[961 N.Y.S.2d 910] Rosicki, Rosicki & Assoc., PC, Batavia, for Plaintiff.
Drew Taylor, Deer Park, Defendants Pro Se.
THOMAS F. WHELAN, J.
It is, ORDERED that this motion (# 004) by the plaintiff for an order vacating the judgment of foreclosure and sale, cancelling the notice of pendency and granting the plaintiff leave to discontinue this mortgage foreclosure action is considered under CPLR 3217, 5015 and 6514 and is denied.
This mortgage foreclosure action was commenced by the above named plaintiff by the filing of the summons and complaint in office of the Clerk on November 2, 2006. An order fixing the defaults in answering of the defendants and appointing a referee to compute was issued upon the plaintiff's ex parte application on November 29, 2007. The report of the referee to compute was confirmed in the judgment of foreclosure and sale that was entered by the Clerk on June 20, 2008. In July of 2008, the named plaintiff ceased its operations as it had been taken over by Bank of America.
By the instant motion (# 004), counsel for the named plaintiff, without any elaboration of its retention by any successor to the now defunct named plaintiff, seeks an order vacating the judgment of foreclosure and sale, cancelling the notice of pendency and granting the plaintiff leave to discontinue this mortgage foreclosure action. The sole ground alleged is as follows: " After commencement of this action and after the Judgment of Foreclosure and Sale was entered, plaintiff requested that the action be discontinued. Therefore, affirmant is requesting the discontinuance of this action, vacature of the Judgment of Foreclosure and Sale, discharge of the appointed referee and cancellation of the notice of pendency" ( see ¶ 7 of the affirmation of plaintiff's counsel attached to moving papers). For the reasons stated below, this application is denied in its entirety.
" It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights..." ( Da Silva v. Musso, 76 N.Y.2d 436, 440, 560 N.Y.S.2d 109, 559 N.E.2d 1268  ). A judgment
of foreclosure and sale entered against a defendant is thus " final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action" ( Long Is. Sav. Bank v. Mihalios, 269 A.D.2d 502, 503, 704 N.Y.S.2d 483 [2d Dept. 2000]; see New Horizons Inv., Inc. v. Marine Midland Bank, 248 A.D.2d 449, 669 N.Y.S.2d 666 [2d Dept. 1998]; see also Signature Bank v. Epstein, 95 A.D.3d 1199, 945 N.Y.S.2d 347 [2d Dept. 2012] ). Doctrines such as law of the case, res judicata, collateral estoppel and full faith and credit serve to protect the sanctity and finality of judicial orders and judgments. They thus remain inviolate unless [961 N.Y.S.2d 911] they are reversed by appellate processes or are vacated by the court itself under its inherent powers or those statutorily conferred upon it by CPLR 5015 ( see Matter of Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642  ). While a court possesses both inherent and statutory powers to vacate a default judgment on certain grounds ( see Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 830, 860 N.Y.S.2d 417, 890 N.E.2d 179 ; Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727, 790 N.E.2d 1156  ), nothing in the record adduced on the instant motion reveals that the drastic relief of vacatur is appropriate under the circumstances ( see Matter of Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610, 232 N.E.2d 642  ) (" Absent the sort of circumstances mentioned in CPLR 5015 ... a determination of a court from which no appeal has been taken ought to remain inviolate " ).
With the judgment in place in this action, all that remains to be done is the actual foreclosure sale. The court emphasizes that pursuant to RPAPL § 1353(3), upon the sale, " [t]he conveyance vests in the purchaser the same estate only that would have vested in the mortgagee if the equity of redemption had been foreclosed. Such a conveyance is as valid as if it were executed by the mortgagor and mortgagee, and, except as provided in section 1315 and subdivision 2 of section 1341, is an entire bar against each of them and against each party to the action who was duly summoned and every person claiming from, through or under a party by title accruing after the filing of the notice of the pendency of the action." Caselaw holds that title derived from a foreclosure sale is clear and absolute title that is beyond attack directly or collaterally ( see Dorff v. Bornstein, 277 N.Y. 236, 14 N.E.2d 51 ; Dulberg v. Ebenhart, 68 A.D.2d 323, 417 N.Y.S.2d 71 [1st Dept. 1979] ). Something more than a mere assertion of a right is essential to create an unmarketable title ( see Argent Mtge. Co., LLC v. Leveau, 46 A.D.3d 727, 848 N.Y.S.2d 691 [2d Dept. 2007] ).
Neither the judgment of foreclosure and sale, the order of reference previously issued by the court upon the defaults in answering of the mortgagor and other defendants nor the papers underlying them have been challenged as fraudulent or otherwise subject to vacatur by any interested party. Instead, it appears that the counsel is having difficulty complying with the requirements of a post-commencement Administrative Order 548-10 that was issued by court administrators following national media reports detailing misdeeds by signatories to affidavits of merit employed by those seeking foreclosure in jurisdictions other than New York. This order, or rule as it is sometimes referred to, mandates the submission of an affirmation of the mortgagee's counsel verifying, among other things, the accuracy of the notarizations contained in the supporting documents filed with the foreclosure action. Administrative Order numbered 548-10 was amended, slightly in 2011, in an attempt to quell the objections thereto expressed by the bar of this state ( see Administrative Order # 431-11).
By order dated February 28, 2011, this court declared that the 2011 Administrative Order and a subsequently promulgated provision of court Rule 202.12-a, requiring the submission of this affirmation during the course of a mortgage foreclosure action was ultra vires and otherwise invalid ( see LaSalle Bank, NA v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup. Ct., Suffolk County 2011] ). That order was appealed and was recently affirmed by the Second Department ( see [961 N.Y.S.2d 912] LaSalle Bank, NA v. Pace, 100 A.D.3d 970, 955 N.Y.S.2d 161 [2d Dept. 2012] ). Although the Second Department found that " the attorney affirmation is not itself substantive evidence or a new argument supporting summary judgment" ( cf., Wells Fargo Bank, NA v. Hudson, 98 A.D.3d 576, 949 N.Y.S.2d 703 [2d Dept. 2012] ), the court did not invalidate the Administrative Order. Counsel for foreclosing plaintiffs thus attempt to comply with these non-substantive, administrative requirements of the Administrative Orders and Rule. However, compliance is difficult to achieve due, in large part, to an inability to locate the affiants or others who participated in the preparation of the original affidavits of merit. The affirmation requirement is particularly onerous in cases in which a change in the named plaintiff, its servicer or its counsel has occurred.
Concern on the part of court administrators as to the veracity of the content and the procedures employed in the preparation of affidavits of merit submitted in residential New York foreclosure ...