Nationstar Mtge., LLC v Norton

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Nationstar Mtge., LLC v Norton 2018 NY Slip Op 32434(U) September 27, 2018 Supreme Court, Suffolk County Docket Number: 1652/12 Judge: Thomas F. Whelan 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. [* 1] MEMO DECISION & OKDER INDEX No. 1652112 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 1/3 0117 SUBMIT D ATE 8/ 15/18 Mot. Seq. # 003 - MD Mot. Seq. # 004 - MotD Mot. Seq.# 005 - XMD CDISPY_x_ N ---------------------------------------------------------------)( NATIONSTAR MORTGAGE, LLC, Plaintiff, SHAPIRO, DiCARO & BARAK Attys. For Plaintiff 175 Mile Crossing Blvd. Rochester, NY 14624 -againstANN E. NORTON a/k/a ANNE E . NORTON a/k/a: ANN NORTON, PRECISION RECOVERY ANALYTICS , INC., assignee in interest to GE MONEY BANK, NEW YORK STATE DEPARTMENT OFTAXA TTON AND FINANCE. COMMISSIONER OF TAXATJON AND FINANCE CIVIL ENFORCEM ENT CO-ATC, LUCILLE GOLDER, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE: COMMISSIONER OF TAXATION AND FINANCE TAX COMPLIANCE DIVISION CH ILD SUPPORT ENFORCEMENT SECTION and CHRISTOPHER NORTON. PANKAJ MALIK, ESQ . Atty. For D efendant Ann Norton 555 5th Ave. New York, N Y 10017 Defendants. ---------------------------------------------------------------)( Upon the following papers numbered l to 17 read on these motions to dismiss. separate motion for Judgment of Foreclosure and Sale and cross motion denying motion for Judgment of Foreclosure and Sale _ __ :Notices of Motion/Order to Show Cause and supporting papers I - 3· 4-7 ; Notice of Cross Motion ; Opposing papers: 12- 13 · 14-15 ; Reply papers 16- 17 ; Other _ _ and supporting papers: 8- 1 I [* 2] Nationstar Mortgage v Norton Index No. 12-01652 Page 2 _ ; (1111d 11fte1 hear i11p, eol111sel in St1pport 1t11d opposed to the n1otio1i) it is, ORDERED that this motion (#003) by the defendant, Anne Norton, for an Order granting leave to renew and/or reargue the Court's Order of June 20, 2016 and, upon renewal/reargument, dismissing the complaint pursuant to CPLR 32 15(c) and RPAPL § 1304 or, in the alternative, granting defendant leave to file a late answer or restoring the matter to the calendar for a foreclosure conference, is denied; and it is further ORDERED that those branches of plaintiff's motion (#004) for, inter alia, leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RP APL) §135 1, is granted, and it is further ORDERED that the branch of plaintiff's motion (#004) seeking substitution of the plaintiff is denied, with leave to renew; and it is further ORDERED that the cross motion (#005) by defendant, Anne Norton, for an Order of dismissal or, in the alternative, restoring the matter to the calendar for a foreclosure conference, is denied; and it is further ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further ORDERED that plaintiff is directed to file a notice ofentry within five days ofreceipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2). This is an action for foreclosure on residential real property located in No1thport, NY. Familiarity with the Court's Order June 20, 2016 (Ford, .T.S.C.) is presumed, wherein plaintiff's motion (#001) for a defaultjudgmentand the appointment ofa referee was granted , and defendant's cross motion (#002) to dismiss or, in the alternative, for leave to file a la te answer, was denied. On January 5, 2017, defendant filed a motion (#003) which, according to the Notice of Motion, seeks dismissal pursuant to CPLR 3215(c) and RPAPL 1304 or, in the aiternative, leave to file a late answer or to have the matter restored to the foreclosure settlement conference calendar. The supporting affirmation, however, seeks to support a motion to renew and reargue the Court's Order of June 20, 2016. The motion (#003) was adjourned several times and fully briefed as of February 22, 2017. For reasons unknown, the motion languished with the Court for some time. On January 19, 20 18, plaintiff moved (#004) for confirmation of the referee's report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. The defendant opposed the motion, and cross moved (#005) for dismissal of the action. The matter was reassigned to this Pa11 pursuant to Administrative Order No. 71-18 dated August 3, 2018, and the three motions were submitted for decision on August 15, 2018. The Cou11 considers fu·st the defendant's motion (#003) to renew/reargue as determination thereof may render determination of the remaining motions, academic. At the outset, the Com1 notes that the motion is procedurally defective to the extent that the moving papers submitted recite grounds for relief which di:fferfrom that of the s upporting papers (see CPLR 2214[a)). Additionally, CPLR 222 1, the provision upon which the affirmation in support relies, requires that '·a combined [* 3] Nationstar Mortgage v Norton Index No. 12-01652 Page 3 motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought" (CPLR 222 1[f]). This the defendant has failed to do. While defendant's motion should be denied on these bases, the Court addresses each herein. A motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry" (CPLR 2221 [d]). Here, plaintiff served notice of entry of the Order on August 11, 2016, and the motion (#003) was served more than 30 days later, on January 5, 2017. Thus, the portion of defendant's motion seeking leave to reargue is denied as untimely. The motion for leave to renew pursuant to CPLR 2221(e) is also denied. Such a motion "shall be based upon new facts not offered on a prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion" (Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, 19 NYS3d 543 [2d Dept 2015]; see National Loan Inv., l.P. v Ippolito , 131 AD3d 95 1, 15 NYS3d 894 [2d Dept 20 15]; Wells Fargo Bank vALlen, 130 AD3d 717, 11 NYS3d 876 [2d Dept 2016]; Jacobson vAdler 119 AD3d 902, 989 NYS2d 898 [2d Dept 20 14]; Wells Fargo Ba11k, N.A. v Russell, 101 AD3d 860, 955 i YS2d 654 [2d Dept 2012]; Mellon v Izmirligil, 88 AD3d 930, 931 NYS2d 667 [2d Dept 2011]; Siegel v Morsey New Sq. Trails Corp., 40 AD3d 960, 836 NYS2d 678 [2d Dept 2007]). The motion must be predicated upon facts or materials in existence at the time of the original motion but not known or otherwise unavailable to the party seeking renewal (see Nestemko v Starrett City Assocs., l.P., 123 AD3d 1099, 997 NYS3d 636 (2d Dept 201 6]). The party seeking such relief must demonstrate a reasonable justification for the fa ilure to present such facts on the original motion. If such is lacking, the Court lacks discretion to grant renewal (see DLJ Mtge. Capital, Inc. v David, 147 AD3d 1024, 48 NYS3d 234 (2d Dept 2017]; Central Mtge. Co. v Resh elf, 136 AD3d 962, 26 NYS3d 323 [2d Dept 2016); Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980, supra; Wells Fargo Bank v Alle1t, 130 AD3d 717, supra; Cioffi v S .M. Foods, Inc., 129 AD3d 888, 10 NYS3d 620 [2d Dept 2015]). As noted in the Court's Order of June 20, 2016 (Ford, J.S.C.), the defendant failed to provide a reasonable excuse for failing to answer the complaint or for her delay in moving to vacate her default and, therefore, her challenges to plaintiffs standing and compliance with RP APL 1304 were waived. The Court thus looks initially to whether the defendant is entitled to renewal of the Court 's prior determination that she failed to vacate her default. The Court ho lds that she is not. Aside from summ arily stating that "Defendant's Default is Excusable," the defendant fai ls to set fo rth any new facts or materials which were in existence at the time the motion was filed, but that she was unaware of or were otherwise unavailable to her at that time (see Nestem ko v Starrett City Assocs., L.P., 123 AD3d 1099. supra). A motion for leave to reargue is not one which provides an unsuccessful party with successive opportunities to reassert or propound the same arguments previously advanced. Nor is it one that provides a platform for the presentation of arguments different from those already presented (see V. Veeraswamy Realty v Ye11om Corp., 71AD3d 874, 895 NYS2d 860 [2d Dept 20101; Woody's Lumber Co., Inc. v Jayram Realty Corp., 30 AD3d 590, 8 17 NYS2d 39 1 r2d Dept 20061; Williams v B oard o.I Educ. of City School Dist. of New York City , 24 AD3d 458, 805 NYS2d 126 (2d Dept 2005]; Simon v Melzryari, 16 AD3d 543. 792 NYS2d 543 (2d Dept 2005]). As the defendant remains in default, the Cour-t need not address the defendant's issues of standing and RP APL 1304 as raised in the instant motion, as those defenses have been waived by way of [* 4] Nationstar Mortgage v Norton Index No. 12-01652 Page 4 defendant's default and failure to vacate same. The defendant's request for renewal of that branch of the motion which sought dismissal of the complaint pursuant to CPLR 3215( c) is also denied. As noted above, the defendant fails to provide any new information or provide a change in law in connection with plaintiffs compliance with 32 l 5(c). The Court considers next the defendant's cross motion (#005) to dismiss, as determination thereof may render determination of plaintiffs motion (#004) academic. The defendant' s cross motion (#005) seeks dismissal alleging lack of personal jurisdiction, that plaintiff failed to comply with RP APL §§ 1303 and 1304, and that plaintiff lacked standing to commence the action. To the extent defendant's submissions rest on personal jurisdiction of the defendant, compliance with RPAPL § 1304 and CPLR 3215(c), these issues have been addressed above in connection the defendant's motion (#002) and the Court will not revisit these issues a third time. To the extent the defendant raises, for the first time, plaintiffs's compliance with RPAPL § 1303, the defendant waived her right to assert this lack of compliance in failing to raise the allegation in a timely pre-answer motion to dismiss or answer (see CPLR 3018; Emigra11t Ba11k v Mara11do, 143 AD3d 856, 39 NYS3d 83 [2d Dept 2016]; Signature Ba11k v Epstein, 95 AD3d 11 99, 1200-0 1, 945 NYS2d 347 [2d Dept 2012]; First N. Mortgagee Corp. v Yatrakis , 154 A.D.2d 433 , 546 N.Y.S.2d 9 [2d Dept 1989]). Where, as here, an issue is judicially determined, judges and courts of coordinate jurisdiction are precluded from further consideration of that issue under the doctrine of the "law of the case," which applies to any legal determinations that were necessarily resolved on the merits in a prior decision (see Martin v City of Cohoes, 37 NY2d 162, 165, 371NYS2d687, 689 [1975]; Ahrorgulova v Mann, 144 AD3d 953, 42 NYS3d 203 [2d Dept 20 16]; Strujan v Glencord Bldg. Corp. , 137AD3d1252,29NYS3d398 [2dDept2016]). Under these circumstances, thelawofthe case doctrine is applicable and precludes any further consideration of these allegations (see Madison Acquisition Group, LLCv 7614 Fourtlt Real Estate Dev., LLC, 134 AD3d 683, 20 NYS3d418 [2d Dept 20 15]; Certain Un derwriters at Lloyd's London v Nortlt Sltore Signature Homes, Inc., 125 AD3d 7 99, 1 NYS3d 8 4 1 (2d D e pt 2015]). For this reason, t he cross motio n (#005) is denied. Turning then to plaintiffs motion (#004), the plaintiff's submissions include a Referee's Oath and Report of Amount Due to the Plaintiff dated September 20, 2017, copies of the note and mortgage, and an accounting of plaintiffs attorneys' costs in prosecuting thi s action. The Court has reviewed plaintiff's submissions which establish its entitlement to a judgment of foreclosure and sale, namely the referee's findings and report (see US Bank N.A. v Saraceno, 147 AD3d 1005, 48 NYS3d 163 [2d Dept 2017]; Mortgage Elec. Registratio11 Sys., b1c. v Holmes, 131 AD3d 680, 17 NYS3d 31 [2d Dept 20 15]; HSBC Bank USA, N.A . vSimmo11s, 125 AD3d 930, 5 NYS3d 175 [2d Dept 2015]). No hearing was required or requested (see Wells Fargo Bank v Zelaya, 56 Misc3d 1219[A), 2017 N.Y. Slip Op. 51068[U] [Sup. Ct. Suffolk County 2017]). There is no showing of prejudice. The Court grants that branch of plaintiff's motion seeking attorney's fees, as the terms of the subject loan documents allows for same. Here, plaintiff has supplied the CoULi with an affinnation of services and requests a total of $2,000.00. The Court finds $2,000.00 to be reasonable, and awards plaintiff same (see Vigo v 501 Second Street /lo/<li11g Corp. , 12 1 AD3d 778, 994 NYS2d 354 (2d Dept 2014]). [* 5] Nationstar Mortgage v Norton Index No. 12-01652 Page 5 This constitutes the Decision and Order,of this Court, and the Court signs the proposed Judgment, as modified. DATED:

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