Deutsche Bank Nat'l Trust Co. v. Posner

• Decision Date: 01 November 2011
• Citation: 933 N.Y.S.2d 52,89 A.D.3d 674,2011 N.Y. Slip Op. 07803
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Martin L. POSNER, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 07803

89 A.D.3d 674

933 N.Y.S.2d 52

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Martin L. POSNER, et al., appellants, et al., defendants.

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

Nov. 1, 2011.

Martin L. Posner, Brewster, N.Y., appellant pro se and for appellant Jane Y. Posner.

Steven J. Baum, P.C., Amherst, N.Y. (Jason B. Desiderio of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

In an action to foreclose a mortgage, the defendants Martin L. Posner and Jane Y. Posner appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Putnam County (Nicolai, J.), entered June 2, 2010, which, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In December 2006 the defendant Martin L. Posner executed a note, secured by a mortgage on certain property owned by him and the defendant Jane Y. Posner (hereinafter together the appellants). Subsequently, the mortgage was assigned by Mortgage Electronic Registration Systems, Inc., as nominee for the lender, to the plaintiff. Shortly thereafter, on September 4, 2009, the plaintiff commenced this foreclosure action against, among others, the appellants. In an order entered June 2, 2010, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against the appellants. We affirm the order insofar as appealed from.

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting the mortgage and unpaid note, along with evidence of the appellants' default ( see Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC, 70 A.D.3d 882, 883, 895 N.Y.S.2d 199; Aurora Loan Servs., LLC v. Thomas, 53 A.D.3d 561, 862 N.Y.S.2d 89; U.S. Bank Natl. Assn. TR U/S 6/01/98 [Home Equity Loan Trust 1998–2] v. Alvarez, 49 A.D.3d 711, 854 N.Y.S.2d 171). In opposition, the appellants failed to raise a triable issue of fact as to a bona fide defense to the action ( see Aurora Loan Servs. v. Grant, 70 A.D.3d 986, 893 N.Y.S.2d 898; Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345).

The appellants' contentions that the plaintiff lacked standing to commence this action and failed to comply with the conditions of the mortgage and RPAPL 1304 are not properly before this Court. Generally, “we do not consider an issue on a subsequent appeal which was raised or could have been raised in an earlier appeal which was dismissed for lack of prosecution” ( Gurman v. Fotiades, 73 A.D.3d 1126, 1126, 900 N.Y.S.2d 904; see Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 697 N.Y.S.2d 866, 720 N.E.2d 86; Bray v. Cox, 38 N.Y.2d 350, 379 N.Y.S.2d 803, 342 N.E.2d 575). Although this Court possesses the discretion to permit review in the interest of justice ( see Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 773, 698 N.Y.S.2d 588, 720 N.E.2d 864; Vecchio v. Colangelo, 274 A.D.2d 469, 711 N.Y.S.2d 456), such review should be exercised sparingly ( see Gurman v. Fotiades, 73 A.D.3d at 1126–1127, 900 N.Y.S.2d 904; Gammal v. La Casita Milta, 278 A.D.2d 364, ...