Opinion
Index No. 12015/2008
09-26-2024
HSBC Bank USA, National Association, AS TRUSTEE FOR MHL2007-1 Plaintiff, v. Heylin Cabrera, Board of Managers of the Washington Condominium, Mortgage Electronic Registration Systems, Inc., as nominee for MortgageIt, Inc., New York City Environmental Control Board, New York City Transit Adjudication Bureau, People of the State of New York, Defendants.
Unpublished Opinion
PRESENT: HON. DEREFIM B. NECKLES, Acting Justice.
HON. DEREFIN B. NECKLES A.J.S.C.
The following e-filled papers read herein: NYSCEF Doc Nos.
Notice of Motion/Affidavits (Affirmations) Annexed 41
Opposition Affirmation to Motion 77
Upon the foregoing papers, the motion to reargue pursuant to CPLR§ 2221 by defendant. Heylin Cabrera (defendant), seeking inter alia an order (1) dismissing the summary judgment order and vacating the judgment of foreclosure and sale; (2) directing the entry of judgment in favor of defendant and against the plaintiff, HSBC Bank USA, National Association, as Trustee for MHL2007-1; (3) canceling of record the assignment of the mortgage pursuant to Real Property Law § 329 and thus, bar any subsequent trusts or LLCs from making any claim against the subject properly; and (4) restraining Plaintiff, 1ISBC Bank USA, National Association, as Trustee for MHL2007-1, known and unknown John Doe and Jane Doe, and all those persons acting in concert with them or under their control from and any and all acts, other than those which maybe permitted by this Court upon application to it, to impede or to interfere with defendant, Heylin Cabrera's peaceful possession, occupancy and residence of said premises.
Motions for leave to reargue and/or renew are governed by CPLR 2221. A motion for leave to reargue is based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2221 [d] [2]). It is a basic principle that a movant on reargument must show that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision (Andrea v E.I. du Pont de Nemours & Co., 289 A.D.2d 1039 [4th Dept 2001]; Bolos v Staten Island Hosp., 217 2 [* 2] A.D.2d 643 [2d Dept 1995]; Schneider v Soloway, 141 A.D.2d 813 [2d Dept 1988]). A motion to reargue is not to be used as a means in which an unsuccessful party is permitted to argue again the same issues previously decided {William P. Pahl Equip. Corp, v Kass is, 182 A.D.2d 22 [1st Dept 1992]; Pro Brokerage v Home Ins. Co., 99 A.D.2d 971 [1st Dept 1984]).
"Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. The party seeking to invoke collateral estoppel has the burden to the show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" (Bank of New York Mellon v. Treitel, __ A.D.3d __, 2023 NY Slip Op 03446 [2d Dept 2023]).
Under the doctrine of res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (Jones v. Flushing Bank, 212 A.D.3d 791. 793 [2d Dept 2023]). "The doctrine of res judicata bars a party' from relitigating any claim which could have been or should have been litigated in a prior proceeding" (id.) 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 raised in the foreclosure action (id.)
Here, defendant's allegations regarding the fraudulent assignment of the mortgage by Steven Baum's attorney and employee, Elpiniki Bechakas, has been previously litigated and raised, including in the defendant's motion for lack of standing, that was denied by Hon. Sylvia G. Ash on September 22, 2015.
Furthermore, subsequent to this application, defendant brought a motion, under motion seq. 14, requesting the same relief as in the present motion. Said motion was similarly denied by this court for failure to present any new evidence or facts justify ing the proceeding regarding fraud and standing.
The above applies to this instant motion. Defendant's motion to reargue presents the same facts which have been litigated and decided on, including the allegation of a fraudulent assignment and lack of standing. This motion fails to present any new evidence or facts to justify a dismissal.
Based upon the above stated reasons, defendant's order to show cause is denied in its entirety.
This constitutes the decision and order of the court.