IndyMac Bank, F.S.B. v. Vincoli

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DANIEL D. ANGIOLILLO
• Citation: IndyMac Bank, F.S.B. v. Vincoli, 105 A.D.3d 704, 962 N.Y.S.2d 624, 2013 N.Y. Slip Op. 2221 (N.Y. App. Div. 2013)
• Decision Date: 03 April 2013
• Parties: INDYMAC BANK, F.S.B., plaintiff, v. Lillian M. VINCOLI, also known as Lillian Vincoli, et al., defendants. (Action No. 1) Frank Lato, respondent, v. Cathy M. Lato, et al., defendants, Stewart Title Insurance Company, appellant. (Action No. 2).

105 A.D.3d 704

962 N.Y.S.2d 624

2013 N.Y. Slip Op. 02221

INDYMAC BANK, F.S.B., plaintiff,

v.Lillian M. VINCOLI, also known as Lillian Vincoli, et al., defendants. (Action No. 1)

Frank Lato, respondent,

v.Cathy M. Lato, et al., defendants,Stewart Title Insurance Company, appellant. (Action No. 2).

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

April 3, 2013.

Thomas G. Sherwood, LLC, Garden City, N.Y. (James P. Truitt III and Rebecca J. Waldren of counsel), for appellant.

Richard S. Candee, Mount Kisco, N.Y. (Benjamin L. Felcher Leavitt of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and PLUMMER E. LOTT, JJ.

In two related actions, inter alia, to foreclose a mortgage and to set aside certain transfers of real property, Stewart Title Insurance Company, a defendant in Action No. 2, appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered July 26, 2011, as denied that branch of its motion which was pursuant to CPLR 3211(a)(5) to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of real property, denied that branch of its motion which was to cancel the notice of pendency filed in Action No. 2, denied that branch of its motion which was pursuant to CPLR 3211(a)(7) to dismiss the second cause of action in Action No. 2 alleging fraud insofar as asserted against it, granted that branch of the cross motion of Frank Lato, the plaintiff in Action No. 2 and a defendant in Action No. 1, which was to vacate the final judgment of foreclosure and sale in Action No. 1, vacated the sale of the subject property, and granted that branch of Frank Lato's cross motion which was to consolidate the actions pursuant to CPLR 602(a) to the extent of directing a joint trial.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion of the defendant Stewart Title Insurance Company which were pursuant to CPLR 3211(a)(5) to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of real property, to cancel the notice of pendency filed in Action No. 2 and, pursuant to CPLR 3211(a)(7), to dismiss the second cause of action in Action No. 2 alleging fraud insofar as asserted against it are granted, and the cross motion of Frank Lato to vacate the final judgment of foreclosure and sale in Action No. 1 and to consolidate the actions pursuant to CPLR 602(a) is denied.

On July 29, 2008, IndyMac Bank, F.S.B. (hereinafter IndyMac) obtained a final judgment of foreclosure and sale, upon default, against, among others, Frank Lato in connection with a mortgage foreclosure action (hereinafter Action No.1). At the foreclosure sale held in July 2009, OneWest Bank, F.S.B. (hereinafter OneWest) purchased the subject property.

In May 2011, Frank Lato, a defendant in Action No. 1, commenced a plenary action (hereinafter Action No. 2) against, among others, IndyMac, OneWest, and Stewart Title Insurance Company (hereinafter Stewart Title), seeking, inter alia, monetary damages and to set aside certain transfers of the subject property and OneWest's title and interest in the subject property. He also filed a notice of pendency against the subject property. Stewart Title moved to cancel the notice of pendency and to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of the subject property on the ground that Lato was precluded from asserting any claims relating to title to the subject property due to the judgment of foreclosure and sale in Action No. 1. Additionally, Stewart Title moved to dismiss the second cause of action in Action No. 2 alleging fraud insofar as asserted against it for failure to state a cause of action. Lato cross-moved to consolidate Action Nos. 1 and 2 and to vacate the judgment of foreclosure and sale in Action No. 1.

By order entered July 26, 2011, the Supreme Court denied those branches of Stewart Title's motion which were to cancel the notice of pendency in Action No. 2, to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of the subject property, and to dismiss the second cause of action alleging fraud insofar as asserted against it for failure to state a cause of action. The Supreme Court also granted that branch of Lato's cross motion which was to vacate the final judgment of foreclosure and sale in Action No.1, vacated the sale of the subject property, and granted that branch of Lato's cross motion which was to consolidate the actions to the extent of directing a joint trial. Stewart Title appeals.

The Supreme Court erred in granting that branch of Lato's cross motion which was to vacate the final judgment of foreclosure and sale entered in Action No. 1. Vacatur could only be obtained by way of a motion to vacate the judgment of foreclosure and sale in Action No. 1 pursuant to CPLR 5015(a) ( see James v. Shave, 62 N.Y.2d 712, 714, 476 N.Y.S.2d 532, 465 N.E.2d 39;Egloff v. Town of Lewisboro, 89 A.D.3d 792, 793, 932 N.Y.S.2d 151;Matter of Calabrese Bakeries, Inc. v. Rockland Bakery, Inc., 83 A.D.3d 1060, 1061, 923 N.Y.S.2d 556;Babu v. 29 Cortlandt St. Realty Corp., 289 A.D.2d 273, 273, 735 N.Y.S.2d 135). A plenary action or proceeding for such relief does not lie and must be dismissed ( see Matter of Calabrese Bakeries, Inc. v. Rockland Bakery, Inc., 83 A.D.3d at 1061, 923 N.Y.S.2d 556;Babu v. 29 Cortlandt St. Realty Corp., 289 A.D.2d at 273, 735 N.Y.S.2d 135;Weinstock v. Citibank, 289 A.D.2d 326, 326, 734 N.Y.S.2d 210). Consequently, as Action No. 2, in part, is a collateral attack upon the judgment of foreclosure and sale, the Supreme Court should have granted that branch of Stewart Title's motion which was pursuant to CPLR 3211(a)(5) to dismiss, in effect, so much of the complaint in Action No. 2 as sought to set aside certain transfers of the subject property and denied that branch of Lato's cross motion which was to vacate the judgment of foreclosure and sale in Action No. 1.

The Supreme...