failed to due so. Geddes was granted a judgment of foreclosure, and an Order requiring Prusik to turn over the insurance proceeds check to Geddes. Liberty Mutual, the insurer of the property, reissued the check directly to Geddes based upon Judge McCarthy's Order. Because Plaintiff Prusik refused to tender the deed in lieu of foreclosure, although he stated his intention to surrender the property to Geddes in his Bankruptcy Petition, Geddes expended the sum of $12,415.00 to complete the foreclosure and obtain possession of the property, and the wrongfully converted insurance proceeds check, and an additional $8,000.00 (unnecessarily), to obtain the release of the Key Bank mortgage based upon Prusik's representations. Plaintiff Prusik then commenced this proceeding alleging that Geddes or its agents stole over $200,000.00 in personal property from the property that he only visited occasionally, had no utilities, and had sustained in his estimation over $100,000.00 in damages due to vandalism a year prior. Prusik provides no proof of this allegation, other than conjecture. Any actions taken by Geddes in this action were in good faith, and in reliance on the representations of Prusik, and in conformity with the terms of the mortgage contract and New York Real Property Actions and Proceedings Law and its mandates. 5 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 PLAINTIFF'S CLAIMS ARE BARRED BY RES JUDICATA and/or COLLATERAL ESTOPPEL Both Prusik and Geddes were parties to the prior proceeding, which resulted in a final judgment, and Plaintiff's current claim against the bank could have been asserted in the prior litigation, and in fact was raised in his opposition to the motion for default judgment. Prusik did not object to the entry of the Order and Judgment, nor did he appeal therefrom. See, Neieidi v. Reoublic Nat. Bank of New York (2 Dept. 1996) 227 A.D.2d 392, 642 NYS2d 61. Default judgment, establishing grantee's undivided one-half interest in premises, was res judicata barring grantor's subsequent action to set aside deed as fraudulent; grantor had appeared in prior action and was served with a copy of judgment, but neither had opposed its entry nor sought to appeal from it. Burden v. Graves (2 Dept. 2005) 23 Add 421, 805 NYS2nd 583. Res judicata doctrine is applicable to a judgment taken by default which has not been vacated, as well as to defenses which were or could have been raised in the action. Santiago v. (2nd Lalani Deot. 1998) 256 AD2d 397. 681 NYS 2d 577 Default judgment in action by building contractor against school district for final payment due under contract for construction of high school athletic facility was res judicata as to school district's subsequent action against surety on contractor's performance bond for damages allegedly arising from contractor's defective performance. New Paltz Cent. School Dist. v. (3d Reliance Ins. Co. Dept. 1983) 97 AD2d 566, 467 NYS2d 937. Where general contractor suit against subcontractor was dismissed in bankruptcy court because of general contractors default, judgment was res judicata on general contractors claims and they could not be subsequently raised by general contractor as defenses, setoffs, and 6 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 counterclaims in subcontractor's suit against general contractor. Firedoor Corp of America Inc. v. (l" Merlin Industries. Ltd Dept 1982) 86 AD2d 577, 446 NYS2d 325. In the instant case. Prusik not only filed an attorney prepared affidavit in opposition to the motion for default judgment, but stated in his affidavit "The plaintiff's claim for any alleged insurance proceeds in not properly part of this motion and any such relief should not be granted until a separate action for that claim is brought and I have an opportunity to respond to such action, as I may have defenses and/or counterclaims to any such action which I have not had the opportunity to raise". The Court, despite this argument, granted Geddes a judgment of foreclosure and an Order to turn over the insurance proceeds check. In fact, the Court, in its bench Decision and Order, attached to the Judgment of Foreclosure and Sale, stated in part ". . .Now, Insofar as any claims he has for personal property damage, he may be able to proceed in a separate action but I highly doubt it because I find he's in default in answering this complaint. . . . Now I indicated that you may not have a right to sue for personal property because you didn't answer, and in that answer, if you had served one, you could have served a counterclaim for personal property damage. You may be bound by the doctrine of collateral estoppel and res judicata because you could have raised it as to any personal property claim, but if you file that in a court of competent jurisdiction, I'm sure it will be raised by plaintiff here, doctrine of res judicata, collateral estoppel". See Decision and Order of Hon James McCarthy annexed to the Judgment of Foreclosure, at Exhibit "X". Plaintiff Prusik neither opposed the entry of the Order nor appealed from it. Plaintiffs claims against Defendant Geddes must be dismissed. 7 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 PLAINTIFF'S COMPLAINT FAILS TO STATE A CAUSE OF ACTION Plaintiff only offers conjecture that Defendant Geddes or its agents stole items of personal property from the premises at 121 Slosson Road. This property was broken into by unknown third parties no less than five (5) different times during the course of this proceeding. There is no proof in the record that Geddes nor its agents removed any of the personal property in the residence, only rubbish and debris. Plaintiff has offered no proof that Geddes nor its agent took any of the 459 enumerated items he alleges were stolen. "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence motion" are not presumed to be true on such a (Palazzolo v. Herrick. Feinstein, LLP, 298 A.D.2d 372, 751 N.Y.S.2d 401). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubledav Enters., LP, 19 A.D.3d 660, 661, 799 N.Y.S.2d 65). Cited from ; Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 46 A.D.3d 530, 846 N.Y.S.2d 368. Dismissal pursuant to CPLR 3211(a)(7) is warranted if the evidentiary proof disproves an essential allegation of the complaint, even if the allegations of the complaint, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see Deutsche Bank Natl. Trust Co. v. Sinclair, 68 A.D.3d 914, 891 N.Y.S.2d 445; Peter F. Gaito Architecture. LLC v. Simone Dev. Corn., 46 A.D.3d 530, 846 N.Y.S.2d 368; McGuire v. Sterling Doubleday ]inters.. L.P., 19 A.D.3d 660, 799 N.Y.S.2d 65). 8 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 Dismissal of Conversion Claim: "In order to establish a cause of action to recover damages for conversion, 'the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in rights' " question ... to the exclusion of the plaintiff s ( Messiah's Covenant Community Church v. Weinbaa74 A.D.3d 916, 919, 905 N.Y.S.2d 209, quoting Independence Discount Corp. v. Bressner, 47 A.D.2d 756, 757, 365 N.Y.S.2d 44; see State of New York v. Seventh Regiment Fund, 98 N.Y.2d 249, 259, 746 N.Y.S.2d 637, 774 N.E.2d 702; Fitzoatrick House III, LLC v. Neighborhood Youth & Family Servs., 55 A.D.3d 664, 868 N.Y.S.2d 212). Plaintiff has failed to show that Geddes or its agent exercised dominion or control over any of the 459 items that he alleges were stolen. He offers conjecture, but no proof. The affidavit of Mark Bright, who worked for the property mañagêmêñt company, swears that none of the enumerated items on Plaintiffs list of 459 items were in the property when the rubbish and debris were removed. Plaintiff fails to state a cause of action for conversion. Dismissal of Trespass Claim: The essential elements of a cause of action sounding in trespass are the intentional entry onto the land of another without justification or permission (see Marone v. Kally, 109 A.D.3d 880, 971 N.Y.S.2d 324; Volunteer Fire Assn. of Tappan, Inc. v. County of Rockland, 101 A.D.3d 853, 956 N.Y.S.2d 102). Korsinky v. Rose. 120 A.D 3d 1307, 993 N.Y.S.2d 92. The mortgage contract itself, signed by Plaintiff, contains a provision at Paragraph 9, which authorized Geddes to enter the property to preserve and maintain the asset. "Lender may 9 of 14 FILED: ONONDAGA COUNTY CLERK 06/27/2019 10:46 AM INDEX NO. 008588/2018 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 06/27/2019 do and pay for whatever is reasonable and appropriate to protect Lender's interest in the Property and Lender's rights under this Security Instrument. Lender's actions may include, but are not limited to: (a) protecting and/or assessing the value of the Property (b) securing and/or repairing the Property; (c) paying sums to eliminate any Lien against the Property that may be equal or superior to this Security Instrument; (d) appearing in court; and (e) paying reasonable attorneys fees to protect its interest in the Property and/or rights under this Security Instrument, including its secured position in a bankruptcy proceeding. Lender can also enter the property to make repairs, change locks, replace or board up doors and windows, drain water from pipes, eliminate building or other code violation or dangerous conditions, have utilities turned on or off, and take any other action to secure the Property". See mortgage contract signed by Plaintiff at Exhibit "A", Paragraph 9. Further, New York Real Property Actions and Proceedings Law §1308, the so called Property" "Zombie legislation, which took effect in December of 2016, mandated that Geddes inspect, secure and maintain the property once the loan became 90 days past due. Geddes performed the necessary inspections of then property pursuant to RPAPL §1309 and determined that the property was vacant based upon the enumerated factors in RPAPL §l309 (C).