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HSBC Bank USA National Association v. Vinci

Supreme Court, Suffolk County

October 17, 2018


          Original Return Date: July 20, 2016

          Original Return Date: July 20. 2017

          Dated August 14, 2018

          Seth D. Weinberg, Esq. RAS Boriskin LLC Attorneys for Plaintiff

          Melissa Corwin, Esq. Somer, Heller & Corwin LLP Attorneys for Defendant JEFF VINCI


          Jeffrey Arlen Spinner, J.

         Referred to IAS Part 21 by Administrative Order No. 67-18

         Plaintiff commenced this action claiming foreclosure of a mortgage dated October 31, 2006 in the amount of $ 328, 500.00. Said mortgage was given to secure a note of the same date in a corresponding amount and was recorded with the Clerk of Suffolk County on November 28, 2006 in Liber 21425 of Mortgages at Page 178. The mortgage constitutes a first lien encumbering real property known as 178 Oak Avenue, Shirley, Town of Brookhaven, New York. Plaintiff is the assignee of the note and mortgage herein, having acquired title thereto prior to the commencement of any action to enforce the same.

         Plaintiff, alleging a default in payment by Defendant which occurred on June 1, 2011, commenced an action claiming foreclosure of the mortgage by filing a Summons, Complaint and Notice of Pendency on January 8, 2013 under Suffolk County index no. 2013-00778 (the "First Action"). Defendant appeared through counsel and filed an Answer in that action. During the time at which the First Action was still pending and active before another Justice of this Court, Plaintiff, acting through different counsel, commenced a successive action, claiming relief identical to that sought in the First Action, by filing a Summons, Complaint and Notice of Pendency on November 20, 2015 under Suffolk County index no. 2015-612775 (the "Second Action), which is the matter that is now sub judice. In its Complaint, specifically Paragraph 14 thereof, Plaintiff's counsel affirmed verbatim "That the plaintiff alleges that no other proceedings have been had for the recovery of the mortgage indebtedness or if any such proceeding is pending, a final judgment was not rendered in favor of Plaintiff and such action is intended to be discontinued." Defendant JEFF VINCI, appearing through counsel, and on February 10, 2016 served and filed an Answer which included a thirteen Affirmative Defenses including one which raised the issue of the prior pending action which sought relief identical to that in the Second Action. As far as can be gleaned from the motion papers and a review of the Court's electronic records, Plaintiff failed to interpose a Reply to Defendant's responsive pleading. Plaintiff has moved for summary judgment pursuant to the provisions of CPLR § 3212 (seq. 001) while Defendant has cross-moved for dismissal (seq. 002) pursuant to the provisions of, inter alia, RPAPL § 1301(3). Defendant has utilized the cross-motion as and for his opposition to Plaintiff's motion in chief while Plaintiff has filed an Affirmation In Opposition to Defendant's cross-motion.

         In order for Plaintiff to prevail upon its motion for summary judgment, it must lay bare all of its proof and, in particular, must demonstrate, by a fair preponderance of the evidence, the existence of the instruments of indebtedness, its standing to foreclose as well as the default thereunder, EMC Mortgage Corp. v. Riverdale Associates 291 A.D.2d 370 (2nd Dept. 2002). Doing so will satisfy Plaintiff's prima facie burden. If Plaintiff meets its statutory burden, the burden is then shifted to Defendant to demonstrate the existence of a triable issue of fact sufficient to defeat summary judgment, Barrett v. Jacobs 255 NY 520 (1931). The function of the court is issue finding and not issue determination, Silliman v. Twentieth Century Fox Film Corporation 3 N.Y.2d 395 (1957). In the matter that is sub judice, Plaintiff's moving papers adequately demonstrate its ostensible right to summary judgment.

         Turning to Defendant's cross-motion, it is apparent that Defendant has demonstrated the existence of a triable issue of fact which this Court finds to be legally and factually sufficient to defeat Plaintiff's claim. Defendant relies upon the provisions of RPAPL § 1301(3), which state that "While an action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of court in which the former action was brought."

         Nowhere in Plaintiff's moving papers is there any mention made of the fact that a prior action was pending, between the same parties which sought the identical relief, at the time that the instant action was commenced. The Court finds Plaintiff's failure to bring forth information about the First Action to be decidedly troubling. Plaintiff failed to disclose the existence of the pending First Action on the Request For Judicial Intervention that it caused to be filed herein. Indeed, Plaintiff did not move to discontinue the First Action until it filed a motion to discontinue on October 31, 2016, which is 11 months, 11 days after the commencement of the Second Action and 8 months, 11 days after the service of Defendant's Answer and Affirmative Defenses. The motion to discontinue the First Action was, according to Plaintiff's counsel's Affirmation, due to an unspecified "procedural defect." It is somewhat disturbing to note that Plaintiff has never amplified what is meant by a "procedural defect," apparently choosing to leave the same to the imagination of the Court. Aside from the motion to discontinue, Plaintiff took no steps whatsoever to timely prosecute the action, though far more than one year had elapsed since the filing of the Complaint in the First

         Action. The Court notes that an Order granting Plaintiff's motion to discontinue the first action was granted by the Court (Mayer, J.) On October 26, 2017.

         The provisions of RPAPL §1301(3) clearly and plainly prohibit the commencement of a second action claiming foreclosure or recovery of the indebtedness secured by the mortgage while an prior action is extant unless leave of court is affirmatively sought to do so, Valley Savings Bank v. Rose228 A.D.2d 666 (2nd Dept. 1996). Moreover, it has long been held by our courts that RPAPL § 1301(3) shall be strictly construed, Dollar Dry Dock Bank v. Piping Rock Builders Inc.181 A.D.2d 361 (2nd Dept. 1992) and Plaintiff has not provided this Court with any persuasive or binding authority to the contrary. It has long been the law in New York that the failure to obtain leave of court to commence a second foreclosure action while an action is pending for the same relief effectively precludes the commencement of the second action, Security National Servicing Corp. v. Liebowitz281 A.D.2d 615 (2nd Dept. 2001). Moreover, it has been determined that where a second action is commenced in derogation of RPAPL § 1301(3), stay or dismissal of the second action is warranted, First Nationwide Bank v. Brookhaven Realty Associates223 A.D.2d 618 (2nd Dept. 1996), leave to ...

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