Deutsche Bank Nat'l Trust Co. v. Freedman

201 A.D.3d 1234

159 N.Y.S.3d 774

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee, Respondent,

v.Mark FREEDMAN, Appellant.

532642

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

Calendar Date: December 16, 2021

Decided and Entered: January 20, 2022

Mann Law Firm, PC, Latham (Matthew J. Mann of counsel), for appellant.

Hinshaw & Culbertson LLP, New York City (Karena J. Straub of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Lynch, J. Appeals (1) from a judgment of the Supreme Court (Williams, J.), entered August 14, 2009 in Saratoga County, which, among other things, granted plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, (2) from an order of the said court (Nolan Jr., J.), entered October 16, 2020 in Saratoga County, which, among other things, denied defendant's motion to vacate said judgment, and (3) from an order of said court (Nolan Jr., J.), entered December 21, 2020 in Saratoga County, which denied defendant's motion to reargue.

In October 2003, defendant executed a note to borrow $160,000 from Aames Funding Corporation, doing business as Aames Home Loan, secured by a mortgage against real property that he owned in Saratoga County. On December 15, 2006, Aames commenced this foreclosure action alleging that defendant defaulted in payments due on the loan. Three days later, Aames assigned the note and mortgage to plaintiff; the assignment was recorded in June 2007. In September 2007, following joinder of issue, Aames moved for summary judgment seeking an order of reference, to strike defendant's pro se answer and to amend the caption to substitute plaintiff in its place. Although Supreme Court (Williams, J.) initially granted the motion, by order dated September 29, 2008, it granted defendant's motion to vacate the prior order and deemed his amended answer to include lack of standing as a defense. However, upon reargument, the court – by order dated March 31, 2009 – vacated the September 2008 order, finding that defendant failed to raise any question of fact as to plaintiff's standing. Thereafter, the court granted plaintiff a judgment of foreclosure and sale. The judgment was entered on August 14, 2009, but not served with notice of entry until March 2010. In the interim, defendant commenced a bankruptcy proceeding in February 2010, effecting an automatic stay of this action pursuant to 11 USC § 362(a) (see Deutsche Bank Natl. Trust Co. v. DeGiorgio, 171 A.D.3d 1267, 1268, 97 N.Y.S.3d 769 [2019] ).

In the ensuing years, defendant commenced several additional bankruptcy proceedings that were eventually closed.¹ On March 20, 2018, with no bankruptcy proceeding pending and on the eve of a scheduled foreclosure sale, defendant moved to vacate the judgment, again raising the issue of standing. By order entered in August 2018, Supreme Court (Nolan Jr., J.) denied the motion, finding that the standing defense had previously been rejected. Thereafter, by order entered May 29, 2019, Supreme Court denied two additional motions to vacate the judgment. Notably, defendant filed but failed to perfect an appeal from that order, which was deemed dismissed (see 22 NYCRR 1250.10 [a]).

In February 2020, defendant again moved to vacate the judgment relying on the recent enactment of RPAPL 1302–a, which makes standing a nonwaivable issue. By order entered October 16, 2020, Supreme Court denied that motion and, by order entered December 31, 2020, also denied defendant's motion to reargue. Defendant appeals from the August 14, 2009 judgment of foreclosure and sale, the October 16, 2020 order and the December 31, 2020 order.²

Initially, we conclude that defendant's appeal from the August 2009 judgment is untimely and must be dismissed. In so deciding, we do not rely on the initial service of the judgment in March 2010 while defendant's bankruptcy proceeding was pending, and, for that matter, nor does plaintiff. Rather, the record shows that, in opposing defendant's various motions to vacate starting in March 2018, the affirmation of plaintiff's attorney referred to and included copies of the August 2009 judgment with the notice of entry initially served. The documentation and format were sufficient to trigger the 30–day period in which to take an appeal from the judgment (see CPLR 5513[a] ; Mokay v. Mokay, 111 A.D.3d 1175, 1176–1177, 976 N.Y.S.2d 274 [2013] ; Dokaj v. Ruxton Tower Ltd. Partnership, 55 A.D.3d 662, 662–663, 865 N.Y.S.2d 357 [2008] ). We are mindful that defendant served plaintiff with a copy of the judgment with notice of entry dated November 16, 2020 and filed his notice of appeal the next day, but find that exercise to no avail...