Schmidt v Capone
Attorneys and Parties
Brief Summary
Real property and mortgage litigation; attorney disqualification under the advocate-witness rule; and timing of summary judgment motions under New York civil procedure during COVID-19 disruptions.
The Supreme Court, Queens County, disqualified plaintiff’s counsel and denied Countrywide and Bank of America’s motion to extend time to move for summary judgment and for summary judgment.
The disqualification of plaintiff’s counsel and the denial of an extension of time for Countrywide and Bank of America to move for summary judgment were reversed; the Appellate Division itself denied their summary judgment motion on the merits.
Capone did not show plaintiff’s counsel’s testimony was necessary or prejudicial; Countrywide and Bank of America showed good cause for delay due to COVID-related filing suspensions and e-filing conversion issues under CPLR 3212(a) [authorizes courts to set deadlines for summary judgment motions; not earlier than 30 days nor later than 120 days after the note of issue, except with leave on good cause]. Their summary judgment motion failed because they did not establish a prima facie entitlement to judgment, leaving triable issues as to whether the deed and mortgage were void ab initio.
Background
Plaintiff alleged that after a closing on Queens real property, his mother Marie Schmidt’s name was fraudulently added as a grantee and mortgagor on the deed and mortgage. He sued Barbara M. Capone (individually and as trustee), Countrywide Home Loans, Inc. (assignee of the mortgage), and Bank of America, N.A. (servicer), seeking, among other relief, a declaration that the deed and mortgage are null and void. A 2015 motion by Schmidt and Capone to disqualify plaintiff’s counsel, Steven Greenfield, was withdrawn after Schmidt’s death. A so-ordered stipulation set May 29, 2020 as the summary judgment deadline. In September 2021, Countrywide and Bank of America moved to extend their time and for summary judgment; Capone moved to disqualify plaintiff’s counsel again. The Supreme Court granted disqualification and denied the lenders’ motion. Capone’s separate cross-appeal was deemed dismissed pursuant to 22 NYCRR 1250.10(a) [regulates appellate practice; authorizes dismissal of appeals for failure to timely perfect].
Lower Court Decision
The Supreme Court, Queens County (Ventura, J.), disqualified plaintiff’s counsel based on potential witness issues and denied Countrywide and Bank of America’s motion to extend the summary judgment deadline and for summary judgment.
Appellate Division Reversal
Modified: (1) disqualification of plaintiff’s counsel denied; (2) extension of time for Countrywide and Bank of America to move for summary judgment granted; and (3) their summary judgment motion denied on the merits. The court held Capone failed to show counsel’s testimony was necessary or prejudicial, and the delay in moving for summary judgment was excused by pandemic-related filing suspensions and the e-filing conversion dispute. On the merits, the lenders failed to eliminate triable issues regarding whether the deed and mortgage were void ab initio; therefore, their motion was denied regardless of plaintiff’s opposition.
Legal Significance
Clarifies that attorney disqualification under the advocate-witness rule requires a clear showing that counsel’s testimony is necessary and prejudicial, and that delay in summary judgment practice can be excused for good cause under CPLR 3212(a) [authorizes courts to set deadlines for summary judgment motions; not earlier than 30 days nor later than 120 days after the note of issue, except with leave on good cause], including COVID-19-related filing suspensions and e-filing issues. Reinforces that movants must make a prima facie showing; failure results in denial regardless of the opponent’s papers.
Attorney disqualification is disfavored absent necessity and prejudice; COVID-era administrative disruptions can constitute good cause to extend summary judgment deadlines; but lenders still must make a prima facie showing where a deed and mortgage may be void ab initio.