Citimortgage, Inc. v Ki Lee
Annotate this CaseDecided on July 6, 2018
Supreme Court, Suffolk County
Citimortgage, Inc., Plaintiff,
against
Ki Lee a/k/a KIHYON LEE a/k/a KI KYON LEE, MERS, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as nominee for Citibank, NA, AMERICAN EXPRESS, FSB, ASSET ACCEPTANCE LLC, DISCOVER BANK and "JOHN DOE" and "MARY DOE", said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants.
600796/15
DAVIDSON FINK, LLP Attys. For Plaintiff
28 E. Main St. - Ste. 1700
Rochester, NY 14614
RONALD D. WEISS, PC
Atty. For Defendant Lee
734 Walt Whitman Rd. - Ste. 203
Melville, NY 11747
Thomas F. Whelan, J.
Upon the following papers numbered 1 to10read on this motionto appoint a referee to compute and cross motion to extend time to answer; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers: 5-8; Opposing papers:9- 10; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the branches of plaintiff's motion (#004) for, among other things, a default judgment, amendment of the caption, and the appointment of a referee to compute, is granted in its entirety; and it is further
ORDERED that the branch of plaintiff's motion (#004) seeking an Order amending the complaint is denied; and it is further
ORDERED that the cross motion (#005) by the defendant, Ki Lee, for leave to file and serve a late answer and to dismiss the action, is denied in its entirety; and it is further
ORDERED that on the Court's own motion, counsel for plaintiff and defendant are directed to show cause why an order should or should not be made and entered imposing sanctions and/or costs, if any, including counsel fees, against defendant's Counsel's law firm pursuant to 22 NYCRR 130-1.1(c) as this Court may deem appropriate, by filing an original of their respective affirmations or affidavits on the issue, including the amounts of legal fees incurred by the plaintiff in connection with responding to defendant's cross motion, in the Office of the Clerk of the Court and this Part 33 and serving a copy of same on each other on or before August 3, 2018; and it is further
ORDERED that counsel for plaintiff and defendant are directed to appear at a sanction hearing held before the Court on August 8, 2018 at 9:30 am in Part 33, at the courthouse located at 1 Court Street - Annex, Riverhead, New York. There will be no adjournment of this conference; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(3).
Familiarity with this Court's Order dated January 10, 2018 is presumed, wherein plaintiff's motion (#002) for a default judgment and the appointment of a referee to compute was adjudicated as moot, and defendant Ki Lee's cross-motion (#003) to dismiss the action or, in the alternative, for leave to serve a late answer, was denied in its entirety. The plaintiff now moves (#004) for, inter alia, a default judgment and the appointment of a referee to compute. In response, defendant Ki Lee has filed a cross motion (#005) seeking the same relief as that of his previous motion (#003).
The Court notes, as plaintiff's counsel correctly points out, that the defendant's submission is a nearly identical copy of the previous cross-motion (#003) which was denied by this Court's Order dated January 10, 2018. Notably, the defendant failed to disclose in his current motion that his prior cross motion was denied. The submission is without any rational basis in fact or in law, and provides no basis for the denial of the plaintiff's motion. Each of the contentions set forth are simply a reassertion of those previously advanced, and dismissed, in defendant's prior cross-motion. Consideration of the merits of the defendant's cross-motion is thus precluded by the law of the case doctrine as the court previously rejected all contentions as lacking in merit. Thus, under these circumstances, the law of the case doctrine is applicable and it precludes any additional consideration of these allegations (see Madison Acquisition Group, LLC v 7614 Fourth Real Estate Dev., LLC, 134 AD3d 683, 20 NYS3d 418 [2d Dept 2015]; Certain Underwriters at Lloyd's London v North Shore Signature Homes, Inc., 125 AD3d 799, 1 NYS3d 841 [2d Dept 2015]).
Given the above, and considering the circumstances of this case, defendant's motion constitutes little more than an abusive litigation tactic. Since the defendant has raised arguments on this motion that appear to be "completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law" (22 NYCRR 130-1.1[c]), the motion may be frivolous. Accordingly, the Court directs the submission of affirmations or affidavits on the issue of whether, and in what amount, costs or sanctions in connection with this motion, should or should not be imposed upon the defendant's Counsel's law firm pursuant to 22 NYCRR 130-1.1[c].
The Court now turns to the plaintiff's motion for an order appointing a referee to compute, granting it default judgments as against all non-appearing defendants, and to amend the caption, and finds that the plaintiff's moving papers sufficiently established all of the elements necessary for the fixation of the defendant's default in answering and the appointment of referee to compute amounts due under the subject note and mortgage as contemplated by RPAPL § 1321 (see CPLR 3215; RPAPL § 1321; Todd v Green, 122 AD3d 831, 832, 997 NYS2d 155 [2d Dept 2014]; US Bank v Razon, 115 AD3d 739, 740, 981 NYS2d 583 [2d Dept 2014]). These branches of the motion are therefore granted, without opposition.
The Court also grants that portion of the plaintiff's motion seeking to substitute New Penn Financial, LLC D/B/A Shellpoint Mortgage Servicing as plaintiff. Where a plaintiff in a mortgage foreclosure action transfers the note by written assignment or by physical delivery to a third party during the pendency of such action, the transferee may continue to prosecute the action in the name of the original plaintiff or it may seek leave to have itself formally substituted for the named plaintiff pursuant to CPLR 1018 (see U.S. Bank Natl. Assn. v Akande, 136 AD3d 887, 26 NYS3d 164 [2d Dept 2015]; Woori Am. Bank v Global Universal Group Ltd., 134 [*2]AD3d 699, 20 NYS3d 597 [2d Dept 2015]; Brighton BK, LLC v Kurbatsky, 131 AD3d 1000, 17 NYS3d 137 [2d Dept 2015]). Here, the affidavit of William Sterling, Foreclosure Specialist of New Penn Financial, LLC D/B/A Shellpoint Mortgage Servicing (hereinafter, "New Penn") avers that New Penn is the current holder of the note (see U.S. Bank Natl. Assn. v Akande, 136 AD3d 887, supra; Woori America Bank v Global Universal Group Ltd., 134 AD3d 699, supra; Brighton BK, LLC v Kurbatsky, 131 AD3d 1000, supra). The substitution is, therefore, granted.
Plaintiff's application to amend the complaint to annex the proper mortgage document is denied as moot. The Court notes that the Complaint specified sufficient details of the note and mortgage at issue, and the Court finds that the error in attaching an incorrect exhibit is, in this case, de minimus, and it does not deprive the court of jurisdiction "in view of the accurate description of the premises provided in these and other documents relating to the foreclosure" (American Mtge. Bank v Matovitz, 208 AD2d 788, 788—89, 618 NYS2d 391 [2d Dept 1994]). Additionally, it is the note, not the mortgage, that is the dispositive instrument (see Aurora Loan Servs., LLC v Taylor, 25 NY3d 366, supra). In light of the above, and upon the Court's own motion pursuant to CPLR 2001 which permits a Court to correct a mistake "upon such terms as may be just" (see CPLR 2001), the Court deems the complaint corrected to include the proper mortgage document.
The plaintiff's motion (#004) is decided in accordance with the above, and defendant's cross motion (#005) is dismissed in its entirety. The plaintiff's proposed Order is held in abeyance of the sanction hearing to held before the Court on August 8, 2018.
DATED: July 6, 2018
_____________________________
THOMAS F. WHELAN, J.S.C.
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