ITZKOWITZ v. State Street Bank and Trust Company, et al., Respondents. (2019)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The instant action, as well as a prior action to foreclose a mortgage (hereinafter the foreclosure action), both involve a note secured by a mortgage on certain property located in Monsey.  In the context of the foreclosure action, a judgment of foreclosure and sale dated April 3, 2002 (hereinafter the judgment), was entered in favor of nonparty Washington Mutual Bank, F.A. (hereinafter Washington Mutual), and against, among others, Hershey Itzkowitz, the plaintiff in the instant action (hereinafter the plaintiff).  The plaintiff never appealed from the judgment.

Approximately four years after the judgment was entered, the plaintiff moved for leave to renew his opposition to Washington Mutual's motion for summary judgment on the complaint and to vacate the judgment.  In an order dated May 21, 2006, the Supreme Court denied, as untimely, the plaintiff's motion for leave to renew and to vacate the judgment.  In a decision and order dated January 29, 2008, this Court affirmed that order (see Washington Mut. Bank, FA v. Itzkowitz, 47 A.D.3d 923, 851 N.Y.S.2d 599).  The plaintiff then moved again to vacate the judgment, and in an order dated January 9, 2014, the Supreme Court denied that motion.

In 2016, the plaintiff commenced the instant action against, among others, State Street Bank and Trust Company, FRT 2011–1 Trust, Seneca Mortgage Servicing, LLC, Conika Majumdar, and Fein Such & Crane, LLP (hereinafter collectively the defendants), inter alia, for a judgment declaring that an assignment of the note is void.  The plaintiff moved for summary judgment on the complaint insofar as asserted against State Street Bank and Trust Company, FRT 2011–1 Trust, and Seneca Mortgage Servicing, LLC. The defendants cross-moved for summary judgment dismissing the complaint insofar as asserted against them.  The Supreme Court denied the plaintiff's motion and granted the defendants' cross motion.  The plaintiff appeals.

We agree with the Supreme Court's determination to grant the defendants' cross motion for summary judgment dismissing the complaint insofar as asserted against them.  “ ‘A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action’ ” (Tromba v. Eastern Fed. Sav. Bank, FSB, 148 A.D.3d 753, 754, 48 N.Y.S.3d 501, quoting Ciraldo v. JP Morgan Chase Bank, N.A., 140 A.D.3d 912, 913, 34 N.Y.S.3d 113).  Here, the defendants established, prima facie, that the plaintiff, in effect, was seeking to relitigate issues that either were raised or could have been raised in the foreclosure action (see generally Archibald v. Wells Fargo Bank, N.A., 166 A.D.3d 573, 87 N.Y.S.3d 298;  Mazzurco v. Astoria Fed. Sav. & Loan Assn., 157 A.D.3d 943, 944, 70 N.Y.S.3d 220).  In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiff waived his challenge to the answer of State Street Bank and Trust Company, FRT 2011–1 Trust, and Seneca Mortgage Servicing, LLC (see CPLR 3022;  Matter of Giambra v. Commissioner of Motor Vehs. of State of N.Y., 46 N.Y.2d 743, 745, 413 N.Y.S.2d 643, 386 N.E.2d 251;  Rozz v. Law Offs. of Saul Kobrick, P.C., 134 A.D.3d 920, 921–922, 22 N.Y.S.3d 113;  Ligotti v. Wilson, 287 A.D.2d 550, 551, 731 N.Y.S.2d 473).

RIVERA, J.P., LASALLE, BARROS and IANNACCI, JJ., concur.