Bruno v. Bank of N.Y.

• Decision Date: 15 May 2019
• Docket Number: Index No. 22775/12,2016–10813
• Citation: 172 A.D.3d 992,101 N.Y.S.3d 124
• Parties: Maria Flore BRUNO, etc., Respondent, v. BANK OF NEW YORK, Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

172 A.D.3d 992

101 N.Y.S.3d 124

Maria Flore BRUNO, etc., Respondent,

v.BANK OF NEW YORK, Appellant, et al., Defendant.

2016–10813

Index No. 22775/12

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

Argued—February 14, 2019

May 15, 2019

Borchert & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert, Whitestone, and Edward A. Vincent of counsel), for appellant.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action for declaratory relief, the defendant Bank of New York appeals from an order of the Supreme Court, Queens County (Janice A. Taylor, J.), dated September 7, 2016. The order, insofar as appealed from, denied those branches of that defendant's motion which were for summary judgment dismissing the complaint insofar as asserted against it and for summary judgment on its first or second counterclaims for declaratory relief.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion of the defendant Bank of New York which were for summary judgment dismissing the complaint insofar as asserted against it and for summary judgment on its first counterclaim are granted, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment making the appropriate declaration in accordance herewith.

In 1997, the plaintiff executed a mortgage encumbering certain real property in favor of Ford Consumer Finance Company, Inc. (hereinafter Ford Finance). Thereafter, Citifinancial Mortgage Company, Inc. (hereinafter Citifinancial), the successor-in-interest to Ford Finance, commenced a foreclosure action against the plaintiff. By deed dated January 24, 2006, the plaintiff sold the subject property to Ketly Dutrevil for $350,000. On the same day, Dutrevil executed a mortgage in favor of Argent Mortgage Company, LLC (hereinafter Argent), to secure a loan, the proceeds of which were used to pay off the Citifinancial mortgage. Subsequently, Citifinancial discontinued the foreclosure action against the plaintiff.

By deed dated November 27, 2006, Dutrevil sold the subject property to Gertha Boucicault, who executed a note and mortgage in favor of America's Wholesale Lender (hereinafter AWL) encumbering the subject property. The proceeds of the AWL mortgage were used to pay off the Argent mortgage.

In February of 2008, the AWL mortgage was assigned by AWL to the defendant Bank of New York (hereinafter BNY). Thereafter, Boucicault defaulted in her mortgage payments, and BNY commenced an action to foreclose the mortgage against Boucicault and others. BNY obtained a judgment of foreclosure and sale dated August 1, 2008, and purchased the subject property at the foreclosure sale.

In 2012, the plaintiff commenced this action against BNY, among others, seeking a judgment declaring that she owned a 99% interest in the subject property and that her 99% interest was not encumbered by the mortgage that had been assigned to BNY. The plaintiff alleged that on January 24, 2006, the same date that she transferred the subject property to Dutrevil for $350,000, she had entered into an agreement with Dutrevil, pursuant to which the plaintiff had an option to repurchase a 99% interest in the property from Dutrevil, and that on January 24, 2006, she exercised that option and repurchased a 99% interest in the subject property, leaving Dutrevil with a 1% interest.

BNY moved to dismiss the complaint insofar as asserted against it based on documentary evidence and collateral estoppel.

The motion was denied, and BNY thereafter filed an answer, which included counterclaims. The first counterclaim sought a judgment declaring that BNY is the proper and sole fee owner of the subject property, and the second counterclaim sought alternative declaratory relief in the event the plaintiff prevailed in the action. Thereafter, BNY moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it and for summary judgment on its first or second counterclaim. The plaintiff opposed the motion and cross-moved for summary judgment on the complaint. In the order appealed from, the Supreme Court, inter alia, denied those branches of BNY's motion which were for summary judgment dismissing the complaint insofar as asserted against it and for summary judgment on its first or second counterclaims, as well as the plaintiff's cross motion for summary judgment. BNY appeals from so much of the order as denied those branches of its motion.

We agree with BNY's contention that this action was barred by a prior determination against the plaintiff that was made during the course of BNY's foreclosure action. Contrary to the Supreme Court's determination, the doctrine of collateral estoppel applies here. "Collateral estoppel, or issue preclusion, precludes a party from relitigating in a subsequent proceeding or action an issue that was raised in a prior action or proceeding and decided against that party or those in privity" ( SSJ Dev. of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 A.D.3d 674, 676, 10 N.Y.S.3d 105 ; see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ; Lamberti v. Plaza Equities, LLC, 161 A.D.3d...