BANK OF NEW YORK MELLON AS TRUSTEE FOR NEWCASTLE MORTGAGE SECURITIES TRUST 2007 v. ABRAHAM NA APO LLC (2022)

It is,

ORDERED that this motion (#003) by the plaintiff for, inter alia, leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RPAPL) § 1351, is granted, and it is further

ORDERED that the cross motion (#004) by the defendant, Gary Abraham, seeking an order granting renewal of his prior motion (#002) and, upon renewal, dismissal of the complaint, is denied, and it is further

ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further

ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).

Familiarity with the Court's Order dated July 15, 5019 (Whelan, J.S.C.) is presumed, wherein the Court granted plaintiff's motion (#001) for summary judgment as against the answering defendants, default judgments against the remaining defendants, and the appointment of a referee to compute, and denied defendant Gary Abraham's cross motion (#002) to dismiss. On August 6, 2019, plaintiff served the July 2019 Order with Notice of Entry. On September 3, 2019, defendant filed a Notice of Appeal with the Appellate Division, Second Judicial Department. On December 8, 2021, the plaintiff filed the instant motion (#003) seeking confirmation of referee Mark Cuthbertson, Esq.’s report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. The plaintiff's submissions include a Report of Amount Due to Plaintiff dated October 20, 2021, copies of the note and mortgage, and an accounting of plaintiff's attorneys’ costs in prosecuting this action. On December 30, 2021, defendant Gary Abraham filed opposition to the motion as well as a cross motion (#004) seeking renewal of his previously denied motion (#002). Plaintiff opposed the cross motion.

The Court will first consider the defendant's cross motion (#004) as determination thereof may render determination of the plaintiff's motion, academic.

A motion for leave to renew pursuant to CPLR 2221(e) “shall be based upon new facts not offered on a prior motion that would change the prior determination and shall contain reasonable justification for the failure to present such facts on the prior motion” (Mellon v. Izmirligil, 88 A.D.3d 930, 931 N.Y.S.2d 667 [2d Dept. 2011]; Siegel v. Monsey New Sq. Trails Corp., 40 A.D.3d 960, 836 N.Y.S.2d 678 [2d Dept. 2007]). Alternatively, a motion for renewal may rest upon a demonstration “that there has been a change in the law that would change the prior determination” (CPLR 2221[e][2]). “[A] motion for leave to renew based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has expired (Lockwood v. City of Yonkers, 57 Misc. 3d 728, 730, 60 N.Y.S.3d 798 [Sup. Ct. 2017], revd, 179 A.D.3d 688 116 N.Y.S.3d 383 [2d Dept. 2020], citing Dinallo v. DAL Elec., 60 A.D.3d 620, 874 N.Y.S.2d 246 [2d Dept. 2009]; Glicksman v. Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 A.D.2d 364, 717 N.Y.S.2d 373 [2d Dept. 2000]).

The basis for defendant's cross motion is the Appellate Division Second Department's Opinion in Bank of America, N.A. v. Kessler, 202 A.D.3d 10, 160 N.Y.S.3d 277 (2d Dept. 2021) (3-1 dissent). There, in a matter of first impression, it was held that the “inclusion of any material in the separate envelope sent to the borrower under RPAPL 1304 that is not expressly delineated in [the statute] constitutes a violation of the separate envelope requirement of RPAPL 1304(2)” (Bank of America, N.A. v. Kessler, 202 A.D.3d at 14, 160 N.Y.S.3d 277). Defendant contends that this “new law” requires that his prior motion be renewed and, upon renewal and application of Kessler, that the complaint be dismissed.

The Court disagrees.

CPLR 2221(e) requires that there be a change in the law that would affect a prior determination. The Kessler holding, however, is not a “change in the law.” As the Honorable Colleen Duffy notes in opening, “[t]his appeal requires the Court to address the issue of how exacting the requirement of strict compliance is with respect to the ‘separate envelope’ mandate of RPAPL 1304” (Bank of America, N.A. v. Kessler, 202 A.D.3d at 11, 160 N.Y.S.3d 277). In confirming the application of the “strict compliance” standard with respect to the notices sent pursuant to RPAPL 1304, Kessler “merely clarifies existing law” and, as such, “does not afford a basis for renewal attributed to a change in the law” (D'Alessandro v. Carro, 123 A.D.3d 1, 7, 992 N.Y.S.2d 520 [1st Dept. 2014], citing Philips Intl. Invs., LLC v. Pektor, 117 A.D.3d 1, 982 N.Y.S.2d 98 [1st Dept. 2014]). No ruling to the contrary, within this Department or otherwise, exists. Thus, Kessler does not “change” any law, and defendant's motion must be denied.

The Court notes that although the defendant filed a timely notice of appeal, such was dismissed for defendant's failure to perfect. “Absent circumstances set forth in CPLR 5015, which are inapplicable here, a motion for leave to renew based upon a change in the law must be made before the time to appeal the final order has expired” (Daniels v. Millar El. Indus., Inc., 44 A.D.3d 895, 895, 845 N.Y.S.2d 785 [2d Dept. 2007], citing Matter of Huie [Furman], 20 N.Y.2d 568, 572, 285 N.Y.S.2d 610, 232 N.E.2d 642 [1967]; Matter of Eagle Ins. Co. v. Persaud, 1 A.D.3d 356, 357, 766 N.Y.S.2d 571 [2003]; Glicksman v. Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 A.D.2d at 366, 717 N.Y.S.2d 373; see also Benitez v. City of New York, 2 A.D.3d 285, 769 N.Y.S.2d 258 [2003]). It follows, therefore, that a subsequent appeal of the issue in this case would not be reviewable. “[T]here must be an end to lawsuits and the time to take an appeal cannot forever be extended. Absent the sort of circumstances mentioned in CPLR 5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a determination of a court from which no appeal has been taken ought to remain inviolate” (Glicksman v. Bd. of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 A.D.2d at 366, 717 N.Y.S.2d 373, citing Matter of Huie [Furman], 20 N.Y.2d at 572, 285 N.Y.S.2d 610, 232 N.E.2d 642). Here, the issue was not “raised and pursued in the course of a timely perfected appeal” (Gonzalez v. L'Oreal USA, Inc., 92 A.D.3d 1158, 1160, 940 N.Y.S.2d 328 [3d Dept. 2012], citing KLCR Land Corp. v. New York State Elec. & Gas Corp., 15 A.D.3d 719, 720, 789 N.Y.S.2d 323 [3d Dept. 2005]; accord Matter of Suzanne v. Suzanne, 69 A.D.3d 1011, 1012, 893 N.Y.S.2d 323 [3d Dept. 2010]), as the defendant allowed his time to perfect the appeal to lapse.

For these reasons, the defendant's cross motion (#004) is denied.

Turning then to plaintiff's submissions, the Court finds that the plaintiff has established its entitlement to a judgment of foreclosure and sale, namely the referee's findings and report (see US Bank N.A. v. Saraceno, 147 A.D.3d 1005, 48 N.Y.S.3d 163 [2d Dept. 2017]; Mortgage Elec. Registration Sys., Inc. v. Holmes, 131 A.D.3d 680, 17 N.Y.S.3d 31 [2d Dept. 2015]; HSBC Bank USA, N.A. v. Simmons, 125 A.D.3d 930, 5 N.Y.S.3d 175 [2d Dept. 2015]). As noted, no hearing was required (see Wells Fargo Bank v. Zelaya, 56 Misc. 3d 1219[A], 2017 WL 3732345 [2017]). Although the court is not bound by the referee's findings, the report of a referee should be confirmed whenever the findings are substantially supported by the record (see Citimortgage, Inc. v. Kidd, 148 A.D.3d 767, 49 N.Y.S.3d 482 [2d Dept. 2017]; Matter of Cincotta, 139 A.D.3d 1058, 32 N.Y.S.3d 610 [2d Dept. 2016]; Hudson v. Smith, 127 A.D.3d 816, 4 N.Y.S.3d 894 [2d Dept. 2015]), and the Court so finds in this case.

The portion of plaintiff's motion seeking attorney's fees is also granted, as the terms of the subject loan documents allows for same. Here, plaintiff has supplied the Court with an affirmation of services and is requesting a total of $6,712.50. The Court finds this amount to be reasonable, and will award plaintiff same (see Vigo v. 501 Second Street Holding Corp., 121 A.D.3d 778, 994 N.Y.S.2d 354 [2d Dept. 2014]).

In light of the foregoing, plaintiff's motion (#003) is granted, and the defendant's cross motion (#004) is denied. The proposed order for judgment of foreclosure and sale, as modified by the Court, has been signed concurrently herewith.

Thomas F. Whelan, J.