U.S. Bank Nat'l Ass'n v. McCaffery

• Decision Date: 26 August 2020
• Docket Number: 2016–12900,Index No. 11997/09
• Citation: 130 N.Y.S.3d 33,186 A.D.3d 897
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Brian MCCAFFERY, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 897

130 N.Y.S.3d 33

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,

v.Brian MCCAFFERY, et al., appellants, et al., defendants.

2016–12900

Index No. 11997/09

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

Argued—May 9, 2019

August 26, 2020

Young Law Group, PLLC, Bohemia, N.Y. (Ivan E. Young of counsel), for appellants.

Duane Morris LLP, New York, N.Y. (Brett L. Messinger of counsel), for respondent.

REINALDO E. RIVERA, J.P. HECTOR D. LASALLE BETSY BARROS ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Brian McCaffery and Cindy McCaffery appeal from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2016. The order, insofar as appealed from, denied those branches of those defendants' motion which were for leave to renew and reargue their opposition to that branch of the plaintiff's prior motion which was, in effect, for a declaration that the plaintiff's acceleration of the mortgage debt was revoked and rescinded, which was granted in an order of the same court (Francesca E. Connolly, J.) dated November 10, 2014, and to vacate so much of that order as declared that the plaintiff's acceleration of the mortgage debt was revoked and rescinded.

ORDERED that the appeal from so much of the order dated September 30, 2016, as denied that branch of the defendants' motion which was for leave to reargue is dismissed; and it is further,

ORDERED that the order dated September 30, 2016, is reversed insofar as reviewed, on the law, that branch of the motion of the defendants Brian McCaffery and Cindy McCaffery which was to vacate so much of the order dated November 10, 2014, as declared that the plaintiff's acceleration of the mortgage debt was revoked and rescinded is granted, and that branch of the motion of the defendants Brian McCaffery and Cindy McCaffery which was for leave to renew their opposition to that branch of the plaintiff's prior motion which was, in effect, for that declaration is denied as academic; and it is further,

ORDERED that one bill of costs is awarded to the defendants Brian McCaffery and Cindy McCaffery.

The plaintiff commenced this action against the defendants Brian McCaffery and Cindy McCaffery (hereinafter together the defendants) and others to foreclose a mortgage encumbering certain property in Mohegan Lake. In June 2014, the plaintiff moved, inter alia, to discontinue the action and, in effect, for a declaration that the acceleration of the mortgage debt was revoked and rescinded. The defendants opposed the motion. By order dated November 10, 2014, the Supreme Court, inter alia, granted the plaintiff's motion to discontinue the action without prejudice, and declared that the plaintiff's acceleration of the mortgage debt was revoked and rescinded. Thereafter, the defendants moved, inter alia, for leave to renew and reargue their opposition to the plaintiff's motion and to vacate so much of the order dated November 10, 2014, as declared that the plaintiff's acceleration of the mortgage debt was revoked and rescinded. By order dated September 30, 2016, the court denied the defendants' motion in its entirety.

On appeal, the defendants contend, inter alia, that the court should have vacated the provision in the order dated November 10, 2014, declaring that the plaintiff's acceleration of the mortgage debt was revoked and rescinded.

The appeal from so much of the order dated September 30, 2016, as denied that branch of the defendants' motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Gentry v. Mean, 166 A.D.3d 583, 86 N.Y.S.3d 624 ; Viola v. Blanco, 1 A.D.3d 506, 507, 767 N.Y.S.2d 248 ).

"The courts of New York do not issue advisory opinions for the fundamental reason that in this State ‘[t]he giving of such opinions is not the exercise of the judicial function’ " ( Cuomo v. Long Is. Light. Co., 71 N.Y.2d 349, 354, 525 N.Y.S.2d 828, 520 N.E.2d 546, quoting Self–Insurer's Assn. v. State Indus. Commn., 224 N.Y. 13, 16, 119 N.E. 1027 ; see Simon v. Nortrax N.E., LLC, 44 A.D.3d 1027, 845 N.Y.S.2d 85 ). "Thus, courts may not issue judicial decisions which ‘can have no immediate effect and may never resolve anything’ " ( Simon v. Nortrax N.E., LLC, 44 A.D.3d at 1027, 845 N.Y.S.2d 85, quoting New York Pub. Interest Research Group v. Carey, 42 N.Y.2d 527, 531, 399 N.Y.S.2d 621, 369 N.E.2d 1155 ).

Here, that branch of the plaintiff's prior motion which was for a declaration that the acceleration of the mortgage debt was revoked and rescinded constituted, in essence, an impermissible request for an advisory opinion (see Board of Educ. of Palmyra–Macedon Cent. Sch. Dist. v. Flower City Glass Co., Inc., 160 A.D.3d 1497, 1498, 75 N.Y.S.3d 735 ; Hirschfeld v. Hogan, 60 A.D.3d 728, 729, 874 N.Y.S.2d 585 ; Simon v. Nortrax N.E., LLC, 44 A.D.3d at 1027, 845 N.Y.S.2d 85 ). Where, as here, "an action is discontinued, it is as if it had never been; everything done in the action...