Opinion
Index No. 18904-2012
05-20-2022
HSBC BANK USA, N.A., AS TRUSTEE in Trust FOR the CERTIFICATEHOLDERS OF ACE SECURITIES CORP. HOME EQUITY LOAN TRUST, SERIES 2006-FM2 ASSET-BACKED PASS-THROUGH CERTIFICATES, Plaintiff, v. Shakil AHMAD; Shabana Shakil; Capital One Bank, N.A., and "John Doe" and "Mary Doe," (Said Names Being Fictitious, It Being the Intention of Plaintiff to Designate Any and All Occupants, Tenants, Persons or Corporations, If Any, Having or Claiming an Interest in or Lien Upon the Premises Being Foreclosed Herein.), Defendants.
ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, Attorneys for Plaintiff, 10 Bank Street, Suite 700, White Plains, NY 10606 MACCO & STERN, LLP, Attorney for Defendant Shabana Shakil, 2950 Express Drive South, Suite 109, Islandia, NY 11749
ECKERT, SEAMANS, CHERIN & MELLOTT, LLC, Attorneys for Plaintiff, 10 Bank Street, Suite 700, White Plains, NY 10606
MACCO & STERN, LLP, Attorney for Defendant Shabana Shakil, 2950 Express Drive South, Suite 109, Islandia, NY 11749
Robert F. Quinlan, J.
By order dated April 14, 2022, this court granted defendant Shabana Shakil's ("defendant") motion to renew her cross-motion (Motion Seq. #2) which sought dismissal of the action against defendant on, among other grounds, failure of plaintiff HSBC Bank, USA National Association as Trustee for the Certificateholders of Ace Securities Corp. Home Equity Loan Trust, Series 2006-FM-2 Asset-Backed Pass-through Certificates ("plaintiff") to comply with the conditions precedent required by RPAPL § 1304 solely to the extent of setting a conference for May 12, 2022 to discuss the issue raised by defendant's motion that the RPAPL § 1304 notice mailed to defendant violated the terms of the statute (see Wells Fargo Bank v Yapkowitz , 199 AD3d 126 [2d Dept 2021] ; Bank of America v Kessler , 202 AD3d 10 [2d Dept 2021]). As that conference was held, the court will now address renewal of defendant's motion.
A full exposition of the history of this action was set forth in the court's decision of March 7, 2019 after the limited issue trial of November 19, 2018, and only those matters relevant to this decision will be further discussed herein.
In response to plaintiff's summary judgment motion (Mot. Seq. #001) and defendant's cross-motion to dismiss (Mot. Seq. #002), the court held oral argument on November 3, 2016. After the arguments of counsel were heard, the court placed its decision on the record, setting the default of the non-appearing/non-answering defendants, granting plaintiff partial summary judgment dismissing certain affirmative defenses raised by defendant, but pursuant to CPLR 3212 (g) and 2218, set the issues raised by the remaining affirmative defenses, including plaintiff's compliance with the requirements of RPAPL § 1304, and defendant's cross-motion to dismiss, for a limited issue trial. After that trial was held, and counsel submitted post-trial memorandums of law, the court issued its decision of March 7, 2019, which denied defendant's cross-motion to dismiss, granted plaintiff summary judgement and an order of reference ( RPAPL § 1321 ) was signed.
From the Suffolk County Clerk's ("Clerk") Civil Court Minutes Report ("Minutes") filed in NYSCEF upon conversion of this action to E-filing (NYSCEF Docs # 1 and 4), notice of entry of that order was filed with the Clerk on April 25, 2019 and May 15, 2019 (Seq. #s 58 and 60). The Minutes do not show that a notice of appeal from that order was filed.
On November 25, 2019 a judgment of foreclosure and sale ( RPAPL § 1351 ) was signed by the court. The Minutes, as well as a physical review of the Clerk's file by the court, show that the judgment was filed with notice of entry on December 23, 2019 (Seq. # 73) and the court's review revealed that an affidavit of mailing was included therewith. Neither the Clerk's minutes, nor the Clerk's file reviewed by the court, show that a notice of appeal was filed.
In opposing defendant's motion, plaintiff raises the objections that a motion to renew is inappropriate as there has not been an appeal, that defendant's time to appeal has long expired and that as an attempt to renew/reargue the motion is untimely. Plaintiff is correct.
A motion for leave to renew based upon an alleged change in the law must be made prior to the entry of final judgment or before the time to appeal has fully expired (Matter of 160 East 84th Street v New York State Division of Housing and Community Renewal , 203 AD3d 501 [1st Dept, 2022] ; Dinallo v DAL Elec. , 60 AD3d 620 [2d Dept 2009] ; Glicksman v Board of Board of Educ./Central School Bd. Of Comsewogue Union Free School Dist. , 278 AD2d 364 [2d Dept 2000] ). Here, the final judgment has been entered and the time to file a notice of appeal has long expired. Under these circumstances the court is required to deny defendant's motion, irrespective of whether the RPAPL § 1304 notice here is in violation of the holding in the Wells Fargo Bank v Yapkowitz. Therefore, it is:
ORDERED that defendant's motion to renew is denied.
This constitutes the decision and order of the court.