Reverse Mortgage Funding, LLC v. King
Attorneys and Parties
Brief Summary
Foreclosure of a reverse mortgage; standards for motions to reargue and renew; sufficiency of business records affidavits to establish standing and entitlement to summary judgment.
The Supreme Court granted the plaintiff leave to reargue and renew its prior summary judgment motion and, upon renewal and reargument, granted summary judgment, dismissed the defendant’s standing defense, and issued an order of reference.
The Appellate Division reversed the grant of leave to reargue and renew and the resultant grant of summary judgment, and reinstated the earlier order denying those branches of the plaintiff’s motion.
The plaintiff failed to show that the court overlooked or misapprehended facts or law under New York Civil Practice Law and Rules (CPLR) 2221(d)(2) [reargument must be based on matters overlooked or misapprehended and cannot include new facts], and failed to provide a reasonable justification for new facts under CPLR 2221(e)(2), (e)(3) [renewal requires new facts that would change the prior determination and a reasonable justification for not presenting them earlier]. The argument for entertaining a second summary judgment motion was raised for the first time on appeal and was not considered.
Background
In 2010, the borrower executed a fixed-rate home equity conversion note and reverse mortgage on property in West Babylon. After the borrower's death, the plaintiff commenced a 2017 foreclosure action against, among others, Michael C. King, the administrator of the estate. The plaintiff moved for summary judgment, relying on an affidavit from a Celink employee to establish standing and default. The trial court initially denied summary judgment for lack of a proper business records foundation. The plaintiff then sought renewal and reargument, submitting a new affidavit from a different Celink employee to cure the evidentiary deficiencies.
Lower Court Decision
By order dated December 12, 2023, the Supreme Court granted leave to renew and reargue, vacated its June 15, 2023 denial, and granted summary judgment to the plaintiff, dismissing the defendant’s twelfth affirmative defense (lack of standing) and issuing an order of reference.
Appellate Division Reversal
The Appellate Division held that reargument was improper because the plaintiff did not identify any facts or law the court overlooked or misapprehended and instead relied on new materials; renewal was improper because the plaintiff offered no reasonable justification for failing to present the new affidavit and facts in its original motion. The court therefore denied leave to renew and reargue and reinstated the June 15, 2023 order denying summary judgment, dismissal of the standing defense, and an order of reference.
Legal Significance
The decision reinforces strict compliance with CPLR 2221 for motions to reargue and renew and underscores that foreclosure plaintiffs cannot cure evidentiary defects in business records affidavits on renewal absent a reasonable justification for not presenting the necessary proof initially. Arguments for a second summary judgment motion must be preserved in the trial court.
To cure deficiencies in a foreclosure summary judgment motion, a plaintiff must satisfy CPLR 2221 by showing either overlooked matters for reargument or new facts with a reasonable justification for renewal; simply supplying a better affidavit later is insufficient, and previously denied summary judgment will be reinstated.