HSBC Bank USA, N.A. v. Schwarz
Attorneys and Parties
Brief Summary
Residential mortgage foreclosure; limits on successive summary judgment motions; RPAPL 1304 [statute requiring lenders to send a 90-day pre-foreclosure notice in a prescribed form and manner before commencing a home loan foreclosure action].
The Supreme Court granted the plaintiff’s third motion for summary judgment, struck the borrower’s RPAPL 1304 affirmative defense, and issued an order of reference appointing a referee to compute.
Both December 12, 2023 orders granting summary judgment, striking the third affirmative defense, and appointing a referee.
The third motion was an improper successive motion for summary judgment because the plaintiff offered no newly discovered evidence or other sufficient cause; evidence is not ‘newly discovered’ merely because it was not submitted earlier.
Background
The plaintiff commenced a mortgage foreclosure action in 2015 against David A. Schwarz and others. In 2017, the plaintiff moved for summary judgment, to strike affirmative defenses (including noncompliance with RPAPL 1304), and for an order of reference. In 2018, the court struck most defenses but denied summary judgment, striking the RPAPL 1304 defense, and the order of reference, with leave to renew. The plaintiff renewed in 2018, and in 2020 the court again denied the renewed motion. In 2023, the plaintiff made a third motion seeking the same relief. On December 12, 2023, the Supreme Court granted that third motion and appointed a referee. The borrower appealed.
Lower Court Decision
The Supreme Court, Suffolk County (Martorana, J.), granted the plaintiff’s third motion for summary judgment, struck the borrower’s third affirmative defense alleging RPAPL 1304 noncompliance, and issued an order of reference appointing a referee to compute amounts due.
Appellate Division Reversal
The Appellate Division reversed both December 12, 2023 orders and denied the plaintiff’s third motion in its entirety. The court held that successive summary judgment motions are disfavored absent newly discovered evidence or other sufficient cause, which the plaintiff failed to show. In light of this disposition, the court did not reach the borrower’s remaining arguments. Costs were awarded to the appellant.
Legal Significance
Reaffirms that foreclosure plaintiffs may not cure deficiencies by serial summary judgment motions without demonstrating newly discovered evidence or sufficient cause. Evidence omitted from earlier motions does not become ‘newly discovered’ by later submission. Orders of reference premised on such improper successive motions will not stand.
In New York foreclosure actions, a third attempt at summary judgment will be denied—and any resulting order of reference reversed—absent truly newly discovered evidence or other sufficient cause.