Boreshesky v. U.S. Bank Tr.

• Docket Number: Index No. 620139/2016
• Decision Date: 20 October 2023
• Citation: 2023 NY Slip Op 23333
• Parties: Susan Boreshesky, Plaintiff, v. U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, Defendant.
• Court: New York Supreme Court

2023 NY Slip Op 23333

Susan Boreshesky, Plaintiff,
v.
U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust, Defendant.

Index No. 620139/2016

Supreme Court, Suffolk County

October 20, 2023

PLAINTIFF'S ATTORNEYS: Jeffrey Herzberg, PC.

DEFENDANT'S ATTORNEYS: Day Pitney, LLP.

HON. C. STEPHEN HACKELING, J.S.C.

Upon the following papers read on this e-filed motion to renew and reargue: Notice of Motion/Order to Show Cause and supporting papers (NYSCEF Doc. Nos.: 102-106); Answering Affidavits and supporting papers (NYSCEF Doc. Nos.: 107-124); and Replying Affidavits and supporting papers (NYSCEF Doc. No.: 125); it is

ORDERED that Plaintiff's motion (sequence no. 004) is denied.

Susan Boreshesky (hereafter the "Plaintiff") moves this court under CPLR § 2221(e) to renew and upon renewal, granting Plaintiff summary judgment discharging and vacating defendant's mortgage lien pursuant to RPAPL § 1501(4). U.S. Bank Trust N.A. (hereafter the "Defendant") opposes the application and Plaintiff replied.

On July 5, 2017, this Court (J. Rouse, A.J.S.C.) entered an Order denying Plaintiff's motion for summary judgment because, the Court held, she "failed to provide competent evidence that makes out a prima facie case that Household Finance [the plaintiff in the first foreclosure action commenced in 2010] had standing to accelerate the note alleged to be held by U.S. Bank." The October 16, 2017 order granted Defendant's motion to reargue its prior cross motion for partial summary judgment on the issue of liability for all amounts paid for taxes and insurance.

The two orders were appealed to the Second Department Appellate Division which reversed this Court and dismissed Plaintiff's complaint by its decision dated August 10, 2022 (the "Appellate Decision"). In its Appellate Decision, the Second Department relied on Freedom Mtge. Corp. v. Engel, 37 N.Y.3d 1, 32, in holding that "Household's motion to voluntarily discontinue the foreclosure action, which was made less than six years after the foreclosure action was commenced, constituted an affirmative act of revocation of the acceleration of the mortgage debt as a matter of law absent evidence of an express, contemporaneous statement by Household to the contrary." The Appellate Decision concluded that this Court should have granted Defendant's motion for summary judgment and dismissed this case. [NYSCEF Doc. No. 100].

Notice of Entry of the Appellate Decision was served November 10, 2022 [NYSCEF Doc. No. 101], which gave Plaintiff until December 10, 2022 to appeal to the Court of Appeals. No appeal was filed. Thus, the Appellate Decision became a "final order" as of December 10, 2022.

Plaintiff's instant motion, dated February 22, 2023, seeks to renew not only the two orders this Court entered in 2017 and 2018 - but also the Appellate Decision which reversed this Court. It indeed appears illogical that this Court is authorized to vacate its appellate court decisions.

CPLR § 2221(e) was amended, effective July 20, 1999, by adding subdivisions (d),(e) and (f) to codify and clarify the rules governing motions for leave to reargue and renew which had evolved through case law (see, L. 1999, ch. 281; Mem. of Off. of Ct. Admin., 1999 NY Legis. Ann., at 158; Leg. Mem., 1999 McKinney's Session Laws of NY, at 1721-1722; Report of Advisory Committee, 1999 McKinney's Session Laws of NY, at 2065-2066). As relevant here, CPLR § 2221(e)(2) provides that a motion for leave to renew "shall demonstrate that there has been a change in the law that would change the prior...