Bank of N.Y. Mellon v. Chamoula

• Decision Date: 13 March 2019
• Docket Number: Index No. 506998/15,2016–06411
• Citation: 170 A.D.3d 788,96 N.Y.S.3d 148
• Parties: BANK OF NEW YORK MELLON, etc., Appellant, v. Esther CHAMOULA, Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

170 A.D.3d 788

96 N.Y.S.3d 148

BANK OF NEW YORK MELLON, etc., Appellant,

v.Esther CHAMOULA, Respondent, et al., Defendant.

2016–06411

Index No. 506998/15

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

Argued—November 2, 2018

March 13, 2019

Druckman Law Group PLLC, Westbury, N.Y. (Lisa M. Browne and Maria Sideris of counsel), for appellant.

Berg & David, PLLC, Brooklyn, N.Y. (Abraham David and Madeline Greenblatt of counsel), for respondent.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

ORDERED that the order is reversed, on the law, with costs, and those branches of the motion of the defendant Esther Chamoula which were pursuant to CPLR 3211(a)(3) and (5) to dismiss the complaint insofar as asserted against her are denied.

In October 2006, the defendant Esther Chamoula (hereinafter the defendant) executed a note in the sum of $ 648,000 in favor of GFI Mortgage Bankers, Inc. (hereinafter GFI). The note was secured by a mortgage on residential property located in Brooklyn. By assignment of mortgage dated October 16, 2006, GFI purportedly assigned the mortgage to Mortgage Electronic Registration Systems, Inc. (hereinafter MERS), as nominee for Countrywide Bank, N.A. (hereinafter Countrywide). Subsequently, by assignment of mortgage dated September 27, 2011, MERS, as nominee for Countrywide, purportedly assigned the mortgage to the plaintiff.

In December 2011, the plaintiff commenced an action (hereinafter the prior action) against the defendant and another party to foreclose the mortgage. In an order dated July 29, 2014, the Supreme Court denied the plaintiff's motion for an order of reference, and granted the defendant's cross motion, inter alia, to dismiss the complaint insofar as asserted against her.

In June 2015, the plaintiff commenced this action against the defendant and another party to foreclose the mortgage. The defendant moved, inter alia, pursuant to CPLR 3211(a)(3) and (5) to dismiss the complaint insofar as asserted against her on the grounds that the plaintiff lacked standing and that this action was barred by the doctrine of collateral estoppel because the issue of standing was litigated in the prior action. The Supreme Court granted those branches of the motion, and the plaintiff appeals.

On a defendant's motion pursuant to CPLR 3211(a)(3) to dismiss the complaint based upon the plaintiff's alleged lack of standing, "the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing as a matter of law" ( New York Community Bank v. McClendon, 138 A.D.3d 805, 806, 29 N.Y.S.3d 507 ; see CPLR 3211[a][3] ; U.S. Bank N.A. v. Clement, 163 A.D.3d 742, 743, 81 N.Y.S.3d 116 ; Arch Bay Holdings, LLC–Series 2010B v. Smith, 136 A.D.3d 719, 719, 24 N.Y.S.3d 533 ). "To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff's submissions raise a question of fact as to its standing" ( Deutsche Bank Trust Co. Ams. v. Vitellas, 131 A.D.3d 52, 60, 13 N.Y.S.3d 163 ; see New York Community Bank v. McClendon, 138 A.D.3d at 806, 29 N.Y.S.3d 507 ). A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor, 25 N.Y.3d 355, 361–362, 12 N.Y.S.3d 612, 34 N.E.3d 363 ; U.S. Bank, N.A. v. Noble, 144 A.D.3d 786, 787, 41 N.Y.S.3d 76 ; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 753–754, 890 N.Y.S.2d 578 ). Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident (see Deutsche Bank Trust Co. Ams. v. Garrison, 147 A.D.3d 725, 726, 46 N.Y.S.3d 185 ; U.S. Bank N.A. v. Saravanan, 146 A.D.3d 1010, 1011, 45 N.Y.S.3d 547 ; Deutsche Bank Natl. Trust Co. v. Logan, 146 A.D.3d 861, 862, 45 N.Y.S.3d 189 ).

The doctrine of collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same" ( Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ). The doctrine of collateral estoppel applies when: "(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits" ( Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [internal quotation marks omitted] ). "The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" ( Matter of Dunn, 24 N.Y.3d 699, 704, 3 N.Y.S.3d 751, 27 N.E.3d 465 ; see Karakash v. Trakas, 163...