In U.S. Bank National Association v. Valerie Tait, Innovation Two, Inc., the Appellate Division, Second Department, affirmed the Queens County Supreme Court’s denial of non-party Innovation’s motion to vacate the judgment of foreclosure and sale after it acquired the deed to the mortgaged premises from borrower Tait. The trial court denied the motion as untimely because Innovation waited approximately eight years after obtaining title to the premises to move to vacate, and the appellate court concurred with the assessment. The Second Department also noted that Innovation was bound by all proceedings taken in the foreclosure because its deed was recorded several months after the foreclosing plaintiff filed the notice of pendency in the county clerk’s office.

The plaintiff sought to recover attorney’s fees, costs, and expenses in connection with the appeal because Innovation’s motion and appeal were frivolous, as the dilatory litigation tactics were completely without merit in law. The Appellate Court noted that the standard for a finding of frivolity is high, but that the plaintiff “appear[ed] to have met that burden” because it showed that Innovation made several applications for the same relief in the trial court, all of which were summarily denied, and then continued to litigate its baseless position that the judgment should be vacated. The Second Department noted that the trial court admonished Innovation that its conduct was potentially sanctionable, yet Innovation was undeterred by the warning. Based on its belief that Innovation’s conduct was likely frivolous, the Appellate Division directed the parties to submit affirmations articulating why sanctions and/or costs, including appellate counsel fees, should be imposed on Innovation.