HSBC USA AS TRUSTEE FOR DEUTSCHE ALT SECURITIES INC MORTGAGE LOAN TRUST MORTGAGE PASS THROUGH CERTIFICATES SERIES 2006 AR2 v. ELIZABETH SAILOR VALLEY VIEW GARDENS OF MONSEY NEW YORK SECTION II INC JOHN DOE JANE DOE (2026)

The following papers, numbered 1-3, were read and considered in connection with Defendant ELIZABETH SAILOR's Notice of Motion (Motion Seq. No. 3) pursuant to Civil Practice Law and Rules § 3212(b) for an order granting summary judgment dismissing the complaint, along with such other and further relief that this Court finds just, proper, and equitable:

PAPERS NUMBERED

Notice of Motion (Motion Seq. No. 3)/Affirmation of Shara C. Pizzo, Esq- Exhibit 1, Exhibit A  ¹ , Exhibit 2-3/Memorandum of Law in Support

Defendant's Motion for Summary Judgment/Statement of Material Facts Pursuant to 22 NYCRR § 202.8-g/Certification of Shara C. Pizzo, Esq.

Pursuant to Civil Practice Law and Rules § 1101(e) 1

Affirmation of Sean Howland, Esq. in Opposition/Counter Statement of Material Facts Pursuant to 22 NYCRSS § 202.8-g 2

Affirmation of Shara C. Pizzo, Esq. 3

Upon the foregoing papers, the Court now rules as follows:

PROCEDURAL HISTORY

The instant ejectment action was commenced with the filing of a Summons and Complaint on February 27, 2024, to obtain possession of 5 Secora Road, Apt. #F6, Monsey, New York 10952 (hereinafter subject premises). See NYSCEF Doc. Nos. 1 and 2. Defendant VALLEY VIEW GARDENS OF MONSEY was served on February 29, 2024, pursuant to Business Corporation Law § 306 by service on the Secretary State of the State of New York. See NYSCEF Doc. No. 4. Defendants ELIZABETH SAILOR, JANE DOE, JOHN DOE, and MARIUSZ KOCHAN were served on March 13, 2024, pursuant to Civil Practice Law and Rules § 308(4). See NYSCEF Doc. No. 6-8. None of the Defendants answered, moved or appeared other than Defendant VALLEY VIEW GARDENS OF MONSEY who appeared by Notice of Appearance on March 28, 2024. See NYSCEF Doc. No. 9.

On September 27, 2024, Plaintiff filed a motion, inter alia, seeking a declaratory judgment for the non-judicial foreclosure of the subject premises (Motion Seq. No. 1). See NYSCEF Doc. Nos. 11-25. On October 25, 2024, Defendant ELIZABETH SAILOR filed a cross motion pursuant to Civil Practice Law and Rules § 3012(b) for an order compelling Plaintiff to accept Defendant's late answer (Motion Seq. No. 2). See NYSCEF Doc. Nos. 28-33. On August 22, 2025, the Honorable Hal B. Greenwald, J.S.C. issued a Decision and Order denying Plaintiff's application for a declaratory judgment (Motion Seq. No. 1) and granted Defendant ELIZABETH SAILOR's application to file a late answer (Motion Seq. No. 2). See NYSCEF Doc. Nos. 37-38. On September 19, 2025, Defendant ELIZABETH SAILOR joined issue with the filing of a Verified Answer raising one Affirmative Defense and objection in law relating to Plaintiff's failure to name the Estate of Defendant MARIUSZ KOCHAN as required by Civil Practice Law and Rules §§ 1001 and 1024.² Defendant filed a Notice of Entry on October 22, 2025 as to Judge Greenwald's Decision and Order regarding both Motions, Seq. No. 1 and 2. See NYSCEF Doc. No. 40.

On December 10, 2025, Defendant filed the instant motion for summary judgment dismissing the Complaint (Motion Seq. No. 3). See NYSCEF Doc. Nos. 43-46.

FACTS

On March 2, 2006, Defendant MARIUSZ KOCHAN executed a note and loan security agreement for $100,000 to GreenPoint Mortgage Funding, Inc. and purchased two hundred twenty- one (221) shares of common stock of Valley View Gardens of Monsey, New York, Section II, Inc. allocated to the proprietary lease for the cooperative apartment F6 at 5 Secora Road, Monsey, New York. See NYSCEF Doc. No. 14-17. Defendant MARIUSZ KOCHAN defaulted under the terms of the note and loan on July 1, 2016. See NYSCEF Doc. No. 20. Subsequently, on March 22, 2019, Plaintiff held a non-judicial foreclosure public sale where the highest bid was five hundred dollars ($500.00) by Plaintiff. See NYSCEF Doc. No. 19.

According to the Defendant, ELIZABETH SAILOR is the spouse of Defendant MARIUSZ KOCHAN -- who died on November 26, 2023 -- prior to the commencement of the instant action. See NYSCEF Doc. No. 46, ¶ 1 and No. 44 (Death Certificate). According to Defendant ELIZABETH SAILOR, she married Defendant MARIUSZ KOCHAN on May 24, 2006, but resided in the subject premises beginning in March 2006. See NYSCEF Doc. No. 46, ¶3. Further, Defendant ELIZABETH SAILOR contends that Defendant MARIUSZ KOCHAN began suffering from health problems in 2016. She then became the sole provider for the household paying the maintenance charges for the apartment while Defendant KOCHAN paid the mortgage. See NYSCEF Doc. No. 46, ¶4, and No. 45, p. 2.³

ARGUMENTS/ANALYSIS/LAW

I. Summary Judgment — Law of Case Doctrine

Defendant ELIZABETH SAILOR moves for summary judgment pursuant to Civil Practice Law and Rules § 3212 dismissing Plaintiff's Complaint in its entirety based upon the determinations in the Court's August 22, 2025 Decision and Order. Defendant contends that since Plaintiff failed to file an appeal of the Court's August 22, 2025 Decision and Order -- the determination is law of the case and bars relitigation.

Specifically, Defendant asserts that the Court denied Plaintiff's application for declaratory relief and held that the non-judicial foreclosure was not conducted in a "commercially reasonable" manner as required by Uniform Commercial Code §§ 9-610 and 9-627. Additionally, Defendant argues that the "Court unequivocally found that Plaintiff 'fails to establish that it is the equitable owner of the premises or that Plaintiff has a present or immediate right to possession of property.' " NYSCEF Doc. No. 45, p. 5. As such, Defendant argues that under the law-of-the case doctrine, the Plaintiff is now precluded from asserting ownership arguments as those arguments have already been determined by the Court.

"The doctrine of 'the law of the case' is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned." Martin v City of Cohoes, 37 NY2d 162, 165 [1975]. Unlike similar concepts such as res judicata and collateral estoppel, law of the case pertains to preclusion regarding judicial determinations that have been made in a single litigation and before a final judgment. See People v Evans, 94 NY2d 499 [2000]. The law of the case doctrine is specifically "designed to limit relitigation of issues ,preclusion under the law of the case contemplates that the parties had a 'full and fair' opportunity to litigate the initial determination." People v Evans, 94 NY2d at 502. However, the doctrine of law of the case " 'applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision.' " Strujan v Glencord Bldg. Corp., 137 AD3d 1252, 1253 [2d Dept 2016] quoting Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 717 [2d Dept 2012]. Therefore the law of the case is "amorphous" since it " 'directs a court's discretion,' but does not restrict its authority." People v Evans, 94 NY2d at 503 (quoting Arizona v California, 460 US 605, 618 [1983]).

The limits to application of the law-of-the case doctrine include matters where factors or the circumstances of the action are contrary to the purpose of the rule including the following: (1) where the prior decision was not on the merits; See Globe Indem. Co. v Franklin Paving Co., 77 AD2d 581 [2d Dept 1980]; (2) the prior decision was on an exparte application; See People v. Guerra, 65 NY2d 60, 63 [1985]; (3) where new evidence has been brought before the Court; See Holloway v Cha Cha Laundry, et al, 97 AD2d 385, 386 [1st Dept 1983]; See Weiss v Flushing Nat. Bank, 176 AD2d 797 [2d Dept 1991]; (4) where the prior decision was discretionary; See People v Wright, 104 Misc 2d 911, 915 [Supreme Court, New York County 1980]; (5) where extraordinary circumstances exist; See Foley v Roche, 86 AD2d 887 [2d Dept 1982]; See also Frankson v Brown & Williamson Tobacco Corp., 67 AD3d 213, 218 [2d Dept 2009]; (6) where the prior decision is patently erroneous; See People v Negron, 105 Misc 2d 492, 493 [Supreme Court, New York County 1980]; (7) where an application of the doctrine would be counter- productive; See Wilson v McCarthy, 53 AD2d 860, 861 [2d Dept 1976]; (8) where a prior decision was made solely on motion papers and subsequently a full plenary hearing occurs; See People v Mason, 97 Misc 2d 706, 712 [Supreme Court, New York County 1978]; and (9) where a temporary order was issued; See Haber v Haber, 20 AD2d 858 [1st Dept 1964].

"The general purpose of [a] declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations." James v Alderton Dock Yards, 256 NY 298, 305 [1931]. It is well settled that a denial of a motion for declaratory judgment is not a final determination requiring dismissal regarding the basis of the declaration sought by Plaintiff. See 200 Genesee St. Corp v City of Utica, 6 NY3d 761, [2006].

Here, Defendant ELIZABETH SAILOR contends that based upon the Court's statements and determination in its Decision and Order denying plaintiff's prior application for a declaratory judgment -- her motion for summary judgment must be granted.

However, the Court finds that the law of the case doctrine is inapplicable to the instant situation, where the Plaintiff -- in essence -- made a motion for summary judgment as to the ejectment action and sought a declaration of the parties' rights to the subject premises in the form of a declaratory judgment. Since the Court's denial of the application for declaratory judgment merely addresses the sufficiency of that application for the declaratory judgment and is distinct from the requirements and proof necessary for a motion for summary judgment pursuant to Civil Practice Law and Rules § 3212, the law-of-the case doctrine is inapplicable.

Specifically, as noted in Judge Greenwald's Decision and Order "[a] declaratory judgment is intended to declare the respective legal rights of the parties based on a given set of facts, not to declare findings of fact." See NYSCEF Doc. No. 37. The denial of that motion did not make a final determination as to the validity of the 2019 non-judicial foreclosure action. Instead, it determined that the Plaintiff had not provided sufficient evidence in support of its application for the Court to make a determination of the parties' legal rights, i.e. that questions of fact existed that precluded summary judgment. Moreover, the primary purpose of the Complaint is to recover possession of the apartment from the Defendants and the prayer for a declaratory judgment is ancillary to the prayer for ejectment. See Midwood Co-operative v Danoff, 45 AD2d 842 [2d Dept 1974]. Therefore, Defendant ELIZABETH SAILOR's instant application for summary judgment and dismissal of the Complaint based upon the law-of-the case doctrine is denied.

II. Summary Judgement — No Genuine Issues of Material Fact

Defendant ELIZABETH SAILOR's second argument is that summary judgment should be granted in her favor since there are no genuine issues of material fact. In support of this argument Defendant states: "Plaintiff fails to establish the essential elements of its claim, offers no admissible evidence to raise a triable issue of fact, and relies solely on arguments that have already been denied by this Court." According to the Defendant, the claim for ejectment fails as a matter of law because Plaintiff cannot satisfy its burden of establishing that it is the legal and equitable owner of the subject premises.

The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. See Giuffrida v Citibank Corp., et al., 100 NY2d 72 [2003]. The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. See Lacagnino v Gonzalez, 306 AD2d 250 [2d Dept. 2003]. However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. See Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124 [2000; see also Winegrad v New York Univ. Med. Center, 64 NY2d 851 [1985]. Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. See Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]; see also Zuckerman v City of New York, 49 NY2d 557 [1980].

Surprisingly, Defendant's counsel appears to believe that the Plaintiff has sought summary judgment on its ejectment action and that the burden lies with the Plaintiff. However, the instant application is Defendant's motion for summary judgment -- for which Defendant has the initial burden. Specifically, Defendant SAILOR's counsel asserts that Plaintiff has failed "to establish the essential elements of [the] claim, offers no admissible evidence to raise a triable issue of fact, and relies solely on arguments that have already been denied by this Court." See NYSCEF Doc. No. 45, p. 5. "[A] party does not carry its burden in moving for summary judgment by pointing to gaps in its opponent's proof, but must affirmatively demonstrate the merit of its claim or defense." Velasquez v Gomez, 44 AD3d 649, 650-651 [2d Dept 2007] (quoting George Larkin Trucking Co. v Lisbon Tie Mart, 185 AD2d 614, 615 [4th Dept 1992]); see Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 911 [2d Dept 2013]; see also Strough v Incorporated Village of West Hampton Dunes, 98 AD3d 607, 608 [2d Dept 2012].

Here, Defendant SAILOR has not established her entitlement to judgment as a matter of law. SAILOR's Affirmation simply addresses the basis for her default in answering in the instant action. In contrast to Defendant SAILOR's counsel's affirmation, the SAILOR Affirmation provides no facts or arguments regarding the ownership of the subject premises, the payment of the underlying mortgage, or her knowledge or lack thereof regarding the 2019 non-judicial foreclosure action. Defendant SAILOR's Affirmation provides no support for the instant application for summary judgment dismissing the Complaint.

Defendant SAILOR's motion for summary judgment includes her Verified Answer -- which appears to plead failure to name a necessary party (the Estate of MARIUSZ KOCHAN as a defendant), MARIUSZ KOCHAN's Death Certificate,⁴ and the Court's August 24, 2025, Decision and Order. The "evidence" provided in support of Defendant SAILOR's motion for summary judgment is wholly insufficient and fails to provide any evidence or support regarding the validity and statutory compliance of the 2019 non-judicial foreclosure action — forming the basis of the instant ejectment action.

Defendant SAILOR's failure to meet her prima facie burden demonstrating entitlement to judgment as a matter of law requires this Court to deny her application without considering the sufficiency of Plaintiff's opposition. See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]. Based upon the foregoing, Defendant SAILOR's motion for summary judgment is denied in its entirety.

In arriving at this decision the Court has reviewed, evaluated, and considered all of the issues framed by these motion papers and the failure of the Court to specifically mention any particular issue in this Decision and Order does not mean that it has not been considered by the Court in light of the appropriate legal authority.

Accordingly, it is hereby

ORDERED that Defendant's motion for summary judgment (Motion Sequence No. 3), is DENIED in its entirety; and it is further

ORDERED that the parties are directed to appear for an in-person conference on WEDNESDAY JULY 8, 2026, at 10:00 a.m.

The foregoing constitutes the Decision and Order of this Court on Motion Seq. No. 3

Dated: June 11, 2026

New City, New York

HON. JOHN P. COLLINS, JR., J.S.C.

FOOTNOTES

1.   There are two (2) separate Exhibit A's attached to the Pizzo Affirmation. One Exhibit A is the Notice of Appearance and Verified Answer filed by Attorney Pizzo filed on behalf of Defendant SAILOR as NYSCEF Doc. No. 33. The other Exhibit A is a copy of a death certificate for Mark Sailor. The Notice of Appearance and Verified is also annexed as Exhibit 2.

2.   The Answer filed on behalf of Defendant ELIZABETH SAILOR was filed on September 19, 2025, is dated October 25, 2024. See NYSCEF Doc. No. 39, p. 3.

3.   Defendant's Memorandum of Law references "Pizzo Aff., Exhibit 1. Affidavit of Elizabeth Sailor" which does not contain the referenced information. See NYSCEF Doc. No. 44, p. 5-6.

4.   The Court notes that the death certificate annexed to Defendant SAILOR's motion indicates the decedent's name was "Mark Sailor," that his surviving spouse was "Elizabeth Ramniuk" and the informant was "Elizabeth Sailor." The Court has been provided no explanation or clarity regarding the differing names within the death certificate or confirmation that the decedent, "Mark Sailor," was in fact also known as MARIUSZ KOCHAN or that Defendant ELIZABETH SAILOR is also known as "Elizabeth Romaniuk." The Court is left to infer/assume that Defendants ELIZABETH SAILOR and MARIUSZ KOCHAN are the individuals named in the death certificate without any explanation from Defendant's counsel or Defendant SAILOR.

John P. Collins, Jr., J.