Aurora Bank FSB v Delli Paoli
Annotate this CaseDecided on July 26, 2013
Supreme Court, Richmond County
Aurora Bank FSB, as attorney-in-fact for US BANK NATIONAL ASSOCIATION as TRUSTEE OF THE LEHMAN BROTHERS SMALL BALANCE COMMERCIAL MORTGAGE PASS- THROUGH CERTIFICATES, series 2007-1, Plaintiff,
against
Edward Delli Paoli a/k/a EDWARD DELLI PAOLI a/k/a/ EDWARD GERALD DELLI PAOLI GMQ, INC., JOSEPH MAROTTA, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY DEPARTMENT OF FINANCE, Defendants.
131723/10
Thomas P. Aliotta, J.
Upon the foregoing papers, the motion for leave to reargue by defendant EDWARD DELLI PAOLI is denied.
Plaintiff AURORA BANK FSB (hereinafter "AURORA") commenced this foreclosure action as attorney-in-fact for US BANK NATIONAL ASSOCIATION as TRUSTEE of the LEHMAN BROTHERS SMALL BALANCE COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, Series 2007-1, upon the failure of defendant EDWARD DELLI PAOLI (hereinafter "defendant") to make the required payments on a note and mortgage which he executed on November 1, 2006 in connection with the purchase of commercial property located at 129 New Dorp Plaza, Staten Island, New York. The original mortgagee was Greenpoint Mortgage Funding Inc.
Insofar as it appears, in January of 2007, Greenpoint Mortgage Funding Inc. assigned defendant's note and mortgage to plaintiff AURORA (f/k/a as Lehman Brothers Bank FSB), which [*2]further assigned the subject note and mortgage to US BANK NATIONAL ASSOCIATION as TRUSTEE of the LEHMAN BROTHERS SMALL BALANCE COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, Series 2007-1 (hereinafter "US BANK") on August 24, 2010. This was three months prior to the commencement of this action on November 16, 2010.
Previously, i.e., on February 29, 2007, LEHMAN BROTHERS BANK FSB had entered into Trust and Servicing Agreement with US BANK with regard to Lehman Brothers Small Balance Commercial Mortgage Pass-Through Certificates, Series 2007-1, pursuant to which US BANK was named as the trustee for these certificates, and LEHMAN BROTHERS was named as the servicer. Simultaneously, a Limited Power of Attorney was given to LEHMAN BROTHERS to act in the name, place and stead of the trustee, US BANK. Thereafter, and on April 24, 2009, LEHMAN BROTHERS changed its name to AURORA, whereupon, on April 28, 2010, a Limited Power of Attorney was executed by US BANK appointing AURORA in the place of LEHMAN BROTHERS to act on its behalf with regard to all the mortgage loans subject to the aforementioned trust and servicing agreements.
Following the joinder of issue, defendant moved for summary judgment and dismissal of the complaint on the ground, inter alia, that the plaintiff lacked the standing to commence the action, whereupon plaintiff cross-moved for summary judgment and the appointment of a referee to compute. In its prior Decision and Order (dated December 12, 2012), this Court denied defendant's motion, and granted summary judgment in favor of plaintiff, based on its proof of standing.
In moving for leave to reargue, defendant maintains that this Court overlooked or misapprehended relevant facts in rendering it prior Decision and Order, e.g., when it relied upon plaintiff's April 28, 2010 limited power of attorney to confer standing in this foreclosure action. More specifically, defendant argues that at the time that the limited power of attorney was executed, the holder of the subject mortgage was plaintiff (AURORA) rather than US BANK, and that the latter did not become the holder of the mortgage until August 24, 2010. In addition, defendant questions the authority and knowledge of the facts of the individuals who executed the limited power of attorney (Donald Duclos and Mary Ellen Hunter, both of US BANK), as well as the authority of Mariah Henderson (a senior special assets officer of AURORA), who submitted an affidavit in support of plaintiff's cross motion in which she attested to her knowledge of the facts in this case and the chain of ownership of the subject note and mortgage. Finally, defendant questions the ownership of the mortgage, and argues that the note underlying the subject mortgage lost its identity as such when stock certificates were issued. Accordingly, defendant maintains that plaintiff cannot be in possession of same.
Plaintiff has submitted no papers in opposition to the motion.
The application is denied.
A motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision (CPLR 2221[d][2]; see Schneider v. Solowey, 141 AD2d 813). Reargument is not designed to afford the unsuccessful party successive opportunities to argue again the same issues previously decided, or to present new arguments different from those originally asserted (see William P. Pahl Equipment Corp. v. Kassis, 182 AD2d 22, 27). Here, defendant has failed to demonstrate that the Court overlooked any relevant fact, misapprehended the law or, for any other reason, mistakenly arrived at its earlier determination. [*3]
Contrary to defendant's contentions, this Court duly considered all of the documents submitted in support of the prior motions and found them to be satisfactory to demonstrate plaintiff's standing. In particular, the documents tendered were deemed to establish the chain of ownership of the note and mortgage, as well as plaintiff's authority to act on behalf of the trustee, US BANK. These documents included, without limitation, the Limited Power of Attorney executed by US BANK in favor of plaintiff (effective on and after April 28, 2010); the pooling and servicing agreements; and the various assignments outlined in the affidavit of Mariah Henderson.
In addition, this Court rejects defendant's claim (asserted for the first time on reargument) that the note securing the subject mortgage has ceased to exist as a debt instrument. Defendant at bar has not offered any proof of such change in the character of the note itself, nor any controlling authority indicating that this purported "change" negated the right of the holder of the note and mortgage to pursue foreclosure. In any event, since defendant failed to raise this issue previously, he will not be permitted to do so now (see William P. Pahl Equipment Corp. V. Kassis, 182 AD2d at 27).
Defendant's remaining contentions have been considered and rejected.
Accordingly, it is
ORDERED that the motion for leave to reargue of defendant EDWARD DELLI PAOLI is denied.
E N T E R,
___/s/___________________________
HON. THOMAS P. ALIOTTA,
J.S.C.
Dated: July 26, 2013
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