In re Part 60 RMBS Put-Back Litigation Natixis Real Estate Capital Trust 2007-HE2, etc., Plaintiff-Respondent,
Natixis Real Estate Capital, Inc., Defendant-Appellant.
& Gilbert LLP, New York (H. Seiji Newman of counsel), for
Emanuel Urquhart & Sullivan, LLP, New York (Andrew R.
Dunlap of counsel), for respondent.
Renwick, J.P., Manzanet-Daniels, Andrias, Kern, Oing, JJ.
Supreme Court, New York County (Marcy S. Friedman, J.),
entered on or about November 10, 2016, which, to the extent
appealed from as limited by the briefs, denied, with
prejudice, defendant's motion for commissions permitting
it to serve subpoenas on a corporation and an individual
located in Texas, insofar as those subpoenas requested
information about the appointment of Computershare Trust Co.,
N.A. as Separate Securities Administrator, unanimously
modified, on the law, to make the denial without prejudice,
and, so modified, affirmed, without costs.
affirm the denial of defendant's motion, but for
different reasons than stated by the motion court. In making
our determination, we take judicial notice of the briefs,
orders, and pleadings submitted on the motion (see
Kinberg v Kinberg, 85 A.D.3d 673, 674 [1st Dept 2011];
Assured Guar. [Uk] Ltd. v J.P. Morgan Inv. Mgt.
Inc., 80 A.D.3d 293, 303 [1st Dept 2010], affd
18 N.Y.3d 341');">18 N.Y.3d 341 ). We also review the motion court's
order de novo, since the court denied the motion based on law
of the case - a matter of law (see Gulf Ins. Co. v
Transatlantic Reins. Co., 13 A.D.3d 278, 279 [1st Dept
motion court erred in denying the motion based on law of the
case. Neither this Court's decision on the prior appeal
(149 A.D.3d 127');">149 A.D.3d 127 [1st Dept 2017]) nor the order it affirmed,
denying defendant's CPLR 3211 motion to dismiss, bars
defendant's argument that Computershare lacks capacity to
sue because its appointment as Separate Securities
Administrator failed to satisfy the requirements of section
10.10 of the Pooling and Services Agreement (PSA). That
particular issue was not actually litigated on
defendant's motion to dismiss (see People v
Grasso, 54 A.D.3d 180, 210 [1st Dept 2008]). Moreover,
the procedural posture and evidentiary burden on the motion
to dismiss differs from the present motion (see Feinberg
v Boros, 99 A.D.3d 219, 224 [1st Dept 2012], lv
denied 21 N.Y.3d 851');">21 N.Y.3d 851 ). On the motion to dismiss,
defendant had to accept as true the complaint's
allegation that Computershare had been duly appointed, and it
was only after discovery commenced that defendant could
determine whether the requirements of section 10.10 had been
did not waive the defense that Computershare lacked capacity
to sue. Defendant moved to dismiss for lack of standing, and
it included lack of standing as an affirmative defense in its
answer. While capacity to sue and standing are different
legal concepts (see Silver v Pataki, 96 N.Y.2d 532,
537 ), this Court has used the terms interchangeably
(see e.g. Springwell Nav. Corp. v Sanluis Corporacion,
S.A., 81 A.D.3d 557');">81 A.D.3d 557 [1st Dept 2011]). Thus, defendant
should not be penalized for using the term
"standing" instead of "capacity"
(see CPLR 3026).
should the affirmative defense be deemed waived on the ground
that it is too conclusory (see Robbins v Growney,
229 A.D.2d 356, 358 [1st Dept 1996]). It "would be an
excessively severe result" to "treat the defense
as waived" (Scholastic Inc. v Pace Plumbing
Corp., 129 A.D.3d 75, 81 [1st Dept 2015]), especially
since plaintiff has known since at least April 29, 2016 that
defendant was disputing the effectiveness of
Computershare's appointment. Moreover, "[i]f the
[capacity] defense is meritorious, a determination of that
issue would result in a speedy and less expensive conclusion
to otherwise protracted litigation" (id.).
the foregoing, we deny the motion, since defendant did not
demonstrate that a commission is "necessary or
convenient" (CPLR 3108). In particular, defendant's
motion papers did not include "allegations that the
proposed out-of-State deponent[s] would not cooperate with a
notice of deposition or would not voluntarily come within
this State or that the judicial imprimatur accompanying a
commission will be necessary or helpful" (MBIA Ins.
Corp. v Credit Suisse Sec. [USA] LLC, 103 A.D.3d 486,
488 [1st Dept 2013] ...