Wells Fargo Bank, Nat'l Ass'n v. Enbar, 2016–13201

• Decision Date: 12 June 2019
• Docket Number: Index No. 7939/15,2016–13201,2016–13204
• Citation: 173 A.D.3d 938,104 N.Y.S.3d 183
• Parties: WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., Respondent, v. Moshe ENBAR, etc., et al., Defendants, Richard A. Legum, Appellant.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 938
104 N.Y.S.3d 183

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., Respondent,
v.
Moshe ENBAR, etc., et al., Defendants,

Richard A. Legum, Appellant.

2016–13201
2016–13204
Index No. 7939/15

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

Argued - February 15, 2019
June 12, 2019

Steven G. Legum, Mineola, NY, for appellant.

Akerman, LLP, New York, N.Y. (Jordan M. Smith and Natsayi Mawere of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

173 A.D.3d 938

ORDERED that the order entered June 20, 2016, is modified, on the law, by deleting the provision thereof denying that branch of the cross motion of the defendant Richard A. Legum which was pursuant to CPLR 3211(a)(5) to dismiss the complaint as barred by the doctrine of res judicata, and substituting therefor a provision granting that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

173 A.D.3d 939

ORDERED that the appeal from the order entered July 28, 2016, is dismissed as academic in light of our determination on the appeal from the order entered June 20, 2016; and it is further,

ORDERED that one bill of costs is awarded to the defendant Richard A. Legum.

Between 2001 and 2006, the defendants Moshe Enbar and Linda Enbar (hereinafter together the Enbars) obtained three loans from the plaintiff's predecessors in interest, each secured by a mortgage on the real property which is the subject of this action. In 2006, the loans were consolidated into a single promissory note, and the plaintiff's predecessor subsequently issued two satisfactions of mortgage discharging the Enbars' obligations under two of the mortgages. The satisfactions were promptly recorded. Thereafter, the defendant Richard A. Legum loaned money to an entity of which Moshe Enbar was

104 N.Y.S.3d 185

the principal (hereinafter the Legum loan), and Moshe Enbar personally guaranteed repayment of the Legum loan. In 2011, Legum obtained a money judgment against Moshe Enbar on the Legum loan, which he promptly recorded as a lien.

The plaintiff came into possession of the consolidated note and the associated mortgages in February 2012, and commenced an action against the Enbars and others in March 2012 (hereinafter the first action), alleging that the Enbars defaulted on the consolidated note in December 2010. The complaint sought to cancel the previously recorded satisfactions of mortgage, to reinstate those mortgage liens, and to foreclose on the subject property. The complaint further accelerated the entire loan balance, declaring it presently due and owing. Legum was named as a defendant in the action based on his status as a...