Opinion
12390/2000.
Decided April 13, 2006.
Plaintiff, NYCTL-1998-1, 1998-2 and 1996-1 Trusts and The Bank of New York as Collateral Agent and Custodian, hereinafter "The Trust", move pursuant to CPLR 2221 for leave to reargue and/or renew the November 10, 2004 motion of the plaintiff which sought an Order granting plaintiff summary judgment and striking the Answer of the defendant RPK Realty Group, LLC ("RPK") pursuant to CPLR 3212 and the resettling portion of the August 3, 2005 Order which denied the motion for summary judgment as to the defendant RPK.
Defendant RPK partially opposes plaintiff's motion and cross-moves for an Order to substitute RPK as a party-defendant in place of North County Conservancy ("NCC"), for an Order of Protection from plaintiff's discovery demands pursuant to CPLR 3103 and for consolidation of this action with all related foreclosure demands. Defendant further cross-moves for an Order for summary judgment in favor of RPK.
The Trust bases its motion upon the proposition that this Court misapprehended the facts and applicable case law in determining the Trust's prior motion for summary judgment. It argues that NCC's consent to the foreclosure was not required based upon the fact that the consent statute 12USC § 1825(b)(2) is silent on the issue regarding assignees of the Federal Deposit Insurance Corporation ("FDIC"). When such is the case, it is incumbent upon the Court to rely upon the clear and unambiguous agency regulations pursuant to Chevon USA Inc. v. Natural Resources Defense Council, Inc., 467US837. Here, the FDIC policy statement clearly states that the right to consent was in no case transferable to FDIC's assignees. Accordingly, NCC had no right to consent and summary judgment should have been granted.
The Trust also claims, inter alia, that given the FDIC's policy statement, there was no expectation on the part of the assignees that they would receive FDIC's right to consent. Plaintiff states that the purpose of the consent statute is to protect the receiver. Further, the Trust argues that RPK cannot claim an expectation that it would receive FDIC's right to consent when question 27 of its loan agreement indicates that not all rights are assignable. The Trust also claims that RPK cannot have it both ways: RPK refuses to pay tax obligations and yet denies the ability of the Trust to continue with foreclosure when the FDIC policy statement indicates that taxes must be paid or the interest abandoned. A right to consent does not continue into perpetuity. The Trust also argues that RPK never sustained the burden of proving the assignments to NCC or RPK and that any interests obtained by accepting judgments of foreclosure expired and RPK, therefore, holds no enforceable interest.
By its opposition, RPK argues, inter alia, that it does not oppose the plaintiff's motion for reargument but the motion should not be considered a motion to renew because plaintiff presents no new evidence that was unavailable at the initial motion. It cross-moves for summary judgment in favor of RPK on the basis that the RTC expressly agreed that all provisions available to RTC were included in the Financial Institutions Reform and Recovery and Enforcement Act ("FIRREA"), codified in the US Code. FIRREA guarantees protection of assets assigned to NCC. The policy statements of the FDIC are not law and were not part of the Loan Sale Agreement between RTC and NCC. It states that the Assignments between RTC and NCC were not submitted in the original motion in order to minimize submissions but are included herein as Exhibit "C". The Assignments from NCC to RPK have never been executed by NCC, although RPK was substituted as plaintiff in the pending foreclosure actions RPK claims that the attorneys for the RTC drafted and executed the Loan Sale Agreement with NCC, accepted payment and executed the assignments. RPK had actual knowledge of the terms, including paragraph 4.3 affording assignments of all rights of the RTC, with the sole exceptions being tortious activity, willful misconduct and material representations. RPK also relied on applicable New York case law holding that tax lien consent protection is available to assignees. Thus the FDIC policy statement is irrelevant herein.
Based upon inadmissible correspondence between the Trust and NCC, RPK claims that NCC never consented to the tax lien foreclosures and plaintiff never obtained a default against NCC because of an oral agreement to extend its time to answer in the instant case. Any claim to NCC's position by the plaintiff is disingenuous. Further, RPK contends that CPLR 5203 applies to personal money judgments and is ineffective in an equitable foreclosure. Thus, RPK's judgments have not expired.
RPK seeks a Protective Order from an irrelevant and unduly burdensome discovery demand to produce copies of motions which are a matter of public record in preparation for the upcoming fact hearing. RPK claims that any consent must be in writing and the defendant claims that FDIC's consent herein was obtained after the notes and mortgages had been sold and assigned to NCC.
RPK answered and appeared herein as successor in interest and RPK now moves for substitution and corresponding amendment of caption, as was done in the mortgage foreclosure action. Further, defendant moves for consolidation of the mortgage foreclosure with this action because it claims that neither action can be resolved without the other. It claims that judicial economy and the interests of justice will be served thereby.
The Trust counters that the Protective Order should be denied and that consolidation is unavailable because it fails to meet the requirements of CPLR 602(a) in that the respective cases do not involve common questions of law and fact, nor are they at the same state of development.
A motion to reargue is addressed to the discretion of the Court. It is designed to afford a party an opportunity to establish that the Court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided (see, McGill v. Goldman, 261 AD2d 593; Will of McDonald, 140 Misc.2d 49). In Duque v. Ortiz, 154 AD2d 333, the Appellate Division held that the granting of reargument was an improvident exercise of the Court's discretion because there was no indication in the record that the Court had overlooked or misapprehended the facts, or for some other reason had mistakenly arrived at its conclusion.
The purpose of a motion for renewal is to draw attention to material facts which were not known to a party and consequently were not placed before the Court ( Matter of Beiny, 142AD2d 190, 522 NYS2d 511, app dism, 71 NY2d 994, 529 NYS2d 277, 524 N.E.2d 879). A motion to renew is made on grounds of additional facts not previously considered and is not as limited as a motion to reargue ( Prude v. County of Erie, 47 AD2d 111). A motion to renew is technically intended to permit a party to submit additional evidence which did not exist or which was not available on the return date of the original motion ( Feierstein v. Moser, 124 Misc.2d 369). The moving party is required to provide a reasonable excuse as to why the additional facts were not submitted upon the original application (see, Dominski v. Firestone, 92 AD2d 704).
In the instant case, this Court agrees with RPK that plaintiff's motion is properly one for reargument and not renewal because the additional documents submitted were available at the time the initial motion was made, although the Court notes that defendant RPK now submits documents that were not before the Court in the underlying motion.
Upon such reargument, this Court finds that it failed to consider the full implication of the FDIC policy statement as it reflects upon the issue of consent herein. NYCTL has carried its burden of proof by establishing pursuant to the FDIC policy statement, as well as applicable Federal and State law that the right to consent to the foreclosure of the tax liens was not available to the successors in interest to FDIC. Accordingly, NYCTL put forth a prima facie case that all requirements for tax lien foreclosure were met by NYCTL.
For the foregoing reasons, plaintiff's underlying motion is granted in all respects.
With regard to RPK's cross-motion, this Court Determines that said motion is denied in all respects, except that the motion is granted on RPK's application to substitute RPK as a party-defendant in place of North County Conservancy ("NCC").
Due to the instant Decision/Order, the pending Framed Issue Hearing is no longer necessary. Defendant's motion for an Order of Protection from plaintiff's discovery demands is also rendered moot. The motion is denied with regard to the consolidation of this action with all related foreclosure demands, as the matters involve different issues of fact, as well as different parties. The cross-motion for an Order granting summary judgment in favor of RPK is denied on the basis of the reasoning above.
The foregoing constitutes the Decision and Order of the Court.
Law Clerk to notify both sides of this Decision/Order.