Wells Fargo Bank, N.A. v. Mone

• Decision Date: 01 July 2020
• Docket Number: 2016–11051,Index No. 10461/12
• Citation: 185 A.D.3d 626,127 N.Y.S.3d 488
• Parties: WELLS FARGO BANK, N.A., etc., Respondent, v. Vincent J. MONE, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

185 A.D.3d 626

127 N.Y.S.3d 488

WELLS FARGO BANK, N.A., etc., Respondent,

v.Vincent J. MONE, Appellant, et al., Defendants.

2016–11051

Index No. 10461/12

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

Argued—March 14, 2019

July 1, 2020

Paula Schwartz Frome, Garden City, NY, for appellant.

Sahn Ward Coschignano, PLLC, Uniondale, N.Y. (Jon A. Ward and Andrew M. Roth of counsel), for respondent.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, pursuant to RPAPL article 15 for declaratory relief, the defendant Vincent J. Mone appeals from an order of the Supreme Court, Suffolk County (Joseph Farneti, J.), dated August 16, 2016. The order granted the plaintiff's motion for leave to renew that branch of its prior motion which was for summary judgment declaring that the subject mortgage is a first priority lien on the subject property and that a copy of the mortgage may be recorded, which had been denied in an order of the same court dated March 19, 2015, and, upon renewal, in effect, vacated that portion of the order dated March 19, 2015, and thereupon granted that branch of the plaintiff's prior motion and, sua sponte, granted the plaintiff an order of reference appointing a referee to compute the amount due.

ORDERED that on the Court's own motion, the notice of appeal from so much of the order dated August 16, 2016, as, sua sponte, granted the plaintiff an order of reference appointing a referee to compute the amount due is deemed to be an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order dated August 16, 2016, is reversed, on the law, with costs, the plaintiff's motion for leave to renew that branch of its prior motion which was for summary judgment declaring that the subject mortgage is a first priority lien on the subject property and that a copy of the mortgage may be recorded is denied, and so much of the order dated March 19, 2015, as denied that branch of the plaintiff's prior motion is reinstated.

On February 9, 2005, the defendant Vincent J. Mone (hereinafter the defendant) executed a note in favor of The New York Mortgage Co., LLC (hereinafter New York Mortgage), promising to repay a loan in the principal sum of $600,000. As security for the note, the defendant executed a mortgage encumbering certain real property in Jamesport. The mortgage was never recorded.

In March 2012, the plaintiff, Wells Fargo Bank, N.A., as trustee for Option One Mortgage Loan Trust 2005–2 Asset Backed Certificates, Series 2005–2, commenced this action against the defendant and others, seeking, inter alia, a judgment declaring that the mortgage is a first priority lien on the property, and that a copy of the mortgage may be recorded. The plaintiff alleged that the original mortgage was lost and that the defendant refused to re-execute the mortgage. Attached to the complaint was a copy of the note, the mortgage, and an allonge to the note endorsed by New York Mortgage to Option One Mortgage Corporation (hereinafter Option One), without recourse. The defendant answered the complaint and raised, inter alia, lack of standing as an affirmative defense.

The plaintiff subsequently moved, inter alia, for summary judgment declaring that the mortgage is a first priority lien on the property and that a copy of the mortgage may be recorded. In support of its motion, the plaintiff submitted, among other things, an affidavit of Kyle Lucas, a senior loan analyst at Ocwen Loan Servicing, LLC (hereinafter Ocwen), the servicer of the mortgage loan. Lucas averred, inter alia, based on his familiarity with Ocwen's business records, that Option One appointed the plaintiff as trustee "of certain trusts, including the [subject] mortgage," and that the whereabouts of the original mortgage remain unknown. The plaintiff also submitted a limited power of attorney dated September 25, 2013, appointing Ocwen as the "true and lawful attorney-in-fact" for the plaintiff, and an assignment of mortgage dated February 9, 2005, from New York Mortgage to Option One. The defendant opposed the motion. In an order dated March 19, 2015, the Supreme Court, inter alia, denied that branch of the plaintiff's motion which was for summary judgment declaring that the mortgage is a first priority lien on the property and that a copy of the mortgage may be recorded, finding that "the issue of standing cannot be determined as a matter of law on this record," and that "[the] plaintiff did not submit an affidavit from someone with personal knowledge providing factual details of a physical delivery of the note to plaintiff or assignment of the note and mortgage to plaintiff prior to the commencement of this action."

The plaintiff moved for leave to renew that branch of its prior motion. In support of the motion for renewal, the plaintiff submitted an affidavit of Kevin Flannigan, a senior loan analyst at Ocwen, who averred, based on his familiarity with Ocwen's business records, that "[the plaintiff] obtained physical possession of the subject Note on March 8, 2005." The defendant opposed the plaintiff's motion, arguing, among other things, that Flannigan's affidavit constituted inadmissible hearsay and that the plaintiff lacked standing. In an order dated August 16, 2016, the Supreme Court granted the plaintiff's motion for leave to renew and, upon renewal, granted that branch of the plaintiff's prior motion which was for summary judgment declaring that the mortgage is a first priority lien on the property and that a copy of the mortgage may be recorded, and, sua sponte, granted the plaintiff an order of reference appointing a referee to compute the amount due.

The defendant appeals, principally arguing that the plaintiff failed to meet its burden of establishing its entitlement to leave to renew inasmuch as the plaintiff did not set forth a reasonable justification for failing to submit the purported new fact contained in Flannigan's affidavit on the prior motion. Although this argument is raised for the first time on appeal, we reach the argument because it presents a question of law which appears on the face of the record and "which could not have been avoided if raised at the proper juncture" ( Coscia v. Jamal, 156 A.D.3d 861, 864, 69 N.Y.S.3d 320 [internal quotation marks omitted]; see Bank of Am., N.A. v. Sebrow, 180 A.D.3d 982, 120 N.Y.S.3d 154 ; Rivera v. Rochester Gen. Health Sys., 173 A.D.3d 1758, 1758–1759, 103 N.Y.S.3d 225 ; Matter of Sagres 9, LLC v. State of New York, 164 A.D.3d 903, 905, 83 N.Y.S.3d 185 ; Shahid v. City of New York, 144 A.D.3d 1127, 1129, 43 N.Y.S.3d 88 ).

Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" ( CPLR 2221[e][2] ) and "shall contain reasonable justification for the failure to present such facts on the prior motion" ( CPLR 2221[e][3] ; see Deutsche Bank Natl. Trust Co. v. Wilkins, 97 A.D.3d 527, 528, 948 N.Y.S.2d 341 ; Bank of N.Y. Mellon v. Izmirligil, 88 A.D.3d 930, 932, 931 N.Y.S.2d 667 ). " ‘The new or additional facts either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion’ " ( Wells Fargo Bank, N.A. v. Rooney, 132 A.D.3d 980, 982, 19 N.Y.S.3d 543, quoting Deutsche...