Bank of N.Y. Mellon v Regalbuto

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Bank of N.Y. Mellon v Regalbuto 2021 NY Slip Op 30034(U) January 5, 2021 Supreme Court, Kings County Docket Number: 504444/2019 Judge: Dawn M. Jimenez-Salta 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] KINGS COUNTY CLERK 01/08/2021 12:48 PM NYSCEF DOC. NO. 79 INDEX NO. 504444/2019 RECEIVED NYSCEF: 01/08/2021 At an IA Term, Part 88 of the Supreme Court of the tate of New York held in and for the County of Kings, at the Courthou e, at Civic Center, Brooklyn New York, on the 5th day of January 2021. PRESENT: HO . DAWN JIMENEZ- ALTA , Ju tice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X THE BANK OF EW YORK MELLON FKA .HE R STEE FOR THE BANK OF EW YORK, A CERTIFICATEHOLDER 0 TH CWALT, I ., ALTERNATIVE LOA TRU T2006-0A6 MORTGAGE PA -THROUGH CERTIFICATES ERIE 2006-0A6, it uccessors and/or assigns, DECJ IO /ORDER Index o. 504444/2019 Mot. eq. l and 2 Plaintiff - against JOANNE REGALBUTO A THE EXECUTOR OF THEE TATE OF JO EPHI ELA ZA , LOUI REGALBU 0 JOANNE REGALBUTO TNDIVIDUALL Y, LINDA PEZZACA TENA, AMA THA LANZA KA THERINE LANZA AND LIZABETH LANZA, Defendant . - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X NYSCE Doc. Nos. The following e-filed paper read herein: Notice of Motion /Order to Show Cause/ Petition/Cross Motion and Affidavit (Affirmation ) Annexed _ __ _ __ __ _ Opposing Affidavits (Affirmations) _ _ _ _ _ _ _ __ Reply Affidavits (Affirmations) _ _ __ __ _ __ _ 15-31 61-68 69-72 38-51 54-60 73-76 Upon the foregoing papers, defendants, Joanne Regalbuto, a the executor of the e tate of Josephine Lanza Louis Regalbuto, Joanne Regalbuto individually, Samantha Lanza, Katherine Lanza and Elizabeth Lanza (collectively, defendants) move, in motion sequence one, for an order pursuant to CPLR 3211 (a)(5) and (a)(7), dismissing the complaint and cancelling the notice of pendency filed by plaintiff. Defendants al o move in motion sequence two, for an order cancelling of record the mortgage dated March 22 2006 and recorded on May 8, 2020 in the Office of the City Register, Kings County in CRFN 2020000143259 by plaintiff. the Bank of ew York Mellon (plaintiff) against the property located at 1963 6 I st treet Brooklyn New York designated as Block 5520 Lot 52 (prem i e ). 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 01/08/2021 12:48 PM NYSCEF DOC. NO. 79 INDEX NO. 504444/2019 RECEIVED NYSCEF: 01/08/2021 Plaintiff commenced this action by filing of the summons and complaint on February 28 2019 pursuant to article 15 of the Real Property Actions and Proceedings Law seeking inter alia a judgment declaring that it holds a valid mortgage on the premises and that any interest Joanne Regalbuto and Louis Regalbuto (the Regalbutos) may have in the premises is subordinate to the aforesaid mortgage and the ownership interest of its mortgagor, the now-deceased Josephine Lanza. Plaintiff contends that the Regalbutos conveyed the premises to Josephine Lan.za by deed dated March 22 2006. The original deed was lost or destroyed and not recorded. To finance her purchase of the premises from the Regalbutos, Lanza allegedly obtained a mortgage loan (the Lanza Mortgage) from plaintiffs assignor in the principal amount of $572,000.00. The Lanza Mortgage was also lost and not recorded . Prior to the commencement of the instant action plaintiff commenced an action again t defendants in Supreme Court, Kings County captioned Bank of N. Y Mellon et al. v Regalbuto et al. under index o. 9820/2014 seeking, inter alia an order declaring that it held an equitable mortgage and asserting causes of action sounding in equitable subrogation and unjust enrichment. By order dated January 24 2019, this Court granted defendants motion to dismiss the complaint pursuant to CPLR 32 l l(a)(5) and (a)(7) on the basis that, inter alia, plaintiffs claims for an equitable mortgage, equitable subrogation and unjust enrichment were barred by the applicable statute of limitations. Plaintiff also ought declaratory relief and to quiet title along with an order directing the City Register to record its mortgage interest. These causes of action were dismis ed pursuant to CPLR 3211 (a)(7) for failure to state a cause of action. 1 Plaintiff claims that it was unable to locate a copy of the Lanza Mortgage at that time. Following the dismissal of the prior action, plaintiff commenced the instant action by filing of a complaint which purported to remedy any pleading defect and attached as exhibits both a copy of the Lanza Mortgage and a HUD-1 settlement statement allegedly signed by the Regalbutos. Plaintiff also obtained an affidavit from an individual employed by the servicer of the Lanza Mortgag in which he avers that plaintiffs predecessor loaned Josephine Lanza the sum of $572,000.00 and that Lanza executed the subject mortgage as collateral. Based on his review of the pertinent records he further avers that no payments were made on the mortgage. During the pendency of the in tant action, plaintiff submitted to the City Register for recording a copy of the Lanza Mortgage, which was accepted and recorded on May 8, 2020. 2 Defendants now move to dismiss the complaint pursuant to CPLR 3211 (a)(5) and (a)(7). Defendants first argue that plaintiffs claims which defendants characterize as sounding in equity are 1 Contemporaneously with this order, on January 5, 2021 , this Court issued an order in the fir t action denying plaintiff' s motion for leave to renew and reargue the prior dismissal order (see Bank ofN. Y Mellon et al. v Regalbuto, et al., up Ct, King County index o. 9820/1 4). 2 The copy of the Lanza Mortgage recorded by plaintiff bears Josephine Lanza' s signature with a notarized certificate of acknowledgment, which was signed and notarized by attorney and notary Chaim Liechtung on March 22 2006. Plaintiff also submits an affinnation from Mr. Liechtung in which he affinns that he recalled the transaction and that he notarized Josephine Lanza' s signature on the mortgage. He further affirms that, upon being pre ented with said copy by plaintiff's counsel on April 20, 2020, he " con finned the original acknowledgment by signing his name next to the copy of his signature on the Mortgage ." The copy of the Lanza Mortgage available on ACRIS and recorded in CRFN 2020000143259 appears to bear a second signature from Mr. Liechtung, which is undated . 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 01/08/2021 12:48 PM NYSCEF DOC. NO. 79 INDEX NO. 504444/2019 RECEIVED NYSCEF: 01/08/2021 time-barred whether subject to either a six- or ten-year tatute of limitations as the instant action wa commenced on February 28, 2019 more than ten years from the date the Lanza Mortgage and deed were executed. Defendants also contend that this action is barred by the doctrine of res judicata based on thi Court prior dismissal order in the fir t action. They further argue that plaintiffs claims pursuant to RPAPL article 15 must be di missed because plaintiffs complaint does not meet the pleading requirements for an action to quiet title. Defendants al o separately move for an order ' invalidating and cancelling the recording of the mortgage alleging that plaintiff's submission of the aforementioned copy of the Lanza Mortgage to the City Register for recording was both improper and in contravention of this Court s prior dismi al order. The motion does not specify whether said relief is sought pursuant to Real Property Law§ 329 (RPL) or RPAPL 1501(4). Defendants have not yet interposed an answer. fn opposition to defendants ' motion to dismiss, citing the savings provision of CPLR 205(a) plaintiff argues that the instant action is timely because it was commenced within six months of the dismissal of the prior timely action (see Sokoloff v Schor, 176 AD3d 120 135 [2d Dept 2019]). Plaintiff assert that its claims pur uant to RPAPL article 15 in the prior action relating to the Lanza Mortgage and the deed were timely as the action was brought within ten years of the date of the instruments. Plaintiff contends that it is entitled to the benefit of the six-month saving provision because the dismi al of the quiet title claims was not on the merit . Plaintiff argues that said claims are not barred by the doctrine of res judicata for the same rea on. Plaintiff contends that the allegations in the complaint adequately tate a cause of action to quiet title and for declaratory relief pursuant to article 15 of the RPAPL. With respect to defendants motion seeking cancellation of the recorded Lanza Mortgage plaintiff argues that aid mortgage was duly and properly recorded in compliance with the requirements of RPL § 291 and the p rtinent case law (see, e.g., JPMorgan Chase Bank, N.A. v Wright 174 AD3d 871 872-873 [2d Dept 2019]). Plaintiff notes that defendants fail to cite any authority for the propo ition that only an original deed or mortgage may be recorded pursuant to RPL § 291. Plaintiff al o reject defendants' claim that this Court's prior dismissal order prohibited it from recording its mortgage interest. 'On a motion to dismi a cause of action pursuant to CPLR 3211 (a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie that the time in which to sue has expired' (Kolb v LJ Rabinowitz, CPA, I l 7 AD3d 978, 979 [2d Dept 2014], citing Kennedy v Fischer 78 AD3d 1016, 1017 [2d Dept 2014]; see also Wells Fargo Bank, .A. v Burke, 155 AD3d 668, 669-670 [2d Dept 2017]). Defendants failed to meet this burden with re pect to plaintiff first, third and fifth causes of action seeking relief pursuant to RPAPL article 15. Defendant failed to adequately address the applicability of CPLR 205(a) and CPLR 212(a), which provides for a ten-year statute of limitations for certain actions involving real property ( ee al o RP PL 1501[1] ["where the estate or interest (in real property) claimed by the plaintiff is for a term of years the action may not be maintained unless the balance remaining of such term of years is not less than five ' ]). The Court rejects defendant ' arguments that the aforesaid causes of action are subject to the shorter six-year statute of limitations applicable to actions sounding in equity and those commenced pursuant to RPAPL 1501 (4) and finds that plaintiff is entitled to the benefit of the six-month saving provision of CPLR 205(a). The Court finds that the e causes of action are not barred by res judicata. 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 01/08/2021 12:48 PM NYSCEF DOC. NO. 79 INDEX NO. 504444/2019 RECEIVED NYSCEF: 01/08/2021 To the extent that the second cau e of action seek judicial reformation of the deed due to mi take that action is time-barred as it is ubject to six-year statute of limitations (see CPLR 213(6] ; Deut che Bank Natl. Trust Co. v McAvoy 188 AD3d 808, 810 (2d Dept 2020]; Lopez v Lopez, 133 AD3d 722, 723 [2d Dept 2015]). The Court doe not address the timeline s of the fourth cause of action seeking an order directing the City Regi ter to record a copy of the Lanza Mortgage as it is now moot. In considering a motion to di miss pursuant to CPLR 3211 (a)(7) for failure to state a cause of action, "the pleadings must be liberally construed and "' [t]he sole criterion is whether from [the complaint s] four corners factual allegations are discerned which taken together manife t any cau e of action cognizable at law ' (Bank of . Y. Mellon Trust Co., N.A. v Universal Dev. LLC 136 D3d 850, 850 (2d Dept 2016], quoting Guggenheimer v Ginzburg, 43 NY2d 268 275 (1977]· Lee Dodge, Inc. v overeignBank, .A., 148AD3d 1007, 1008(2dDept2017]). Accepting the allegation in the complaint a true the Court finds plaintifrs complaint tates a cause of action to quiet title and compel a determination of claims to real property pur uant to article 15 of the RPAPL. RPAPL 1501(1) provides that any person who claims an estate or interest in real property ... may maintain any action against any other per on ... to compel the determination of any claim adver e to that of the plaintiff which the defendant make , or which it appears from the public record , or from allegations of the complaint, the defendant might make ... ' The mortgage intere t alleged by plaintiff based on the Lanza Mortgage annexed to the complaint is an " intere t in real property within the meaning of the statute (RPAPL 1501 (5); see also Emigrant av. Bank v Walters, 155 AD3d 829, 830 (2d Dept 2017]; Bank of Am ., N.A. v Snyder, 154 A03d 671, 672 [2d Dept 2017]). Plaintiff ha adequately pleaded the elements required by RP APL 1515 and the pertinent case la (see Bank of . Y. Mellon v West 183 AD3d 683 683 [2d Dept 2020]' Emigrant Sav. Bank v Walters, 155 AD3d at 830 ['contrary to the Supreme Court s determination, the plaintiff, as mortgagee of the subject premises asserted a cause of action to quiet title pursuant to RP APL 150 I based on it claim that the mortgage encumbered the entire premi es']; Bank ofAm., N.A . v Snyder, 154 AD3d at 672 [ 'The plaintiff who i the successor to the mortgagee commenced this action pursuant to RP APL article 15 eeking to quiet title and a judgment declaring that it holds a valid first mortgage on the subject property.']; Bank ofN. Y. Mellon Trust Co., N.A. v Universal Dev. LLC, 2014 WL 12638988, *1 [ up Ct, Queens County 2014] affd 136 AD3d 850 (2d Dept 2016] ['This is an action brought pursuant to RP APL Article 15 to quiet title. The plaintiffs allege that they are holders of two mortgages ... [and] that the defendants may claim an estate or interest in the premises ... which is ad erse to their alleged mortgages. They allege that any uch interest claimed by defendants i invalid and ineffective against their estate or interest.. . The allegations in the complaint are sufficient to state a cause of action under RP APL Article 15. ]). With respect to defendants' motion to invalidate or cancel of record the Lanza Mortgage defendants' motion, whether made pur uant to RPL § 329 or RP APL 1501 (4), is procedurally improp r and must be denied 'since that relief must be sought in an action or counterclaim (Bank of NY. Mellon v I I Bayberry t., LL 186 AD3d 1596, 1596 (2d Dept 2020] ·see also Silverberg v Bank of . Y. Mellon 165 AD3d 1193, 1193 [2d Dept 2018]; Deutsche Bank Natl. Trust Co. v Gambino, 153 AD3d 1232 1234-1235 [2d Dept 2017]). Plaintifrs recording of the Lanza Mortgage wa not in contravention of this Court s prior dismissal order as that order merely held that plaintiff failed to state a cause of action to compel the ity Register to record plaintiffs mortgage interest. This Court issued no directi es enjoining or prohibiting plaintiff from ubmitting any in trument to the City Register entitled to recording pursuant to RPL §§ 4 4 of 5 [*FILED: 5] KINGS COUNTY CLERK 01/08/2021 12:48 PM NYSCEF DOC. NO. 79 INDEX NO. 504444/2019 RECEIVED NYSCEF: 01/08/2021 290(3), 291 or other provi ions of the Recording Act. In addition, the subject copy of the Lanza Mortgage with the re-executed acknowledgement submitted for recording wa not before the Court previou ly. In light of the foregoing defendants motion (motion sequence number l) to dismiss is granted to the extent that the second and fourth cau e of action are dismissed. The fourth cau e of action seeking an order directing the City Register to accept a copy of the mortgage for recording is di mis ed as moot as said mortgage was recorded on May 8 2020 in CRFN 2020000143259 by plaintiff against the premises. Defendants' motion (motion sequence number 2) to invalidate and cancel of record the mortgage is denied . Defendants are directed to serve and file an answer to the complaint in accordance with the pertinent provi ions of the CPLR within 20 days from the date service of notice of entry of this order. This con titutes the Deci ion and Order of the Court. Dated: January 5 2021 Brooklyn, New York NT ER, 5 5 of 5

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