Apex Bank v Fasulo-Brancaleone
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure; whether borrower-defendants were entitled to additional attorneys' fees after claiming a successful defense to the foreclosure action.
The Supreme Court, Nassau County, denied the plaintiff's request to renew its opposition to a prior attorneys' fee award and granted the defendants' cross-motion for an additional attorneys' fee award, which resulted in a $2,000 judgment against the plaintiff.
The Appellate Division reversed the judgment awarding the defendants an additional $2,000 in attorneys' fees and modified the order accordingly by denying that branch of the defendants' cross-motion.
For the reasons stated in a related appeal, the defendants were not entitled to attorneys' fees for a purported successful defense under Real Property Law § 282(1) [attorneys' fees for a successful defense of a foreclosure action]. The appeal from the order was also dismissed in part because one portion was superseded by the judgment and another portion was academic.
Background
Apex Bank brought an action to foreclose a mortgage against Theresa D. Fasulo-Brancaleone, Peter Brancaleone, Jr., and others. After an earlier order had granted the defendants an attorneys' fee award, the plaintiff later sought leave to renew its opposition to that fee request. The defendants separately cross-moved for an additional award of attorneys' fees, asserting entitlement based on their defense of the foreclosure action.
Lower Court Decision
The Supreme Court entered an order on March 27, 2024, denying the plaintiff's motion for leave to renew its opposition to the defendants' earlier attorneys' fee request and granting the defendants' cross-motion for an additional fee award. A judgment dated April 3, 2024, was then entered in favor of the defendants and against the plaintiff in the amount of $2,000.
Appellate Division Reversal
The Appellate Division dismissed the appeal from the March 27, 2024 order. It held that the portion of the order granting additional attorneys' fees was superseded by the judgment, and the portion denying renewal was academic in light of the related appeal. On the appeal from the judgment, the court reversed, denied the defendants' request for additional attorneys' fees, modified the order accordingly, and awarded one bill of costs to the plaintiff.
Legal Significance
The decision reinforces that a borrower may recover reciprocal attorneys' fees in a foreclosure action only when the statutory standard under Real Property Law § 282(1) [attorneys' fees for a successful defense of a foreclosure action] is actually met. It also illustrates New York appellate procedure: an appeal from an order may be dismissed when the order is superseded by a later judgment, and issues may become academic when resolved in a related appeal.
Defendants in a mortgage foreclosure case cannot obtain attorneys' fees merely by litigating successfully on interim issues; they must qualify for fees under Real Property Law § 282(1), and here the Appellate Division held they did not.