[*1]
HSBC Bank USA v Cadore
2011 NY Slip Op 50424(U) [30 Misc 3d 1241(A)]
Decided on March 24, 2011
Supreme Court, Kings County
Lewis, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 24, 2011
Supreme Court, Kings County


HSBC Bank USA, as Trustee for Ace Securities Corp., Home Equity Loan Trust, Series 2006-OP1Asset Backed Pass Through Certificates, Plaintiff,

against

Veronica Cadore, et al., Defendant




34487/07



Plaintiffs Attorney:

Helmut Borchert, Esq.

Borchert, Genovesi, Laspina et al.

Defendants Attorney:

Joseph McCray - Pro se

Yvonne Lewis, J.

Pro se defendant Joseph McCray moves for an order, pursuant to CPLR 2221, granting him leave to reargue the prior Order to Show Cause seeking partial summary judgment, voiding and setting aside two allegedly fraudulent deeds and a subsequent mortgage in this foreclosure action.[FN1] Upon reargument, Mr. McCray requests that the court: "(a) vacate the prior decision and order dated August 17, 2009 as null and void because neither plaintiff's prior cross motion seeking dismissal of Mr. McCray's adverse possession counterclaim, nor his own petition in the HPD Proceeding ..., was properly filed or served; (b) enter a default judgment against plaintiff HSBC Bank USA (HSBC), as Trustee for Ace Securities Corp., Home Equity Loan Trust, Series 2006-OP1 Asset Backed Pass Through Certificates, because plaintiff failed to answer Mr. McCray's counterclaim in a timely matter, given the service defect in its prior cross motion for dismissal of the counterclaim; and (c) grant summary judgment in Mr. McCray's favor with regard to the counterclaim."

In a separate motion, Mr. McCray also moves for an order, (a) pursuant to CPLR 3211 (b), dismissing the complaint, and (b) pursuant to 22 NYCRR 130-1.1-a, imposing costs and sanctions against the plaintiff's counsel for making false and prejudicial allegations against him.

[*2]FACTS AND PROCEDURAL HISTORY


Plaintiff HSBC Bank USA (HSBC), as Trustee for Ace Securities Corp., Home Equity Loan Trust, Series 2006-OP1 Asset Backed Pass Through Certificates, commenced the instant action to foreclose against a mortgage secured by the property located at 119 MacDonough Street in Brooklyn, New York (the subject premises). The subject premises is a four-unit apartment building allegedly owned by Veronica Cadore (Veronica) and/or Michelle Cadore (Michelle), and in which McCray, Colette Pirkle (Colette), and John Pirkle (John) (collectively, the Tenant Defendants) were tenants.

The City of New York (NYC) acquired the subject premises on April 18, 1979 by deed recorded the same day. Its agency, the NYC Department of Housing Preservation and Development ( HPD), sold and conveyed the subject premises to Veronica by deed recorded on April 13, 2000, although the Tenant Defendants were living in the building at the time and had bid on the property. In 2001, the Tenant Defendants sued HPD and Veronica, seeking to void the conveyance on the ground that HPD failed to consider their bid and improperly sold the building to Veronica (HPD Proceeding). The Hon. Muriel S. Hubsher dismissed the Article 78 part of the HPD Proceeding, as against HPD, for untimeliness (see McCray v New York City Dept. of Hous. Preserv. & Dev., Sup Ct, Kings County, May 17, 2002, Hubsher, J., index No. 28238/01). She also dismissed, without prejudice, the claim against Veronica for allegedly breaching a deed provision which required her to offer the Tenant Defendants a two-year lease, stating that the Tenant Defendants had not shown why the dispute could not be resolved in Civil Court, the preferred forum for landlord-tenant disputes (see id.). The Tenant Defendants have not appealed the order declining to award Mr. McCray legal title to the subject premises in the HPD Proceeding.

Colette and John subsequently purported to convey whatever interests they had in the subject premises, if any, to Mr. McCray by deed recorded July 10, 2003. Veronica also purported to convey her interest in the subject premises, if any, to Michelle by deed recorded on January 13, 2006 by Equity Settlement Service, Inc. (Equity). On that date Equity also recorded a mortgage which listed Michelle as borrower and Option One Mortgage Corp. as lender.

HSBC initially sought to foreclose on the mortgage by filing an action, bearing index number 28853/07, when Veronica and Michelle defaulted by failing to pay the principal and interest owed. The Tenant Defendants were also named as defendants possessing a possible interest in the subject premises, given their involvement in the HPD Proceeding. When Mr. McCray refused HSBC's request to discontinue the action due to a defect in the complaint, HSBC commenced the instant action on September 12, 2007. Mr. McCray filed a Note of Issue in the instant action on November 10, 2008.

By decision and order dated August 17, 2009 (the Prior Decision), this court denied Mr. McCray's summary judgment motion because principles of collateral estoppel and res judicata, based on Justice Hubsher's decision in the HPD Proceeding, precluded a judgment in his favor. The court also granted HSBC's cross motion and dismissed Mr. McCray's adverse possession counterclaim.

THE PARTIES' CONTENTIONS


In his first motion (hereinafter "motion for leave to reargue"),Joseph McCray asserts that the court erred in its Prior Decision by granting the plaintiff's cross motion (the plaintiff's Prior Cross Motion) and dismissing his counterclaim, when it should have instead denied the cross motion, because both the plaintiff's Prior Cross Motion and the petition which resulted [*3]in Justice Hubsher's decision in the HPD Proceeding,[FN2] were improperly served.[FN3] Thus, he contends, given the plaintiff's apparent default in responding to his counterclaim, that the plaintiff abandoned its cause of action against him by failing to timely reply to his adverse possession counterclaim. He argues that, upon reargument, the court should accordingly decide his prior summary judgment motion on the adverse possession counterclaim in his favor, and dismiss the complaint against him. He also asserts a lack of jurisdiction, but is unclear as to the basis for that argument.

In opposition, HSBC states that it was never served with Mr. McCray's motion to dismiss, and only learned of the motion during a recent court appearance involving its own pending motion regarding substitution of counsel for the plaintiff. The plaintiff's counsel avers that, although it was able to obtain the first page of Mr. McCray's motion from the County Clerk's office, it still has no knowledge of the motion's contents. He also claims that Mr. McCray has repeatedly failed to serve motion papers on the law firm currently representing the plaintiff, despite the fact that he has been aware of new counsel's representation of the plaintiff for over a year. Nevertheless, HSBC contends, Mr. McCray's motion should be denied because his counterclaim has already been dismissed in the Prior Decision.

HSBC contends in supplemental opposition papers that it did not at any point attempt to abandon the instant action; rather, it sought to discontinue its earlier action regarding the same issues under index number 28853/07 because certain language required under statute was missing from its summons. It asserts that Mr. McCray has not set forth the specific defects in the plaintiff's Prior Cross Motion, which the plaintiff maintains was properly noticed, served, and submitted. Similarly, it avers that the Prior Decision was served with notice of entry over thirty days prior to the filing Mr. McCray's first motion herein, and the time to reargue that decision has expired. It also argues that Mr. McCray may not properly raise arguments in the instant action relating to Justice Hubsher's decision in the HPD Proceeding, and that such arguments would be untimely regardless. Indeed, HSBC contends, as the plaintiff in the HPD Proceeding, Mr. McCray consented to jurisdiction in the HPD Proceeding. Additionally, HSBC argues that he waived any jurisdictional defenses he may have had because his Answer, which did not raise any personal jurisdiction defenses, was interposed well over sixty days prior to making his first motion herein. Moreover, the plaintiff maintains that Mr. McCray's interposition of counterclaims in this action effectively waived all jurisdictional defenses.

In Mr. McCray's second motion, he contends that the plaintiff's summons and complaint is jurisdictionally defective because it does not conform with CPLR 305 (a), which requires a plaintiff to specify its address in the summons. He also states that he properly rejected the plaintiff's affirmation in opposition to McCray's first motion as defective in form because the plaintiff failed to properly file and/or serve its signed moving papers with its [*4]name and address pursuant to CPLR 2101 (d). Additionally, Mr. McCray asserts that the plaintiff served a frivolous motion on the defendants, in violation of 22 NYCRR 130.1-1-a. Finally, he asserts that the plaintiff failed to appear at a court conference which the plaintiff itself requested, and that the plaintiff improperly neglected to alert the court that it had commenced a prior action (index number 28853/07) regarding the same issues disputed in this action.

In opposition, HSBC maintains that Mr. McCray's "motion to dismiss the complaint" is more accurately a "motion to dismiss the defense plaintiff raised in opposition to McCray's first motion," and further argues that CPLR 3211 does not apply to the dismissal of arguments in affirmations and affidavits. Moreover, HSBC avers that Mr. McCray did not timely serve his first motion, a full copy of which was obtained long after it was first filed. HSBC also reaffirms that Mr. McCray waived any jurisdictional defenses he might have had given (1) the amount of time that has elapsed, (2) his failure to raise any such defenses in his Answer, and (3) by interposing counterclaims. Additionally, HSBC says that there is no defect in its summons and complaint under CPLR 2101; Mr. McCray did not return the summons and complaint to it with a statement of objections within two days of service, and Mr. McCray has not alleged any prejudice suffered as a result of such alleged defects. Finally, the plaintiff states that there were no false or prejudicial matters in its prior papers in opposition to Mr. McCray's first motion.

DISCUSSION


CPLR 2221 (d) provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." Thus, a motion for leave to reargue may only be granted upon the showing that the court overlooked or misapprehended the facts or the law, or for some reason mistakenly arrived at its earlier decision (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992]). While the determination to grant leave to reargue a motion lies within the sound discretion of the court (see V. Veeraswamy Realty v Yenom Corp., 71 AD3d 874, 874 [2010]; Ruggiero v Long Is. R.R., 161 AD2d 622, 622-623 [1990]), a motion for leave to reargue is not designed to afford an unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted (see generally McGill v Goldman, 261 AD2d 593 [1999]; see also William P. Pahl Equip. Corp., 182 AD2d at 27).

In addressing Mr. McCray's concerns, the court turns to his first motion for leave to reargue (which was inaccurately labeled a motion for a default judgment).[FN4] Under CPLR 2221 (d), a motion for leave to reargue must be made "within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." As the plaintiff correctly indicates, well over thirty days elapsed between September 9, 2009, the date plaintiff served Mr. McCray with the Prior Decision with notice of entry, and December 30, 2009, the date Mr. McCray served his motion for leave to reargue herein. Thus, the untimeliness of Mr. McCray's motion for leave to reargue constitutes a ground for denial.

Even if the court had granted Mr. McCray's motion for leave to reargue, however, a [*5]review of the papers submitted leads this court to again conclude that plaintiff is entitled to dismissal of the adverse possession counterclaim. First, Mr. McCray's arguments regarding the alleged improper service of both his own petition in the HPD Proceeding and plaintiff's Prior Cross Motion may not be considered bases for reargument because they were improperly asserted for the first time in his motion for leave to reargue (see Woody's Lumber Co., Inc. v Jayram Realty Corp., 30 AD3d 590, 593 [2006]; Star Indus., Inc. v Innovative Beverages, Inc., 16 Misc 3d 114[A], *5 [2007]). Also, Mr. McCray has not indicated why he believes his own petition in the HPD Proceeding and plaintiff's Prior Cross Motion herein were improperly served, and without such evidence, the court must treat them as properly served.

Turning to Mr. McCray's position that the Prior Decision was void, such arguments are unavailing. The court first notes that Mr. McCray does not have standing to challenge the determination of proper service of his petition in the HPD Proceeding because, as the petitioner in that Article 78 proceeding, he was not aggrieved by the determination of that issue (see Otalora v Solimeo, 276 AD2d 473, 473 [2000] [where, analogously, "defendant is not aggrieved by the order appealed from, and therefore has no standing to appeal"]). Further, insofar as Mr. McCray contests jurisdiction in the HPD Proceeding, such arguments are meritless because he consented to jurisdiction by bringing the action. For these reasons, the petitioner may not challenge the very petition that he brought. Moreover, the time has already expired for asserting a challenge to Justice Hubsher's decision in the HPD Proceeding, which, in any event, requires permission from the judge who made the order or from an appellate division justice (see CPLR 5513 [b] [a motion for permission to appeal must be made within thirty days of the date the appellant was served with a copy of the judgment or order to be appealed from and written notice of its entry]; CPLR 5701 [b] [1], [c] [appeals of judgments or orders in article 78 proceedings must be made by permission]).

Additionally, the court finds that Mr. McCray waived any jurisdictional issues he may have had with regard to the instant action. Mr. McCray seems to improperly and mistakenly apply CPLR 3211, which relates to the dismissal of actions, to argue that plaintiff's papers in opposition to his first motion should be "dismissed" or disregarded, but that statute is not relevant in that regard. Nevertheless, contrary to Joseph McCray's assertions, objections regarding lack of personal jurisdiction are deemed waived unless raised in the answer or a pre-answer motion to dismiss the complaint (see Am. Exp. Travel Related Servs. v Felix, 29 Misc 3d 134[A], 2010 NY Slip Op 51965[U], *1 [2010], citing CPLR 3211 [e]; Interlink Metals & Chems. v Kazdan, 222 AD2d 55 [1996]). Mr. McCray did not raise lack of personal jurisdiction as an affirmative defense in his answer.

Similarly, to the extent Mr. McCray asserts lack of personal jurisdiction due to improper service, he failed to move to dismiss the complaint upon such ground within sixty days of service of a copy of his answer, and the affirmative defense is likewise deemed waived (see CPLR 3211 [e]; DeSena v HIP Hosp., Inc., 258 AD2d 555 [1999]; Wade v Byung Yang Kim, 250 AD2d 323 [1998]; Fleet Bank, N.A. v Riese, 247 AD2d 276 [1998]). Thus, the part of Mr. McCray's second motion seeking dismissal of the complaint on jurisdictional grounds must be denied.

With respect to Mr. McCray's assertions that plaintiff's summons, complaint, and affirmation in opposition to his first motion were defective because they did not conform with CPLR 305 (a) and 2101 (d), respectively, such omissions are not fatal (see Smith v Allstate Ins. Co., 38 AD3d 522, 523 [2007]; Sparaco v Sparaco, 309 AD2d 1029 [2003]). The contents of a summons are governed by CPLR 305 (a), which mandates that it "specify the basis of the venue designated and if based upon the residence of the plaintiff it shall [*6]specify the plaintiff's address, and also shall bear the index number assigned and the date of filing with the clerk of the court." Meanwhile, CPLR 2101 (d) provides that "[e]ach paper served or filed shall be indorsed with the name, address and telephone number of the attorney for the party serving or filing the paper." However, "[t]he failure to comply with CPLR 305 (a) is an irregularity, not a jurisdictional defect and does not require dismissal in the absence of prejudice"(Cestaro v Osorio, 21 Misc 3d 1144[A], 2008 NY Slip Op 52495[U], *5 [2008]) and dismissal cannot be granted on that basis.

Additionally, CPLR 2101 (f) explicitly allows defects in form to be waived, and leave to correct to be freely given, unless the party on whom a paper is served returns the paper to the party serving it, with a statement of objections, within two days after receipt. Although Mr. McCray claims to have timely rejected plaintiff's affirmation in opposition to his first motion, Mr. McCray filed the rejection with the court instead of returning it to HSBC pursuant to the statute, and moreover, the court is unclear about how plaintiff's papers are alleged to be deficient. Regardless of that alleged technicality, the court notes that no substantial right of any party has been prejudiced by the alleged defects in any event (see Hoot Group, Inc. v Caplan, 9 AD3d 448 [2004]; Gau v Kramer, 289 AD2d 804, 805 [2001]), and such irregularity may be disregarded (see CPLR 2001, 2101 [f]).

Finally, Mr. McCray's request for costs and sanctions must be denied because it is unclear what false and prejudicial matter he alleges that plaintiff asserted. Imposing fees and costs as sanctions is appropriate when the court finds that the attorney has abused the judicial process, has caused unnecessary expense of the court's resources to respond to a wholly frivolous motion, and there is a need to prevent the attorney from engaging in further frivolous motion practice in this or any future matter (see Drummond v Drummond, 305 AD2d 450, 451-52 [2003], lv denied 1 NY3d 504 [2003]). However, when reviewing plaintiff's papers, the court sees no conduct that exceeds the bounds of adversarial litigation or that can be considered frivolous (see Lazich v Vittoria & Parker, 189 AD2d 753, 754 [1993], appeal dismissed 81 NY2d 1006 [1993]). To the extent Mr. McCray's papers request dismissal for frivolous misconduct consisting of plaintiff's failure to sign its Affirmation in Opposition to Mr. McCray's first motion, 22 NYCRR § 130-1.1-a (Signing of Papers) does not mandate dismissal with prejudice where a signature is omitted, and Mr. McCray fails to make a showing that the pleading at issue was frivolous within the meaning of 22 NYCRR § 130-1.1 to merit such a sanction (see Maldonado v Galindo Const. Corp., 2003 WL 21700095, 2003 NY Slip Op 51118[U], *1 [2003]). The court notes that plaintiff's original Affirmation in Opposition filed with the court bears the requisite signature (by plaintiff's attorney), and the copy of that same Affirmation which Mr. McCray claims is defective (annexed as an exhibit to Mr. McCray's "Rejection" papers) is also deemed signed because it bears the initial symbols "/s/" in lieu of a signature. Therefore, this branch of Mr. McCray's second motion must also be denied.

Accordingly, Mr. McCray's motion seeking leave to reargue is granted, but upon reargument, the court adheres to its original determinations in the August 17, 2009 Prior Decision. Mr. McCray 's motion to dismiss and request for sanctions is also denied. The court has considered the parties' remaining contentions and finds them without merit.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R

_____________________________

yvonne lewis, J.S.C.

Footnotes


Footnote 1: Although Mr. McCray labels the motion as one for a default judgment, it is more accurately a motion for reargument, as defendant alleges that a prior decision was based on misapprehended matters of law (see CPLR 2221).

Footnote 2: The court is unclear why defendant argues that his own petition in the HPD Proceeding was improperly served, other than for purposes of invalidating Justice Hubsher's decision as a legitimate basis for collateral estoppel and res judicata effect, and to argue that the Prior Decision in this action was thus also invalid.

Footnote 3: Mr. McCray also indicates that "no affidavit [is] on file" with regard to the plaintiff's Prior Cross Motion(which Mr. McCray inaccurately labels a "previous application for a Summary Judgment").

Footnote 4: Although the plaintiff avers that Mr. McCray's motion for leave to reargue was not properly and timely served, the court will nevertheless consider the merits of Mr. McCray's arguments for the purpose of conducting a full and thorough analysis.