Deutsche Bank Nat'l Trust Co. v. Gambino

181 A.D.3d 558

121 N.Y.S.3d 90

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellant,

v.Joanne GAMBINO, Respondent, et al., Defendants.

2017–08290

Index No. 130026/09

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 1, 2019

March 4, 2020

Houser LLP, New York, N.Y. (Kathleen M. Massimo of counsel), for appellant.

Howard M. File, Esq., P.C., Staten Island, NY, for respondent.

ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOHN M. LEVENTHAL, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, that branch of the plaintiff's motion which was to restore the action to the active calendar is granted, and the cross motion of the defendant Joanne Gambino to dismiss the complaint insofar as asserted against her is denied.

In 2004, Joanne Gambino executed a promissory note secured by a mortgage on her real property. On May 21, 2010, the mortgage was assigned to "Deutsche Bank National Trust Company as Trsutee [sic]" and then to "Deutsche Bank National Trust Company, as Trustee ... [for] Morgan Stanley ABS Capital I Inc. Trust 2004–NC4, Mortgage Pass–Through Certificates, Series 2004–NC4" (hereinafter together the Bank). Gambino defaulted upon her payment obligations. In January 2009, the Bank, denominated as "Deutsche Bank National Trust Company as Trsutee [sic]" commenced this action to foreclose the mortgage (hereinafter the 2009 action). Gambino served a notice of appearance, but failed to interpose an answer. In an order dated May 3, 2012, the Bank was directed to move for an order of reference on or before May 31, 2012, "or the matter will be dismissed for plaintiff's failure to prosecute." The Bank took no further action, and the 2009 action was "administratively dismissed" in July 2012.

In 2015, the Bank, denominated as "Deutsche Bank National Trust Company, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2004–NC4, Mortgage Pass–Through Certificates, Series 2004–NC4," commenced a new action against, among others, Gambino, to foreclose the same mortgage (hereinafter the 2015 foreclosure action). In the complaint, the Bank recited that it intended to have the 2009 action discontinued. Gambino moved, inter alia, to dismiss the complaint in the 2015 foreclosure action insofar as asserted against her as time-barred, contending that more than six years had elapsed since the acceleration of the debt in the 2009 action, and that the 2009 action had been "administratively dismissed" in 2012. In an order dated March 17, 2016, the Supreme Court denied the motion on the ground that the 2009 action had never been properly dismissed because a 90–day demand was never served upon the Bank pursuant to CPLR 3216. Gambino appealed from the order dated March 17, 2016.

On Gambino's prior appeal, this Court determined that the Supreme Court erred in denying Gambino's motion on a ground that the parties had not litigated, namely that the 2009 action had never been properly dismissed. This Court reversed the Supreme Court's denial of Gambino's motion to dismiss the complaint in the 2015 foreclosure action insofar as asserted against her, determining that it was time-barred (see Deutsche Bank Natl. Trust Co. v. Gambino , 153 A.D.3d 1232, 61 N.Y.S.3d 299 [hereinafter Gambino I ] ).

In December 2016, while the prior appeal was pending before this Court, the Bank moved, inter alia, to restore the 2009 action to the active calendar. In relevant part, the Bank argued that the Supreme Court was without authority to dismiss this action due to its failure to comply with CPLR 3216(b). Gambino opposed the motion, contending, among other things, that the time to seek restoration had expired, and she cross-moved to dismiss the complaint insofar as asserted against her. In an order dated April 14, 2017, the Supreme Court, inter alia, denied that branch of the Bank's motion which was to restore the 2009 action to the active calendar and granted Gambino's cross motion to dismiss the complaint insofar as asserted against her. The Bank appeals.

Contrary to Gambino's contention, this Court's determination in Gambino I did not constitute the law of the case with regard to the propriety of the dismissal of the 2009 action. The doctrine of the law of the case "applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision, and to the same questions presented in the same case" ( Mosby v. Parilla , 140 A.D.3d 1129, 1130–1131, 37 N.Y.S.3d 129 [internal quotation marks omitted]; see Ramanathan v. Aharon, 109 A.D.3d 529, 530, 970 N.Y.S.2d 574 ). In Gambino I , this Court concluded only that the 2015 foreclosure action was time-barred. As this Court expressly stated, in Gambino I , the plaintiff did not dispute the propriety of the dismissal of the 2009 action and, therefore, any issue as to whether the 2009 action had been properly dismissed was not before this Court (see Deutsche Bank Natl. Trust Co. v. Gambino , 153 A.D.3d at 1234, 61 N.Y.S.3d 299 ).

Nor is the Bank precluded by the concept of judicial estoppel from disputing the administrative dismissal of the 2009 action. While, in an effort to successfully prosecute the...