SUMMARY JUDGMENT AND NOTE OF ISSUE

How many summary judgment motions can be made in a foreclosure action?

Wells Fargo Bank, NA v Madlen Apt, 2020 NY Slip Op 00640, Decided on January 29, 2020, Appellate Division, Second Department:

"On or about May 24, 2012, the plaintiff commenced this mortgage foreclosure action alleging that it was the holder of the subject note and mortgage, and that the defendant Madlen Apt (hereinafter the defendant) had defaulted upon her payment obligations. In an amended answer, the defendant alleged, inter alia, lack of standing as an affirmative defense. A note of issue was filed on or about July 26, 2013. In February 2014, almost seven months after the note of issue was filed, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and to appoint a referee to compute the sums due and owing under the note and mortgage (hereinafter the 2014 motion). In an order dated September 29, 2014 (hereinafter the September 2014 order), the Supreme Court denied the 2014 motion, determining, among other things, that the motion was untimely.

Thereafter, on October 15, 2014, the note of issue was vacated on consent of the parties. In 2016, the plaintiff, inter alia, again moved for summary judgment on the complaint [*2]insofar as asserted against the defendant (hereinafter the 2016 motion). In an order entered October 6, 2016 (hereinafter the October 2016 order), the Supreme Court described the 2016 motion as being "in essence a motion to reargue the [September 2014 order]," and denied that motion. The plaintiff appeals from so much of the September 2014 order and October 2016 order, respectively, as denied those branches of its motions which were for summary judgment on the complaint insofar as asserted against the defendant.

We agree with the Supreme Court's determination denying the branch of the plaintiff's 2014 motion as untimely on the ground that the plaintiff failed to demonstrate good cause for the delay in making its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Miller v Ball, 165 AD3d 920). CPLR 3212(a) provides that "[i]f no such date is set by the court, [a motion for summary judgment] shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" (see Brill v City of New York, 2 NY3d at 651). Here, the 2014 motion was filed approximately seven months after the note of issue was filed and approximately 80 days after the deadline for making a motion for summary judgment. The plaintiff's failure to apply for leave to file the 2014 motion and failure to establish good cause for its delay warranted denial of the 2014 motion without consideration of its merits (see Arcamone-Makinano v Britton Prop., Inc., 156 AD3d 669; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869).

However, we do not agree with the Supreme Court's determination denying the plaintiff's 2016 motion. The plaintiff's motion did not violate the rule against successive motions for summary judgment. While the plaintiff had previously moved for summary judgment following the filing of a note of issue, and its motion was denied on the ground that it had not been made within the time allowed by CPLR 3212(a), the note of issue was subsequently vacated. The vacatur of the note of issue returned the case to its pre-note of issue status (see Montalvo v Episcopal Health Servs., Inc., 172 AD3d 1357, 1358; Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045, 1046), and the plaintiff could again seek summary judgment (see Farrington v Heidkamp, 26 AD3d 459, 460)."