938 ST NICHOLAS AVENUE LENDER LLC v. [And a Third-Party Action] (2023)

Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered on or about January 31, 2022, which, to the extent appealed from, denied plaintiff's motion for summary judgment against defendant 936–938 Cliffcrest Housing Development Fund Corporation on its foreclosure cause of action and an order of reference, unanimously affirmed, without costs.

Contrary to plaintiff's contention, the court was not bound by the findings in the orders issued in the prior foreclosure action brought against defendant (Peny & Co. v. 936–938 Cliffcrest Housing, Sup. Ct., N.Y. County, index No. 850011/2013, 2016 WL 1294161). Those findings do not have collateral estoppel effect on the issue of plaintiff's standing to bring this action, as they were not “final” in light of the ultimate dismissal of that action (see Morley v. Quinones, 208 A.D.2d 813, 617 N.Y.S.2d 841 [2d Dept. 1994]).  Nor was the court bound by the May 31, 2019 order issued in this action under the law of the case doctrine, since that order was rendered on a motion to dismiss pursuant to CPLR 3211, which applies standards different from those on summary judgment (see Matter of Bullard, 206 A.D.3d 489, 489–490, 172 N.Y.S.3d 1 [1st Dept. 2022]).

The court correctly determined that plaintiff failed to establish its prima facie entitlement to summary judgment based on the affidavits that were submitted.  The supporting affidavits from David Aviram, plaintiff's manager, and Harrison Rayford, the managing member of plaintiff's assignor 936 Coogans Bluff, LLC, laid a proper foundation for the admission of the records of plaintiff and Coogans Bluff, but were insufficient to establish a foundation under CPLR 4518 for the admission of business records of any of the former holders of the note and mortgage (see Berkshire Bank v. Fawer, 187 A.D.3d 535, 130 N.Y.S.3d 666 [1st Dept. 2020];  Federal Natl. Mtge. Assn. v. Allanah, 200 A.D.3d 947, 949, 160 N.Y.S.3d 78 [2d Dept. 2021]).  The affidavit dated October 3, 2014 of Helene Rudolph, a Vice President and Deputy General Counsel of The Community Preservation Corporation, the loan servicer for both Peny & Co. (Peny) and State of New York Mortgage Agency (SONYMA), former holders of the note and mortgage, was also insufficient and defective, because although she had personal knowledge of the records of Peny and SONYMA, the documents referenced in her affidavit were not annexed to the affidavit nor properly identified, even if they were located somewhere in the record (see U.S. Bank N.A. v. Chait, 197 A.D.3d 1077, 1078, 154 N.Y.S.3d 62 [1st Dept. 2021]).  Thus, the court providently declined to deem the 2014 Rudolph Affidavit adequate to authenticate the mortgage and note submitted with the present motion.  The court also properly determined that the allonges did not establish plaintiff's standing as the holder of the note (see generally Nationstar Mtge., LLC v. Calomarde, 201 A.D.3d 940, 942, 158 N.Y.S.3d 593 [2d Dept. 2022];  HSBC Bank USA, N.A. v. Roumiantseva, 130 A.D.3d 983, 985, 15 N.Y.S.3d 117 [2d Dept. 2015]).

We have considered plaintiff's remaining arguments and find them unavailing.