• Court Dismisses Claim for Abuse of Process, Allows Claim for Legal Malpractice in Action arising from Mortgage Foreclosure: Ferreira v Citiwide Real Estate & Mgt. Co.
  • June 24, 2013 | Author: Adam M. Rafsky
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In a May 8, 2013 decision by Justice Kitzes, the court granted the defendant Deutsche Bank’s motion for summary judgment dismissing the complaint, denied defendant Solda’s motion for summary judgment, and cancelled a notice of pendency against the East Elmhurst property (the “Property”) at issue, which was owned by Ferria. Deutsche Bank was previously awarded a Judgment of Foreclosure and Sale with respect to the Property in a prior foreclosure proceeding commenced against Ferria and subsequently became the owner of the property as the successful bidder at the sale. Thereafter Solda, acting as Ferria’s attorney, entered into a stipulation granting Deutsche bank a judgment of possession, and Ferria vacated the premises. Ferria then commenced this proceeding by way of summons and complaint and by filing a notice of pendency, seeking injunctive and declaratory relief to reinstate his ownership of the Property and to recover damages. Ferria claimed that Deutsche Bank and Solda acted in concert and interfered with his due process rights by filing a fraudulent stipulation and that Solda lacked the authority to enter the stipulation.

    Deutsche Bank and Solda each moved for summary judgment to dismiss the complaint on the grounds that it failed to state a cause of action. The court found that the complaint, as originally filed, at which time Ferria represented himself, failed to state a cognizable cause of action. Ferria’s subsequently-obtained counsel agreed and therefore cross-moved for leave to serve an amended complaint. The court found that the proposed amended complaint failed to state a cause of action for abuse of process against Deutsche Bank, explaining that its “commencement and prosecution of the mortgage foreclosure action [could not] be the basis of an abuse of process claim, as it held the mortgage that was in default and said action was the proper legal means to litigate such a matter.”

    With respect to Solda, the court held that the proposed complaint adequately alleged a cause of action for legal malpractice with respect to Solda’s alleged failure to review the mortgage foreclosure file, and his failure to move to vacate the judgment of default, foreclosure and sale, and the referee’s deed. Therefore, the court denied Solda’s motion, but further held that Ferria’s allegations regarding Solda’s lack of authority to enter the stipulation were without merit and could not form the basis of a legal malpractice claim since “[i]t is well settled that a stipulation made by the attorney may bind a client even where it exceeds the attorney’s actual authority if the attorney had apparent authority to enter into the stipulation.”

    Ferreira v Citiwide Real Esdtate & Mgt. Co., Sup Ct, Queens County, May 8, 2013, Kitzes, J, Index No. 3699/2010