Opinion
No. 2022-06369 Index No. 80036/21
10-09-2024
Bank of America, N.A., respondent, v. Barry S. Cord, etc., appellant, et al., defendants.
Russ & Russ, P.C. (Jay Edmond Russ and Ira Levine, Massapequa, NY, of counsel), for appellant. Winston & Strawn LLP, New York, NY (Michael E. Blaine of counsel), for respondent.
Russ & Russ, P.C. (Jay Edmond Russ and Ira Levine, Massapequa, NY, of counsel), for appellant.
Winston & Strawn LLP, New York, NY (Michael E. Blaine of counsel), for respondent.
MARK C. DILLON, J.P. LARA J. GENOVESI JANICE A. TAYLOR CARL J. LANDICINO, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Barry S. Cord appeals from an order of the Supreme Court, Dutchess County (Christie L. D'Alessio, J.), dated June 8, 2022. The order, insofar as appealed from, denied the cross-motion of the defendant Barry S. Cord to vacate a judgment of foreclosure and sale of the same court (Maria G. Rosa, J.) dated July 11, 2017, and to dismiss the complaint insofar as asserted against him.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action against the defendant Barry S. Cord (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Millbrook (hereinafter the property). In a judgment of foreclosure and sale dated July 11, 2017, the Supreme Court, inter alia, directed the sale of the property. In March 2022, the plaintiff moved, among other things, for an extension of time to complete the sale of the property. The defendant cross-moved to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him based on the plaintiff's failure to comply with RPAPL 1303. In an order dated June 8, 2022, the court, inter alia, denied the defendant's cross-motion. The defendant appeals.
"RPAPL 1303 is a condition precedent to the commencement of a foreclosure action and the failure to comply is a basis for dismissal of a complaint which may be raised at any time while the action is pending" (JPMorgan Chase Bank, N.A. v Lee, 186 A.D.3d 685, 687). However, "[a] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action" (Signature Bank v Epstein, 95 A.D.3d 1199, 1200 [internal quotation marks omitted]; see JPMorgan Chase Bank, N.A. v Lee, 186 A.D.3d at 687). Here, the defendant did not raise the issue of the plaintiff's purported noncompliance with RPAPL 1303 during the action, but only after the judgment of foreclosure and sale had been entered (see JPMorgan Chase Bank, N.A. v Lee, 186 A.D.3d at 687; Wells Fargo Bank, N.A. v Coffey, 177 A.D.3d 1022, 1023).
Accordingly, the Supreme Court properly denied the defendant's cross-motion to vacate the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against him (see U.S. Bank Trust, N.A. v Vanterpool, 189 A.D.3d 1516, 1518; JPMorgan Chase Bank, N.A. v Lee, 186 A.D.3d at 687; Wells Fargo Bank, N.A. v Coffey, 177 A.D.3d at 1024).
The parties' remaining contentions need not be reached in light of our determination.
DILLON, J.P., GENOVESI, TAYLOR and LANDICINO, JJ., concur.