By order dated April 14, 2022, this court granted defendant Shabana Shakils (“defendant”) motion to renew her cross-motion (Motion Seq. #2) which sought dismissal of the action against defendant on, among other grounds, failure of plaintiff HSBC Bank, USA National Association as Trustee for the Certificateholders of Ace Securities Corp. Home Equity Loan Trust, Series 2006-FM-2 Asset-Backed Pass-through Certificates (“plaintiff”) to comply with the conditions precedent required by RPAPL § 1304 solely to the extent of setting a conference for May 12, 2022 to discuss the issue raised by defendants motion that the RPAPL § 1304 notice mailed to defendant violated the terms of the statute (see Wells Fargo Bank v Yapkowitz, 199 AD3d 126 [2d Dept 2021]; Bank of America v Kessler, 202 AD3d 10 [2d Dept 2021]). As that conference was held, the court will now address renewal of defendants motion.
A full exposition of the history of this action was set forth in the courts decision of March 7, 2019 after the limited issue trial of November 19, 2018, and only those matters relevant to this decision will be further discussed herein.
In response to plaintiffs summary judgment motion (Mot. Seq. #001) and defendants cross-motion to dismiss (Mot. Seq. #002), the court held oral argument on November 3, 2016. After the arguments of counsel were heard, the court placed its decision on the record, setting the default of the non-appearing/non-answering defendants, granting plaintiff partial summary judgment dismissing certain affirmative defenses raised by defendant, but pursuant to CPLR 3212 (g) and 2218, set the issues raised by the remaining affirmative defenses, including plaintiffs compliance with the requirements of RPAPL § 1304, and defendants cross-motion to dismiss, for a limited issue trial. After that trial was held, and counsel submitted post-trial memorandums of law, the court issued its decision of March 7, 2019, which denied defendants cross-motion to dismiss, granted plaintiff summary judgement and an order of reference (RPAPL § 1321) was signed.
From the Suffolk County Clerks (“Clerk”) Civil Court Minutes Report (“Minutes”) filed in NYSCEF upon conversion of this action to E-filing (NYSCEF Docs # 1 and 4), notice of entry of that order was filed with the Clerk on April 25, 2019 and May 15, 2019 (Seq. #s 58 and 60). The Minutes do not show that a notice of appeal from that order was filed.
On November 25, 2019 a judgment of foreclosure and sale (RPAPL § 1351) was signed by the court. The Minutes, as well as a physical review of the Clerks file by the court, show that the judgment was filed with notice of entry on December 23, 2019 (Seq. # 73) and the courts review revealed that an affidavit of mailing was included therewith. Neither the Clerks minutes, nor the Clerks file reviewed by the court, show that a notice of appeal was filed.
In opposing defendants motion, plaintiff raises the objections that a motion to renew is inappropriate as there has not been an appeal, that defendants time to appeal has long expired and that as an attempt to renew/reargue the motion is untimely. Plaintiff is correct.
A motion for leave to renew based upon an alleged change in the law must be made prior to the entry of final judgment or before the time to appeal has fully expired (Matter of 160 East 84th Street v New York State Division of Housing and Community Renewal, 203 AD3d 501 [1st Dept, 2022]; Dinallo v DAL Elec., 60 AD3d 620 [2d Dept 2009]; Glicksman v Board of Board of Educ./Central School Bd. Of Comsewogue Union Free School Dist., 278 AD2d 364 [2d Dept 2000]). Here, the final judgment has been entered and the time to file a notice of appeal has long expired. Under these circumstances the court is required to deny defendants motion, irrespective of whether the RPAPL § 1304 notice here is in violation of the holding in the Wells Fargo Bank v Yapkowitz. Therefore, it is:
ORDERED that defendants motion to renew is denied.
This constitutes the decision and order of the court.
Robert F. Quinlan, J.