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Wells Fargo Bank, N.A. v. Colace

Supreme Court of New York, Second Department

December 24, 2019

Wells Fargo Bank, N.A., plaintiff,
v.
Stephanie Colace, appellant, et al., defendants; 21st Mortgage Corporation, nonparty-respondent. Index No. 47811/09

          Argued - September 23, 2019

         D61682 Q/htr

          The Ranalli Law Group, PLLC, Hauppauge, NY (Ernest E. Ranalli of counsel), for appellant.

          Bradshaw Law Group, P.C., New York, NY (Diane Bradshaw of counsel), for nonparty-respondent.

          LEONARD B. AUSTIN, J.P. SHERI S. ROMAN BETSY BARROS FRANCESCA E. CONNOLLY, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendant Stephanie Colace appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated August 22, 2017. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 2221 for leave to renew and/or reargue with respect to the plaintiff's prior motion, inter alia, for an order of reference, pursuant to CPLR 5015(a)(2), (3), and(4) to vacate a judgment of foreclosure and sale entered June 18, 2014, and pursuant to CPLR 2003 to vacate the foreclosure sale of the subject property.

         ORDERED that the appeal from so much of the order as denied that branch of the motion of the defendant Stephanie Colace which was for leave to reargue is dismissed, as no appeal lies from the denial of reargument; and it is further, ORDERED that the order is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.

         In December 2009, Wells Fargo Bank, N.A. (hereinafter Wells Fargo), commenced this action against the defendant Stephanie Colace (hereinafter the defendant), among others, to foreclose a mortgage on property located in Huntington Station. After the defendant failed to answer the complaint, the Supreme Court granted Wells Fargo's motion, inter alia, for an order of reference and later issued a judgment of foreclosure and sale, which was entered on June 18, 2014.

         On July 7, 2016, Wells Fargo executed an assignment of judgment, pursuant to which it assigned the judgment of foreclosure and sale to 21st Mortgage Corporation (hereinafter 21st Mortgage). On August 17, 2016, the Referee conducted a foreclosure sale, at which 21st Mortgage was the highest bidder. By referee's deed dated October 17, 2016, the Referee conveyed the premises to 21st Mortgage.

         By order to show cause dated July 17, 2017, the defendant moved, inter alia, pursuant to CPLR 2221 for leave to renew and/or reargue with respect to a prior determination "granting summary judgment in favor of the plaintiff," pursuant to CPLR 5015(a)(2), (3), and (4) to vacate the judgment of foreclosure and sale, and pursuant to CPLR 2003 to vacate the foreclosure sale. The defendant argued that Wells Fargo should have been denied summary judgment and that the judgment of foreclosure and sale should be vacated because Wells Fargo failed to prove its compliance with RPAPL 1303 and 1304. 21st Mortgage opposed the motion. By order dated August 22, 2017, the Supreme Court denied the motion. The defendant appeals.

         "A judgment of foreclosure and sale . . . against a defendant is 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; see Archibald v Wells Fargo Bank, N.A., 166 A.D.3d 573, 573; Tromba v Eastern Fed. Sav. Bank, FSB, 148 A.D.3d 753, 754; Dupps v Betancourt, 121 A.D.3d 746, 747; Signature Bank v Epstein, 95 A.D.3d 1199, 1201). Therefore, we agree with the Supreme Court's determination that a motion pursuant to CPLR 2221 was not "the proper procedural vehicle to address [the] final judgment" (Maddux v Schur, 53 A.D.3d 738, 739).

         Moreover, the defendant failed to provide any basis for vacatur of the judgment of foreclosure and sale pursuant to CPLR 5015(a)(2), (3), or (4).

         Accordingly, we agree with the Supreme Court's determination to deny those branches of the defendant's motion which were pursuant to CPLR 2221(e) for leave to renew the plaintiffs purported summary judgment motion and pursuant to CPLR ...


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