Bayview Loan Servicing, LLC v. Sulyman

• Decision Date: 09 July 2015
• Docket Number: 519641
• Citation: 130 A.D.3d 1197,2015 N.Y. Slip Op. 05989,14 N.Y.S.3d 188
• Parties: BAYVIEW LOAN SERVICING, LLC, Respondent, v. Michael SULYMAN, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 1197
14 N.Y.S.3d 188
2015 N.Y. Slip Op. 05989

BAYVIEW LOAN SERVICING, LLC, Respondent
v.
Michael SULYMAN, Appellant, et al., Defendants.

519641

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

July 9, 2015.

14 N.Y.S.3d 189

Willis & Ng, Monticello (Peter J. Ng of counsel), for appellant.

Hiscock & Barclay, LLC, Syracuse (John M. Nichols of counsel), for respondent.

Before: LAHTINEN, J.P., McCARTHY, ROSE and CLARK, JJ.

Opinion

McCARTHY, J.

130 A.D.3d 1197

Appeals (1) from an order of the Supreme Court (Meddaugh, J.), entered March 24, 2014 in Sullivan County, which, among other things, granted plaintiff's renewed motion for a judgment of foreclosure and sale, and (2) from the judgment entered thereon.

In July 2003, Rosalee McKenna (hereinafter decedent) and Patrick McKenna (hereinafter McKenna) became the holders of a note and mortgage for a parcel of land located in the Village of Monticello, Sullivan County. Following decedent's death in October 2004, McKenna assigned “all of his ... right, title, interest and estate” in the note and mortgage to Bayview Financial, LP. Bayview Financial then assigned the same to plaintiff several days later. The assignment, as well as the record

130 A.D.3d 1198

of the underlying note and mortgage, unambiguously state that decedent was a co-holder of the note and mortgage with McKenna. The mortgagors—defendants Michael Sulyman (hereinafter defendant) and Marcelina Y. Garcia—later defaulted on their mortgage payments, prompting plaintiff to commence the instant foreclosure action in October 2010. When defendant failed to answer, plaintiff moved for, among other things, summary judgment in its favor, which motion Supreme Court granted and therewith issued a judgment of foreclosure and sale on the property. Defendant thereafter moved by order to show cause to vacate the judgment of foreclosure and sale on the basis of newly-discovered evidence demonstrating that plaintiff did not have standing in the action (see CPLR 5015[a][2] ). Supreme Court vacated the judgment of foreclosure and sale and stayed the foreclosure sale, but subsequently granted plaintiff's motion for a renewed judgment of foreclosure and sale. Defendant now appeals.

“In an action to foreclose a mortgage, all parties having an interest, including persons holding title to the subject premises, must be made a ‘party ... to the action’ ” (Home Sav. of Am. v. Gkanios, 233 A.D.2d 422, 422, 650 N.Y.S.2d 756 [1996], quoting

14 N.Y.S.3d 190

RPAPL 1311[1] ; see Polish Natl. Alliance of Brooklyn v. White Eagle Hall Co., 98 A.D.2d 400, 403–404, 470 N.Y.S.2d 642 [1983] ). Although defendant did not specifically raise the argument that decedent's estate was a necessary party to the instant action, “the...