Opinion
12259 Index No. 850110/19 Case No. 2020-02011
11-05-2020
CITIMORTGAGE, INC., Plaintiff–Appellant, v. Trevor C. MORAN, Defendant–Respondent, Board of managers, etc., et al., Defendants.
Akerman LLP, New York (Jordan M. Smith of counsel), for appellant. Rozario Touma, P.C., New York (Rovin R. Rozario of counsel), for respondent.
Akerman LLP, New York (Jordan M. Smith of counsel), for appellant.
Rozario Touma, P.C., New York (Rovin R. Rozario of counsel), for respondent.
Gische, J.P., Webber, Gonza´lez, Scarpulla, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about March 6, 2020, which denied plaintiff's motion for summary judgment on its claims seeking to foreclose on a consolidated mortgage and to expunge an erroneously recorded satisfaction of mortgage, unanimously reversed, on the law, with costs, the motion granted, and the matter remanded for an order of reference on the foreclosure claim and to expunge the recorded satisfaction of mortgage.
This action was timely brought within six months after this Court dismissed plaintiff's first foreclosure action, "without prejudice," for failure "to establish a presumption that it properly served defendant with RPAPL 1304 notice through proof either of actual mailing or of a standard office practice or procedure for proper addressing and mailing" ( CitiMortgage, Inc. v. Moran, 167 A.D.3d 461, 461, 90 N.Y.S.3d 29 [1st Dept. 2018] ; see CPLR 205[a] ). The "failure to comply with a procedural condition precedent may be a fatal flaw to maintaining the prior action and grounds for dismissal but is not a judgment on the merits for purposes of CPLR 205(a)" ( U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 33 N.Y.3d 72, 80, 98 N.Y.S.3d 523, 122 N.E.3d 40 [2019] ; see Sabbatini v. Galati, 43 A.D.3d 1136, 1139, 842 N.Y.S.2d 539 [2d Dept. 2007] ). Nor is a dismissal without prejudice a final determination on the merits (see Landau, P.C. v. LaRossa, Mitchell & Ross, 11 N.Y.3d 8, 13, 862 N.Y.S.2d 316, 892 N.E.2d 380 [2008] ). As the first action was not dismissed for neglect to prosecute, plaintiff's diligence in prosecuting the first action, in which the motion court had granted its motion for summary judgment, is not relevant (see Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 198–199, 47 N.Y.S.3d 80 [2d Dept. 2017], appeal dismissed 29 N.Y.3d 1023, 55 N.Y.S.3d 157, 77 N.E.3d 892 [2017] ).
Contrary to defendant's contention, the first action was timely commenced well within the applicable six-year limitations period, by filing the summons and complaint in Supreme Court ( CPLR 213[4], 304[a] ; compare Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 723, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992] ).
Plaintiff demonstrated its prima facie entitlement to foreclosure by producing the notes, mortgages, and evidence of defendant's default (see Red Tulip, LLC v. Neiva, 44 A.D.3d 204, 209, 842 N.Y.S.2d 1 [1st Dept. 2007], lv dismissed 10 N.Y.3d 741, 853 N.Y.S.2d 283, 882 N.E.2d 896 [2008] ). Defendant did not contest his failure to pay.
Plaintiff established standing by attaching copies of the first, second, and consolidated notes to the complaint (see Ocwen Loan Servicing LLC v. Siame, 185 A.D.3d 408, 124 N.Y.S.3d 789 [1st Dept. 2020] ; Bank of N.Y. Mellon v. Adam Plotch LLC, 162 A.D.3d 502, 79 N.Y.S.3d 135 [1st Dept. 2018] ). The indorsements on the first note separately demonstrated that it was assigned to plaintiff long before this action was commenced (see Deutsche Bank Natl. Trust Co. v. Guevara, 170 A.D.3d 603, 97 N.Y.S.3d 84 [1st Dept. 2019] ). Plaintiff also has standing as the original lender for the second and consolidated notes (see CitiMortgage, Inc. v. Pugliese, 143 A.D.3d 659, 661, 38 N.Y.S.3d 576 [2d Dept. 2016] ).
Plaintiff further demonstrated that a satisfaction of mortgage, recorded by the original lender's nominee, was erroneously filed. The nominee had "no interest in the mortgage it purported to discharge" when it recorded the satisfaction, which was more than three months after it assigned the mortgage and the lender assigned the note (see OneWest Bank v. Schiffman, 175 A.D.3d 1543, 1545, 109 N.Y.S.3d 365 [2d Dept. 2019] ). The assignment of the first note merely transferred the obligation and did not render it satisfied and discharged, and, further, the first note and mortgage still existed after consolidation (see Wells Fargo Bank, N.A. v. Douglas, 186 A.D.3d 532, 534, 129 N.Y.S.3d 102 [2d Dept 2020] ).