Opinion
2021-03666 Index 33011/19
06-10-2021
Reyes Merino, Plaintiff-Appellant, v. Wells Fargo Bank, N.A., Defendant-Respondent. Appeal No. 14043 No. 2021-00363
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant. Reed Smith LLP, New York (Michael V. Margarella of counsel), for respondent.
Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant.
Reed Smith LLP, New York (Michael V. Margarella of counsel), for respondent.
Before: Manzanet-Daniels, J.P., Gische, Oing, Shulman, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about August 19, 2020, which granted defendant Wells Fargo's motion to dismiss the complaint, unanimously affirmed, without costs.
This Court's June 11, 2019 dismissal of Wells Fargo's prior, 2013 foreclosure action on RPAPL 1304 grounds triggered the six-month grace period provided by CPLR 205(a) (173 A.D.3d 491 [1st Dept 2019]; see CitiMortgage, Inc. v Moran, 188 A.D.3d 407, 408 [1st Dept 2020]). Wells Fargo's subsequent motion in that action to dismiss an already dismissed case should have been denied, as "termination" of the prior action occurred when any appeal was exhausted (Lehman Bros. v Hughes Hubbard & Reed, 92 N.Y.2d 1014, 1016-1017 [1998]; see Matter of Arnold v New York State Div. of Human Rights, 110 A.D.3d 466, 466 [1st Dept 2013]; Black v Randall Med. Offs., 237 A.D.2d 110, 111 [1st Dept 1997]).
Supreme Court properly found that Wells Fargo timely refiled the 2019 foreclosure action pursuant to CPLR 205(a) on October 14, 2019, and since the action was timely commenced, Merino was barred from bringing this action to quiet title under RPAPL 1501(4).