| GMAC Mtge., LLC v Bisceglie |
| 2013 NY Slip Op 05878 [109 AD3d 874] |
| September 18, 2013 |
| Appellate Division, Second Department |
| GMAC Mortgage, LLC, Appellant, v LoriBisceglie, Respondent, et al., Defendant. |
—[*1] Robert J. Prier, Nyack, N.Y., for respondent.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Rockland County (Berliner, J.), entered May14, 2012, as denied its motion for leave to discontinue the action without prejudice, andgranted those branches of the cross motion of the defendant Lori Bisceglie which were,in effect, to vacate an order of the same court (Weiner, J.), dated May 13, 2010, inter alia,granting that branch of the plaintiff's motion which was for summary judgment on thecomplaint insofar as asserted against her and, in effect, to dismiss the action against herwith prejudice.
Ordered that the order entered May 14, 2012, is modified, on the law, by deleting theprovision thereof granting that branch of the cross motion of the defendant LoriBisceglie which was, in effect, to dismiss the action against her with prejudice, andsubstituting therefor a provision denying that branch of her cross motion; as so modified,the order is affirmed insofar as appealed from, without costs or disbursements, and thematter is remitted to the Supreme Court, Rockland County, for further proceedings on thecomplaint consistent herewith.
The instant action to foreclose a mortgage on the residence of the defendant LoriBisceglie was commenced in June 2009. Bisceglie asserted, as an affirmative defense,inter alia, that the plaintiff rejected her efforts to cure her default of her obligations underthe mortgage. The plaintiff moved, inter alia, for summary judgment on the complaintinsofar as asserted against Bisceglie, based upon the affidavit of Jeffery Stephan, whodescribed himself as a "Limited Signing Officer." Stephan stated that, based upon his"knowledge of the facts of this case," Bisceglie was in default of her obligations underthe mortgage. He further stated that there were certain facts set forth in schedule E to thecomplaint that he knew "to be true of [his] own knowledge," to wit, that the date of thedefault was March 1, 2009, and the amount due as of June 18, 2009, was $7,278.12.Stephan further stated that Bisceglie "failed to timely cure the default"; therefore, heexplained that the "[p]laintiff has elected to . . . demand the full amountdue" pursuant to the acceleration clause in the mortgage. After Bisceglie submitted anaffirmation in opposition, that branch of the plaintiff's motion which was for summaryjudgment on the complaint insofar as asserted against Bisceglie was granted in an orderdated May 13, 2013, as the Supreme Court [*2]concludedthat the plaintiff established its entitlement to judgment as a matter of law, and thatBisceglie failed to submit evidentiary proof in admissible form sufficient to raise a triableissue of fact.
Thereafter, the plaintiff moved, among other things, to cancel the notice of pendencyfiled in connection with the mortgaged property, and for leave to discontinue the instantaction without prejudice. In support of the motion, the plaintiff's attorney stated in anaffirmation that, on June 21, 2011, he received instructions from his client to "stop thisforeclosure proceeding and close this file, due to an issue with the default notification."
Bisceglie cross-moved, in effect, to vacate the order dated May 13, 2013, and, ineffect, to dismiss the action against her with prejudice. Bisceglie also soughtcompensatory damages, costs, and legal fees, and such "further relief as may be just,proper and equitable." In support of her cross motion, Bisceglie submitted her ownaffidavit, stating, inter alia, that it was brought to her attention that the plaintiff was thesubject of an investigation in connection with its employment of a "Limited SigningOfficer" who signed thousands of affidavits with no knowledge as to the truth of theircontents. Therefore, she asked, in effect, that the order dated May 13, 2010, be vacated,and that the action against her be dismissed on the ground that "fraudulent documents"were filed with the court. The plaintiff did not refute those allegations.
The Supreme Court, in the order appealed from, explained that the plaintiff moved todiscontinue the action without prejudice and cancel the notice of pendency, "averring[that] it cannot move forward with the foreclosure 'due to an issue with the defaultnotification', without specifying what the 'issue' is" (emphasis added). The courtdenied the plaintiff's motion, granted those branches of Bisceglie's cross motion whichwere, in effect, to vacate the order dated May 13, 2010, and, in effect, to dismiss theaction against her with prejudice, directed cancellation of the notice of pendency, anddenied Bisceglie's request for compensatory damages, costs, and legal fees.
A motion for leave to discontinue an action without prejudice should be grantedunless there are reasons which would justify its denial (see Wells Fargo Bank, N.A. vFisch, 103 AD3d 622 [2013]). Such a determination "rests within the sounddiscretion of the court," and the motion should be granted "[i]n the absence of specialcircumstances, such as prejudice to a substantial right of the defendant, or other improperconsequences" (Expedite VideoConferencing Servs., Inc. v Botello, 67 AD3d 961, 961 [2009]), including anadverse determination of the court (see Kaplan v Village of Ossining, 35 AD3d 816 [2006]) orthe consequences of a potentially adverse determination (see e.g. Rosenfeld v Renika Pty.Ltd., 84 AD3d 703 [2011]; McMahan v McMahan, 62 AD3d 619 [2009]; Matter of Oneida Indian Nation ofN.Y. v Pifer, 43 AD3d 579 [2007]; Casey v Custom Crushing &Materials, 309 AD2d 726 [2003]; see also Tucker v Tucker, 55 NY2d 378[1982]). Here, while the plaintiff initially claimed that it was seeking to discontinue theinstant action due to an unspecified "issue with the default notification," it did not refuteBisceglie's allegation that it was the subject of an investigation into its improper use of alimited signing officer who signed affidavits without knowledge as to the truth of theircontents. Under these circumstances, it appears that the plaintiff sought, in actuality, todiscontinue the action without prejudice to avoid the adverse consequences of itsimproper use of a limited signing officer to obtain summary judgment in its favor.Further, Bisceglie suffered prejudice, in that she expended costs and legal fees to defendthe plaintiff's motion for summary judgment (see James v U.S. Bank Natl. Assn.,272 FRD 47). Therefore, the Supreme Court providently exercised its discretion indenying that branch of the plaintiff's motion which was for leave to discontinue theaction without prejudice.
In the instant case, Bisceglie's unrefuted allegation that the plaintiff's affidavit insupport of its motion for summary judgment, purportedly based upon personalknowledge, was in fact signed by a limited signing officer who had no personalknowledge of the facts, was a proper basis upon which to set aside the determinationawarding summary judgment to the plaintiff (see CPLR 5015 [a] [3]; James vU.S. Bank N.A., 272 FRD 47 [D Me 2011]; HSBC Mtge. Corp. [USA] v Gerber, 100 AD3d 966[2012]), and to preclude any successive motions for summary judgment (see Sutter v Wakefern FoodCorp., 69 AD3d 844, 845 [2010]). Hence, the Supreme Court properly grantedthat branch of Bisceglie's motion which was, in effect, to vacate the order dated May 13,2013, inter alia, [*3]granting that branch of the plaintiff'smotion which was for summary judgment on the complaint insofar as asserted againsther. Nonetheless, where a motion for summary judgment is based solely upon anaffidavit of someone with no personal knowledge of the facts, that circumstancegenerally presents only a ground for the denial of summary judgment (see HSBC Mtge. Corp. [USA] vGerber, 100 AD3d 966 [2012]), not a ground to dismiss the action. Biscegliefailed to establish grounds to dismiss the action against her with prejudice, and there isno basis in this record supporting that request for relief. Accordingly, the Supreme Courtimproperly granted that branch of Bisceglie's cross motion which was, in effect, todismiss the action against her with prejudice.
The plaintiff's remaining contentions either are without merit or need not beaddressed in light of our determination. Skelos, J.P., Angiolillo, Roman andHinds-Radix, JJ., concur.