The following electronically filed (“EF”) documents read on this motion by Specialized Loan Servicing, LLC (“SLS” or “defendant”) for an order dismissing this action pursuant to CPLR §§§§3211(a)(1), (a)(4), (a)(7) and (a)(10) or alternatively staying the above-captioned action pursuant to CPLR §2201, and granting such other and further relief as is just and proper. Papers Numbered Notice of Motion-Affirmation-Exhibits-Memorandum of Law EF 20-27 Affirmation in Opposition-Exhibits-Memorandum of Law EF 28-32 Reply Affirmation-Exhibits-Memorandum of Law EF 33-36 CORRECTED DECISION AND ORDER Upon the foregoing papers, it is ordered that this motion is determined as follows: This is an action to quiet title in connection with a mortgage dated January 2, 2004 secured by real property located at 8-10 College Place, College Point, New York (“subject premises”). On January 2, 2004, Marilyn Grullon (“Ms. Grullon” or “mortgagor”) executed and delivered a mortgage covering the subject premises to BNY Mortgage Company, LLC (“BNY”), in the sum of $375,000 (“subject mortgage”), which mortgage was recorded with the register of the County of Queens. On May 3, 2012, Ms. Grullon conveyed her interest in the subject premises to Rosa Fernandez (“Ms. Fernandez”) and Rosalyn Reyes Campbell (“Ms. Campbell” or “plaintiff”). In view of the fact that Ms. Grullon defaulted on the subject mortgage, on or about May 8, 2013, Wells Fargo Bank, N.A. (“Wells Fargo”) commenced a foreclosure action against Ms. Grullon, inter alia, entitled Wells Fargo Bank, N.A. v. Grullon, et al, Index No. 9076/2013 (“foreclosure action”). On or about February 14, 2017, the Honorable Kevin Kerrigan granted Wells Fargo’s motion for summary judgment, which included the appointment of a referee and a default judgment against all non-appearing parties: In fact, the court dismissed Ms. Grullon’s Answer with prejudice and held Ms. Campbell in default. Thereafter, on December 21, 2017, the Honorable Jeremy S. Weinstein dismissed the foreclosure action without prejudice. Contrary to the plaintiff’s contentions, on June 28, 2019, the Honorable Mojgan Lancman vacated the dismissal and granted Wells Fargo’s motion for a Judgment of Foreclosure and Sale (“JFS”). Nonetheless, on November 9, 2020, the plaintiff commenced the instant action against SLS pursuant to RPAPL article 15 to quiet title to the subject premises and to cancel and discharged the subject mortgage. On January 20, 2021, the plaintiff agreed to allow the defendant to file its answer on or before February 19, 2021. Now, SLS moves, pre-answer, to dismiss the plaintiff’s complaint in its entirety on the grounds that this Court lacks subject matter jurisdiction, pursuant to CPLR §§§§3211(a)(1), (a)(4), (a)(7) and (a)(10). A motion pursuant to CPLR §3211(a)(1) to dismiss based on documentary evidence may be appropriately granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 NY2d 314 [2002]; YDRA, LLC v. Mitchell, 123 AD3d 1113 [2d Dept 2014]; Gorunkati v. Baker Sander, LLC, 179 AD3d 904 [2d Dept 2020], citing Garcia v. Polsky, Shouldice & Rosen, P.C., 161 AD3d 828 [2d Dept 2018]; see also JPMorgan Chase Bank, National Association v. Klein, 178 AD3d 788, [2d Dept 2019]). For the purpose of CPLR §3211(a)(1), “judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence” (Fontanetta v. John Doe 1, 73 AD3d 78, 84-85 [2d Dept 2010][internal quotation marks omitted]). Furthermore, on a motion pursuant to CPLR §3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of NY., 98 NY2d 314 [2002]; Leon v. Martinez, 84NY2d 83 [1994]; Maddicks v. Big City Property, LLC, 34 NY3d 116 [2019]; Patel v. Gardens at Forest Hills Owners Corp., 181 AD3d 611 [2d Dept 2020]; Chanko v. American Broadcasting Cos., 27 NY3d 46 [2016]). Moreover, “[t]o maintain an equitable quiet title claim, a [claimant] must allege actual or constructive possession of the property and the existence of a removable cloud on the property, which is an apparent title, such as a deed or other instrument, that is actually invalid or inoperative” (Carbone v. Deutsche Bank Natl. Trust Co., 145 AD3d 848 [2d Dept 2016]; see RPAPL §1515; Acocella v. Wells Fargo Bank, N.A., 139 AD3d 647 [2d Dept 2016]; Acocella v. Bank of N.Y., Mellon, 127 AD3d 891 [2d Dept 2015]). “RPAPL 1501(4) provides that’ [w]here the period allowed by the applicable statute of limitations for the commencement of an action to foreclose a mortgage…has expired,’ any person with an estate or interest in the property may maintain an action ‘to secure the cancellation and discharge of record of such encumbrance, and to adjudge the estate or interest of the [claimant] in such real property to be free therefrom’ ” (68 16th Realty, LLC v. Bank of N.Y., 190 AD3d 796 [2d Dept 2021], quoting RPAPL §1501(4)). Here, the plaintiff cannot obtain the relief it seeks from SLS because, the latter is not the holder of the subject mortgage and note. In fact, U.S. Bank Trust National Association, not in its individual capacity but solely as Owner Trustee for VRMTG Asset Trust (“USBTNA”) is the holder of the note and mortgage. Moreover, contrary to the plaintiff’s contentions, the foreclosure action is still pending and unresolved. (see Mizrahi v. US Bank, N.A., 156 AD3d 617, 617-618 [2d Dept 2017]; see also Jahan v. U.S. Bank National Association, 127 AD3d 926 [2d Dept 2015]): As discussed, on June 28, 2019, Judge Lancman vacated the dismissal, restored the action to the active calendar and granted Wells Fargo’s motion for a Judgment of Foreclosure and Sale. More importantly, it is well settled law that a judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action (see Ciraldo v. JP Morgan Chase Bank, N.A., 140 AD3d 912 [2d Dept 2016]; SSJ Dev. Of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 AD3d 674 [2d Dept 2015]; Dupps v. Betancourt, 121 AD3d 746 [2d Dept 2014]; TD Bank, N.A. v. Talia Props., Inc., 110 AD3d 1057 [2d Dept 2013]). The issues raised by the plaintiff in this quite title action could have been litigated in the foreclosure action, and she is therefore precluded from relitigating them in an action pursuant to RPAPL article 15. (see Ciraldo v. JP Morgan Chase Bank, N.A., 140 AD3d 912 [2d Dept 2016]; Eaddy v. U.S. Bank National Association, 180 AD3d 756 [2d Dept 2020]). Furthermore, in light of the fact that the subject mortgage filed against the subject premises is viable and continues to cloud title to the subject premises, the court must grant the defendant’s motion, pursuant to CPLR §3211(a)(1) and (7), to dismiss the complaint. (68 16th Realty, LLC v. Bank of N.Y., 190 AD3d 796 [2d Dept 2021]; Carbone v. Deutsche Bank Natl. Trust Co., 145 AD3d 848 [2d Dept 2016]; Ciraldo v. JP Morgan Chase Bank, N.A., 140 AD3d 912 [2d Dept 2016]). Accordingly, it is hereby ORDERED, that the defendant’s motion, pursuant to CPLR §3211(a)(1) and (7), is granted; and it is further, ORDERED, that the plaintiff’s complaint is dismissed without prejudice; and it is further, ORDERED, that defendant shall serve, via NYSCEF, a copy of this decision and order with notice of entry upon the plaintiff on or before November 5, 2021. The foregoing constitutes the decision and order of the court. Dated: October 13, 2021
