Opinion
Index No. 65054/2020 Motion Sequence Nos. 5 6
11-20-2024
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION f/k/a THE BANK OF NEW YORK TRUST COMPANY, N.A. AS SUCCESSOR TO JPMORGAN CHASE BANK, N.A., AS TRUSTEE FOR RESIDENTIAL ASSET MORTGAGE PRODUCTS, INC., MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-RS1, Plaintiff, v. JEAN BANCES; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.; FEDERAL NATIONAL BANK OF ARIZONA; BRANDY TAYLOR, AS HEIR AND DISTRIBUTEE TO THE ESTATE OF VERNA V. TAYLOR; UNKNOWN HEIRS AND DISTRIBUTEES OF THE ESTATE OF VERNA V. TAYLOR, any and all persons unknown to plaintiff, claiming, or who may claim to have an interest in, or general or specific lien upon the real property described in this action; such unknown persons being herein generally described and intended to be included in the following designation, namely: the wife, widow, husband, widower, heirs at law, next of kin, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors, and assignees of such deceased, any and all persons deriving interest in or lien upon, or title to said real property by, through or under them, or either of them, and their respective wives, widows, husbands, widowers, heirs at law, next of kin, descendants, executors, administrators, devisees, legatees, creditors, trustees, committees, lienors and assigns, all of whom and whose names, except as stated, are unknown to plaintiff; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; UNITED STATES OF AMERICA; “JANE DOE” - NAME REFUSED s/h/a JOHN DOE # 1; “JOHN DOE” - NAME REFUSED s/h/a JOHN DOE # 2, and “JOHN DOE # 3” through “JOHN DOE # 12,” the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants.
Unpublished Opinion
To commence the statutory time for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
PRESENT: HON. THOMAS QUIÑONES, J.S.C.
DECISION AND ORDER
HON. THOMAS QUIÑONES, J.S.C.
The following papers were filed to the New York State Court Electronic Filing System ("NYSCEF") and were reviewed by the Court in connection with: (1) Plaintiffs motion (Seq. No. 5) for summary judgment, an Order of Reference, and related relief in this mortgage foreclosure action; and (2) the cross-motion (Seq. No. 6) by Defendant Jean Bances ("Bances") and Defendant Unknown Heirs and Distributees of the Estate of Verna V. Taylor (the "Unknown Heirs") for an Order pursuant to CPLR 3211(a)(1) dismissing this action in its entirety and cancelling the Notice of Pendency:
NYSCEF Document Nos. 104-141; 144-147.
Factual and Procedural Background
Plaintiff commenced this residential mortgage foreclosure action by filing pleadings on November 23, 2020, and simultaneously filed a Notice of Pendency (NYSCEF Doc. Nos. 1-4). In sum and substance, Plaintiff alleges in its Complaint that Bances defaulted under certain loan obligations set forth in the subject note secured by a mortgage encumbering the subject property located at 180 Sutton Manor Road, New Rochelle, NY 10801 (the "Property") (NYSCEF Doc. No. 1). In addition to Bances and the Unknown Heirs, Plaintiff named as Defendants Mortgage Electronic Registration Systems, Inc. ("Mortgage Electronic"), Federal National Bank of Arizona ("Federal National"), Brandy Taylor, as Heir and Distributee to the Estate of Verna V. Taylor ("Taylor"), the New York State Department of Taxation and Finance, the United States of America, and "John Doe # 1" through "John Doe # 12" (the "John Doe Defendants") (NYSCEF Doc. No. 1).
By way of further relevant procedural background, on December 21, 2020, Bances filed her Answer in which she, inter alia, denied the material allegations of the Complaint, raised 11 affirmative defenses in response thereto, and asserted a counterclaim for a set off in connection with alleged over-charges (NYSCEF Doc. No. 6). On January 8, 2021, Plaintiff filed a Reply in which it denied the material allegations of Bances' counterclaim and asserted 16 affirmative defenses in response thereto (NYSCEF Doc. No. 17). The matter subsequently proceeded into the Foreclosure Settlement Conference Part, and was released therefrom on February 6, 2023 when this action did not settle (NYSCEF Doc. Nos. 56-57). Following Plaintiffs filing of a Supplemental Summons and Amended Notice of Pendency on June 26, 2023 (NYSCEF Doc. Nos. 63-64), the Court-appointed Guardian Ad Litem filed an Answer on behalf of the Unknown Heirs on September 22, 2023, in which the Unknown Heirs raised five affirmative defenses and asserted a counterclaim seeking to quiet title and discharge the mortgage as well as a counterclaim for attorneys' fees (NYSCEF Doc. No. 77). On October 12, 2023, Plaintiff filed a Reply in which it, inter alia, denied the material allegations of the Unknown Heirs' counterclaims (NYSCEF Doc. No. 80).
Other than Bances and the Unknown Heirs, no Defendant has responded to the Complaint or appeared in this action.
On November 23, 2023, Bances moved (Seq. No. 3) to dismiss this action pursuant to CPLR 321 l(a)(10) and Plaintiff cross-moved (Seq. No. 4) to amend its pleadings, if necessary, to add non-party Hugo Bances as a Defendant herein (NYSCEF Doc. Nos. 81-89; 92-97). By Decision and Order dated March 14, 2024, the Court, inter alia, denied Bances' motion to dismiss the action and denied Plaintiffs cross-motion as moot (NYSCEF Doc. Nos. 98-99). The Court further held that, pursuant to Compliance Conference Orders filed on October 6, 2023 and December 11, 2023 (NYSCEF Doc. Nos. 78, 91), discovery is waived and the action is ready for trial, and the Court directed that all summary judgment motions be filed within 60 days of the filing of the Note of Issue (NYSCEF Doc. Nos. 98-99). Furthermore, the Court held that on its own motion pursuant to CPLR 3215(c), by the deadline for making a summary judgment motion, Plaintiff shall show cause why this Court should not dismiss this action as abandoned as against Federal National and Taylor (id.).
On March 29, 2024, Plaintiff filed a Note of Issue and Certificate of Readiness for Trial (NYSCEF Doc. No. 103). Subsequently, on May 28, 2024, Plaintiff timely moved (Seq. No. 5) for an Order: (1) pursuant to CPLR 3212 granting Plaintiff summary judgment against Bances and the Unknown Heirs and dismissing their respective Answers; (2) granting an Order of Reference in Plaintiffs favor; (3) granting Plaintiff a default judgment against the non-answering Defendants; (4) granting permission to treat the Answers of Bances and the Unknown Heirs as a limited Notice of Appearance entitling their respective attorneys to receive, without prior notice, a copy of the Notice of Sale, Notice of Discontinuance, and Notice of Surplus Monies, if any; (5) ordering the appointment of a Referee to determine the amount due to Plaintiff and to determine whether the Property being foreclosed can be sold in parcels; and (6) amending the caption so as to remove the John Doe Defendants as parties herein (NYSCEF Doc. Nos. 104-136). As directed by the Court's March 14, 2024 Decision and Order, Plaintiffs submissions also include a showing as to why the Court should not dismiss this action as abandoned as against Federal National and Taylor (id.). Bances and the Unknown Heirs oppose Plaintiffs motion, and each cross-moved (Seq. No. 6) pursuant to CPLR 3211(a)(1) to dismiss this action and to cancel the Amended Notice of Pendency (NYSCEF Doc. Nos. 138-141; 144-145). Plaintiff opposes their cross-motion (NYSCEF Doc. No. 146).
Plaintiff's Contentions in Support of its Motion
In support of its motion for summary judgment, an Order of Reference, and related relief, Plaintiff submits an affidavit from Richard Schwiner ("Schwiner"), which is based upon his personal knowledge as a Senior Loan Analyst on Plaintiffs behalf as well as Schwiner's review of all relevant documentation (NYSCEF Doc. No. 119). Schwiner's affidavit attests in detail regarding the existence of the relevant loan, Bances' default thereunder beginning with the January 1, 2008 monthly payments without cure, the outstanding debt owed to Plaintiff, as well as Plaintiffs compliance with all applicable notice requirements (id.). Additionally, Schwiner annexes to his affidavit copies of all relevant documentation, including, inter alia, the underlying note and mortgage, the payment history for the loan, the notice of default and payoff letter, as well as documentation reflecting Plaintiffs compliance with applicable notice requirements (NYSCEF Doc. Nos. 119-134).
Plaintiff also furnishes an affirmation from its counsel, who sets forth the procedural history underlying this mortgage foreclosure action, and annexes thereto copies of the pleadings, various relevant Orders, and the Note of Issue (NYSCEF Doc. Nos. 105-118).
In its memorandum of law, Plaintiff contends that it has established prima facie entitlement to summary judgment in its favor and against Bances and the Unknown Heirs (NYSCEF Doc. No. 135 at pp. 8-9). It asserts that, by way of the Schwiner Affidavit and the documentary evidence annexed thereto, Plaintiff has produced all of the relevant mortgage documents and set forth evidence demonstrating Defendants' default thereunder (id.). Plaintiff further argues that because Bances and the Unknown Heirs have not met their burden of demonstrating the existence of any triable issue of fact concerning any of the "boilerplate" defenses raised in their respective Answers, Plaintiff is entitled to an award of summary judgment pursuant to CPLR 3212 (id.). Plaintiff also contends that the general denials and the wholly unsubstantiated defenses in the Answers of Bances and the Unknown Heirs are without merit as a matter of law, such that those pleadings should be stricken (id. at pp. 10-20).
Plaintiff further asserts that this action should not be dismissed as abandoned under CPLR 3215(c) as against Federal National and Taylor (id. at pp. 21-24). Plaintiff argues that following the release of this action from the Settlement Conference Part on February 6, 2023, it continued to actively litigate this action, as it engaged in ongoing motion practice, participated in multiple compliance conferences, and filed a Supplemental Summons and Amended Notice of Pendency on June 26, 2023 (id.). As such, and particularly given that Plaintiff has shown that it has a meritorious cause of action for foreclosure, Plaintiff contends that its consistent prosecution of this action reflects that it did not abandon this matter as against Federal National or Taylor (id.).
Finally, Plaintiff asserts that in light of its service of the pleadings upon Mortgage Electronic, Federal National, Taylor, New York State Department of Taxation and Finance, United States of America, and the John Doe Defendants, each of which has failed to timely answer or appear in this action, Plaintiff is entitled to a default judgment as against such non-answering Defendants (id. at p. 24).
Plaintiff also seeks an Order of Reference for the appointment of a Referee, and seeks to amend the caption so as to remove the John Doe Defendants as parties herein (NYSCEF Doc. No. 104 and Doc. No. 135 at p. 1).
Defendant Bances' Opposition and Cross-Motion
In opposition to Plaintiffs motion and in support of her cross-motion to dismiss this action, Bances submits an affirmation from her counsel (NYSCEF Doc. No. 139). Counsel's affirmation, which is not based upon his personal knowledge, sets forth Bances' legal arguments (id.). Specifically, Bances first argues that the pre-foreclosure notices underlying this action are invalid such that this lawsuit should be dismissed pursuant to CPLR 3211(a)(1) (id.). She further contends that Plaintiffs notices failed to strictly comply with RPAPL § 1304 because the USPS tracking numbers furnished by Plaintiff are currently not reflected as having been mailed on the USPS website (id.; NYSCEF Doc. No. 140). Bances also asserts that this action should be dismissed because Plaintiff has failed to establish actual mailing of the requisite default notice, as the USPS tracking number listed by Plaintiff does not presently confirm a mailing on the USPS website (NYSCEF Doc. Nos. 139, 141). Accordingly, Bances concludes that Plaintiff s motion for summary judgment and related relief should be denied, and her cross-motion to dismiss the action pursuant to CPLR 3211 (a)(1) should be granted (NYSCEF Doc. No. 139).
Defendant Unknown Heirs' Opposition and Cross-Motion
In opposition to Plaintiffs motion and in support of their cross-motion to dismiss this action pursuant to CPLR 3211(a)(1), the Unknown Heirs submit an affirmation from their counsel, which is not based upon counsel's personal knowledge (NYSCEF Doc. No. 144). The Unknown Heirs contend that this action should be dismissed as time-barred because Plaintiff failed to commence this mortgage foreclosure action within the relevant statute of limitations (id.). They further assert that the underlying mortgage for the Property should accordingly be cancelled and discharged, and it should be determined that Defendants have a "free and clear" ownership interest in the Property (id.). The Unknown Heirs also argue that because they are successfully defending against this mortgage foreclosure action, the Court should award the Unknown Heirs attorneys' fees in connection with Real Property Law § 282 (id.). Therefore, the Unknown Heirs conclude that Plaintiffs motion for summary judgment and related relief should be denied, and their cross-motion to dismiss the action pursuant to CPLR 3211(a)(1) should be granted in its entirety (id.).
Plaintiffs Reply and Opposition to Cross-Motion
In further support of its motion for summary judgment and related relief, and in opposition to the cross-motion of Bances and the Unknown Heirs, Plaintiff submits a reply memorandum of law (NYSCEF Doc. No. 146). Plaintiff first contends that Bances' cross-motion is barred by New York's single-motion rule, as Bances twice previously moved to dismiss this foreclosure action pursuant to CPLR 3211, and her third motion seeking the very same relief should be denied as procedurally improper (id. at p. 3). Plaintiff also asserts that it strictly complied with RPAPL § 1304 and mailed the relevant notice of default as demonstrated in the Schwiner Affidavit and the documentary evidence annexed thereto; and that Bances' claim regarding the USPS website is entirely meritless because that website only retains tracking information for a maximum of two years, and the relevant notices were sent in 2020 (id. at pp. 4-7). Plaintiff further argues that the Unknown Heirs' claim that this action is time-barred is meritless and nonetheless barred by the doctrine of the law of the case, as this Court in a Decision and Order dated June 20, 2023 expressly held that Plaintiffs voluntary discontinuance of a prior action constituted an affirmative act of revocation of the mortgage's acceleration, such that this action is not time-barred (id. at p. 8; NYSCEF Doc. Nos. 60-61). Plaintiff also contends that, in any event, this action is not time-barred because the acceleration of the mortgage loan was revoked, and because the Foreclosure Abuse Prevention Act does not retroactively apply to undo Plaintiffs de-acceleration of the mortgage (NYSCEF Doc. No. 146 at pp. 9-23). Accordingly, Plaintiff concludes that its motion for summary judgment and related relief should be granted, and the cross-motion of Bances and the Unknown Heirs should be entirely denied (id. at p. 23).
Decision
It is well-settled that "to establish prima facie entitlement to judgment as a matter of law in a foreclosure action, a plaintiff must produce the mortgage, the unpaid note, and evidence of the default" (HSBC Bank USA, N.A. v Sene, 219 A.D.3d 1499, 1500 [2d Dept 2023], citing Citimortgage, Inc. v Doomes, 202 A.D.3d 752, 753 [2d Dept 2022]). This prima facie showing shifts the burden to the non-moving party "to demonstrate the existence of a triable issue of fact" (Community Natl. Bank v Hollis Care Group, Inc., 155 A.D.3d 604, 605 [2d Dept 2017]). As such, the non-moving party must substantiate its defenses with evidentiary proof in admissible form sufficient to require a trial (Flushing Sav. Bank, FSB v Sharp Realty, LLC, 136 A.D.3d 652, 653 [2d Dept 2016] (holding that the "conclusory assertions in [defendant's] affidavit submitted in opposition to the motion were not supported by competent evidence . . . and therefore failed to raise a triable issue of fact")).
Having reviewed the parties' submissions, the Court determines that Plaintiff has established prima facie entitlement to summary judgment on all claims in its mortgage foreclosure Complaint as against Bances and the Unknown Heirs. Through the Schwiner Affidavit, which is based upon Schwiner's personal knowledge as a Senior Loan Analyst on Plaintiffs behalf, Plaintiff has produced the mortgage, the unpaid note, and evidence of the default (NYSCEF Doc. Nos. 119-134). Specifically, Plaintiff has established that it is the lawful owner and holder of the mortgage loan for the Property; that Bances defaulted on the mortgage commencing with the January 1, 2008 monthly payments due thereunder; and that Plaintiff has complied with all applicable notice requirements (id.). As such, Plaintiff has established prima facie entitlement to summary judgment on its Complaint in this mortgage foreclosure action (see Wells Fargo Bank, N.A. v Bejana, 228 A.D.3d 526, 527 [1st Dept 2024] (reversing the denial of summary judgment in a mortgage foreclosure action and holding that "Plaintiff established prima facie entitlement to summary judgment through proof of the promissory notes and defendants' nonpayment thereon pursuant to the terms of the notes"); Freedom Mtge. Corp, v Miller, 224 A.D.3d 572, 573-574 [1st Dept 2024] (awarding plaintiff summary judgment in a mortgage foreclosure action and stating that "Plaintiff otherwise established its prima facie case for summary judgment and appointment of a referee" where plaintiffs affiant "attested to plaintiffs possession of the note endorsed in blank, as well as the assignment of the mortgage to plaintiff," "attested to defendants' default. . . and she attested that the 90-day notice was mailed to defendant"); Bank of N.Y. Mellon v Swift, 213 A.D.3d 624, 626 [2d Dept 2023] (holding that plaintiff established prima facie entitlement to summary judgment in a mortgage foreclosure action where "[t]he plaintiff also produced a copy of the mortgage, a copy of the unpaid note, and evidence of default")).
Plaintiff has also established prima facie entitlement to summary judgment dismissing as a matter of law each of the Answers respectively filed by Bances and the Unknown Heirs (NYSCEF Doc. Nos. 6, 77), including all affirmative defenses and counterclaims raised therein (NYSCEF Doc. Nos. 104-134). The Court agrees with Plaintiff that, based upon the record on this motion, the general denials and wholly unsubstantiated allegations asserted by Bances and the Unknown Heirs cannot sustain their burden in overcoming Plaintiffs entitlement to summary judgment (NYSCEF Doc. Nos. 104-134; see also generally Zuckerman v New York, 49 N.Y.2d 557, 562 [1980] (stating that "[w]e have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient")). Specifically, the Court finds that each of the various affirmative defenses and counterclaims respectively asserted by Bances and the Unknown Heirs are unsubstantiated and lack merit, and that, inter alia: (1) Bances waived a defense of improper service of process and was nonetheless properly served; (2) Plaintiff has established its standing to commence this mortgage foreclosure action; (3) the Complaint validly states a cause of action for foreclosure; (4) Plaintiff has validly accelerated the mortgage loan pursuant to the terms of the mortgage; (5) Plaintiff has established its compliance with RPAPL §§ 1303, 1304 and 1306 in its service and filing of relevant documents; (6) Plaintiffs Certificate of Merit complies with CPLR 3012-b; (7) Plaintiff has established the mortgage default underlying this action; (8) Plaintiff has established that this action is not time-barred; (9) Plaintiff has not overcharged any Defendant in connection with the mortgage such that a set off is not required; (10) Plaintiff has established that its claims are not barred by the election of remedies doctrine; and (11) the Unknown Heirs are not entitled to attorneys' fees, costs, or expenses pursuant to RPL § 282 (NYSCEF Doc. Nos. 104-134).
See further discussion irfra.
See further discussion irfra.
In opposition, Bances and the Unknown Heirs, whose submissions are limited to affirmations from their respective counsel that are not based upon any personal knowledge, have not presented evidence of any triable issue of fact that would warrant the denial of Plaintiff s motion for summary judgment and related relief (NYSCEF Doc. Nos. 138-141; 144-145). Indeed, as noted by Plaintiff, Bances and the Unknown Heirs in their motion papers entirely fail to dispute that: (1) Plaintiff is the current holder of the relevant note and mortgage; (2) Bances is in default of her obligations under the mortgage loan and has failed to cure such default; and (3) this debt is owed to Plaintiff (id.). As such, Bances and the Unknown Heirs have not cited any triable issue of fact that would require the denial of Plaintiff s summary judgment motion (see Wells Fargo Bank, N.A., 228 A.D.3d at 527 [holding that in opposition to plaintiffs prima facie showing of entitlement to summary judgment in a mortgage foreclosure action "[d]efendants do not raise any arguments or issues of fact that would preclude summary judgment in plaintiffs favor"]; Bank of N.Y. Mellon, 213 A.D.3d at 626 [awarding summary judgment in a foreclosure action and finding that "[i]n opposition [to plaintiffs prima facie showing], the defendants failed to raise a triable issue of fact"]; Flushing Sav. Bank, FSB, 136 A.D.3d at 653 [holding in a mortgage foreclosure action that the "conclusory assertions in [defendant's] affidavit submitted in opposition to the motion were not supported by competent evidence . . . and therefore failed to raise a triable issue of fact"]; see also North Fork Bank v Hamptons Mist Mgmt. Corp., 225 A.D.2d 596, 597 [2d Dept 1996] (affirming an award of summary judgment in a foreclosure action and noting that "the appellants' conclusory and unsubstantiated assertions are not supported by competent evidence and are insufficient to defeat the plaintiffs motion"); Home Sav. Bank v Schorr Bros. Dev. Corp., 213 A.D.2d 512, 513 [2d Dept 1995] (holding that plaintiff was properly awarded summary judgment in a mortgage foreclosure action where defendants' "conclusory and unsubstantiated assertions are not supported by competent evidence and are insufficient to defeat the plaintiffs motion")).
Defendants other than Bances and the Unknown Heirs, who have not appeared in this action and are subject to the default judgment being issued herewith, have not furnished any opposition to Plaintiffs motion. Accordingly, they have similarly failed to cite any triable issue of fact that would warrant denial of Plaintiff s motion for summary judgment and related relief.
The Court does not credit Bances' contention that Plaintiff failed to comply with RPAPL § 1304 and did not send the relevant 90-day notices as required by that statute. This assertion, which is made by Bances' counsel, who lacks personal knowledge of the relevant facts (NYSCEF Doc. No. 139), is apparently based upon counsel's July 2024 search of the relevant tracking numbers on the USPS website (NYSCEF Doc. Nos. 140-141). The Court agrees with Plaintiff that this assertion is entirely meritless, as Plaintiff has furnished evidence reflecting that it strictly complied with RPAPL § 1304 and mailed the relevant notices as demonstrated in the Schwiner Affidavit and the documentary evidence annexed thereto (NYSCEF Doc. Nos. 119-134). Bances' argument is further fatally undercut by the fact that the USPS website makes clear that it only retains tracking information for a maximum of two years, such that tracking information for the relevant notices mailed in 2020 would no longer be available on the USPS website when counsel apparently searched therein in July 2024 (see https://faq.usps.com/s/article/USPS-Tracking-The-Basics).
RPAPL § 1304 provides in relevant part that "at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower ... by registered or certified mail and also by first-class mail to the last known address of the borrower, and to the residence that is the subject of the mortgage" (RPAPL §§ 1304[1], [2]).
Nor does the Court agree with the Unknown Heirs' assertion that this action should be dismissed as time-barred. As noted by Plaintiff, in a Decision and Order dated June 20, 2023, this Court expressly held that Plaintiffs voluntary discontinuance of a prior action constituted an affirmative act of revocation of the mortgage's acceleration, such that this action is not time-barred (NYSCEF Doc. Nos. 60-61). The Court stated:
As it relates to Defendant's cross-motion (Motion Seq. No. 2), it is undisputed that Plaintiff commenced Prior Action 1 to foreclosure the same mortgage debt and Plaintiff subsequently moved to discontinue the Prior Action 1 (on consent of Defendant Jean Bances). On March 17, 2011, the Court granted an Order of Discontinuance, Cancellation of Lis Pendens, and Vacatur of Judgment of Foreclosure and Sale [Hon. J. Emmett Murphy, J.S.C.]. (NYSCEF Doc. 51). Plaintiffs discontinuance of Prior Action 1 constitutes an affirmative act of revocation of Plaintiffs prior acceleration of the mortgage debt as a matter of law (see, Freedom Mtge. Corp., v. Engel, 37 N.Y.3d 1,31 [2021]). Accordingly, Plaintiff effectively de-accelerated the mortgage debt in 2011 . . . Defendant's cross-motion (Motion Seq. No. 2) is granted to the extent that Plaintiff request for recovery is limited to any mortgage debt that accrued beginning with any monthly mortgage payments due as of November 23, 2014 onward, (id.) (emphases added).
As such, in light of the unambiguous terms of this Court's June 20, 2023 Decision and Order, the law of the case doctrine bars the Unknown Heirs' contention that this action is time-barred (see Brownrigg v New York City Hous. Auth., 29 A.D.3d 721, 722 [2d Dept 2006] (stating that "[t]he doctrine of the law of the case seeks to prevent relitigation of issues of law that have already been determined at an earlier stage of the proceeding"); D'Amato v Access Mfg., 305 A.D.2d 447, 448 [2d Dept 2003] (noting that "[t]he doctrine of law of the case applies only to legal determinations that were necessarily resolved on the merits in the prior decision").
Finally, with respect to this Court's sua sponte Order to Show Cause in its March 14, 2024 Decision and Order, the Court determines that Plaintiff has demonstrated that this action should not be dismissed as abandoned pursuant to CPLR 3215(c) as against Federal National and Taylor. The Court agrees with Plaintiff that "the one-year deadline imposed by CPLR 3215(c) was tolled while the action remained pending in the Foreclosure Settlement Conference Part" (Citimortgage, Inc. v Borek, 171 A.D.3d 848, 851 [2d Dept 2019], citing 22 NYCRR § 202.12-A[c][7]). The Court further credits Plaintiffs assertion that following the release of this action from the Settlement Conference Part on February 6, 2023, it continued to actively litigate this action, as it engaged in ongoing motion practice, participated in several compliance conferences, and filed a Supplemental Summons and Amended Notice of Pendency on June 26, 2023 (NYSCEF Doc. Nos. 63-64; 78; 80; 91). As such, and in light of Plaintiff s showing herein that it has a meritorious claim for mortgage foreclosure, this action shall not be dismissed as abandoned as against Federal National and Taylor.
CPLR 3215(c) provides in relevant part that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed."
All other arguments raised on these motions and all evidence submitted by the parties in connection therewith have been considered by this Court, notwithstanding the specific absence of reference thereto.
Based on the foregoing, it is hereby
ORDERED that in connection with the Court's March 14, 2024 Decision and Order, Plaintiff has shown that it has not abandoned this action as against Defendants Federal National and Taylor, such that this mortgage foreclosure action is not dismissed as against such Defendants; and it is further
ORDERED that Plaintiffs motion (Seq. No. 5) is granted in its entirety; and it is further
ORDERED that Plaintiff is awarded summary judgment on all claims in its Complaint as against Defendants Bances and the Unknown Heirs; and it is further
ORDERED that the Answers respectively filed by Defendants Bances and the Unknown Heirs are dismissed and shall each be treated as a limited Notice of Appearance; and it is further
ORDERED that Plaintiff is granted a default judgment pursuant to CPLR 3215 as against all Defendants other than Bances and the Unknown Heirs; and it is further
ORDERED that the caption herein is amended so as to remove the John Doe Defendants therefrom; and it is further
ORDERED that this action is hereby referred to:
MARK ALAN SIESEL, ESQ.
c/o THE LAW OFFICE OF MARK A. SIESEL
44 CHURCH ST STE 150
WHITE PLAINS, NY 10601-1920
914-428-7386
SIESELMARK@GMAIL.COM
as Referee to ascertain and compute the amount due to Plaintiff for principal, interest, and other disbursements advanced, excluding attorneys' fees, to examine and report whether or not the Property can be sold in parcels, and that the Referee make its report to the Court with all convenient speed; and it is further
ORDERED that pursuant to CPLR 8003(a), the statutory fee of $350 shall be paid to the Referee for the computation stage and upon the filing of his or her report, and $750 to conduct the foreclosure sale, and $250.00 on any sale cancelled with less than 48 hours' notice ; and it is further
ORDERED that the Referee is prohibited from accepting or returning any funds for him/herself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further
ORDERED that by accepting this appointment, the Referee certifies that he or she is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including Section 36.2 thereof; and it is further
ORDERED that Defendants Bances' and the Unknown Heirs' cross-motion (Seq. No. 6) to dismiss this action and to cancel the Amended Notice of Pendency is denied in its entirety.
ORDERED, that Plaintiff shall file motion for judgment/take further proceedings within 90 days hereof.
The foregoing constitutes the Decision and Order of this Court.