State of N.Y. Mtge. Agency v Massarelli

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State of N.Y. Mtge. Agency v Massarelli 2017 NY Slip Op 33150(U) June 15, 2017 Supreme Court, Schenectady County Docket Number: 901689-17 Judge: Christina L. Ryba Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ALBANY COUNTY CLERK 06/30/2017 04:07 PM NYSCEF DOC. NO. 41 INDEX NO. 901689-17 RECEIVED NYSCEF: 06/30/2017 I i I STATE OF NEW YORK. SUPREME COURT I I COUNTY OF SCHENECTADY STATE OF NEW YORK MORTGAGE AGENCY, Plaintiff, I DECISION/ORDER I Index No. 901689-17 I RJI N0. 01-17-123999 -against- JULIANE MASSARELLI a/k/a JULIANE O'BRIEN, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, "JOHN DOE", said name being fictitious and unknown to plaintiff, the persons or parties intended being the persons or parties, if any, having or claiming an interest in, or lien upon the premises described in the complaint, · Defendants. : I APPEARANCES: ~· r r..YJ :r.~ McCabe, Weisberg & Conway PC For Plaintiff 145 Huguenot Street, Suite 210 New Rochelle, NY 10801 -( r·<> C:J _, rT:C"'l (~_:: ~~~-F:l '.. ~- ;':.i.,) (•-'"'"'1 •,;;:, ('~':; C:> I I ·Timothy Shevy, Esq. For Defendant Juliane Massarelli a/k/a Juliane O'Brien 1528 Columbia Turnpike, Suite 203 Castelton, NY 12033 $; (~ c_; ~·~.: ..:.'..- -l -< -:J r"~· ·~. r.:"'·'.\ '...:..:-.= -~' ! I j I RYBA,J., I On September 16, 2005, defendant Juliane Massarelli a/k/a Ju~iane O'Brien (hereinafter : .. I defendant) executed a $136,800.00 note secured by a mortgage on her prnperty located at 2 Matilda . I I Street in the City of Albany. Defendant defaulted on the .mortgage by railing to make the regular monthly payment of principal and interest due on May 11, . . 2o 11, .promptihg plaintiff to commence a I mortgage foreclosure action in July 2012. In the context of the 2012 foJeclosure action, defendant moved to dismiss t'1e complaint on the ground that plaintiff: lacked standJg to sue. Plaintiff failed to oppose the motion, and the Court (Platkin, J.) thereafter issued an order dated September 10, 2013 1 of 4 [*FILED: 2] ALBANY COUNTY CLERK 06/30/2017 04:07 PM INDEX NO. 901689-17 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/30/2017 dismissing the action "with prejudice". Thereafter, on July 8, 2016; plaintiff and defendant executed a Stipulation Canceling Notice of Pendency and a Stipulation of Discon'.inuance wherein the parties agreed .rt the 2012 foreclosilre action was discontmued "without prejudice". Defendant has evidently failed to make any further : I payments on the mortgage and remains in default. Consequently, plaintiff commenced the present action in March 2017 seeking-to foreclose on the mortgag~ for the entij principle balance due of . . I $120,689 .15 plus interest thereon from April 1, 2011. Defendant now mm~es for an order dismissing . i . the complaint pursuant to CPLR 3211 (a) (1) on the ground that a defense is founded upon documentary . . . I evidence, and pursuant to CPLR 3211 (a) (5) on the ground that the action isJbarred by principles of res . I . I I I judicata. Plaintiff opposes the motio.n. . . In support of her motion, defendant argues that the order dismissing ~he 2012 foreclosure action . I "with prejudice" constitutes documentary evidence that conclusively operat'.es to bar the present action . under principles of res judicata. . . I This argument is without merit. Illitially, by executing the I ! aforementioned stipulation whereby she agreed that the 2012 foreclosure actfon was concluded "without . . I prejudice" to the commencement of a future action, defendant arguably wailed any claim that the "with prejudice" language of the prior order precludes this second mortgage forecl'osure action. In any event, I even assuming that the "with prejudice" language of the prior order remdins in effect, this does not . . I I . I automatically require dismissal of plaintiff's action. "Even where a dismissal is specifically 'on the I . I merits' or 'with prejudice', the circumstances must warrant barring the litigant from further pursuit of his claim in order for those phrases to be given preclusive effect" (Stacey 0 . t Donald P, 13 7 AD2d 965, I . 966-67 [1988]; see, Art Guild Gallery v Charmack, 107 AL>2d 777, 778 [1985]). Courts may within their discretion limit, and even disregard, "on the merits" 2 2 of 4 o~ "with prejudiJe" language !n the interests [*FILED: 3] ALBANY COUNTY CLERK 06/30/2017 04:07 PM INDEX NO. 901689-17 NYSCEF DOC. NO. 41 RECEIVED NYSCEF: 06/30/2017 ' I I I 110 AD2d 81, 8~ [1985]; Art G ild Gallery v Charmack, -1 I . I · of justice (see, Forte v Kaneka Am. Corp., . ·' 107 AD2d at 778 [1985]; Matter.ofHorton, 51AD2d85 [1976]). Here, given defendant's arguable waiver of the "with prejudice" language, and in light of de~endant' y~ars, payments on her mortgage for a period of more than six . . s contLued failure to make any the Couj deems it an appropriate II . exercise of discretion to disregard the "with prejudice" language in the intdrests of justice. 1 Finally, even ifthe Court did not disregard the "with prejudice" lanluage in the prior order, it ' I ! [ would nonetheless conclude that the prior order should not be .accorded res judicata effect in this action. ' , - ' I I Res judicata prevents a party from relitigating "a claim where a judgment 9n the merits exists from a . I prior action between the same parties involving the same subject matter" (Matter of Hunter, 4 NY3d I :. I 260, 269, [2005]; see, Matter of Bemis v Town of Crown Point, 121 ~D3d . 1448, 1450 [2014]; I Evergreen Bank v Dashnaw, 246 AD2d 814, 815 [1998]). Defendant sou~ht ~d obtained dismissal I I . of2012 mortgage foreclosure action based upon her assertion that plaintiff !'failed to demonstrate that it has standing to commence this foreclosure action, since it failed to establish how or when it became I I - the lawful holder of the note". It is well settled that a dismissal for lack o~standing is not a dismissal . I on the merits (see, Ricatto v Mapliedi, 133 AD3d 73 7 [2015]; Farkas v Nehr Yark State dept. of Civil Serv., 114 AQ2d 563 [1985]). Accordingly, principles ofres judicata are !inapplicable. i For the foregoing· reasons, it is I I ORDERED that the motion is denied, without costs·, and it is 'uirtJer . . . - . . I I ORDERED that the defendant Juliane Massarelli a/k/a Juliane O'Brien is directed to serve an I answer to the complaint within 20 days of service of this decision and oraer upon her with notice of entry. This Memor~ndum constitutes the Decision and Order of the Court. This original Decision 3 3 of 4 [*FILED: 4] ALBANY COUNTY CLERK 06/30/2017 04:07 PM NYSCEF DOC. NO. 41 INDEX NO. 901689-17 RECEIVED NYSCEF: 06/30/2017 I I and Order is being returned to the attorney for the plaintiff. The below referenced original . I papers are being transferred to the Albany County Clerk. Th'e signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Coun;elis not relie~ed from the provision of i that rule regarding filing, entry, or notice of entry. [ i' SO ORDERED. 1 ENTER. Dated: JuV\e.. )5 I. d 0 l 7 ----;/-----~ · HON. CHRISTINA L. RYBA Supreme Court Justice / . I . . I . ~.~ b---- ) 4 4 of 4 0 ff <-9

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