Newrez, LLC v. Barnes

Opinion

Newrez, LLC v Barnes

2026 NY Slip Op 05032

August 19, 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.

Newrez, LLC, etc., respondent,

v

Sherry Y. Barnes, appellant, et al., defendants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2024-07963, (Index No. 720392/19)

Cheryl E. Chambers, J.P.

Paul Wooten

Lillian Wan

Phillip Hom, JJ.

Felton & Associates, Brooklyn, NY (Regina Felton of counsel), for appellant.

Tromberg, Morris & Partners, PLLC, New York, NY (Brettanie Hart Saxton and Heino Muller of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Sherry Y. Barnes appeals from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated April 1, 2024. The order granted the plaintiff's motion, inter alia, pursuant to CPLR 602(a) to consolidate the instant action with an action entitled Green Tree Servicing, LLC v Barnes, pending in the same court under Index No. 707823/14.

ORDERED that the order is affirmed, with costs.

On November 14, 2002, Sherry Y. Barnes (hereinafter the defendant) and Abraham West executed a note in the amount of $200,000 in favor of Ideal Mortgage Bankers, Ltd. (hereinafter Ideal). The note was secured by a mortgage on certain real property located in Queens County. The mortgage was signed by both the defendant and West.

On October 22, 2014, Green Tree Servicing, LLC (hereinafter Green Tree), Ideal's successor in interest, commenced an action to foreclose the mortgage against the defendant, among others, under Index No. 707823/14 (hereinafter the first foreclosure action). The first foreclosure action resulted in a judgment of foreclosure and sale entered December 20, 2017. In an order dated September 4, 2019, the Supreme Court granted the defendant's motion to vacate the judgment of foreclosure and sale insofar as asserted against her, and thereupon, to dismiss the complaint insofar as asserted against her for lack of personal jurisdiction.

On December 5, 2019, Ditech Financial, LLC (hereinafter Ditech), Green Tree's successor in interest, commenced the instant action to foreclose the mortgage against the defendant. Ditech attached a copy of the properly endorsed note to the complaint. The caption was subsequently amended to substitute the plaintiff for Ditech. In a judgment of foreclosure and sale entered February 1, 2024, the Supreme Court, inter alia, confirmed a referee's report and directed the sale of the property.

On March 12, 2024, the plaintiff moved, inter alia, pursuant to CPLR 602(a) to consolidate the instant action with the first foreclosure action. The defendant opposed the motion, arguing that the plaintiff never established possession of the note. In an order dated April 1, 2024, [*2]the Supreme Court granted the plaintiff's motion. The defendant appeals.

"A motion for consolidation is addressed to the sound discretion of the court, and absent a showing of substantial prejudice by the party opposing the motion, consolidation is proper where there are common questions of law and fact" (RCN Constr. Corp. v Fleet Bank, N.A., 34 AD3d 776, 777; see CPLR 602). Here, the plaintiff established that there were common questions of law and fact between the two foreclosure actions. In opposition, the defendant failed to make any argument relevant to the motion. Moreover, the defendant's contention regarding standing is without merit. "A judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or could have been litigated in the foreclosure action" (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913; see Wells Fargo Bank, N.A. v Graziano, 192 AD3d 1192, 1192-1193). Here, a judgment of foreclosure and sale was entered against the defendant on February 1, 2024. The defendant has not appealed from the judgment of foreclosure and sale, nor has she moved to vacate the judgment of foreclosure and sale pursuant to CPLR 5015.

The parties' remaining contentions either are not properly before us or need not be reached in light of our determination.

Accordingly, the Supreme Court properly granted the plaintiff's motion, inter alia, pursuant to CPLR 602(a) to consolidate the instant action with the first foreclosure action.

CHAMBERS, J.P., WOOTEN, WAN and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court