U.S. Bank, National Association v Zientek
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Attorneys and Parties
Brief Summary
Mortgage foreclosure procedure and whether a lender may renew a summary judgment request after an earlier appellate reversal, particularly where compliance with RPAPL 1304 [requires 90-day notices before foreclosure] had previously not been proven.
The Supreme Court, Suffolk County, granted the plaintiff summary judgment against Thomas Zientek, issued an order of reference, and denied Zientek's cross-motion for summary judgment dismissing the complaint.
The Appellate Division vacated the portions of the order granting the plaintiff summary judgment and an order of reference, but otherwise affirmed, including the denial of the defendant's cross-motion.
The plaintiff's second summary judgment motion was an improper successive motion because the plaintiff offered no newly discovered evidence and showed no sufficient cause for failing to present its proof earlier.
Background
The plaintiff began this Suffolk County mortgage foreclosure action in October 2012 against, among others, Thomas Zientek. In 2018, the Supreme Court granted the plaintiff summary judgment, struck the defendant's answer, and issued an order of reference. In 2021, the Appellate Division reversed those determinations insofar as appealed from because the plaintiff had failed to establish that it mailed the 90-day notices required by RPAPL 1304. In October 2023, the plaintiff moved again for summary judgment and an order of reference, this time relying on an affidavit from a document execution associate of Nationstar Mortgage, LLC, doing business as Mr. Cooper, the loan servicer, to show compliance with RPAPL 1304. The defendant opposed and cross-moved to dismiss, arguing both noncompliance with RPAPL 1304 and that the renewed summary judgment motion was improper.
Lower Court Decision
By order dated June 4, 2024, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against Thomas Zientek and for an order of reference, and denied the defendant's cross-motion for summary judgment dismissing the complaint insofar as asserted against him.
Appellate Division Reversal
The Appellate Division modified the order by deleting the provisions granting the plaintiff summary judgment and an order of reference and substituting provisions denying those branches of the motion. The court held that successive summary judgment motions generally should not be entertained absent newly discovered evidence or other sufficient cause, and that the plaintiff failed to submit evidence that could not have been produced on the earlier motion. Because the plaintiff's new proof on RPAPL 1304 could have been submitted previously, the renewed motion was improper. The denial of the defendant's cross-motion was left undisturbed.
Legal Significance
The decision reinforces New York's rule limiting successive summary judgment motions. A party cannot cure deficiencies identified in an earlier motion simply by submitting stronger evidence later, unless the new evidence was genuinely unavailable before or there is another sufficient justification. In foreclosure litigation, that rule applies even where the missing proof concerns statutory pre-foreclosure notice requirements under RPAPL 1304.
After losing summary judgment because required foreclosure notice proof was missing, a lender cannot file a second summary judgment motion with better evidence unless it shows the evidence is newly discovered or there is sufficient cause for not presenting it the first time.