Opinion
Index No. 607312/2018 Motion Seq . No. 012
11-06-2023
FEDERAL NATIONAL MORTGAGE ASSOCIATION ("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, Plaintiff, v. LANCE SCOTT GROSSMAN, LORI ANN GROSSMAN, et. al, Defendants.
Unpublished Opinion
Motion Submitted: 7/31 /23
Present: HON. DAVID P. SULLIVAN Supreme Court Justice
David P. Sullivan Judge
The following papers were read on these motions:
Order to Show Cause and Supporting Documents..........................1
Affirmation in Opposition and Supporting Documents......................2
Reply Affidavit and Supporting Documents.....................................3
Defendants Lance Scott Grossman and Lori Ann Grossman (hereinafter "Defendants") have moved by order to show cause for leave to renew with respect to their prior motion (MS001) and, upon renewal, for an order dismissing the action as time-barred. Plaintiff opposed, Defendants replied and the motion was deemed submitted July 31, 2023
On or about April 13, 2001, Defendants entered into a Consolidation, Extension and Modification Agreement (the "CEMA") with Fleet National Bank ("FNB) and concurrently executed and delivered a Note in the principal amount of $255,800.00 and a Mortgage (collectively the "Loan"). The Loan is secured by the real property known as 924 Jewel Drive, North Woodmere, New York (the "Property"). The Mortgage was ultimately assigned to Plaintiff.
On April 19, 2007, plaintiffs predecessor commenced an action entitled Washington Mutual Bank v. Lance Scott Grossman et al., filed in this court under Index #6736/2007 (the "2007 Action"). The 2007 Action was dismissed for lack of standing by order entered January 2, 2009 (Palmieri, J.).
On July 20, 2009, another of plaintiffs predecessors commenced a foreclosure action entitled JPMorgan Chase Bank, National Association v. Lance Scott Grossman et al., filed in this court under Index #14273/2009 (the "2009 Action"). The 2009 Action was voluntarily discontinued by plaintiff therein on May 26, 2011.
The instant action was commenced on May 31, 2018. On September 25, 2018, Defendants filed their first motion to dismiss, which was denied by Order entered February 25, 2019 (Adams, J.). That order (hereinafter the "Prior Order") is the order for which Defendants now seek renewal. Defendants filed an appeal of the Prior Order, and filed an answer to the instant complaint on April 11, 2019, which answer was rejected by plaintiff on April 15, 2019.
Defendants filed two orders to show cause, on April 10, 2019 and April 22, 2019, respectively, seeking reargument with respect to the Prior Order and seeking an extension of time to answer. Both orders to show cause were denied by two separate orders each entered June 3, 2019 (Anzalone, J.). Defendants then both appealed, and moved to reargue the denial of the motion for an extension of time to answer. The motion to reargue was denied by order entered September 26, 2019 (Anzalone, J.).
On November 25, 2019, Defendants commenced a separate quiet title action against plaintiffin this court seeking to cancel and discharge the Mortgage pursuant to RPAPL 1501. Plaintiff moved to dismiss and the motion was granted by order entered on February 13, 2020 (Capetola, J.). Defendants appealed and by Decision and Order entered on February 15, 2023, the Second Department affirmed the dismissal [Grossman v. Federal National Mortgage Association, 213 A.D.3d 811 [2d Dept 2023]).
Plaintiff moved for summary judgment and Defendants cross-moved to dismiss, and by order entered January 27, 2020 (Adams, J.) the cross-motion was denied and summary judgment and an order of reference were granted to plaintiff. Defendants appealed.
Plaintiff moved to confirm the report of the referee and for judgment of foreclosure and sale on March 6, 2020, which motion was held in abeyance during the onset of the Covid-19 pandemic. Defendants filed a cross-motion, once again seeking dismissal of the complaint along with a stay pending appeal and other related relief.
While those motions remained pending, in a single Decision and Order dated May 11, 2022, the Appellate Division Second Department affirmed both the Prior Order for which Defendants seek renewal, and the order denying Defendants an extension of time to answer. [Federal National Mortgage Association v. Grossman, 205 A.D.3d 770 J2d. Dept 2022]). Specifically, the Appellate Division upheld the denial of the Defendants' motion for dismissal of the complaint based upon a lack of personal jurisdiction holding that "Here, the affidavits of the plaintiffs process server established, prima facie, that service upon the defendants was accomplished pursuant to CPLR 308(2). Moreover, the defendants failed to raise an issue that warranted a hearing (see U.S. Bank N.A. v. Cherubin, 141 A.D.3d 514, 36 N.Y.S.3d 154)" [Id.). Thus, Defendants remain in default.
By order entered December 9, 2022 along with accompanying judgment, plaintiff was awarded judgment of foreclosure and sale and the cross-motion was denied (Sullivan, J.). Defendants appealed.
Defendants attempted to move by proposed order to show cause on January 12, 2023 for leave to reargue the motion for judgment and Defendants' cross-motion to dismiss, however the court declined to execute same (Quinn, J.).
Plaintiff filed three requests to file notice of sale on January 23, 2023, March 15, 2023, and March 24, 2023, and a sale was ultimately scheduled for June 14, 2023 at 3:00 pm. (NYSCEF #459.) On June 13, 2023, Defendants filed the instant order to show cause, and concurrently moved by proposed order to show cause in the Appellate Division Second Department for, inter alia, a stay pursuant to CPLR 5519(c) and 2201. Upon the execution of the instant order to show cause the request for temporary relief was denied. On June 14, 2023, the Appellate Division Second Department signed Defendants' order to show cause and granted the request for temporary relief to the limited extent of staying the enforcement of the June 14, 2023 sale pending the hearing and determination of Defendants' motion.
CPLR §2221(e) requires that a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination ... and shall contain reasonable justification for the failure to present such facts on the prior motion".
At the outset it is noted that the supporting document submitted by Defendants was in the form of an affirmation signed by Defendant Lance Grossman acting as his own attorney and attorney for his wife Lori Grossman. CPLR §2106 states, in relevant part, that "(a) The statement of an attorney admitted to practice in the courts of the state, or of a physician, osteopath or dentist, authorized by law to practice in the state, who is not a party to an action, when subscribed and affirmed by him to be true under the penalties of perjury, may be served or filed in the action in lieu of and with the same torce and effect as an affidavit" (emphasis added). Inasmuch as Defendant Lance Grossman is a named defendant in the instant action, his affirmation, which is not sworn to before a notary under the penalty of perjury, does not function as an affidavit and, therefore, is inadmissible in its entirety. Defects notwithstanding, the affirmation has been considered on the merits in the interests of judicial economy.
Defendants move for renewal predicated upon the enactment of the Foreclosure Abuse Prevention Act on December 30, 2022, notably prior to the Appellate Division Second Department affirming dismissal of the quiet title action holding, in relevant part, that "the doctrine of collateral estoppel barred the [Defendants] from relitigating the issue of whether the statute of limitations for commencing a foreclosure action had expired. The issue was decided against the [Defendants] in the prior action" (Grossman v. Federal National Mortgage Association, supra).
In the instant action, Defendants were determined to be in default on June 3, 2019 (Anzalone, J.). The default was affirmed by the Appellate Division Second Department on May 11, 2022 (Federal National Mortgage Association v. Grossman, supra). In order to demonstrate an entitlement to renewal, the movant must demonstrate that there has been a change in the law that would change the prior determination (CPLR 2221). Inasmuch as the Defendants have never vacated their default, they are precluded from seeking affirmative relief of a non-jurisdictional nature including the statute of limitations (HSBC Bank USA, N.A. v Diallo, 190 A.D.3d 959 [2d Dept 2021]; Deutsche Bank Natl. Trust Co. v Hall, 185 A.D.3d 1006 [2d Dept 2020]; Bank of New York Mellon v. Lawson, 176 A.D.3d 1155 [2d Dept 2019]). Therefore, inasmuch as the enactment of the Foreclosure Abuse Prevention Act would not have changed the court's prior determination, Defendants are not entitled to renewal.
Accordingly, it is hereby:
ORDERED, that the motion is hereby denied in its entirety. Plaintiff may proceed.
This constitutes the decision and order of the Court.