Deutsche Bank Natl. Trust Co. v Lopresti 2025 NY Slip Op 51235(U) Decided on July 28, 2025 Supreme Court, Rockland County Fried, J. is a case where history has caught up with the current law. Foreclosures in the past were more mechanistic than today, and after a raft of scandalous “auto-signing” and other foreclosure problems many new protections are in place.
This case references standing in legal malpractice cases involving estates.
“On February 13, 2008, Plaintiff’s predecessor-in-interest, IndyMac, commenced a foreclosure action against Borrower/Decedent Charles Joseph Lopresti (“Decedent”) (Index No. 2008-01426). While a judgment of foreclosure and sale was entered in the aforesaid 2008 action as against Decedent, same was vacated. An answer to the 2008 complaint with counterclaims and a reply thereof were subsequently filed in or about 2009. On February 1, 2010, Decedent died. Notwithstanding Decedent’s death, and while the 2008 action was still pending, on April 27, 2010, Plaintiff commenced a second foreclosure action on the mortgage against Decedent (Index No. 2010-004359 [later converted to e-filing under Index No. 034370/2023]). Decedent was not served process in the 2010 action prior to his death. Plaintiff did not discontinue the 2010 action nor commence a new action against Decedent’s heirs and distributees or against the estate representative, once one had been appointed. Instead, Plaintiff continued the action and moved for an order from the Supreme Court to appoint a personal representative of the estate — a motion that the Supreme Court denied. In late 2010, Plaintiff moved to discontinue the 2008 action, which the Court granted on January 10, 2011.
Litigation proceeded in the 2010 action, including an appeal to the Appellate Division, which resulted in the order granting summary judgment to Plaintiff being reversed. (Deutsche Bank Natl. Tr. Co. v. LoPresti, 203 AD3d 883 [2d Dept 2022].) Following remittance from the Appellate Division, Plaintiff moved again for summary judgment and Defendant cross-moved to dismiss the complaint as a nullity because Decedent had been named as defendant but had died prior to the commencement of the action. The Supreme Court entered an order granting the cross-motion and dismissing the complaint on May 24, 2024. While Plaintiff appealed that decision and order, same was withdrawn on November 5, 2024.
On September 5, 2024, Plaintiff commenced this foreclosure action by filing the Summons, Complaint, Notice of Pendency, and Certificate of Merit via NYSCEF. On November 13, 2024, Defendant Karen LoPresti, as Administratrix of the Estate of Decedent (“Defendant”), served a Verified Answer with affirmative defenses and counterclaims via NYSCEF. On December 2, 2024, Plaintiff served its verified reply to Defendant’s counterclaims.
On January 30, 2025, a Note of Issue was filed. The time to file Motions for Summary Judgment was extended on consent of the parties, with a stipulated briefing scheduled entered on May 22, 2025. On June 25, 2025, Defendant brought the within Motion Sequence No. 1 seeking an order granting summary judgment dismissing the Complaint and for judgment on Defendant’s counterclaim to cancel and discharge the subject Mortgage as barred by the statute of limitations. Plaintiff opposes said Motion.”
“As to the issue of Defendant’s standing to raise the aforesaid statute of limitations defense and the two counterclaims, Defendant was appointed administrator of Decedent’s estate on May 13, 2014. Defendant demonstrated this fact by submitting documentary evidence (NYSCEF Doc. No. 73 [a copy of the Letters of Administration from the Surrogate’s Court for Rockland County appointing Defendant as administratrix of Decedent’s estate]). Defendant’s counsel affirms that said document was mailed to him, as Defendant’s attorney, by the Clerk of the Surrogate’s Court and maintained in his file for this case (NYSCEF Doc. No. 63). As such, contrary to Plaintiff’s contention, Defendant’s Motion is supported by competent and admissible evidence (see, Olan v. Farrell Lines, 64 NY2d 1092, 489 N.Y.S.2d 884, 479 N.E.2d 229 [1985]; and Silverite Constr. Co. v. Town of N. Hempstead, 229 AD2d 387, 644 N.Y.S.2d 565 [2nd Dept. 1996]). Plaintiff has failed to raise a triable issue of fact regarding same. Moreover, Plaintiff, in the caption of its Complaint herein, named Defendant Karen LoPresti, as Administratrix of the Estate of Charles Joseph Lopresti a/k/a Charles J. Lo Presti a/k/a Charles J. Lopresti.
Also contrary to Plaintiff’s contention, based on the foregoing, Defendant has standing to raise the statute of limitations defense and the two counterclaims. “[T]he estate essentially ‘stands in the shoes’ of a decedent’ (Schneider v. Finmann, 15 NY3d 306, 933 N.E.2d 718, 907 N.Y.S.2d 119, [2010] [quoting Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 787 (Tex 2006)] [finding that an estate representative can maintain a claim against an attorney for professional malpractice, even though a third party without privity could not]). See also, Russo v. Rozenholc, 130 AD3d 492, 13 N.Y.S.3d 391 (1st Dept. 2015) [executor of decedent’s estate had standing to maintain breach of contract action and legal malpractice action against attorney, . . . although executor was not signatory to retainer agreement, where estate stepped into decedent’s shoes, and specifically authorized attorney to represent estate’s interests under retainer agreement].
Accordingly, since Defendant has succeeded in her defense against the Plaintiff’s action to foreclose the mortgage, and she did assert a counterclaim for attorney’s fees (NYSCEF Doc. No. 39), she is entitled to attorneys’ fees and expenses pursuant to RPL §282 (see, U.S. Bank N.A. v. Bajwa, 208 AD3d 1197, 175 N.Y.S.3d 247 [2nd Dept. 2022]; and Deutsche Bank Natl. Trust Co. v. Gordon, 179 AD3d 770, 774, 117 N.Y.S.3d 688).
Because this action is barred by the statute of limitations, this Court need not address Plaintiff’s Cross-Motion Sequence No. 2 for Summary Judgment.”