Doiban v Shellpoint Mtge. Servicing

Supreme Court, Richmond County

Decided on March 31, 2026

Index No. 100077/2025

Ronald Castorina Jr., J.

I. Statement Pursuant to CPLR § 2219 [a]

The following e-filed documents listed on NYSCEF numbered 21-25, 43-48, 55-56 were read and considered on Defendant Daniel Byrnes, Esq.'s motion (Motion Sequence No. 001) and numbered 26-39, 42-54 were read and considered on Defendant Nationstar Mortgage, LLC's motion (Motion Sequence No. 002).

The following papers were considered in the determination of Defendant Daniel Byrnes, Esq.'s motion pursuant to CPLR §§ 3211 [a] [1]; [a] [5]; [a] [7]; and [a] [8]: Notice of Motion, dated March 5, 2026, Affirmation of Isabel F. Thelen, Esq. in Support of Motion, dated March 5, 2026; Affidavit of Daniel J. Byrnes, dated February 26, 2026, with exhibits A-L annexed, Plaintiff's Affirmation in Opposition, dated March 19, 2026, with exhibits A-D annexed, [*2]Memorandum of Law in Further Support of Motion, dated March 24, 2026, and the prior proceedings and pleadings in this action.

The Court further considered the following papers in the determination of Defendant Nationstar Mortgage LLC's motion to dismiss pursuant to CPLR §§ 3211 [a][1], [a][5], [a][7], and [a][8]: Notice of Motion, dated March 6, 2026, Affirmation of Steven N. Gordon, Esq. in Support, dated March 6, 2026, with exhibits A-L annexed, Plaintiff's Affirmation in Opposition, dated March 17, 2026, Affirmation in Reply of Steven N. Gordon, Esq. dated March 23, 2026, with exhibits 1-2 annexed, and the prior proceedings and pleadings in this action.

II. Findings of Fact

This action arises from a mortgage loan transaction encumbering real property located at 50 Rathburn Avenue, Staten Island, New York. The record reflects that on April 14, 2004, Plaintiff and a co-borrower executed a promissory note in the principal sum of $429,000, which was secured by a mortgage given to MERS as nominee for Lehman Brothers. (NY St Cts Filing [NYSCEF] Doc No. 28; 29). The note was subsequently endorsed in blank and the mortgage was assigned to Defendant Nationstar Mortgage LLC on June 14, 2013. (NY St Cts Filing [NYSCEF] Doc No. 30).

Following an alleged default commencing September 1, 2013, Defendant initiated a foreclosure action in December 2013 under Richmond County Index No. 135386/2013. (NY St Cts Filing [NYSCEF] Doc No. 27 at ¶10; 31). Plaintiff actively participated in that action, interposing an answer with counterclaims, opposing dispositive motions, and litigating the issue of standing, which was resolved in Defendant's favor by a referee determination so-ordered on February 8, 2019. (NY St Cts Filing [NYSCEF] Doc No. 34; 35; 36; 37). The foreclosure action was ultimately discontinued by order dated March 2, 2023, following repayment of the loan. (NY St Cts Filing [NYSCEF] Doc No. 33).

While the foreclosure action was pending, Plaintiff commenced a separate action sounding in fraud on September 1, 2020. (NY St Cts Filing [NYSCEF] Doc No. 38). That action was discontinued with prejudice pursuant to a stipulation dated September 14, 2022. (NY St Cts Filing [NYSCEF] Doc No. 39).

Thereafter, Plaintiff commenced the instant action on October 8, 2025, asserting claims which, to the extent discernible, allege fraud in connection with the foreclosure proceedings and the servicing of the loan. Defendant Daniel Byrnes, Esq. and Defendant Nationstar Mortgage, LLC assert that they was not properly served with process and that the affidavit of service is deficient in multiple respects, including the absence of proof of mailing address, lack of acknowledgment of receipt, and failure to comply with CPLR § 312-a requirements.

Plaintiff, in opposition, contends that Defendants received actual notice of the action, as evidenced by its participation and motion practice, and argues that dismissal would improperly elevate procedural form over substantive justice.

III. Conclusions of Law

The Court first addresses the threshold issue of personal jurisdiction. Pursuant to CPLR § 3211 [a] [8], dismissal is warranted where service of process is not properly effected. The record demonstrates that Plaintiff failed to establish proper service under CPLR § 312-a, which [*3]requires, inter alia, mailing with acknowledgment forms and completion of service only upon return of the signed acknowledgment. The absence of any indication that such acknowledgment was received, coupled with deficiencies in the affidavit of service, compels the conclusion that service was not effectuated in accordance with statutory requirements (see Carrington v. Northwell Health, 234 AD3d 659, 660 [2d Dept 2025]).

Plaintiff's reliance upon actual notice is unavailing. The statutory scheme governing service is to be strictly construed, and actual notice, without proper service, does not confer jurisdiction. The Court therefore lacks personal jurisdiction over Defendant, mandating dismissal.

Even assuming arguendo that jurisdiction was properly obtained, dismissal is independently warranted under CPLR § 3211 [a] [5] based upon the doctrine of res judicata. It is well settled that a stipulation of discontinuance with prejudice constitutes a final determination on the merits (see Wilmington Sav. Fund Socy., FSB v. Sheikh, 237 AD3d 874 [2d Dept 2025]). Under New York's transactional approach, once a claim is brought to final conclusion, all other claims arising out of the same transaction are barred (see O'Brien v Syracuse, 54 NY2d 353 [1981]; Sosa v JPMorgan Chase Bank, 33 AD3d 609 [2d Dept 2006]).

Here, the claims asserted arise from the same series of transactions underlying the prior foreclosure action and the earlier fraud action discontinued with prejudice. Accordingly, they are barred.

Dismissal is further warranted under CPLR § 3211 [a] [1] and [a] [7]. Documentary evidence, including the assignment of mortgage, conclusively refutes Plaintiff's allegations that Defendant lacked standing (see JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643 [2d Dept 2016]; U.S. Bank Nat. Assn. v Noble, 144 AD3d 788 [2d Dept 2016]). Such evidence establishes that Defendant held the note or was assigned the mortgage prior to commencement of the foreclosure action, thereby defeating Plaintiff's claims as a matter of law.

Moreover, the complaint fails to state a cause of action. While afforded liberal construction, the pleading must allege facts fitting within a cognizable legal theory (see Leon v Martinez, 84 NY2d 83 [1994]). Claims sounding in fraud must be pleaded with particularity (see CPLR § 3016 [b]; Pludeman v N. Leasing Sys., Inc., 10 NY3d 486 [2008]). Plaintiff's allegations consist of conclusory assertions devoid of factual specificity, failing to allege any misrepresentation, scienter, reliance, or damages (see Wilson v Neighborhood Restore Hous., 129 AD3d 948 [2d Dept 2015]). Such deficiencies are fatal.

Additionally, claims premised upon prior litigation conduct do not state a viable cause of action for fraud absent independent misrepresentations (see Clevenger v. Yuzek, 222 AD3d 931 [2d Dept 2023]).

Finally, to the extent the complaint asserts causes of action sounding in fraud or conversion, such claims are time-barred. Fraud claims are subject to a six-year statute of limitations (CPLR § 213 [8]), and conversion claims to a three-year limitation period (CPLR § 214 [3]). Any claims arising from the 2013 foreclosure action are therefore untimely.

IV. Conclusion and Decretal Paragraphs

Accordingly, it is hereby

ORDERED, that the Motion Sequence No. 001 by Defendant Daniel Byrnes, Esq. to dismiss the complaint pursuant to CPLR §§ 3211[a][1], [a][5], [a][7], and [a][8] is [*4]GRANTED in its entirety; and it is further

ORDERED, that the complaint is DISMISSED as against Defendant Daniel Byrnes, Esq.; and it is further

ORDERED, that the Motion Sequence No. 002 by Defendant Nationstar Mortgage LLC to dismiss the complaint pursuant to CPLR §§ 3211[a][1], [a][5], [a][7], and [a][8] is GRANTED in its entirety; and it is further

ORDERED, that the complaint is DISMISSED as against Defendant Nationstar Mortgage LLC; and it is further

ORDERED, that the Clerk of the Court is directed to enter judgment; accordingly, and it is further

ORDERED, that any relief not expressly addressed herein is denied.

This constitutes the Decision and Order of the Court.

Dated: March 31, 2026

Staten Island, New York

HON. RONALD CASTORINA, JR.

JUSTICE OF THE SUPREME COURT