Wells Fargo Bank N.A. v. Area Plumbing Supply, Inc.

207 A.D.3d 596

172 N.Y.S.3d 70

WELLS FARGO BANK N.A., etc., appellant,

v.AREA PLUMBING SUPPLY, INC., et al., respondents, et al., defendants.

2019–13130

Index No. 30107/08

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

Argued—March 1, 2022

July 13, 2022

Moshe Mortner, New York, NY, for appellant.

MARK C. DILLON, J.P., COLLEEN D. DUFFY, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to foreclose four mortgages, the plaintiff appeals from an amended order of the Supreme Court, Queens County (Marguerite A. Grays, J.), dated June 21, 2019. The amended order denied the plaintiff's motion, inter alia, to vacate so much of an order of the same court dated June 16, 2014, as directed dismissal of the complaint insofar as asserted against the defendant Mousa A. Khalil for lack of personal jurisdiction or, in the alternative, for leave to renew the plaintiff's opposition to that branch of the motion of the defendants Area Plumbing Supply, Inc., and Mousa A. Khalil which was to dismiss the complaint insofar as asserted against the defendant Mousa A. Khalil.

ORDERED that the amended order is affirmed, without costs or disbursements.

In December 2008, the plaintiff commenced this action to foreclose four related mortgages secured by four contiguous lots in Ozone Park. Upon the alleged default of the defendants Area Plumbing Supply, Inc. (hereinafter Area Plumbing), and its president, Mousa A. Khalil (hereinafter together the defendants), an order of reference was issued and a judgment of foreclosure and sale was entered with respect to all four properties. The defendants moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against them. In an order dated June 16, 2014, the Supreme Court, inter alia, granted that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against Khalil. The court further determined that, since Khalil signed the mortgage relating to 109–26 101 Avenue, Ozone Park (hereinafter the subject property) in his individual capacity rather than as an officer of Area Plumbing, so much of the judgment of foreclosure and sale as related to the subject property must be vacated. The court also granted that branch of the defendants’ motion which was, in effect, for a preliminary injunction enjoining foreclosure of the subject property. Upon the plaintiff's appeal, this Court, in a decision and order dated May 10, 2017, modified the June 16, 2014 order by deleting therefrom the provision granting that branch of the defendants’ motion which was, in effect, to preliminarily enjoin the plaintiff from foreclosing on the subject property and substituting a provision therefor denying that branch of the motion as academic. Except for this modification, the order was otherwise affirmed insofar as appealed from (see Wells Fargo Bank N.A. v. Area Plumbing Supply, Inc., 150 A.D.3d 932, 56 N.Y.S.3d 111 ). This Court reasoned that, since Khalil executed the mortgage on the subject property as "Grantor" and there was no indication that he was signing in a representative capacity for Area Plumbing, Khalil was a necessary party to the foreclosure and sale of the subject property (see id. at 934–935, 56 N.Y.S.3d 111 ).

In December 2017, approximately seven months after this Court's determination on the plaintiff's first appeal, the plaintiff moved, inter alia, for a judgment of foreclosure and sale with respect to the subject property against Area Plumbing only. In an order dated June 20, 2018, the Supreme Court denied the plaintiff's motion on the ground that this Court's decision and order dated May 10, 2017, constituted the law of the case. Thereafter, the plaintiff moved, inter alia, pursuant to CPLR 5015(a)(5) to vacate so much of the June 16, 2014 order as directed dismissal of the complaint insofar as asserted against Khalil, or, in the alternative, for leave to renew its opposition to that branch of the defendants’ motion which was to dismiss the complaint insofar as asserted against Khalil. In an amended order dated June 21, 2019, the Supreme Court denied the plaintiff's motion. The plaintiff appeals.

A court has the inherent...