Opinion
2018–03547 Index No. 59123/17
01-08-2020
HSBC BANK USA, NATIONAL ASSOCIATION, etc., Appellant, v. Marc PANTEL, etc., et al., Respondents, et al., Defendants.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Virginia Grapensteter and Austin Shufelt of counsel), for appellant. Reich, Reich & Reich, P.C., White Plains, N.Y. (Nicholas A. Pasalides of counsel), for respondents.
Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Virginia Grapensteter and Austin Shufelt of counsel), for appellant.
Reich, Reich & Reich, P.C., White Plains, N.Y. (Nicholas A. Pasalides of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Marc Pantel and Carol Pantel pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them is denied.
In 2013, the plaintiff commenced an action (hereinafter the prior action) to foreclose a mortgage securing a consolidated note executed by the defendants Marc Pantel and Carol Pantel (hereinafter together the defendants). The defendants interposed an answer in which they asserted as an affirmative defense that the plaintiff did not have standing. After a trial on the issue of standing, a Court Attorney Referee issued a report in which she concluded that the plaintiff had failed to establish that it had standing. The Supreme Court confirmed the report and entered a judgment dismissing the prior action.
Thereafter, the plaintiff commenced the instant action to foreclose the same mortgage, alleging that it was the owner and holder of the consolidated note and mortgage. Prior to joining issue, the defendants moved pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them, arguing that the instant action was barred by res judicata and/or collateral estoppel. The plaintiff opposed the motion. In an order dated February 26, 2018, the Supreme Court granted the defendants' motion, and the plaintiff appeals.
Under the doctrine of res judicata, or claim preclusion, "a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding" ( Sciangula v. Montegut , 165 A.D.3d 1188, 1190, 87 N.Y.S.3d 47 [internal quotation marks omitted]; see Matter of Hunter , 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 ). Thus, a party seeking to assert res judicata must show the existence of a prior judgment on the merits between the same parties, or those in privity with them, involving the same subject matter (see Matter of Hunter , 4 N.Y.3d at 269, 794 N.Y.S.2d 286, 827 N.E.2d 269 ; Ricatto v. Mapliedi , 133 A.D.3d 737, 738, 20 N.Y.S.3d 395 ). Here, as the prior action was dismissed for lack of standing, without reaching the merits of the foreclosure claim itself, the defendants failed to demonstrate that "a judgment on the merits exists between the same parties involving the same subject matter" ( Ricatto v. Mapliedi , 133 A.D.3d at 739, 20 N.Y.S.3d 395 ; see U.S. Bank N.A. v. Dellarmo , 128 A.D.3d 680, 681, 9 N.Y.S.3d 322 ). "To accord res judicata effect to the [judgment in the prior action] would bar a court from ever addressing the merits of plaintiff's mortgage foreclosure claim, even if plaintiff became able to demonstrate its standing to sue, and there is nothing in the record to suggest ... [that there are] exceptional circumstances or an unreasonable neglect to prosecute that would warrant such an extreme sanction" ( State of New York Mtge. Agency v. Massarelli , 167 A.D.3d 1296, 1298, 89 N.Y.S.3d 768 [citation and internal quotation marks omitted] ).
Collateral estoppel, or issue preclusion, " ‘precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same’ " ( Bank of N.Y. Mellon v. Chamoula , 170 A.D.3d 788, 790, 96 N.Y.S.3d 148, quoting Ryan v. New York Tel. Co. , 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487 ). "The party seeking to invoke collateral estoppel has the burden to show the identity of the issues, while the party trying to avoid application of the doctrine must establish the lack of a full and fair opportunity to litigate" ( Matter of Dunn , 24 N.Y.3d 699, 704, 3 N.Y.S.3d 751, 27 N.E.3d 465 ; see Bank of N.Y. Mellon v. Chamoula , 170 A.D.3d at 790, 96 N.Y.S.3d 148 ).
Here, the defendants failed to demonstrate that the issue of whether the plaintiff has standing under the circumstances of this action was identical to the issue adjudicated in the prior action (see HSBC Bank USA, N.A. v. Carchi , 177 A.D.3d 710, 111 N.Y.S.3d 679 ; Deutsche Bank Natl. Trust Co. v. Murray , 176 A.D.3d 1172, 111 N.Y.S.3d 330 ; U.S. Bank N.A. v. Friedman , 175 A.D.3d 1341, 1342–1343, 109 N.Y.S.3d 88 ; Nationstar Mtge., LLC v. Cogen , 159 A.D.3d 428, 428–429, 72 N.Y.S.3d 48 ). In the prior action, the plaintiff failed to establish that it had possession of the original endorsed note at the time that action was commenced, while in the present action, the issue is whether the plaintiff had possession of the original endorsed note at the time this action was commenced (see Deutsche Bank Natl. Trust Co. v. Murray , 176 A.D.3d 1172, 111 N.Y.S.3d 330 ). In the prior action, the plaintiff failed to annex a copy of the note to the complaint, and the Supreme Court held that it failed to establish standing based upon possession of the note at the time of commencement of the prior action. Although the copy of the complaint in this action that the defendants submitted in support of their motion did not include the attachment, we take judicial notice of the fact that the complaint filed in this action, which is available electronically on the New York State Courts Electronic Filing System, included the note as an attachment (see Wells Fargo Bank, N.A. v. Ballard , 172 A.D.3d 1440, 1442, 102 N.Y.S.3d 229 ).
Accordingly, the Supreme Court should have denied the defendants' motion pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them.
MASTRO, J.P., DILLON, BRATHWAITE NELSON and IANNACCI, JJ., concur.