Supreme Court, Suffolk County, October 17, 2018

RAS Boriskin LLC, Westbury (Seth D. Weinberg of counsel), for plaintiff.

Somer, Heller & Corwin LLP, Commack (Melissa Corwin of counsel), for Jeff Vinci, defendant.

Plaintiff commenced this action claiming foreclosure of a mortgage dated October 31, 2006, in the amount of $328,500. Said mortgage was given to secure a note of the same date in a corresponding amount and was recorded with the Clerk of Suffolk County on November 28, 2006, in liber 21425 of mortgages at page 178. The mortgage constitutes a first lien encumbering real property known as 178 Oak Avenue, Shirley, Town of Brookhaven, New York. Plaintiff is the assignee of the note and mortgage herein, having acquired title thereto prior to the commencement of any action to enforce the same.

Plaintiff, alleging a default in payment by defendant which occurred on June 1, 2011, commenced an action claiming foreclosure of the mortgage by filing a summons, complaint and notice of pendency on January 8, 2013, under Suffolk County index No. 2013-00778 (the first action). Defendant appeared through counsel and filed an answer in that action. During the time at which the first action was still pending and active before another justice of this court, plaintiff, acting through different counsel, commenced a successive action, claiming relief identical to that sought in the first action, by filing a summons, complaint and notice of pendency on November 20, 2015, under Suffolk County index No. 2015-612775 (the second action), which is the matter that is now sub judice. In its complaint, specifically paragraph 14 thereof, plaintiff's counsel affirmed verbatim "[t]hat the plaintiff alleges that no other proceedings have been had for the recovery of the mortgage indebtedness or if any such proceeding is pending, a final judgment was not rendered in favor of Plaintiff and such action is intended to be discontinued." Defendant Jeff Vinci, appearing through counsel, and on February 10, 2016, served and filed an answer which included 13 affirmative defenses including one which raised the issue of the prior pending action which sought{**61 Misc 3d at 893} relief identical to that in the second action. As far as can be gleaned from the motion papers and a review of the court's electronic records, plaintiff failed to interpose a reply to defendant's responsive pleading. Plaintiff has moved for summary judgment pursuant to the provisions of CPLR 3212 (sequence No. 001) while [*2]defendant has cross-moved for dismissal (sequence No. 002) pursuant to the provisions of, inter alia, RPAPL 1301 (3). Defendant has utilized the cross motion as and for his opposition to plaintiff's motion in chief while plaintiff has filed an affirmation in opposition to defendant's cross motion.

In order for plaintiff to prevail upon its motion for summary judgment, it must lay bare all of its proof and, in particular, must demonstrate, by a fair preponderance of the evidence, the existence of the instruments of indebtedness, its standing to foreclose as well as the default thereunder (EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2d Dept 2002]). Doing so will satisfy plaintiff's prima facie burden. If plaintiff meets its statutory burden, the burden is then shifted to defendant to demonstrate the existence of a triable issue of fact sufficient to defeat summary judgment (Barrett v Jacobs, 255 NY 520 [1931]). The function of the court is issue finding and not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). In the matter that is sub judice, plaintiff's moving papers adequately demonstrate its ostensible right to summary judgment.

Turning to defendant's cross motion, it is apparent that defendant has demonstrated the existence of a triable issue of fact which this court finds to be legally and factually sufficient to defeat plaintiff's claim. Defendant relies upon the provisions of RPAPL 1301 (3), which state that "[w]hile the action is pending or after final judgment for the plaintiff therein, no other action shall be commenced or maintained to recover any part of the mortgage debt, without leave of the court in which the former action was brought."

Nowhere in plaintiff's moving papers is there any mention made of the fact that a prior action was pending, between the same parties, which sought the identical relief, at the time that the instant action was commenced. The court finds plaintiff's failure to bring forth information about the first action to be decidedly troubling. Plaintiff failed to disclose the existence of the pending first action on the request for judicial intervention that it caused to be filed herein. Indeed, plaintiff{**61 Misc 3d at 894} did not move to discontinue the first action until it filed a motion to discontinue on October 31, 2016, which is 11 months, 11 days after the commencement of the second action and eight months, 11 days after the service of defendant's answer and affirmative defenses. The motion to discontinue the first action was, according to plaintiff's counsel's affirmation, due to an unspecified "procedural defect." It is somewhat disturbing to note that plaintiff has never amplified what is meant by a "procedural defect," apparently choosing to leave the same to the imagination of the court. Aside from the motion to discontinue, plaintiff took no steps whatsoever to timely prosecute the action, though far more than one year had elapsed since the filing of the complaint in the first action. The court notes that an order granting plaintiff's motion to [*3]discontinue the first action was granted by the court (Mayer, J.) on October 26, 2017.

The provisions of RPAPL 1301 (3) clearly and plainly prohibit the commencement of a second action claiming foreclosure or recovery of the indebtedness secured by the mortgage while a prior action is extant unless leave of court is affirmatively sought to do so (Valley Sav. Bank v Rose, 228 AD2d 666 [2d Dept 1996]). Moreover, it has long been held by our courts that RPAPL 1301 (3) shall be strictly construed (Dollar Dry Dock Bank v Piping Rock Bldrs., 181 AD2d 709 [2d Dept 1992]) and plaintiff has not provided this court with any persuasive or binding authority to the contrary. It has long been the law in New York that the failure to obtain leave of court to commence a second foreclosure action while an action is pending for the same relief effectively precludes the commencement of the second action (Security Natl. Servicing Corp. v Liebowitz, 281 AD2d 615 [2d Dept 2001]). Moreover, it has been determined that where a second action is commenced in derogation of RPAPL 1301 (3), stay or dismissal of the second action is warranted (First Nationwide Bank v Brookhaven Realty Assoc., 223 AD2d 618 [2d Dept 1996], lv dismissed 88 NY2d 963 [1996]). In the matter that is currently before the court, no stay of the first action may be imposed inasmuch as the first action has already been discontinued by order dated October 26, 2017. Therefore, the only appropriate disposition herein is the dismissal of this action.

Accordingly, it is ordered that the application of the plaintiff (sequence No. 001) for summary judgment pursuant to CPLR 3212 and an order of reference pursuant to RPAPL 1321 is{**61 Misc 3d at 895} hereby denied in its entirety; and it is further ordered that the cross motion by defendant Jeff Vinci (sequence No. 002) for an order of dismissal pursuant to RPAPL 1301 (3) shall be and the same is hereby granted in its entirety; and it is further ordered that the within action shall be and the same is hereby dismissed; and it is further ordered that upon payment of the proper fees, if any, by plaintiff, the Clerk of Suffolk County shall cause the notice of pendency to be cancelled and discharged of record; and it is further ordered that any relief not expressly granted shall be and the same is hereby denied.