Wells Fargo Bank Minn. Natl. Assn. v Connelly

[*1] Wells Fargo Bank Minn. Natl. Assn. v Connelly 2006 NY Slip Op 52114(U) [13 Misc 3d 1234(A)] Decided on September 19, 2006 Supreme Court, Suffolk County Emerson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 19, 2006
Supreme Court, Suffolk County

Wells Fargo Bank Minnesota National Association, as Indenture Trustee for GRP/AG Real Estate Asset Trust 2004-1, Plaintiff,

against

James Connelly; North 140 Co., Inc.; People of the State of New York; Town Supervisor, Town of Brookhaven; New York State Tax Commission; and "John Doe No.1 Through John Doe #10" and "Jane Doe #1 Through "Jane Doe #10", the names "JOHN DOE" and "JANE DOE" being fictitious, but intended to represent any persons in possession of all or a portion of the mortgage premises, Defendants.



14649-04



SOLFERINO & SOLFERINO, L.L.P.

Attorneys for Plaintiff

15 Roslyn Road

Mineola, New York 11501

IRWIN POPKIN, ESQ.

Attorney for Defendant James Connelly

1138 William Floyd Parkway

Shirley, New York 11967

Elizabeth Hazlitt Emerson, J.

ORDERED

that the motion by the defendant James J. Connelly for an order dismissing the complaint is denied; and it is further

ORDERED that the branch of the cross motion by the plaintiff for an order amending the caption is granted; and it is further

ORDERED that the branch of the cross motion by the plaintiff for an order consolidating this action with another action entitled Wells Fargo Bank Minnesota National Association, as Indenture Trustee for GRP/AG Real Estate Asset Trust 2004-1 v James Connelly (Index No. 00217-2006) is denied.

The plaintiff commenced this mortgage foreclosure action by filing the summons

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and complaint on June 4, 2004. The judgment of foreclosure and sale was entered on June 14,

2005. By an order dated October 12, 2005, the court referred to a traverse hearing the motion by the defendant James Connelly to vacate the judgment of foreclosure and sale. The traverse hearing was adjourned, and the parties subsequently entered into a stipulation in which they agreed to consolidate this action with a second action to foreclose the same mortgage entitled Wells Fargo Bank Minnesota National Association, as Indenture Trustee for GRP/AG Real Estate Asset Trust 2004-1 v James Connelly (Index No. 00217-2006) and to extend until May 9, 2006, Mr. Connolly's time to answer the complaints, as consolidated. In addition, Mr. Connolly agreed to withdraw his motion to vacate the judgment of foreclosure and sale. On May 3, 2006, Mr. Connolly moved to dismiss the complaint in this action on the ground that the plaintiff lacks the legal capacity to sue (see, CPLR 3211[a][3]). He argues that, prior to the commencement of this action, Wells Fargo & Company consolidated 18 or 19 of its national charters, including the plaintiff herein, into a single national bank charter, Wells Fargo Bank, National Association. Relying on Westside Fed. Sav. & Loan Assn. of NY City v Fitzgerald (136 AD2d 699), Mr. Connolly argues that when, as here, a bank merges with and is completely absorbed by another banking institution, the absorbed bank ceases to exist as a separate entity and may no longer be a named party in litigation. The plaintiff cross moves to consolidate this action with the above-entitled action and to amend the caption to correct the plaintiff's name.

Preliminarily, the court notes that the parties may not consolidate actions by stipulation. CPLR 602(a) requires that a motion be made for such relief. Moreover, although the parties may stipulate to extend the defendant James Connelly's time to answer, they may not do so without vacating the judgment of foreclosure and sale (see generally, CPLR 5015). A judgment of [*2]foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded (see, New Horizons Investors v Marine Midland Bank, 248 AD2d 449, 450, citing Gray v Bankers Trust Co., 82 AD2d 168). Accordingly, the court finds the stipulation ineffective insofar as it purports to consolidate this action with another action and to extend Mr. Connelly's time to answer the complaint in this action.

The court also finds that consolidation of the two actions is not appropriate at this time. CPLR 602(a) provides in pertinent part that, when actions involving common questions of law or fact are pending before a court, they may be consolidated. A judgment is the resolution of the dispute and the note on which the action or proceeding ends (see, Seigel, NY Prac § 409, at 692 [4th ed]). In view of the fact that a judgment has already been entered in this action, it is no long pending before the court and may not be consolidated with the later action. Accordingly, the branch of the cross motion which is for consolidation is denied.

Turning to the motion to dismiss, the record demonstrates that the defendant James Connolly has waived the defense of lack of capacity to sue. CPLR 3211[e] requires that the defense of lack of capacity be raised in a pre-answer motion to dismiss or in the defendant's answer. Otherwise, it is waived. Here, despite the fact that the merger preceded the commencement of this action, Mr. Connolly never answered the complaint and never moved to dismiss the complaint prior to the expiration of his time to answer. Instead, he waited until almost

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one year after entry of the judgment of foreclosure and sale to raise the defense of lack of capacity. Under these circumstances, the court finds that the defense is waived (see, Security Pacific National Bank v Evans, 31 AD3d 278). Accordingly, the motion is denied.

CPLR 305(c) provides, "At any time, in its discretion and upon such terms as it deems just, the court may allow any summons...to be amended, if a substantial right of a party against whom the summons issued is not prejudiced." Mistakes or irregularities not affecting a substantial right of a party are not fatal. Mistakes relating to the name of a party involving a misnomer or misdescription of the legal status of a party fall within the category of those irregularities that are subject to correction by amendment, particularly when the other party is not prejudiced and should have been well aware from the outset that a misdescription was involved (see, Staheli v J&K Upholstery Center, 52 AD2d 754).

Mr. Connolly does not allege that he would be prejudiced by the proposed amendment. Moreover, as previously discussed, the merger preceded the commencement of this action. Therefore, Mr. Connolly should have been aware from the outset that a misdescription was [*3]involved. Accordingly, the branch of the cross motion which is to amend the caption is granted, and the caption shall hereafter read as follows:



DATED:September 19, 2006

J. S.C.