Parker Colt Admr. v One W. Bank F.S.B. 2024 NY Slip Op 33071(U) August 30, 2024 Supreme Court, New York County Docket Number: Index No. 150652/2024 Judge: Lori S. Sattler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 09/03/2024 01:02 PM INDEX NO. 150652/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/03/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 02M -----------------------------------------------------------------------------------X PARKER COLT ADMINISTRATOR, INDEX NO. 150652/2024
Plaintiff, MOTION DATE 01/25/2024 -v- MOTION SEQ. NO. 001 ONE WEST BANK F.S.B., MERS INC.,DEUTSCHE BANK NATIONAL TRUST COMPANY
Defendant. DECISION + ORDER ON MOTION -----------------------------------------------------------------------------------X
HON. LORI S. SATTLER:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for JUDGMENT - SUMMARY IN LIEU OF COMPLAINT .
Plaintiff Parker Colt, Administrator of the Estate of Linda D. Johnson (“Plaintiff”),
commenced this action to quiet title to a condominium apartment located at 200 Rector Place,
Apartment 31M in Manhattan (“the Apartment”), cancel and discharge the mortgages
encumbering the Apartment, and to cancel the lis pendens/notice of pendency (“Notice of
Pendency”) in a foreclosure action concerning the Apartment, OneWest Bank FSB v Linda
Johnson, N.Y. County Index No. 113083/2009 (“the Foreclosure Action”). Plaintiff now moves
for summary judgment on his claims pursuant to CPLR 3213. Defendant Deutsche Bank
National Trust Company (“Deutsche Bank”) opposes the motion. Defendants One West Bank
F.S.B. (“One West”) and MERS, Inc. (“MERS”) have not appeared in this action.
Plaintiff is the son of Linda D. Johnson (“Johnson”) and the administrator of her estate.
Johnson was the Owner of the Apartment and took out mortgages on it in 2005 and 2007
(NYSCEF Doc. No. 5). She defaulted on the mortgages in in 2008 and One West commenced
the Foreclosure Action in September 2009 and filed the Notice of Pendency. One West moved 150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 1 of 5 Motion No. 001
1 of 5 [* 1] FILED: NEW YORK COUNTY CLERK 09/03/2024 01:02 PM INDEX NO. 150652/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/03/2024
for summary judgment in March 2010, which the Court granted to the extent that One West was
directed to settle the proposed order on notice. A series of settlement conferences were held in
2010 and 2011 but no resolution was reached.
Johnson died intestate in 2011 and the Foreclosure Action remained on the court calendar
thereafter. The record does not indicate that a death certificate or letters of administration were
filed in the Foreclosure Action or that it was otherwise stayed. Appearances continued to be
scheduled in the Foreclosure Action from 2012 through 2016. The Foreclosure Action was
marked disposed in December 2016 pursuant to 22 NYCRR § 202.27 due to One West’s failure
to appear at a court conference.
One West made two successive motions to restore the Foreclosure Action in 2018 and
2019, both of which were denied. In 2022, it made a motion to renew and reargue the 2019
decision denying its motion to restore the Foreclosure Action. This motion was also denied, with
the Court finding that “the timeline offered by [One West] . . . shows [One West] had no interest
or capability in moving its case” (NYSCEF Doc. No. 15, 2022 Decision [Bluth, J.]). A Notice of
Entry for the 2022 Decision was filed on January 13, 2023. One West did not file an appeal of
the 2022 Decision and took no other appeal was in the Foreclosure Action.
Plaintiff now moves for summary judgment for an order pursuant to CPLR 6514
canceling the Notice of Pendency in the Foreclosure Action and for an order pursuant to RPAPL
1921 canceling and discharging the 2005 and 2007 mortgages. Deutsche Bank opposes the
motion, asserting that the Foreclosure Action remains active because it was automatically stayed
by operation of law after Johnson’s death in 2011 and that statute of limitations to commence a
foreclosure action has consequently not expired.
150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 2 of 5 Motion No. 001
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 09/03/2024 01:02 PM INDEX NO. 150652/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/03/2024
A party moving for summary judgment “must make a prima facie showing of entitlement
to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of
fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985], citing
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Should the movant make its prima
facie showing, the burden shifts to the opposing party, who must then produce admissible
evidentiary proof to establish that material issues of fact exist” (Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986]).
CPLR 6514(a) requires the Court to direct the county clerk to cancel a notice of pendency
“if the action has been settled, discontinued, or abated . . . .” Additionally, the Court may
exercise its discretion under CPLR 6514(b) to cancel a notice of pendency where a plaintiff fails
to prosecute an action in good faith “where plaintiff engaged in dilatory tactics following the
commencement of the action . . . or otherwise failed to prosecute the action diligently” (551 W.
Chelsea Partners LLC v 556 Holding LLC, 40 AD3d 546, 548 [1st Dept 2007]).
RPAPL § 1501(4) “allows a party to cancel a mortgage where the limitations period for
commencing a foreclosure action has expired” (Batavia Townhouses, Ltd. v Council of Churches
Hous. Dev. Fund Co., Inc., 38 NY3d 467, 470 [2022]; see also Mejias v Wells Fargo N.A., 186
AD3d 472, 473-474 [2d Dept 2020]). The six-year statute of limitations in which to bring a
foreclosure action begins to run when a mortgage debt is accelerated, such as when a noteholder
files a “verified complaint seeking foreclosure and containing a sworn statement that the
noteholder is demanding repayment of the entire outstanding debt” (Freedom Mtge. Corp. v
Engel, 37 NY3d 1, 22 [2021]; CPLR 213[4]; see also MTGLQ Invs., LP v Wozencraft, 172
AD3d 644, 645).
150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 3 of 5 Motion No. 001
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The record shows that the Foreclosure Action was marked disposed in 2016 due to One
West’s failure to appear. It is further undisputed that all motions to restore the Foreclosure
Action were denied. Deutsche Bank fails to demonstrate the existence of any issue of fact in
opposition, notwithstanding its unsupported assertion that the Foreclosure Action somehow
remains active nearly eight years after it was marked disposed. Plaintiff also submits proof that
the mortgages were accelerated when One West commenced the Foreclosure Action in
September 2009: the Verified Amended Complaint that unequivocally states One West’s election
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Parker Colt Admr. v One W. Bank F.S.B. 2024 NY Slip Op 33071(U) August 30, 2024 Supreme Court, New York County Docket Number: Index No. 150652/2024 Judge: Lori S. Sattler Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 09/03/2024 01:02 PM INDEX NO. 150652/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/03/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 02M -----------------------------------------------------------------------------------X PARKER COLT ADMINISTRATOR, INDEX NO. 150652/2024
Plaintiff, MOTION DATE 01/25/2024 -v- MOTION SEQ. NO. 001 ONE WEST BANK F.S.B., MERS INC.,DEUTSCHE BANK NATIONAL TRUST COMPANY
Defendant. DECISION + ORDER ON MOTION -----------------------------------------------------------------------------------X
HON. LORI S. SATTLER:
The following e-filed documents, listed by NYSCEF document number (Motion 001) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 were read on this motion to/for JUDGMENT - SUMMARY IN LIEU OF COMPLAINT .
Plaintiff Parker Colt, Administrator of the Estate of Linda D. Johnson (“Plaintiff”),
commenced this action to quiet title to a condominium apartment located at 200 Rector Place,
Apartment 31M in Manhattan (“the Apartment”), cancel and discharge the mortgages
encumbering the Apartment, and to cancel the lis pendens/notice of pendency (“Notice of
Pendency”) in a foreclosure action concerning the Apartment, OneWest Bank FSB v Linda
Johnson, N.Y. County Index No. 113083/2009 (“the Foreclosure Action”). Plaintiff now moves
for summary judgment on his claims pursuant to CPLR 3213. Defendant Deutsche Bank
National Trust Company (“Deutsche Bank”) opposes the motion. Defendants One West Bank
F.S.B. (“One West”) and MERS, Inc. (“MERS”) have not appeared in this action.
Plaintiff is the son of Linda D. Johnson (“Johnson”) and the administrator of her estate.
Johnson was the Owner of the Apartment and took out mortgages on it in 2005 and 2007
(NYSCEF Doc. No. 5). She defaulted on the mortgages in in 2008 and One West commenced
the Foreclosure Action in September 2009 and filed the Notice of Pendency. One West moved 150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 1 of 5 Motion No. 001
1 of 5 [* 1] FILED: NEW YORK COUNTY CLERK 09/03/2024 01:02 PM INDEX NO. 150652/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/03/2024
for summary judgment in March 2010, which the Court granted to the extent that One West was
directed to settle the proposed order on notice. A series of settlement conferences were held in
2010 and 2011 but no resolution was reached.
Johnson died intestate in 2011 and the Foreclosure Action remained on the court calendar
thereafter. The record does not indicate that a death certificate or letters of administration were
filed in the Foreclosure Action or that it was otherwise stayed. Appearances continued to be
scheduled in the Foreclosure Action from 2012 through 2016. The Foreclosure Action was
marked disposed in December 2016 pursuant to 22 NYCRR § 202.27 due to One West’s failure
to appear at a court conference.
One West made two successive motions to restore the Foreclosure Action in 2018 and
2019, both of which were denied. In 2022, it made a motion to renew and reargue the 2019
decision denying its motion to restore the Foreclosure Action. This motion was also denied, with
the Court finding that “the timeline offered by [One West] . . . shows [One West] had no interest
or capability in moving its case” (NYSCEF Doc. No. 15, 2022 Decision [Bluth, J.]). A Notice of
Entry for the 2022 Decision was filed on January 13, 2023. One West did not file an appeal of
the 2022 Decision and took no other appeal was in the Foreclosure Action.
Plaintiff now moves for summary judgment for an order pursuant to CPLR 6514
canceling the Notice of Pendency in the Foreclosure Action and for an order pursuant to RPAPL
1921 canceling and discharging the 2005 and 2007 mortgages. Deutsche Bank opposes the
motion, asserting that the Foreclosure Action remains active because it was automatically stayed
by operation of law after Johnson’s death in 2011 and that statute of limitations to commence a
foreclosure action has consequently not expired.
150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 2 of 5 Motion No. 001
2 of 5 [* 2] FILED: NEW YORK COUNTY CLERK 09/03/2024 01:02 PM INDEX NO. 150652/2024 NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 09/03/2024
A party moving for summary judgment “must make a prima facie showing of entitlement
to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of
fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985], citing
Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Should the movant make its prima
facie showing, the burden shifts to the opposing party, who must then produce admissible
evidentiary proof to establish that material issues of fact exist” (Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986]).
CPLR 6514(a) requires the Court to direct the county clerk to cancel a notice of pendency
“if the action has been settled, discontinued, or abated . . . .” Additionally, the Court may
exercise its discretion under CPLR 6514(b) to cancel a notice of pendency where a plaintiff fails
to prosecute an action in good faith “where plaintiff engaged in dilatory tactics following the
commencement of the action . . . or otherwise failed to prosecute the action diligently” (551 W.
Chelsea Partners LLC v 556 Holding LLC, 40 AD3d 546, 548 [1st Dept 2007]).
RPAPL § 1501(4) “allows a party to cancel a mortgage where the limitations period for
commencing a foreclosure action has expired” (Batavia Townhouses, Ltd. v Council of Churches
Hous. Dev. Fund Co., Inc., 38 NY3d 467, 470 [2022]; see also Mejias v Wells Fargo N.A., 186
AD3d 472, 473-474 [2d Dept 2020]). The six-year statute of limitations in which to bring a
foreclosure action begins to run when a mortgage debt is accelerated, such as when a noteholder
files a “verified complaint seeking foreclosure and containing a sworn statement that the
noteholder is demanding repayment of the entire outstanding debt” (Freedom Mtge. Corp. v
Engel, 37 NY3d 1, 22 [2021]; CPLR 213[4]; see also MTGLQ Invs., LP v Wozencraft, 172
AD3d 644, 645).
150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 3 of 5 Motion No. 001
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The record shows that the Foreclosure Action was marked disposed in 2016 due to One
West’s failure to appear. It is further undisputed that all motions to restore the Foreclosure
Action were denied. Deutsche Bank fails to demonstrate the existence of any issue of fact in
opposition, notwithstanding its unsupported assertion that the Foreclosure Action somehow
remains active nearly eight years after it was marked disposed. Plaintiff also submits proof that
the mortgages were accelerated when One West commenced the Foreclosure Action in
September 2009: the Verified Amended Complaint that unequivocally states One West’s election
“to call due the entire amount secured by the mortgage(s)” (NYSCEF Doc. No. 13). The six-
year statute of limitations to commence a foreclosure action based on the Johnson mortgages
therefore began to run in September 2009 and expired in 2015. Accordingly, the Court finds that
Plaintiff has established his entitlement to summary judgment on his claims to quiet title on the
Apartment pursuant to RPAPL § 1501(4), cancel the Notice of Pendency for the Foreclosure
Action, and to cancel and discharge the mortgages.
Accordingly, it is hereby:
ORDERED that the motion is granted; and it is further
ORDERED that the County Clerk of New York County, upon service upon him of a copy
of this order with notice of entry, shall cancel the Notice of Pendency in the action captioned
OneWest Bank FSB v Linda Johnson et al, N.Y. County Index No. 113083/2009, filed in the
office of the County Clerk of New York County on September 15, 2009; and it is further
ORDERED that the certain Mortgage dated December 14, 2005 and recorded January 13,
2006, in the New York City Department of Finance, Office of the City Register, CRFN Number
2006000024572, between Wells Fargo Bank, N.A., as Mortgagee, and Linda Johnson, as
Mortgagor, in the principal sum of $463,000.00 and interest concerning the premises known as
150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 4 of 5 Motion No. 001
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200 Rector Place, Apartment 31M, New York, New York 10280, BE DISCHARGED OF
RECORD; and it is further
ORDERED that the certain Mortgage dated January 29, 2007 and recorded February 28,
2007, in the New York City Department of Finance, Office of the City Register, CRFN Number
2007000110786, between MERS, Inc., as nominee for IndyMac Bank, F.S.B., as Mortgagee, and
Linda Johnson, as Mortgagor, in the principal sum of $82,500.00 and interest concerning the
premises known as 200 Rector Place, Apartment 31M, New York, New York 10280, BE
DISCHARGED OF RECORD.
This constitutes the Decision and Order of the Court.
8/30/2024 $SIG$ DATE LORI S. SATTLER, J.S.C. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
□ X GRANTED DENIED GRANTED IN PART OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
□ CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE
150652/2024 COLT ADMINISTRATOR, PARKER vs. ONE WEST BANK F.S.B. ET AL Page 5 of 5 Motion No. 001
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