Home Doc Corp. v. City of New York

Appellate Division of the Supreme Court of New York

Home Doc Corp. v. City of New York

297 A.D.2d 277, 746 N.Y.2d 42, 746 N.Y.S.2d 42, 2002 N.Y. App. Div. LEXIS 7802

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 5, 2002

StatusPublished

Cited by5 cases

This text of 297 A.D.2d 277 (Home Doc Corp. v. City of New York) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Home Doc Corp. v. City of New York, 297 A.D.2d 277, 746 N.Y.2d 42, 746 N.Y.S.2d 42, 2002 N.Y. App. Div. LEXIS 7802 (N.Y. Ct. App. 2002).

Pincite

Opinion

[278]*278The plaintiff, Home Doc Corp., held a valid mortgage on certain real property in Brooklyn. The plaintiff commenced a foreclosure action on the mortgage in October 1997 in which it named and served the defendant City of New York as one of the defendants. The plaintiff filed a notice of pendency in the office of the Kings County Clerk on October 28, 1997.

On June 23, 1998, while the foreclosure action was pending, the defendant inspected the premises and recommended demolition. In October or November 1998, the defendant demolished the subject premises, without giving the plaintiff any notice of its intention to do so.

As the defendant correctly concedes, the Supreme Court erred in denying the plaintiffs motion for summary judgment on the issue of liability. Generally speaking, it is a violation of due process to demolish a building without giving notice and an opportunity to be heard to a party that has a valid interest in the premises (see Calamusa v Town of Brookhaven, 272 AD2d 426, 427). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by presenting sufficient evidence that it had a valid mortgage on the premises and the defendant had knowledge of the mortgage (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). In response, the defendant failed to raise a triable issue of fact that notice was not required because the building posed an immediate peril to the health and safety of the community at large (see Calamusa v Town of Brookhaven, supra; cf. Merino v City of Middletown, 272 AD2d 454). Accordingly, the plaintiffs motion for summary judgment on the issue of liability should have been granted, the defendant’s cross motion for summary judgment dismissing the complaint should have been denied, and the matter must be remitted to the Supreme Court, Queens County, for a trial on the issue of damages. Ritter, J.P., Feuerstein, Smith and Adams, JJ., concur.

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[278]*278The plaintiff, Home Doc Corp., held a valid mortgage on certain real property in Brooklyn. The plaintiff commenced a foreclosure action on the mortgage in October 1997 in which it named and served the defendant City of New York as one of the defendants. The plaintiff filed a notice of pendency in the office of the Kings County Clerk on October 28, 1997.

On June 23, 1998, while the foreclosure action was pending, the defendant inspected the premises and recommended demolition. In October or November 1998, the defendant demolished the subject premises, without giving the plaintiff any notice of its intention to do so.

As the defendant correctly concedes, the Supreme Court erred in denying the plaintiffs motion for summary judgment on the issue of liability. Generally speaking, it is a violation of due process to demolish a building without giving notice and an opportunity to be heard to a party that has a valid interest in the premises (see Calamusa v Town of Brookhaven, 272 AD2d 426, 427). Here, the plaintiff established its prima facie entitlement to judgment as a matter of law by presenting sufficient evidence that it had a valid mortgage on the premises and the defendant had knowledge of the mortgage (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324). In response, the defendant failed to raise a triable issue of fact that notice was not required because the building posed an immediate peril to the health and safety of the community at large (see Calamusa v Town of Brookhaven, supra; cf. Merino v City of Middletown, 272 AD2d 454). Accordingly, the plaintiffs motion for summary judgment on the issue of liability should have been granted, the defendant’s cross motion for summary judgment dismissing the complaint should have been denied, and the matter must be remitted to the Supreme Court, Queens County, for a trial on the issue of damages. Ritter, J.P., Feuerstein, Smith and Adams, JJ., concur.

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Bluebook (online)

297 A.D.2d 277, 746 N.Y.2d 42, 746 N.Y.S.2d 42, 2002 N.Y. App. Div. LEXIS 7802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/home-doc-corp-v-city-of-new-york-nyappdiv-2002.

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