Opinion
07-10-2024
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Marilyn E. MATHESON, appellant, et al., defendant.
Marilyn E. Matheson, Pawling, NY, appellant pro se. Greenberg Traurig, LLP, New York, NY (Steven Lazar of counsel), for respondent.
Marilyn E. Matheson, Pawling, NY, appellant pro se.
Greenberg Traurig, LLP, New York, NY (Steven Lazar of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, BARRY E. WARHIT, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Marilyn E. Matheson appeals from an order of the Supreme Court, Dutchess County (Christi J. Acker, J.), dated January 3, 2020. The order denied that defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her, to cancel and discharge of record the mortgage pursuant to RPAPL 1501(4), and to cancel a notice of pendency filed against the subject property.
ORDERED that the order is affirmed, with costs.
On December 18, 2006, the plaintiff commenced this action against the defendant Marilyn E. Matheson (hereinafter the defendant), among others, to foreclose a mortgage on certain real property located in Dutchess County. The defendant interposed an answer to the complaint. In an order dated May 1, 2008, the Supreme Court granted the plaintiff’s motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. On December 14, 2009, the court issued a judgment of foreclosure and sale in favor of the plaintiff, which was later affirmed by this Court on appeal by the defendant (see Deutsche Bank Natl. Trust Co. v. Matheson, 77 A.D.3d 883, 909 N.Y.S.2d 638).
In 2019, the defendant moved for summary judgment dismissing the complaint insofar as asserted against her, to cancel and discharge of record the mortgage pursuant to RPAPL 1501(4) based on the expiration of the statute of limitations, and to cancel a notice of pendency filed against the property. In an order dated January 3, 2020, the Supreme Court denied the motion. The defendant appeals.
[1, 2] "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" (Long Is. Sav. Bank v. Mihalios, 269 A.D.2d 502, 503, 704 N.Y.S.2d 483; see PNC Bank, N.A. v. Ramdass, 187 A.D.3d 1230, 1230, 131 N.Y.S.3d 570; JPMorgan Chase Bank, N.A. v. Lee, 186 A.D.3d 685, 687, 129 N.Y.S.3d 507; Vanderbilt Mtge. & Fin., Inc. v. Palmore–Archer, 177 A.D.3d 1020, 1021, 111 N.Y.S.3d 235; Signature Bank v. Epstein, 95 A.D.3d 1199, 1200, 945 N.Y.S.2d 347). Here, the entry of the judgment of foreclosure and sale in this action bars consideration of the issues raised by the defendant, since those issues either were raised or could have been raised during the pendency of the action (see Joseph v. Bank of N.Y. Mellon, 219 A.D.3d 596, 597–598, 194 N.Y.S.3d 275; Jones v. Flushing Bank, 212 A.D.3d 791, 793, 183 N.Y.S.3d 458; Behar v. Wells Fargo Bank, N.A., 187 A.D.3d 1116, 1118, 131 N.Y.S.3d 584; Vanderbilt Mtge. & Fin., Inc. v. Palmore–Archer, 177 A.D.3d at 1021, 111 N.Y.S.3d 235).
The parties’ remaining contentions either are without merit or need not be addressed in light of our determination.
Accordingly, the Supreme Court properly denied the defendant’s motion for summary judgment dismissing the complaint insofar as asserted against her, to cancel and discharge of record the mortgage pursuant to RPAPL 1501(4), and to cancel a notice of pendency filed against the property.
CONNOLLY, J.P., MALTESE, DOWLING and WARHIT, JJ., concur.