Disa Realty, Inc. v. Rao

198 A.D.3d 869

156 N.Y.S.3d 300

DISA REALTY, INC., respondent,

v.Kishor RAO, etc., appellant.

2019–00439

Index No. 9880/12

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

Submitted—September 24, 2021

October 20, 2021

Kishor Rao, Lackawaxen, Pennsylvania, appellant pro se.

WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, LARA J. GENOVESI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant appeals from a judgment of foreclosure and sale of the Supreme Court, Queens County (Mojgan Cohanim Lancman, J.), entered August 19, 2018. The judgment of foreclosure and sale, upon an order of the same court (Cheree´ A. Buggs, J.) entered July 18, 2017, denying the defendant's motion, inter alia, to consolidate the action with an action entitled Disa Realty, Inc. v. Rao, pending in the same court under Index No. 10206/12, and upon a decision of the same court (Mojgan Cohanim Lancman, J.), made after a nonjury trial, inter alia, directed the sale of the subject property.

ORDERED that the judgment of foreclosure and sale is reversed, on the law and in the exercise of discretion, with costs, that branch of the defendant's motion which was to consolidate the action with the action entitled Disa Realty, Inc. v. Rao, pending in the Supreme Court, Queens County, under Index No. 10206/12 is granted, the order entered July 18, 2017, is modified accordingly, and the matter is remitted to the Supreme Court, Queens County, for further proceedings consistent herewith.

In 2009, the defendant purchased the subject commercial property, located at 107–05 Liberty Avenue in Ozone Park, from the plaintiff, Disa Realty, Inc., a corporation wholly owned by Rodolfo Amarain, its sole officer and director. During the previous year, the defendant had purchased the adjoining property, located at 107–07 Liberty Avenue (hereinafter the 107–07 property). The 107–07 property was the subject of a separate mortgage foreclosure action (hereinafter the 107–07 action) by the same plaintiff against the same defendant, "based on substantially identical loan documents" ( Disa Realty, Inc. v. Rao, 168 A.D.3d 1037, 1038, 93 N.Y.S.3d 349 ).

By summons and complaint dated May 9, 2012, the plaintiff commenced this action to foreclose the mortgage, alleging, inter alia, that the defendant had defaulted in making the mortgage payment due October 1, 2010, and all payments due thereafter. On a prior appeal, this Court modified an order of the Supreme Court dated March 26, 2013, so as to grant that branch of the plaintiff's motion which was to dismiss the defendant's counterclaim, and otherwise affirmed the order denying the plaintiff's motion, inter alia, for summary judgment on the complaint and for an order of reference ( Disa Realty, Inc. v. Rao, 137 A.D.3d 740, 25 N.Y.S.3d 677 ). This Court agreed with the Supreme Court's determination that the defendant's affidavit and supporting documents in opposition to the plaintiff's motion "raised triable issues of fact as to whether the defendant had, in fact, defaulted in his monthly mortgage payments," issues which were not resolved by the affidavit submitted by the plaintiff in reply ( id. at 741, 25 N.Y.S.3d 677 ).

Upon remittal of the matter to the Supreme Court, the defendant moved to dismiss the complaint insofar as asserted against him based upon a violation of Judiciary Law § 487, to strike the note of issue and certificate of readiness and compel further discovery, to consolidate the instant action with the 107–07 action, and to declare the subject mortgage and note null and void on the basis of the defendant's alleged payment of $1,896,519.42 toward the original mortgage obligations for the subject property and the 107–07 property. The plaintiff opposed the motion. In an order entered July 18, 2017 (hereinafter the 2017 order), the court, inter alia, denied the motion, explaining that it denied consolidation, "as this relief was already sought in the [107–07 action] and denied by Honorable David Elliot [in an order] dated January 7, 2016." The defendant's appeal from the 2017 order is decided herewith ( Disa Realty, Inc. v. Rao, 198 A.D.3d 869, 152 N.Y.S.3d 827 [Appellate Division Docket No. 2017–09067]), and the issues raised on that appeal are brought up for review and have been considered on this appeal (see id. ).

After a nonjury trial in 2018, in a posttrial decision, the Supreme Court found, inter alia, that the defendant had defaulted relative to the note and the mortgage, that the plaintiff was due the sum of $325,740.54, and that the plaintiff was entitled to a judgment of foreclosure and sale in accordance therewith. The court concluded, based on Amarain's testimony and the documentary evidence admitted at trial, that the plaintiff established its entitlement to a judgment of foreclosure and sale as a matter of law, proffering the relevant loan documents and evidence demonstrating that the defendant had defaulted in making the monthly payments under the mortgage. The court entered a judgment of foreclosure and sale on August 19, 2018. The defendant appeals.

"A motion to consolidate two or more actions rests within the sound discretion of the trial court" ( Rhoe v. Reid, 166 A.D.3d 919, 921, 88 N.Y.S.3d 564 [internal quotation marks omitted]; see American Home Mtge. Servicing, Inc. v. Sharrocks, 92 A.D.3d 620, 622, 938 N.Y.S.2d 202 ). "Where common questions of law or fact exist, a motion [pursuant to CPLR 602(a) ] to consolidate or for a joint trial should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion" ( Bruno v. Capetola, 101 A.D.3d 785, 786, 957 N.Y.S.2d 156 [internal quotation marks and brackets omitted]; see Rhoe v. Reid, 166 A.D.3d at 921, 88 N.Y.S.3d 564 ).

Here, the defendant demonstrated that both this action and the 107–07 action arise from similar transactions, concern the same parties, and involve common questions of law and fact (see Rhoe v. Reid, 166 A.D.3d at 920, 88 N.Y.S.3d 564 ). Indeed, the two actions are "based on substantially identical loan documents" ( Disa Realty, Inc. v. Rao, 168 A.D.3d at 1038, 93 N.Y.S.3d 349 ). Nevertheless, the Supreme Court denied, without reaching its merits, that branch of the defendant's motion which was to consolidate the actions, on the grounds that the court in the 107–07 action had already denied a similar motion, and a final judgment of foreclosure and sale already had been entered in that action. Under those circumstances, the 107–07 action was not a pending action which could be consolidated with the instant action pursuant to CPLR 602(a) (see IndyMac Bank, F.S.B. v. Vincoli, 105 A.D.3d 704, 707, 962 N.Y.S.2d 624 ). However, the denial, in the 107–07 action, of the motion to consolidate the two actions, and the judgment of foreclosure and sale entered in that action, were subsequently reversed by this Court (see Disa Realty, Inc. v. Rao, 168 A.D.3d at 1037, 93 N.Y.S.3d 349 ). Accordingly, in the instant action, that branch of the defendant's motion which was to consolidate the two actions should not have been denied. In the interest of judicial economy, rather than remit the matter to the Supreme Court for consideration of the motion on the merits, we find that the defendant has established that consolidation is appropriate here, as "it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and...