Bank of N.Y. Mellon v. Slavin

• Decision Date: 14 December 2017
• Docket Number: 524426
• Citation: 156 A.D.3d 1073,67 N.Y.S.3d 328
• Parties: BANK OF NEW YORK MELLON, Formerly Known as Bank of New York, as Trustee, in Trust for Registered Holders of CWABS, Inc., Asset–Back Certificates, Series 2005–IM3, Appellant, v. Erin SLAVIN, also known as Erin Mohammed, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

156 A.D.3d 1073

67 N.Y.S.3d 328

BANK OF NEW YORK MELLON, Formerly Known as Bank of New York, as Trustee, in Trust for Registered Holders of CWABS, Inc., Asset–Back Certificates, Series 2005–IM3, Appellant,

v.Erin SLAVIN, also known as Erin Mohammed, Respondent, et al., Defendants.

524426

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 18, 2017

Decided and Entered: December 14, 2017

Druckman Law Group PLLC, Westbury (Lisa M. Browne of counsel), for appellant.

Frost & Kavanaugh, PC, Troy (Arthur R. Frost of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Rose, Aarons and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an amended order of the Supreme Court (Zwack, J.), entered November 21, 2016 in Rensselaer County, which, among other things, granted defendant Erin Slavin's cross motion for summary judgment dismissing the complaint against her.

Plaintiff's first foreclosure action (hereinafter the first action) against defendant Erin Slavin (hereinafter defendant) was commenced in October 2006, but dismissed in January 2013 due to the failure of plaintiff to appear at a mandatory conference. Plaintiff moved twice to vacate the dismissal, and Supreme Court denied the requests. In July 2015, this Court affirmed Supreme Court's denial of plaintiff's motion to vacate ( Bank of N.Y. v. Mohammed, 130 A.D.3d 1419, 14 N.Y.S.3d 783 [2015] ). In August 2015, plaintiff commenced this foreclosure action (hereinafter the second action) against defendant, among others. After issue was joined, plaintiff moved for, among other things, summary judgment and defendant cross-moved for summary judgment dismissing the complaint against her. Supreme Court granted defendant's cross motion, finding that the action was time-barred.

Defendant established that the statute of limitations began to run on October 2, 2006, when plaintiff accelerated the debt after defendant fell behind on her payments (see Lavin v. Elmakiss, 302 A.D.2d 638, 639, 754 N.Y.S.2d 741 [2003], lv dismissed 100 N.Y.2d 577, 764 N.Y.S.2d 386, 796 N.E.2d 478 [2003], lv denied 2 N.Y.3d 703, 778 N.Y.S.2d 462, 810 N.E.2d 915 [2004] ; Saini v. Cinelli Enters., 289 A.D.2d 770, 771, 733 N.Y.S.2d 824 [2001], lv denied 98 N.Y.2d 602, 744 N.Y.S.2d 762, 771 N.E.2d 835 [2002] ). Thus, defendant, as the proponent for summary judgment, carried her prima facie burden of establishing that the second action was time-barred as it was commenced in 2015, more than six years beyond the acceleration of the debt (see CPLR 213[4] ; Phillips v. Dweck, 300 A.D.2d 969, 969, 750 N.Y.S.2d 910 [2002] ; Firth v. State of New York, 287 A.D.2d 771, 771–772, 731 N.Y.S.2d 244 [2001], affd 98 N.Y.2d 365, 747 N.Y.S.2d 69, 775 N.E.2d 463 [2002] ). Plaintiff countered by asserting that the second action was timely due to, among other reasons, the savings provision contained in CPLR 205(a). We agree.

"If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence ... within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon [the] defendant is effected within such six-month period. Where a dismissal is one for neglect to prosecute ..., the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay" ( CPLR 205[a] ). Here, the neglect to prosecute exception is inapplicable because the first action was specifically dismissed due to the failure of plaintiff to appear at a mandatory conference (see 22 NYCRR 202.27 ), and the sua sponte dismissal did not set forth any specific conduct that demonstrated a general pattern of delay (see CPLR 205[a] ; Wells Fargo Bank, N.A. v. Eitani, 148 A.D.3d 193, 198, 47 N.Y.S.3d 80 [2017], appeal dismissed 29 N.Y.3d 1023, 55 N.Y.S.3d 157, 77 N.E.3d 892 [2017] ). Further, it is not disputed that the second action would have been timely commenced when the first action was commenced in October 2006, it is based on the same occurrence as the first action and the dismissal was not based upon a voluntary discontinuance, lack of personal jurisdiction or a final judgment on the merits (see CPLR 205[a] ).

The key issue is whether the six-month period began after Supreme Court's dismissal in 2013 or after this Court's affirmance of the denial of the motion to vacate the default in July 2015. For purposes of CPLR 205(a), the commencement of the six-month period begins when the action is finally terminated, generally when all appeals as of right have been exhausted (see Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc. ], 5 N.Y.3d 514, 519, 806 N.Y.S.2d 453, 840 N.E.2d 565 [2005] ; Lehman Bros. v. Hughes Hubbard & Reed, 92 N.Y.2d 1014, 1016, 684 N.Y.S.2d 478, 707 N.E.2d 433 [1998] ). The 2013 dismissal was not appealable as of right because it was based upon plaintiff's default; therefore plaintiff, as required, moved to vacate the default, which was denied, thereby permitting plaintiff to appeal such denial (see 22 NYCRR 202.27 [b]; Matter of Susan UU. v. Scott VV., 119 A.D.3d 1117, 1118, 990 N.Y.S.2d 655 [2014] ; Brannigan v. Dubuque, 199 A.D.2d 851, 851–852, 606 N.Y.S.2d 401 [1993] ; F.W. Myers & Co. v. Owsley & Sons, 192 A.D.2d 927, 927, 597 N.Y.S.2d 178 [1993] ). As such, the default order did not constitute a final termination of the action within the meaning of CPLR 205(a) because plaintiff was statutorily authorized to file a motion to vacate and to appeal from the denial of that motion (see CPLR 5015[a][1] ; Brannigan v. Dubuque, 199 A.D.2d at 851–852, 606 N.Y.S.2d 401 ).

Further, it is procedurally and logically unsound to deem the dismissal a "termination" because success in the motion court or upon appeal would reinstate the original action. By contrast, an action cannot be reinstated after appeals are exhausted and, thus, an action is properly deemed terminated under those circumstances. Therefore, as the action was not finally terminated until this Court affirmed the order denying the motion to vacate the default in July 2015, the second action was timely commenced in August 2015, well within the six-month period provided in CPLR 205(a).¹ The cases relied on by the dissent— Burns v. Pace Univ., 25 A.D.3d 334, 809 N.Y.S.2d 3 (1st Dept. 2006), lv denied 7 N.Y.3d 705, 819 N.Y.S.2d 872, 853 N.E.2d 243 (2006), Haber v. Telson, 4 A.D.2d 677, 163 N.Y.S.2d 503 (2d Dept. 1957), affd 4 N.Y.2d 687, 171 N.Y.S.2d 83, 148 N.E.2d 300 (1958) and Jelinek v. City of New York, 25 A.D.2d 425, 266 N.Y.S.2d 766 (1st Dept. 1966) —are factually distinguishable and inapposite. Nor is this an instance of undue delay, for the motion to vacate was properly made pursuant to CPLR 5015, within one year from service of the default order. As such, we reverse the granting of defendant's cross motion for summary judgment and, in light of this determination, plaintiff's remaining arguments regarding timeliness are rendered academic.²

As the second action was timely commenced, Supreme Court should also have granted plaintiff's motion for summary judgment. "To establish its prima facie entitlement to summary judgment in a mortgage foreclosure action, a plaintiff must submit the mortgage, unpaid note and evidence of the mortgagor's default" ( Bank of N.Y. Mellon v. Cronin, 151 A.D.3d 1504, 1505, 57 N.Y.S.3d 733 [2017] [citations omitted] ). The burden then shifts to the defendant "to come forward with competent and admissible evidence demonstrating the existence of a defense that properly could raise an issue of fact as to [the defendant's] default" ( HSBC Bank USA, N.A. v. Sage, 112 A.D.3d 1126, 1127, 977 N.Y.S.2d 446 [2013], lvs dismissed 22 N.Y.3d 1172, 985 N.Y.S.2d 472, 8 N.E.3d 849 [2014], 23 N.Y.3d 1015, 992 N.Y.S.2d 774, 16 N.E.3d 1253 [2014] ).

In support of its motion, plaintiff submitted, among other things, the mortgage and its assignment to plaintiff, a copy of the unpaid note, an affidavit of Mark Syphus—a Document Control Officer for plaintiff's servicing agent and an attorney-in-fact—that attests to defendant's default,³ and a letter, dated May 6, 2016, notifying defendant of her default. Plaintiff therefore established its prima facie entitlement to summary judgment (see Bank of N.Y. Mellon v. Cronin, 151 A.D.3d at 1505, 57 N.Y.S.3d 733 ). As plaintiff met its burden, the burden shifted to defendant "to raise a question of fact as to a bona fide defense to foreclosure" ( HSBC Bank USA, N.A. v. Szoffer, 149 A.D.3d 1400, 1401, 52 N.Y.S.3d 721 [2017] ). In defendant's answer, it is asserted that plaintiff lacks standing; therefore, plaintiff had the additional burden of demonstrating that, "at the time the action was commenced, it was the holder or assignee of the mortgage and the holder or assignee of the underlying note" ( Wells Fargo Bank, N.A. v. Walker, 141 A.D.3d 986, 987, 35 N.Y.S.3d 591 [2016] [internal quotations marks and citations omitted] ). Plaintiff submitted the written and recorded mortgage assignment and an affidavit by its attorney-in-fact attesting to physical possession of the note at the time the action was commenced, and these unchallenged assertions sufficiently established standing (see Bank of New York v. Cronin, 151 A.D.3d at 1506–1507, 57 N.Y.S.3d 733 ). Likewise, as to defendant's remaining defenses, to defeat a motion for summary judgment, the party opposing the motion must "assemble and lay bare its proof to demonstrate that there are genuine triable issues and reliance upon conclusory assertions, conjecture, mere suspicion or surmise will not suffice for this purpose" ( Spielman v. Acme...