R.J.T. Food & Rest., LLC v. Rescap Liquidating Trust, 2018–11574
| Court | New York Supreme Court Appellate Division |
| Citation | 186 A.D.3d 768,127 N.Y.S.3d 270 (Mem) |
| Docket Number | Index No. 615307/16,2018–11574 |
| Parties | R.J.T. FOOD AND RESTAURANT, LLC, et al., Respondents, v. RESCAP LIQUIDATING TRUST, etc., Appellant, et al., Defendants. |
| Decision Date | 19 August 2020 |
186 A.D.3d 768
127 N.Y.S.3d 270 (Mem)
R.J.T. FOOD AND RESTAURANT, LLC, et al., Respondents,
v.
RESCAP LIQUIDATING TRUST, etc., Appellant, et al., Defendants.
2018–11574
Index No. 615307/16
Supreme Court, Appellate Division, Second Department, New York.
Argued—January 2, 2020
August 19, 2020
Houser & Allison, APC, New York, N.Y. (Jordan W. Schur of counsel), for appellant.
Butler, Fitzgerald, Fiveson & McCarthy, A Professional Corporation, New York, N.Y. (David K. Fiveson and Claudia G. Jaffe of counsel), for respondents.
REINALDO E. RIVERA, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action pursuant to RPAPL 1501(4) to cancel and discharge of record certain mortgages, the defendant ResCap Liquidating Trust appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated September 17, 2018. The order granted the plaintiffs' motion for summary judgment on the first cause of action and denied the cross motion of the defendant ResCap Liquidating Trust for summary judgment dismissing the amended complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
A predecessor in interest of the plaintiffs gave a mortgage on certain real property (hereinafter the subject mortgage) in favor of a predecessor in interest of the
defendant ResCap Liquidating Trust (hereinafter the defendant). An action to foreclose the subject mortgage was commenced in 2005 (hereinafter the 2005 action). A separate action to foreclose the subject mortgage was commenced in 2008 (hereinafter the 2008 action). The 2008 action was discontinued by stipulation, that same year, based on the pendency of the 2005 action. Ultimately, in the 2005 action, a predecessor in interest of the plaintiffs was awarded summary judgment dismissing the amended complaint insofar as asserted against him, without prejudice, based on lack of standing (see Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 969 N.Y.S.2d 470 ).
In 2016, the plaintiffs commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record certain mortgages, including the subject mortgage. The plaintiffs moved for summary judgment on the first cause of action, seeking to cancel and discharge of record the subject mortgage. The defendant cross-moved for summary judgment dismissing the amended complaint insofar as asserted against it. In an order dated September 17, 2018, the Supreme...
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