MTGLQ Invs., L.P. v. Rivera

MTGLQ Invs., L.P. v Rivera 2026 NY Slip Op 05525 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. MTGLQ Investors, L.P., respondent, v Danielle Rivera, appellant, et al., defendants. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-11130, (Index No. 860/10) Betsy Barros, J.P. Cheryl E. Chambers Janice A. Taylor Elena Goldberg Velazquez, JJ. Petroff Amshen LLP, Brooklyn, NY (James Tierney, Maria G. Garber, and Steven Amshen of counsel), for appellant. Pincus Law Group, PLLC, Uniondale, NY (Rajdai D. Singh of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendant Danielle Rivera appeals from an order of the Supreme Court, Nassau County (Ellen Tobin, J.), dated June 26, 2024. The order, insofar as appealed from, denied those branches of that defendant's cross-motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate so much of an order of the same court (Anna R. Anzalone, J.) entered June 10, 2019, as granted that branch of the plaintiff's prior motion which was to restore the action to the active calendar, and to dismiss the complaint insofar as asserted against her. ORDERED that the order dated June 26, 2024, is reversed insofar as appealed from, on the law, with costs, and those branches of the cross-motion of the defendant Danielle Rivera which were, in effect, pursuant to CPLR 5015(a)(4) to vacate so much of the order entered June 10, 2019, as granted that branch of the plaintiff's prior motion which was to restore the action to the active calendar, and to dismiss the complaint insofar as asserted against her are granted. In September 2006, Danielle Rivera (hereinafter the defendant) obtained a loan from Countrywide Home Loans, Inc. The note was secured by a mortgage on certain real property located in Levittown. Thereafter, the mortgage was assigned to BAC Home Loans Servicing, LP (hereinafter BAC). In January 2010, BAC commenced this action against the defendant, among others, to foreclose the mortgage. The defendant, appearing pro se, interposed an answer. In April 2013, BAC submitted affidavits seeking to discontinue the action and to cancel the notice of pendency. The mortgage was subsequently assigned to Green Tree Servicing, LLC (hereinafter Green Tree). In January 2018, Ditech Financial, LLC, formerly known as Green Tree (hereinafter Ditech), commenced a second action (hereinafter the 2018 action) against, among others, the defendant to foreclose the mortgage. The defendant, appearing pro se, interposed an answer in which she asserted various affirmative defenses. Thereafter, Ditech assigned the mortgage to MTGLQ Investors, L.P. (hereinafter [*2]MTGLQ). In March 2019, MTGLQ, the successor in interest to BAC, moved in this action to restore the action to the active calendar and to substitute MTGLQ as the plaintiff. The defendant opposed the motion. In an order entered June 10, 2019, the Supreme Court, upon a decision also entered June 10, 2019, granted the motion, restored the action to the court's active calendar, and amended the caption to substitute MTGLQ as the plaintiff. The defendant appealed from the decision, but the appeal was deemed dismissed for failure to perfect. In November 2021, Ditech moved in the 2018 action, inter alia, to substitute MTGLQ as the plaintiff and to discontinue the first cause of action, for foreclosure. In an order entered June 27, 2022, the Supreme Court granted Ditech's motion. In August 2023, MTGLQ moved in this action, among other things, for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant cross-moved, inter alia, in effect, pursuant to CPLR 5015(a)(4) to vacate so much of the order entered June 10, 2019, as granted that branch of MTGLQ's prior motion which was to restore the action to the active calendar, and to dismiss the complaint insofar as asserted against her. In an order dated June 26, 2024, the Supreme Court, among other things, denied those branches of the defendant's cross-motion. The defendant appeals. Initially, contrary to the plaintiff's contention, the dismissal of the prior appeal for failure to perfect does not preclude our review of the issues raised herein (see Bray v Cox, 38 NY2d 350, 353). Since the prior appeal was from a decision and no appeal lies from a decision (see CPLR 5512[a]; Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 509-510), the issues raised herein could not have been previously raised (see Deutsche Bank Trust Co. Ams. v Gonzales, 215 AD3d 636, 637). "A motion must be addressed to a pending action" (Urso v Panish, 94 AD2d 701, 701-702), and a court "lacks jurisdiction to entertain a motion after the action has been 'unequivocally terminated . . . [by the execution of] an express, unconditional stipulation of discontinuance'" (Cambridge Integrated Servs. Group, Inc. v Johnson, 107 AD3d 1588, 1589, quoting Teitelbaum Holdings v Gold, 48 NY2d 51, 56; see Riccio v Kukaj, 219 AD3d 1540, 1541-1542). Between joinder of issue and submission of case to the court or jury, a discontinuation may be obtained by stipulation of the parties or by court order pursuant to CPLR 3217(a)(2) (see Emigrant Bank v Solimano, 209 AD3d 153, 159). Here, since issue had been joined, a stipulation by the parties was required. However, no express, unconditional stipulation of discontinuance was executed in this action. The affidavits submitted by BAC did not constitute a stipulation between the parties, as they were signed only by BAC's attorney (see GCS Second Ave. Owner, LLC v Cohn, 235 AD3d 554, 555-556; HSBC Bank USA, N.A. v Rini, 202 AD3d 945, 947). However, where an action has not been formally discontinued, the effective abandonment of the action constitutes a de facto discontinuance (see U.S. Bank N.A. v Chait, 178 AD3d 448, 448; U.S. Bank Trust, N.A. v Humphrey, 173 AD3d 811, 812; Old Republic Natl. Tit. Ins. Co. v Conlin, 129 AD3d 804, 805). Although this action was technically still pending, MTGLQ's predecessor in interest effectively abandoned the action by commencing the 2018 action, after five years of inactivity. Notably, the complaint in the 2018 action alleged that this action had been "discontinued, otherwise disposed of by the Court, or is in the process of being discontinued." Moreover, RPAPL 1301(3), as amended by the Foreclosure Abuse Prevention Act (see L 2022, ch 821, § 2 [eff Dec. 30, 2022]), provides, in relevant part, that, while an action to foreclose is pending, in the event the plaintiff commences another action to foreclose without leave of court, "the former action shall be deemed discontinued upon the commencement of the other action" (see Bank of N.Y. Mellon v Richards, 233 AD3d 1250, 1251). Here, there is no allegation that MTGLQ's predecessor in interest sought leave of court to commence the 2018 action. Thus, even if this action were still pending, it was discontinued as a matter of law pursuant to RPAPL 1301(3) when the 2018 action was commenced. The parties' remaining contentions are without merit. Accordingly, the Supreme Court should have granted those branches of the defendant's cross-motion which were, in effect, pursuant to CPLR 5015(a)(4) to vacate so much of the order entered June 10, 2019, as granted that branch of MTGLQ's prior motion which was to restore the action to the active calendar, and to dismiss the complaint insofar as asserted against her, as this action was no longer pending when MTGLQ moved to restore the action to the active calendar. BARROS, J.P., CHAMBERS, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court