Sands v 1st Republic Mtge. Bankers, Inc.

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Sands v 1st Republic Mtge. Bankers, Inc. 2014 NY Slip Op 31109(U) March 11, 2014 Supreme Court, County of Bronx Docket Number: 308452/11 Judge: Sharon A.M. Aarons Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Mar 20 2 14 Bronx County Clerk c SUPREME OURT OF THE STATE OF NEW YORK COUNTY F BRONX Part 24 SWANNA Plaintiff, Index No. 308452111 Present: Hon. Sharon A. M. Aarons DECISION and ORDER -against- 1sT REPUB IC MORTGAGE BANKERS, INC., CITIMORT AGE, INC.,HSBC BANK, USA, KAI WILLI M CHEN, ESQ., JESSICA TERRANO A, BERMAN, HENOCH, PETERSON & PEDDY, P.C., THE S APORT TITLE AGENCY LTD., SARA Z. BORISKIN, LENDERS ABSTRACT & SETTLEMENT, FESTIVE H MES, LTD., U.S. HOUSING AND URBAN DEVELOP ENT SECRETARY, JOHN REIMER, and JOHN/JAN DOES, Defendants. Recitation, s required by CPLR 2219(a), of the papers considered in the review of motion(s) and/or cross-motio (s), as indicated below: Papers Numbered Numbered the foregoing papers, the foregoing motions are consolidated for disposition and decided as follows: Plai tiff prose moves pursuant to CPLR 5015 (a) (3), (5) to vacate the prior orders of this court, "especially is last order of 10/23/2102." By separate motion (enumerated as IA above), plaintiff prose moves "that his court tum over to the movant the entire contents of the bond and undertaking of the man, John Barone acting and d/b/a Judge John Barone, for irreparably damaging the affiant." Defendants The Seaport Title Agency Ltd. ("Seaport") and the U.S. Housing and Urban Development Secretary ("HUD") submit writt n opposition. 1 [* 2] FILED Mar 20 2 14 Bronx County Clerk By eparate motion (enumerated as 5 above), defendant HUD moves to dismiss the complaint against it pu suantto CPLR 3211 (a) (2) and (7). Plaintiff appeared at the call of the calendar on January 6, 2014, an orally opposed the motion, but failed to submit written opposition. Plai tiffs motions are denied, and defendant HUD's motion is granted. This action concerns property owned by the plaintiff located at 1808 Undercliff A venue in Bronx County, on hich she obtained a mortgage from defendant 1st Republic Mortgage Bankers, Inc., which was later ass gned to Citimortgage, lnc. 1 By summons and complaint dated September 12, 2011, plaintiff pro se seeks to quiet title to the property, alleging that she "was induced to create an unsolicited selffinancing er dit instrument (mortgage note)," that the defendant banks have no standing to assert an interest in th premises because the gold assets of the People of the United States were confiscated, and that the assi nment of the mortgage was a "sham." As to HUD, the complaint merely states that HUD has a claim against the property, and demands that it pay restitution for participating in acts of "trespassory deception." On prior motion, in a decision and order dated October 23, 2012, the Hon. John Barone of this Court grant d the motion of defendants Jessica Terranova, Sara Z. Borsikin, Berman, Henoch, Peterson & Peddy, P. ., and Seaport dismissing the complaint pursuant to CPLR 3211. The request by HUD made at that time or judgment dismissing the complaint pursuant to CPLR 3211 was not considered as not supported b a notice of motion or cross-motion. In view of the present allegations that Justice Barone is "an ad voe te for the plaintiffs," and has acted "in a manner violative of the Federal Constitution," he imself from this action. (Order dated December 9, 2013.) In s pport of her motions, plaintiff submits only the prior decision of Justice Barone dated 1 Ar Citimortgag HUD holds that the plai lated foreclosure action concerning the same real property is pending in this Court. Inc. v. Swanna Sands, Index No. 380667/2009. The foreclosure complaint alleges that subordinate mortgage on the property. The most recent order in that action provides tiff may proceed to foreclosure. Order of the Hon. Robert E. Torres, dated May 10, 2011. 2 [* 3] FILED Mar 20 2 14 Bronx County Clerk October 23, 2012. The supporting affidavits by plaintiff consist entirely of accusations that Justice Barone acte unlawfully, or that he acted arbitrarily and capriciously in depriving her of discovery and a jury trial, ithout advancing any cognizable argument to vacate the prior order. position, defendant Seaport submits a copy of Justice Barone's order dated October 23, 2012, serve with notice of entry on November 8,2012, as well as a decision in 2720 Realty Co. v. Williams (N Y.L.J. 1202570222814, at *1, L&T 077392/12 [Civil Court, Kings County 2012]), dealing with self-de lared "sovereign citizens." Defendant maintains that no basis has been advanced to vacate Justice Baro e's prior order. In o position, and in support ofits separate motion for dismissal, defendant HUD submits a copy ns and the verified complaint in this action. Defendant HUD asserts that there is no factual allegation o plaintiffs part to support any allegation that HUD induced the plaintiff to execute a mortgage, o acted in any manner to assist the other defendants to falsely assign that mortgage, or in any way perpetr ted a fraud. In addition, HUD asserts that as the plaintiff failed to allege the interest of the United State in her complaint, she failed to comply with 28 U .S.C. 2410 (b) ("The complaint or pleading shall set fort with particularity the nature of the interest or lien of the United States .... "), which HUD asserts depr'ves this Court of subject matter jurisdiction. HUD accordingly seeks dismissal based on failure to st e a cause of action, and lack of subject matter jurisdiction. respect to the motions by the plaintiff, no basis has been stated to vacate Justice Barone's prior order u der CPLR 5015 (a) (3) (fraud, misrepresentation, or other misconduct of an adverse party) or (a) (5) (re ersal, modification or vacatur of a prior judgment or order upon which it is based). CPLR 5015 (a) (3) eals with fraud by an adverse party, which has not been alleged here. CPLR 5015 (a) (5) ations where one order has to be reversed or modified because it is based on a prior order which itself as reversed, modified or vacated - again, a situation not present here. If the plaintiff is asserting tha Justice Barone engaged in fraud or misconduct, there is no evidence in support of it, nor 3 [* 4] FILED Mar 20 2 14 Bronx County Clerk any circums ance which would suggest even an appearance of impropriety. To t e extent that the motion may be viewed as one seeking reargument, it is clear that the prior order was c rrectly decided. Plaintiff has not shown that she has a viable cause of action against any of the defenda ts as to whom dismissal was granted. respect to defendant HUD's motion to dismiss,"[o]n a motion to dismiss the complaint pursuant to PLR 321 l(a)(7) for failure to state a cause of action, the court must afford the pleading a liberal const ction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory' (Breytman v. Olinville Realty, LLC, 54 A.D.3d 703, 703-704, 864 N.Y.S.2d 70, 71 [2d Dept. 2008] . "Whether the complaint will later survive a motion for summary judgment, or whether the ultimately be able to prove its claims, of course, plays no part in the determination of a prediscove CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, L P, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231, 234 [2d Dept. 2006]). Giving the plaintiff every favorable in erence, she has simply not asserted any facts which would suggest that has any cause of action again t HUD. It is thus not necessary to decide whether the failure to allege the interest of the United State divests the Court of subject matter jurisdiction. Ace rdingly, plaintiff's motions are denied. Defi dant HUD's motion is granted, and the complaint is dismissed as to defendant U.S. Housing and Urban 0 evelopment Secretary. It is hereby ERED that defendant U.S. Housing and Urban Development Secretary, serve a copy of this arties who have appeared herein. Dated: Marc \ \ , 2014 4

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