Opinion
9482N-9482NA Index 300309/16E
05-30-2019
Christopher SAKALA, Plaintiff–Respondent, v. BANK OF NEW YORK MELLON formerly known as The Bank of New York, as Trustee on behalf of CIT Mortgage Loan Trust 2007–1, Defendant–Appellant.
Cohn & Roth, LLC, Mineola (Kevin T. MacTiernan of counsel), for appellant.
Cohn & Roth, LLC, Mineola (Kevin T. MacTiernan of counsel), for appellant.
Friedman, J.P., Gische, Webber, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Doris Gonzalez, J.), entered on or about September 7, 2017, which denied defendant's motion to dismiss the complaint, unanimously reversed, on the law, without costs, and defendant's motion granted. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered on or about January 19, 2018, which, inter alia, denied defendant's cross motion for reargument and renewal, unanimously dismissed, as academic.
Plaintiff financed the purchase of the subject property, and after a series of assignments, the note and mortgage was assigned to defendant. In 2010, defendant commenced a foreclosure action alleging that plaintiff had failed to pay the June 1, 2009 installment on the loan, and every payment thereafter. The foreclosure action became final after the entry of judgment of foreclosure and the valid sale of the property at auction (see Dulberg v. Ebenhart, 68 A.D.2d 323, 327, 417 N.Y.S.2d 71 [1st Dept. 1979] ; Long Is. Sav. Bank v. Mihalios, 269 A.D.2d 502, 503, 704 N.Y.S.2d 483 [2d Dept. 2000] ).
This action, seeking return of the property upon a purported theory of wrongful foreclosure is conclusively barred by res judicata because the only issue sought to be litigated, rightful ownership of the subject property, was conclusively determined by the judgment in the foreclosure action, which plaintiff never sought to vacate (see Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d 64, 72, 73 N.Y.S.3d 472, 96 N.E.3d 737 [2018] ; Matter of Hunter, 4 N.Y.3d 260, 269–270, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005] ).