Opinion
2017–03992 Index No. 1247/14
09-25-2019
Todd E. FREED, et al., Respondents, v. Barbara BEST, Defendant, Zarko Svatovic, Appellant.
Zarko Svatovic, New York, NY, appellant pro se. Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, N.Y. (Anthony C. Pasca and Lisa J. Ross of counsel), for respondents.
Zarko Svatovic, New York, NY, appellant pro se.
Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, N.Y. (Anthony C. Pasca and Lisa J. Ross of counsel), for respondents.
SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiffs own real property located on the south side of New Suffolk Avenue in Cutchogue, which borders the Peconic Bay. The defendants own property located on the north side of New Suffolk Avenue. The defendants claim to have a deeded easement over a 33–foot–wide portion of land bordering the plaintiffs' property (hereinafter the disputed parcel) granting them access from New Suffolk Avenue to the Peconic Bay. In January 2014, the plaintiffs commenced this action, alleging that they owned the disputed parcel, and seeking, among other things, to permanently enjoin the defendants from interfering with the plaintiffs' property rights and a judgment declaring that the defendants have no interest or rights in the disputed parcel. In the order appealed from, as relevant to this appeal, the Supreme Court denied that branch of the cross motion of the defendant Zarko Svatovic which was for summary judgment dismissing the complaint insofar as asserted against him. Svatovic appeals.
RPAPL 1501(1) provides that a person who "claims an estate or interest in real property ... may maintain an action against any other person ... to compel the determination of any claim adverse to that of the plaintiff which the defendant makes, or which it appears from the public records, or from the allegations of the complaint, the defendant might make" (see Wellington v. Financial Freedom Acquisition LLC , 132 A.D.3d 506, 506–507, 18 N.Y.S.3d 33 ).
Here, Svatovic contends that the plaintiffs cannot maintain this action inasmuch as their claim of ownership to the disputed parcel is based on their filing of a fraudulent deed. Initially, contrary to the plaintiffs' contention, Svatovic was not precluded from seeking summary judgment, in part, on the ground of fraud. Although Svatovic failed to plead fraud as an affirmative defense (see CPLR 3018[b] ), "an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party" ( Sullivan v. American Airlines, Inc. , 80 A.D.3d 600, 602, 914 N.Y.S.2d 276 ; see Millbrook Hunt v. Smith , 249 A.D.2d 283, 284, 670 N.Y.S.2d 905 ). The plaintiffs were not prejudiced by Svatovic's unpleaded fraud defense, as his motion papers apprised the plaintiffs of the defense, and the plaintiffs availed themselves of the opportunity to respond in their opposition papers (see Hanspal v. Washington Mut. Bank , 153 A.D.3d 1329, 61 N.Y.S.3d 324 ; Cangialosi v. Hallen Constr. Corp. , 282 A.D.2d 565, 566, 723 N.Y.S.2d 387 ; Millbrook Hunt v. Smith , 249 A.D.2d at 284, 670 N.Y.S.2d 905 ; Sunset Park Redevelopment Commn. v. Bowery Sav. Bank , 224 A.D.2d 608, 609, 639 N.Y.S.2d 418 ).
Nevertheless, Svatovic failed to establish, prima facie, that the plaintiffs filed a fraudulent deed (see generally Aries Fin., LLC v. 12005 142nd St., LLC , 127 A.D.3d 900, 902, 7 N.Y.S.3d 372 ), or that the plaintiffs otherwise lacked an ownership interest in the disputed parcel which would preclude them from maintaining this action (see RPAPL 1501[1] ; cf. Paragon v. Paragon , 164 A.D.3d 1460, 1461, 84 N.Y.S.3d 582 ).
Svatovic's remaining contentions are without merit.
Accordingly, since Svatovic failed to establish his prima facie entitlement to judgment as a matter of law, we agree with the Supreme Court's determination to deny that branch of his cross motion which was for summary judgment dismissing the complaint insofar as asserted against him, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Since the appendix submitted by Svatovic was inadequate (see CPLR 5528[a][5] ; 22 NYCRR 670.10.2[c][1] ), the plaintiffs are entitled to recover from Svatovic the expense of printing, serving, and filing their supplemental appendix (see CPLR 5528[e] ; Vanzo Wholesale Food Equip., Inc. v. 28 McEwan St., LLC , 132 A.D.3d 754, 755, 18 N.Y.S.3d 90 ; Matter of Costco Wholesale Corp. v. Town Bd. of Town of Oyster Bay , 90 A.D.3d 657, 659, 934 N.Y.S.2d 430 ).
ROMAN, J.P., HINDS–RADIX, MALTESE and LASALLE, JJ., concur.