Opinion
Index No. 018450/2010
02-21-2024
Deutsche Bank National Trust Company, AS TRUSTEE OF THE HOME EQUITY, Plaintiff, v. Alan Palma, AS TRUSTEE OF THE TATIANA PALMA TRUST; TATIANA PALMA AS TRUSTEE AND AS HEIR TO THE ESTATE OF LUIS A. PALMA A/K/A LUIS ALBERT PALMER; JPMORGAN CHASE BANK, N.A.; BOARD OF DIRECTORS OF HIDDEN PONDS HOMEOWNERS ASSOCIATION, INC.; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; UNITED STATES OF AMERICA O/B/O INTERNAL REVENUE SERVICE; IGAL PALMA AS HEIR TO THE ESTATE OF LUIS A. PALMA A/K/A LUIS ALBERT PALMER, Defendants.
MCCABE, WEISBERG & CONWAY Attorneys for Plaintiff LAW OFFICES OF CHRISTOPHER THOMPSON Attorneys for Non-Party IPA Asset Management, LLC,
Unpublished Opinion
MCCABE, WEISBERG & CONWAY Attorneys for Plaintiff
LAW OFFICES OF CHRISTOPHER THOMPSON Attorneys for Non-Party IPA Asset Management, LLC,
HON. CHRISTOPHER MODELEWSKI, J.S.C.
Upon the E-file document list numbered 25 to 43 read and considered on the motion filed by IPA Asset Management, LLC, alleged successor in interest to defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust, for an order dismissing this action pursuant to CPLR 3215 (c); it is
ORDERED that the motion by IPA Asset Management, LLC, alleged successor in interest to defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust, for an order dismissing this action pursuant to CPLR 3215 (c), is denied, for the reasons set forth herein.
This is an action to foreclose a mortgage on real property located in Smithtown, New York. The original and only borrower on the mortgage and note was Luis A. Palma, who passed away. Prior to his passing, on July 29, 2008, Luis A. Palma transferred his entire interest in the subject premises to defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust (the "Palma defendants"). As a result of the passing of Luis A. Palma, the heirs and beneficiaries of Luis A. Palma, became the necessary parties to this action by virtue of their ownership interest in the subject property, including defendants Alan Palma and Tatiana Palma, Trustees of the Tatiana Palma Trust . In 2015, Tatiana Palma passed away. By deed dated May 3, 2016, defendant Hidden Ponds Home Owners Association (the "HOA") became the owner of the premises by virtue of a deed from Howard E. Knispel, Esq., the Court appointed referee in the foreclosure action commenced by defendant HOA. By deed dated May 16, 2017, defendant HOA transferred its interest to the movant, IPA Asset Management, LLC ("IPA"). IPA claims that it is the successor in interest to the Palma defendants and moves herein to dismiss this action pursuant to CPLR 3215 (c) due to plaintiff's failure to timely move for a default judgment against the Palma defendants. Inasmuch as Tatiana Palma passed away in 2015, her interest in the subject property terminated upon her passing and IPA cannot be said to be a successor of any interest she may have had prior to her passing. As to Alan Palma, the remaining Trustee of the Tatiana Trust, his interest in the subject property terminated when the referee's deed dated May 3, 2016 was tendered to defendant HOA. In this regard, the referee's deed specifically grants and conveys to defendant HOA, all the right, title and interest of the Palma defendants in the subject premises. Since May 3, 2016, as plaintiff argues, the Palma defendants held no interest in the subject property, and therefore, are no longer necessary parties to this foreclosure action (see generally U.S. Bank N.A. v Gonzalez, 172 A.D.3d 1273, 101 N.Y.S.3d 363 [2d Dept 2019] citing RPAPL 1311). Further, according to the deeds to the subject property, IPA did not possess its interest until 2017, a year after defendant HOA acquired its interest. As such, the intervening title interest held by defendant HOA renders without merit the claim by IPA that it is the successor in interest to the Palma defendants.
see Bank of New York Mellon v Rose, 210 A.D.3d 846, 178 N.Y.S.3d 557 [2d Dept 2022] citing US Bank Trust, N.A. v Gaines, 189 A.D.3d 1312, 134 N.Y.S.3d 194 [2d Dept 2020]; see also OneWest Bank N.A. v Muller, 189 A.D.3d 853, 138 N.Y.S.3d 165 [2d Dept 2020]).
Moreover, defendant HOA filed a notice of appearance in this foreclosure action. Where a defendant makes a formal or informal appearance, the defendant has waived the ability to move to dismiss pursuant to CPLR 3215(c) (see DeLourdes Torres v Jones, 26 N.Y.3d 742, 27 N.Y.S.3d 468 [2016]; HSBC Bank USA, N.A. v Grella, 145 A.D.3d 669, 44 N.Y.S.3d 56 [2d Dept 2016]; Myers v Slutsky, 139 A.D.2d 709, 527 N.Y.S.2d 464 [2d Dept 1988]). Here, defendant HOA waived its right to move under CPLR 3215(c) by virtue of the notice of appearance filed by its counsel (see Bank of Am., N.A. v Lichter, 192 A.D.3d 957, 140 N.Y.S.3d 775 [2d Dept 2021; Bank of Am., N.A. v Rice, 155 A.D.3d 593, 63 N.Y.S.3d 486 [2d Dept 2017]; Bank of NY Mellon v Walker, 2019 NY Slip Op 30073(U) [Sup. Ct., Suffolk County 2019]). As a result, IPA, who "stands in the shoes" of its predecessor in interest, defendant HOA, (see generally PennyMac Corp. v Dean-Phillips, 189 A.D.3d 1603, 139 N.Y.S.3d 335 [2d Dept 2020]; Goldstein v Gold, 106 A.D.2d 100, 102, 483 N.Y.S.2d 375 [2d Dept 1984] aff'd 66 N.Y.2d 624 [1985]; see also Citimortgage v Etienne, 172 A.D.3d 808, 101 N.Y.S.3d 59 [2d Dept 2019]; Stout St. Fund I, L.P. v Halifax Group, 148 A.D.3d 744, 48 N.Y.S.3d 438 [2d Dept 2017]; Bello v Losner, 132 A.D.3d 794, 17 N.Y.S.3d 877 [2d Dept 2015]; Bank of New York v Stauble, 84 A.D.2d 530, 443 N.Y.S.2d 88 [2d Dept 1981]; JP Morgan Chase Bank, N.A. v White, 182 A.D.3d 469, 122 N.Y.S.3d 296 [1st Dept 2020]; Deutsche Bank Natl. Trust Co. v Tanibajeva, 132 A.D.3d 430, 17 N.Y.S.3d 399 [1st Dept 2015]), can only assert herein those viable arguments that could be maintained by defendant HOA. Because defendant HOA waived its rights under CPLR 3215 (c), IPA has no basis to seek any relief under CPLR 3215 (c). The Court has considered the remaining arguments of IPA and finds that they lack merit.
In particular, the decision rendered in Wells Fargo Bank, N.A. v Robinson-John, 220 A.D.3d 974, 199 N.Y.S.3d 522 [2d Dept 2023], cited by IPA, supports the Court's ruling herein. In that matter, the non-party movant was the successful bidder at the foreclosure sale and was issued a referee's deed. By virtue of the referee's deed, the non-party movant was determined to be the successor in interest to the defendant borrowers, just as here, defendant HOA is the successor in interest to the Palma defendants, it having received a referee's deed after the foreclosure sale. The same is true for MTGLQ Invs., L.P. v Shay, 190 A.D.3d 527, 140 N.Y.S.3d 496 [2d Dept 2021], also cited by IPA (see also Bank of NY Mellon v Toscano, 216 A.D.3d 607, 189 N.Y.S.3d 524 [2d Dept 2023]).
Accordingly, the motion by IPA Asset Management, LLC to dismiss the complaint pursuant to CPLR 3215 (c) is denied. Counsel for IPA Asset Management, LLC is cautioned that the Court will entertain an application by plaintiff for an award of sanctions should any future motion made by this non-party be deemed frivolous under 22 NYCRR 130-1.1.
The foregoing constitutes the decision and Order of the Court.