Opinion
Index No. 14463/2011
06-03-2024
BAYVIEW LOAN SERVICING, LLC, Plaintiff, v. SARA DAHAN, ET al Defendant(s).
Unpublished Opinion
HON. DEREFIM B. NECKLES, Acting Justice.
The following e-filed papers read herein: NYSCEF Doc Nos.
Notice of Motion/Affidavits (Affirmations) Annexed 79, 80, 83
Affirmation in Opposition and Memorandum of Law 27, 35, 91
Upon the foregoing papers in this proceeding to foreclose a residential mortgage on the property located at 1254 East 73rd Street, Brooklyn, NY 11234 (Block 08359, Lot 061) (Property), defendant SARA DAHAN (Defendant) moves (in mot. seq. 9) for an order: (1) granting a stay of the sale of the Property; (2) a judgment dismissing the matter for improper RPAPL 1304 compliance; (3) vacating the judgement of foreclosure and sale granted by this court on October 5, 2017; (4) vacating the order of reference issued in this action on May 5, 2016; and (5) vacating the order for summary judgment that was granted on May 5, 2016.
Background
On June 16, 2017, plaintiff filed a motion for an order seeking a judgment of foreclosure and sale. The motion alleges that the plaintiff established all required elements for a foreclosure. The motion was granted on default on October 30, 2017. In support of the order to show cause to vacate the judgement of foreclosure and sale, defendant alleges that the attorney on file for defendant, Michael L. Hurwitz, was not retained by defendant, and failed to file any opposition or appear at the hearing, leading to the default judgment.
On September 7, 2023, defendant filed the instant motion for an order to show cause, granting a stay of the sale of the property, dismissal of the entitled action, vacating the judgement of foreclosure and sale, vacating the order of reference, and vacating the order for summary judgment. Defendant submits an affidavit from Sara Dahan (Dahan), the defendant in this action, who attests that due to hardship, the mortgage fell into arrears. Dahan began a modified payment plan with the holder of the mortgage, but it was later suspended once the mortgage holder realized that Dahan did not have title to the property, and it was still in the name of her deceased husband. In August 01'2010, Dahan was appointed administrator of her husband's estate. Dahan alleges that prior to the commencement of this action, she had never received pre-foreclosure notice, or notice of the summons and complaint. An Answer was filed on behalf of the defendant by attorney, Michael L. Hurwitz, whom defendant alleges she never hired or retained. Plaintiff later filed a motion for Summary Judgment, without opposition, and was granted.
Defendant also submits an attorney affirmation from Eric S. Landau, Esq., asserting that the defendant is entitled to a stay, based on equity, the prospect of settlement, and additional defenses that were not considered or litigated.
Plaintiff, in reply, states that plaintiff has demonstrated its prima facie entitlement to judgment as a matter of law, defendant has no excuse or defense, and plaintiff has standing in this action. Plaintiff addresses defendant's claim that the previous attorney on file failed to file opposition papers and states that opposition papers were in fact filed by the defendant's attorney on file, therefore any defenses were already argued and decided on at that time.
Discussion
"A party seeking to vacate his or her default in answering the complaint pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and a potentially meritorious defense to the action" (U.S. Bank N.A. v. Hunte, 215 A.D.3d 887, 888, 188 N.Y.S.3d 92; see Deutsche Bank Natl. Trust Co. v, Hossain, 187 A.D.3d 986, 987, 131 N.Y.S.3d 202), "A motion to vacate a default is addressed to the sound discretion of the court" (U.S. Bank N.A. v. Hunte, 215 A.D.3d at 888, 188 N.Y.S.3d 92; see Bank of N.Y, v. Pieloch, 217 A.D.3d 647, 649, 191 N.Y.S.3d 420).
Here, defendant's attorney cites to CPLR 5015(a), stating there was a reasonable excuse for the default and there is new evidence to be considered, but does not present the alleged excuse or new evidence. The defendant fails to present an argument sufficient to grant this motion under CPLR 5015. Since the defendants failed to proffer a reasonable excuse for their default, we need not consider whether they demonstrated the existence of a potentially meritorious defense (see Deutsche Bank Natl. Trust Co. v. Benitez, 179 A.D.3d 891, 893, 118 N.Y.S.3d 173).
Defendant's claims are also barred under the doctrine of res judicata. Under the doctrine of res judicata, "once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" Jones v. Flushing Bank, 212 A.D.3d 791, 793 [2d Dept 2023]). "The doctrine of res judicata bars a party of relitigating any claims which could have or should have been litigated in a prior proceeding" (Chapman Steamer Collective, LLC v KeyBank N.A.. 163 A.D.3d 760, 761; see Jacobson Dev. Group, LLC v Grossman, 198 A.D.3d 956, 959 [2021]). A judgement of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties and concludes all matters of defense which were or might have been raised in the foreclosure action (Eaddy v U.S. Bank N.A., 180 A.D.3d 756, 758 [2020]). Here, opposition papers were filed on behalf of the defendant regarding Summary' Judgment. The defenses raised in these papers, including lack of standing and plaintiffs failure to establish a prima facia entitlement to summary judgment were presented and decided on before this court. Defendant fails to offer any excuse as to why opposition papers were not filed for the Motion for a Judgment of Foreclosure and sale.
The record before the court simply does not warrant granting a stay of the sale of the Property, granting a judgment dismissing the matter, vacating the judgement of foreclosure and sale, vacating the order of reference, and vacating the order for summary judgment.
Accordingly, it is
ORDERED that the defendant's order to show cause is denied in its entirety.
This constitutes the decision and order of the court.