Opinion
5881 5881A 5881B Index 850118/15
03-01-2018
NATIONSTAR MORTGAGE, LLC, Plaintiff–Respondent, v. Michael COGEN, Defendant–Appellant, New York State Department of Taxation and Finance et al., Defendants.
Yolande I. Nicholson P.C., Brooklyn (Yolande I. Nicholson of counsel), for appellant. Sandelands Eyet LLP, New York (Mitchell E. Zipkin of counsel), for respondent.
Yolande I. Nicholson P.C., Brooklyn (Yolande I. Nicholson of counsel), for appellant.
Sandelands Eyet LLP, New York (Mitchell E. Zipkin of counsel), for respondent.
Sweeny, J.P., Renwick, Tom, Mazzarelli, Oing, JJ.
Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered October 19, 2016, which granted plaintiff's motion for summary judgment, and denied defendant Michael Cogen's cross motion for summary judgment dismissing the complaint as against him, and orders, same court and Justice, entered on or about October 19, 2016, which granted plaintiff's motion, denied defendant's cross motion to dismiss, and referred this action to a referee, unanimously reversed, on the law, with costs, plaintiff's motion denied, and defendant's cross motion for summary judgment dismissing the complaint as against him granted, without prejudice. The clerk is directed to enter judgment accordingly.
Contrary to defendant's argument, the doctrine of collateral estoppel does not bar plaintiff from relitigating the issue of standing, because the issues in the prior action and the instant action are not identical. The issue in the prior action was whether Aurora Loan Services, LLC had standing as of March 30, 2009; the issue in the instant case is whether plaintiff had standing as of March 13, 2015 (see U.S. Bank, N.A. v. Foote , 151 Conn. App. 620, 629–630, 94 A.3d 1267, 1274 [Conn. App. Ct. 2014], cert denied 314 Conn. 930, 101 A.3d 952 [2014] ). Moreover, the dismissal in the prior action was without prejudice (see 390 W. End Assoc. v. Raiff , 166 Misc.2d 730, 734, 636 N.Y.S.2d 965 [App. Term, 1st Dept. 1995] ).
Plaintiff established its standing by showing that the indorsed-in-blank note was in its possession at the commencement of this action ( Bank of Am., N.A. v. Brannon , 156 A.D.3d 1, 6, 63 N.Y.S.3d 352 [1st Dept. 2017] ). The note is part of the record (see Bank of Am., N.A. v. Thomas , 138 A.D.3d 523, 524, 29 N.Y.S.3d 346 [1st Dept. 2016] ). The affidavit by Kimberly Cavagnaro, submitted by plaintiff, is sufficient to show that plaintiff had possession of the note when the action was commenced (see Aurora Loan Servs., LLC v. Taylor , 25 N.Y.3d 355, 359–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 [2015] ), and is neither conclusory (see Wells Fargo Bank, N.A. v. Jones , 139 A.D.3d 520, 524, 32 N.Y.S.3d 95 [1st Dept. 2016] ) nor inconsistent (see B & H Florida Notes LLC v. Ashkenazi , 149 A.D.3d 401, 402, 51 N.Y.S.3d 59 [1st Dept. 2017] ).
Defendant's contention that there are issues of fact about the allonges is unavailing (see U.S. Bank N.A. v. Askew , 138 A.D.3d 402, 27 N.Y.S.3d 856 [1st Dept. 2016] ).
Nevertheless, the complaint should be dismissed as against defendant, without prejudice, because plaintiff failed to prove that it mailed the notices required by Real Estate Property Actions and Proceedings Law § 1304 (see HSBC Bank USA v. Rice , 155 A.D.3d 443, 63 N.Y.S.3d 382 [1st Dept. 2017] ) and by the mortgage agreement (see e.g. HSBC Mtge. Corp. [USA] v. Gerber , 100 A.D.3d 966, 967, 955 N.Y.S.2d 131 [2d Dept. 2012] ). The affidavit by Diondra Doublin, submitted by plaintiff, failed to demonstrate a familiarity with plaintiff's mailing practices and procedures (see Rice , 155 A.D.3d at 444, 63 N.Y.S.3d 382[RPAPL 1304 notice]; see also e.g. Gerber , 100 A.D.3d at 967, 955 N.Y.S.2d 131 [notice required by mortgage agreement] ). The fact that some of the RPAPL 1304 notices bear a certified mail number is also insufficient (see Rice , 155 A.D.3d at 444, 63 N.Y.S.3d 382; Wells Fargo Bank, N.A. v. Trupia , 150 A.D.3d 1049, 1050, 55 N.Y.S.3d 134 [2d Dept. 2017] ). We further note that defendant submitted an affidavit denying that he had received any RPAPL 1304 notice (see Aurora Loan Servs., LLC v. Weisblum , 85 A.D.3d 95, 106, 923 N.Y.S.2d 609 [2d Dept. 2011] ).
Plaintiff's motion should be denied for the additional reason that the affidavit by defendant's wife creates an issue of fact as to whether plaintiff delivered the notice required by RPAPL 1303 with the summons and complaint (see Jones , 139 A.D.3d at 523, 32 N.Y.S.3d 95 ; Gorman v. English , 137 A.D.3d 556, 26 N.Y.S.3d 693 [1st Dept. 2016] ).