BANK NATIONAL ASSOCIATION v. ZIENTEK (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Thomas Zientek appeals from an order of the Supreme Court, Suffolk County (Frank A. Tinari, J.), dated June 4, 2024.  The order granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Thomas Zientek and for an order of reference, and denied that defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Thomas Zientek and for an order of reference, and substituting therefor a provision denying those branches of the motion;  as so modified, the order is affirmed, without costs or disbursements.

In October 2012, the plaintiff commenced this action against, among others, the defendant Thomas Zientek (hereinafter the defendant) to foreclose a mortgage securing certain real property located in Suffolk County.  In two orders, both dated September 5, 2018, the Supreme Court granted the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference.

In a decision and order dated March 31, 2021, this Court reversed the orders dated September 5, 2018, insofar as appealed from and denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference (see U.S. Bank, N.A. v Zientek, 192 AD3d 1189).  This Court determined, among other things, that the Supreme Court should have denied those branches of the plaintiff's motion because the plaintiff failed to establish that it mailed the 90–day notices required by RPAPL 1304.

In October 2023, the plaintiff again moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference.  In support of the motion, the plaintiff submitted an affidavit of a document execution associate for Nationstar Mortgage, LLC, doing business as Mr. Cooper (hereinafter Nationstar), the plaintiff's loan servicer, who attested to the plaintiff's compliance with RPAPL 1304.  The defendant cross-moved for summary judgment dismissing the complaint insofar as asserted against him, arguing that the plaintiff failed to comply with RPAPL 1304 and that the plaintiff's successive motion for summary judgment should not be permitted.

In an order dated June 4, 2024, the Supreme Court granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference, and denied the defendant's cross-motion.  The defendant appeals.

“Generally, successive motions for summary judgment should not be entertained, absent a showing of newly discovered evidence or other sufficient cause” (Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475 [internal quotation marks omitted];  see U.S. Bank N.A. v Kelly, 223 AD3d 932, 934).  “Evidence is not newly discovered simply because it was not submitted on the previous motion” (Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d at 475 [internal quotation marks omitted];  see Wells Fargo Bank, NA v Carpenter, 189 AD3d 1124, 1125).  “Rather, the evidence that was not submitted in support of the previous summary judgment motion must be used to establish facts that were not available to the party at the time it made its initial motion for summary judgment and which could not have been established through alternative evidentiary means” (Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d at 475 [internal quotation marks omitted];  see U.S. Bank Trust, N.A. v Green–Stevenson, 208 AD3d 1205, 1206).  “ ‘Successive motions for summary judgment should not be made based upon facts or arguments which could have been submitted on the original motion for summary judgment’ ” (U.S. Bank N.A. v Kelly, 223 AD3d at 934, quoting Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d at 475).

Here, the plaintiff failed to submit any newly discovered evidence on its second motion that could not have been submitted on its prior motion and did not demonstrate sufficient cause why the successive motion should have been entertained (see HSBC Bank USA, N.A. v Schwarz, 244 AD3d 968, 969;  Wells Fargo Bank, NA v Carpenter, 189 AD3d at 1126).  Thus, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference as an improper successive motion for summary judgment (see U.S. Bank N.A. v Kelly, 223 AD3d at 935).

The parties' remaining contentions either need not be reached in light of our determination or are without merit.

DUFFY, J.P., WOOTEN, LANDICINO and QUIRK, JJ., concur.