Preview
INDEX NO. 011964/2011
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/20/2022
SUPREME COURT THE TE OF NEW YORK
COUNTY OF ASSAU
PRESE Pf HON. DAVID P. SULLIVAN,
Supreme Court Justice.
ane wena neneennmenaaseenumannanauvenemsnansameue
ummm a x FORECLOSURE PART
PHH Mortgage Corporation,
Plaintifits), Index No. 011964/2011
Motion Seq. No, 006
~against- Motion Submitted: 09/28/22
Maximiliano Hernandez a/k/a Maximiliano Hernandez
a/k/a Maximiliano Hernandez, Bank of America, NA.
successor to Fleet National Bank and “John Doe #1”
through “John Doe #10,
Defendant(s).
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natn X
Upon the foregoing papers, Plaintiff PHH Mortgage Corporation's (“Plaintiff") motion
seeking leave to renew or reargue its prior motion for summary judgment and an Order of
Reference, and upon renewal or re-argument, an order granting summary judgment in Plaintiff's
favor; a default judgment against the non-appearing parties; the appointment ofa referee; and
amendment of the caption is determined as set forth hereinafter.
Factual History
This action was commenced to foreclose on a mortgage based upon Maximiliano
Hernandez’s (“Defendant”) failure to make payments. The mortgage was made by Defendant to
MERS, as nominee for Fleet National Bank on September 17, 2003 and was transferred to
Plaintiff on August 2, 2011. Based upon Defendant’s default, this action was commenced by the
filing of a Summons, Complaint and Notice of Lis Pendens on Aagust 16,2011. Following the
mandatory conferences and discovery, Plaintiff moved for summary judgment which was denied
by Order of this Court (Adams, J.) entered Sune 11, 2615 (the “Tune 2615 Order”). Plaintiff then
sought leave to reargue the June 2015 Order. In an order entered November 20, 2016 (the
1
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NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/20/2022
‘
wember 2016 Order”), this Court (Adams, J.) granted Plaintiff leave to reargue, and upon
reargument adhered to its prior determination.
Plaintiff then appealed both the June 2015 Order and November 2016 Order. During the
pendency of the appeal, Plaintiff filed yet another motion seeking leave to renew and reargue the
June 2015 Order. Defendant cross-moved to dis s the Complaint. In an order entered on
February 8, 2019 (the “February 2019 Order”), this Court (Adams, J.) denied Plaintiff's motion
for leave to renew or reargue and granted Defendant’s cross-motion to dismiss the complaint.
Plaintiff then appealed the February 2019 Order. Based upon the dismissal of this action Plaintiff
also withdrew its appeal from the June 2015 and November 2016 Orders. Plaintiff then moved
to vacate the dismissal which was granted by Order of this Court (Adams, J.) entered on October
23, 2019 (the October 2019 Order). Plaintiff
now brings the instant motion.!
Plaintiff's Argument
Plaintiff argues that it should be granted leave to renew and/or reargue the February 2019
Order which dismissed this action based upon a recent change in decisional law by the Appellate
Division, Second Department which would change this Court’s prior determination. Plaintiff
cites to two recent decisions which beth held that the “law of the case” doctrine applies to a
determination based upon compliance with RPAPL §1304. First, Plaintiff points to the decision
of Wells Fargo Bank NA v. Morales, 178 AD3d 88 * Dept 2019] where the Court held that
compliance with RPAPL §1304 will not be reconsidered based upon “law of the cas and that
the issue may not be raised, sua sponte, when the Defendant does not raise the issue in
~
opposition to a Plaint s motion for summary judgment.
‘This argument is unavailing as the facts herein distinguish it from M Here, the
court did not issue a decision in Plaintiff's favor concerning its compliance with RPAPL §1304.
—
‘Pl pt stayed from prosecuting this action from mid-March 2020 through January 2022
due toto the Co pandemic.
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INDEX NO. 011964/2011
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Accordingly,
Stes there is no “law of the case” regarding Plaintiff's compliance with RPAPL $1304.
Moreover, in this action, unlike in Morales, supra., Defendant sought dismissal of the action via
~
cross-motion, raising Plaint failure to comply with RPAPL $1304 a: ggrounds for dismissal.
This court did not raise Plaintiffs compliance with RPAPL $1304 on its own motion.
Plaintiff also incorrectly argues it should be granted leave to renew based upon the recent
x
decision in sociation v. Ramanababu et. al. 202 AD3d 1139 [2d Dept
2022). In B: babu, as in Mor: les, the court considered and decided the issues of
compliance with RPAPL §1304 in Plaintiff's favor. The court stated. citing Morales that while it
is truc that a defense based on noncompliance with RPAPL §1304 may be raised at any time the
doctrine of law of the case precluded the court from reconsidering those issues on defendants’
cross motion, As stated above. here, this Court has never ruled on the issue of compliance with
RPAPL §1304 in Plaintiff's favor. Thus, the decision in Ra is irrelevant to the
circumstances herein.
Accordingly, there is no basis to conclude that this court misapplied controlling
principles of law in the February 2019 Order.
Accordingly. it is
ORDERED that’s Plaintiff 8 notion seeking an Order granting Plaintiff leave to renew
or reargue its prior motion is DENTED; and it is further
ORDERED that all requests for relief not addressed herein are DENIED.
This sha l constitute the Decision and Order of this Court.
Dat ce Le ENTER
Mir OW ork
HON, DAVID Sty L é “HS
ENTERED
Dec 20 2022
NASSAU COUNTY
COUNTY CLERK'S OFFICE
3 of 3
Preview
INDEX NO. 011964/2011 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/20/2022 SUPREME COURT THE TE OF NEW YORK COUNTY OF ASSAU PRESE Pf HON. DAVID P. SULLIVAN, Supreme Court Justice. ane wena neneennmenaaseenumannanauvenemsnansameue ummm a x FORECLOSURE PART PHH Mortgage Corporation, Plaintifits), Index No. 011964/2011 Motion Seq. No, 006 ~against- Motion Submitted: 09/28/22 Maximiliano Hernandez a/k/a Maximiliano Hernandez a/k/a Maximiliano Hernandez, Bank of America, NA. successor to Fleet National Bank and “John Doe #1” through “John Doe #10, Defendant(s). cee enewenannauewenneneananemnannenasnerunmeamnnnenenemmnnan natn X Upon the foregoing papers, Plaintiff PHH Mortgage Corporation's (“Plaintiff") motion seeking leave to renew or reargue its prior motion for summary judgment and an Order of Reference, and upon renewal or re-argument, an order granting summary judgment in Plaintiff's favor; a default judgment against the non-appearing parties; the appointment ofa referee; and amendment of the caption is determined as set forth hereinafter. Factual History This action was commenced to foreclose on a mortgage based upon Maximiliano Hernandez’s (“Defendant”) failure to make payments. The mortgage was made by Defendant to MERS, as nominee for Fleet National Bank on September 17, 2003 and was transferred to Plaintiff on August 2, 2011. Based upon Defendant’s default, this action was commenced by the filing of a Summons, Complaint and Notice of Lis Pendens on Aagust 16,2011. Following the mandatory conferences and discovery, Plaintiff moved for summary judgment which was denied by Order of this Court (Adams, J.) entered Sune 11, 2615 (the “Tune 2615 Order”). Plaintiff then sought leave to reargue the June 2015 Order. In an order entered November 20, 2016 (the 1 1 of 3 INDEX NO. 011964/2011 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/20/2022 ‘ wember 2016 Order”), this Court (Adams, J.) granted Plaintiff leave to reargue, and upon reargument adhered to its prior determination. Plaintiff then appealed both the June 2015 Order and November 2016 Order. During the pendency of the appeal, Plaintiff filed yet another motion seeking leave to renew and reargue the June 2015 Order. Defendant cross-moved to dis s the Complaint. In an order entered on February 8, 2019 (the “February 2019 Order”), this Court (Adams, J.) denied Plaintiff's motion for leave to renew or reargue and granted Defendant’s cross-motion to dismiss the complaint. Plaintiff then appealed the February 2019 Order. Based upon the dismissal of this action Plaintiff also withdrew its appeal from the June 2015 and November 2016 Orders. Plaintiff then moved to vacate the dismissal which was granted by Order of this Court (Adams, J.) entered on October 23, 2019 (the October 2019 Order). Plaintiff now brings the instant motion.! Plaintiff's Argument Plaintiff argues that it should be granted leave to renew and/or reargue the February 2019 Order which dismissed this action based upon a recent change in decisional law by the Appellate Division, Second Department which would change this Court’s prior determination. Plaintiff cites to two recent decisions which beth held that the “law of the case” doctrine applies to a determination based upon compliance with RPAPL §1304. First, Plaintiff points to the decision of Wells Fargo Bank NA v. Morales, 178 AD3d 88 * Dept 2019] where the Court held that compliance with RPAPL §1304 will not be reconsidered based upon “law of the cas and that the issue may not be raised, sua sponte, when the Defendant does not raise the issue in ~ opposition to a Plaint s motion for summary judgment. ‘This argument is unavailing as the facts herein distinguish it from M Here, the court did not issue a decision in Plaintiff's favor concerning its compliance with RPAPL §1304. — ‘Pl pt stayed from prosecuting this action from mid-March 2020 through January 2022 due toto the Co pandemic. 2 of 3 INDEX NO. 011964/2011 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 12/20/2022 Accordingly, Stes there is no “law of the case” regarding Plaintiff's compliance with RPAPL $1304. Moreover, in this action, unlike in Morales, supra., Defendant sought dismissal of the action via ~ cross-motion, raising Plaint failure to comply with RPAPL $1304 a: ggrounds for dismissal. This court did not raise Plaintiffs compliance with RPAPL $1304 on its own motion. Plaintiff also incorrectly argues it should be granted leave to renew based upon the recent x decision in sociation v. Ramanababu et. al. 202 AD3d 1139 [2d Dept 2022). In B: babu, as in Mor: les, the court considered and decided the issues of compliance with RPAPL §1304 in Plaintiff's favor. The court stated. citing Morales that while it is truc that a defense based on noncompliance with RPAPL §1304 may be raised at any time the doctrine of law of the case precluded the court from reconsidering those issues on defendants’ cross motion, As stated above. here, this Court has never ruled on the issue of compliance with RPAPL §1304 in Plaintiff's favor. Thus, the decision in Ra is irrelevant to the circumstances herein. Accordingly, there is no basis to conclude that this court misapplied controlling principles of law in the February 2019 Order. Accordingly. it is ORDERED that’s Plaintiff 8 notion seeking an Order granting Plaintiff leave to renew or reargue its prior motion is DENTED; and it is further ORDERED that all requests for relief not addressed herein are DENIED. This sha l constitute the Decision and Order of this Court. Dat ce Le ENTER Mir OW ork HON, DAVID Sty L é “HS ENTERED Dec 20 2022 NASSAU COUNTY COUNTY CLERK'S OFFICE 3 of 3