| Wells Fargo, N.A. v Levin |
| 2012 NY Slip Op 09118 [101 AD3d 1519] |
| December 27, 2012 |
| Appellate Division, Third Department |
| Wells Fargo, N.A., Doing Business as Americas ServicingCompany, Respondent, v Ofra Levin, Appellant, et al.,Defendants. |
—[*1] Hogan Lovells US LLP, New York City (Robin L. Muir of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the Supreme Court (Tait, J.), entered August 5, 2011 inBroome County, which denied defendant Ofra Levin's motion to, among other things, vacate aprior order.
In May 2007, defendant Ofra Levin (hereinafter defendant) obtained a loan from Real EstateMortgage Network, Inc. (hereinafter REMN) and duly executed a promissory note, which wassecured by a mortgage on certain real property located in the City of Binghamton, BroomeCounty. Two years later, defendant defaulted on the loan and, in August 2009, REMN's nomineeassigned the subject mortgage to plaintiff. Additionally, at some point not disclosed by therecord, REMN also executed a rider to the promissory note—denominated by the parties asan allonge—that, in turn, assigned all right, title and interest in the note to plaintiff.
In September 2009, plaintiff commenced this foreclosure action against defendant, anddefendant, in turn, answered and raised lack of standing as an affirmative defense, contendingthat defendant was not the true owner or holder of the note. Plaintiff then moved for summaryjudgment and an order of reference, and defendant cross-moved for, among other things, an orderdirecting compliance with various discovery demands. Supreme Court granted plaintiff's motion[*2]and denied defendant's cross motion, prompting defendant tomove for reargument, renewal and vacatur of the underlying order. Supreme Court denieddefendant the requested relief, and this appeal ensued.
We affirm. Initially, to the extent that defendant sought reargument, we agree with SupremeCourt that this portion of defendant's motion was untimely (see CPLR 2221 [d] [3]). Inany event, it is well settled that no appeal lies from the denial of a motion to reargue (see Matter of County of Broome, 90AD3d 1260, 1261 [2011]).
As for that aspect of the motion seeking renewal, the crux of defendant's argument on thispoint is that the law firm that represented plaintiff before Supreme Court allegedly engaged invarious fraudulent and deceptive practices in other foreclosure actions relative to, among otherthings, the preparation of certain foreclosure documents. According to defendant, the law firm'sconduct in those other (and unrelated) matters, as well as the ethical questions raised inconjunction therewith, necessarily call into question the validity of the documents prepared andfiled in this case—particularly with respect to the undated rider transferring the note toplaintiff.
To be sure, the law firm in question has been involved in a number of cases in which theforeclosure documentation was not properly completed, resulting in the invalidation of theunderlying proceedings and/or the imposition of sanctions (see e.g. JP Morgan Chase Bank,N.A. v Ramirez, 2011 NY Slip Op 30488[U] [Sup Ct, Suffolk County 2011]; FederalHome Loan Mtge. Corp. v Raia, 29 Misc 3d 1226[A], 2010 NY Slip Op 52003[U] [Dist Ct,Nassau County 2010]; HSBC Bank USA, N.A. v Yeasmin, 27 Misc 3d 1227[A], 2010NY Slip Op 50927[U] [Sup Ct, Kings County 2010]; Lasalle Bank N.A. v Smith, 26Misc 3d 1239[A], 2010 NY Slip Op 50470[U] [Sup Ct, Kings County 2010]). These cases,however, are of no aid to defendant in the context of her motion to renew, as many of them weredecided prior to the underlying summary judgment motion and, in any event, the law firm'sconduct in the cited matters does not establish that it engaged in fraudulent or deceptive practicesin this case. As defendant failed to come forward with new information, as well as a reasonablejustification for failing to bring such facts to Supreme Court's attention in the first instance(see CPLR 2221 [e]; JPMorganChase Bank, N.A. v Malarkey, 65 AD3d 718, 719-720 [2009]), the court properlydenied defendant's request for renewal.
We reach a similar conclusion regarding defendant's motion pursuant to CPLR 5015 seekingto vacate the order granting summary judgment in favor of plaintiff. To the extent that defendantsought relief under the newly discovered evidence prong of CPLR 5015 (a) (2), such motion ismore properly considered as one for renewal pursuant to CPLR 2221 (e) (3) (see Abrams v Berelson, 94 AD3d782, 783 [2012], appeal dismissed 19 NY3d 949 [2012]) and, for the reasonspreviously discussed, is lacking in merit. Further, as the cases relied upon by defendant again fallshort of demonstrating that plaintiff and/or the law firm then representing it engaged in fraud,misrepresentation or other misconduct in the matter now before us, defendant's request forvacatur under CPLR 5015 (a) (3) also was properly denied. Finally, to the extent that defendantseeks to invoke the lack of jurisdiction provision set forth in CPLR 5015 (a) (4), defendant'sargument on this point is premised upon her assertion that plaintiff was not the legal owner orholder of the underlying note and, hence, lacked standing to commence the foreclosure action.Lack of standing, however, is not a defect that deprives a court of subject matter jurisdiction forpurposes of CPLR 5015 (a) (4) (see Lacks v Lacks, 41 NY2d 71, 74-75 [1976]; Wells Fargo Bank Minn., N.A. vMastropaolo, 42 AD3d 239, 243-244 [2007]). Accordingly, defendant's argument onthis point must fail. Defendant's remaining contentions in support of the [*3]various branches of her motion, to the extent not specificallyaddressed, have been examined and found to be lacking in merit.
Peters, P.J., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed, withcosts.