FERNANDEZ v. NATIONSTAR MORTGAGE LLC (2025)

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about February 7, 2024, which denied plaintiffs’ motion for summary judgment and, sua sponte, dismissed the complaint, unanimously affirmed, without costs.

In 2018, defendant commenced a foreclosure action against plaintiffs.  In or around 2021, the parties settled the matter, and plaintiff Celeste Fernandez paid off the full amount of the mortgage.  In this action, plaintiffs bring an unjust enrichment claim based on their payment to defendant in that prior action and allege that plaintiffs had valid affirmative defenses in the prior action.

As an initial matter, this Court has jurisdiction over this appeal.  Although plaintiffs filed an informational statement rather than a conventional notice of appeal, the statement indicated the order appealed from, the parties taking the appeal, and that plaintiffs were appealing to this Court, rendering the informational statement sufficient (CPLR 5515[1]).  As the statement was filed approximately three weeks after notice of entry of the order appealed from, it was sufficiently timely to give this Court jurisdiction (CPLR 5513[a]).

Dismissal of the complaint was warranted because this action is barred by res judicata.  Ordinarily, a claim concerning an agreement settling a prior action or a payment in satisfaction of a claim would not be barred by res judicata because the facts and circumstances surrounding the agreement or payment, having occurred at the end of litigation, could not have been litigated during that same action (see Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 [2005]).  However, the only facts plaintiffs pleaded challenging that settlement agreement were affirmative defenses that plaintiffs included in their answer in the prior 2018 foreclosure action.  The action consists solely of issues that were litigated or could have been litigated in the prior action.  Because the prior action concluded through a settlement and discontinuance, this action, as pleaded, is barred by res judicata (see Kirby v. David Fabricators of N.Y., Inc., 236 A.D.3d 436, 228 N.Y.S.3d 83 [1st Dept. 2025]).

Furthermore, the fact that defendant pleaded the voluntary payment doctrine as an affirmative defense did not relieve plaintiffs of their burden to factually plead each element of their unjust enrichment claim, which plaintiffs failed to do (see generally Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011];  see also M & E 73–75, LLC v. 57 Fusion LLC, 189 A.D.3d 1, 5, 128 N.Y.S.3d 200 [1st Dept. 2020], lv dismissed 36 N.Y.3d 1086, 142 N.Y.S.3d 884, 166 N.E.3d 1062 [2021]).