Opinion
10-12-2016
EMIGRANT MORTGAGE COMPANY, INC., appellant, v. Yosef Y. LIFSHITZ, also known as Yoseph Lifshitz, respondent, et al., defendants.
Borchert & LaSpina, P.C., White Plains, NY (Helmut Borchert, Robert W. Frommer, Edward A. Vincent, and Jason P. Sackoor of counsel), for appellant. Tedd Blecher, New York, NY, for respondent.
Borchert & LaSpina, P.C., White Plains, NY (Helmut Borchert, Robert W. Frommer, Edward A. Vincent, and Jason P. Sackoor of counsel), for appellant.
Tedd Blecher, New York, NY, for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated August 18, 2015, which denied its motion to confirm the report of a referee and for leave to enter a judgment of foreclosure and sale.
ORDERED that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in declining to apply the doctrine of law of the case and in reconsidering the issue of whether RPAPL 1304 was applicable to the loan in this case (see National Mtge. Consultants v. Elizaitis, 23 A.D.3d 630, 630, 804 N.Y.S.2d 799 ; see generally People v. Evans, 94 N.Y.2d 499, 503, 706 N.Y.S.2d 678, 727 N.E.2d 1232 ; Matter of Mazur Bros. Realty, LLC v. State of New York, 117 A.D.3d 949, 952, 987 N.Y.S.2d 74 ). Moreover, the court did not improvidently exercise its discretion in considering the evidence belatedly submitted by the respondent. The court gave the plaintiff a full opportunity to respond to and submit further evidence addressing that evidence (see Citimortgage, Inc. v. Espinal, 134 A.D.3d 876, 879–880, 23 N.Y.S.3d 251 ; Gluck v. New York City Tr. Auth., 118 A.D.3d 667, 668, 987 N.Y.S.2d 89 ).
Finally, the Supreme Court properly denied the plaintiff's motion in light of the outstanding issues of fact as to whether RPAPL 1304 was applicable to the loan in this case and, if RPAPL 1304 notice was required, whether it was properly and timely sent (see JPMorgan Chase Bank, N.A. v. Kutch, 142 A.D.3d 536, 537, 36 N.Y.S.3d 235 ).
BALKIN, J.P., DICKERSON, COHEN and BRATHWAITE NELSON, JJ., concur.