New York Supreme Court, Kings County, 2024

Wells Fargo Bank, N.A. v. Oliveri

New York Supreme Court, Kings County · Decided July 11, 2024

2024 NY Slip Op 32434(U)

Opinion

Wells Fargo Bank, N.A. v Oliveri 2024 NY Slip Op 32434(U) July 11, 2024 Supreme Court, Kings County Docket Number: Index No. 514111/2015 Judge: Derefim B. Neckles 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: KINGS COUNTY CLERK 07/15/2024 02:45 PM INDEX NO. 514111/2015 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 07/15/2024

At an IAS Tenri, Part FRP-2 of the Supreme Court of the State of New York; held in and for the County of Kings,. at the Courthouse, at 360 Adams Street, Brooklyn, New York, 11201 on the 11 ih day of July, 2024.

PRESENT: HON. DEREFIM B. NECKLES, Acting Justice, - - - .- ·- - -· ·-. - - - - - - - - .- - - - - - - - .. - - - .. - - - ....- .- - - - - - - -.- -X WELLS FARGO BANK, N.A.

Plaintiff, -against- lndexNo. 514111/2015 PETER OLIVERI, AS EXECUTOR OF THE ESTATE OF JOSEPHINE CIANFLONE, JOSEPHINE CIANFLONE ..

OLIVERI, MORTGAGE ELECTRIC REGISTRATION SYSTEMS,INCASNOMINEE FOR OLD MERCHANT'S MORTGAGE, INC., D/B/A OMMB, NEW YORK STAIE DEPARTMENT .QFTAXATION AND FINANCE, NY FINANCIALS SERVICES LLC, CAPITAL ONE BANK (USA)NA, APEX TWO, INC., ASSOCIATES CONSUMER DISCOUNT COMPANY, INC.,lJNITED STATES OF AMERICA BYTHE INTERNAL REVENUE SERVICE,NEW YORK .

STATEDEPARTMENTOFTAXATION AND FINANCE, CITY OF NEW YORK PARKING VIOLATION BUREAU And JOHN DOE #1, Defendants. - - -. - -. - - - -· - - .. - - - ..... - " - -·"' - - ·- - '" - - - .. - -· - .. ·- ...... -·"- - .. -X The following e-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Affidavits (Affirmations) Annexed 17()'" 177 Opposition Affirmation to Motion to Reargue 178

Upon the foregoing papers in this proceeding, the defendant moves (under mot.

seq. 6) for an order to grant renewal and/or reargument of the defendant'. s prior order to show ca,µse, which was denied by this qourt in. an order dated Oct◊ber25 1 \ 2023. The prior order to show. cause sought to vacate (1) this court:: s July ·1~ 2 022 denial· of the defendant's cross-motion to vacatethe order for summary judgment and (2) the Judgment

1 of 4 [* 1] FILED: KINGS COUNTY CLERK 07/15/2024 02:45 PM INDEX NO. 514111/2015 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 07/15/2024 ofForeclosureand Sale dated July 5th, 2022 pursuant to CPLR §5016(d) and 1015(a).

The defendant alleges that the orders were made after the death of a necessary party, Peter Oliveri, the Executor of the Estate of Josephine Cianflone.

Background The defendant, Josephirte·Cianflone, passed away on June 22nd,.2012. As a result, Peter Oliveri (Oliveri), JosephineCianflone's son in-h1w, was appointed as executor of her estate. A foreclosure action was commenced by plain.tiff, Wells Fargo Bank N.A.; on . .

November 18 th, 2015 against the Estate of Josephine Cianflone.. Oliveri then passed away on November 27 th , 2020. This court issued an order dated March 8th , 2018, that ( 1) granted plaintiffs summary judgment, {2) Appointed a referee, and {3) granted plaintiffs de.faultjudgment On October lHh, 2019, the defendantcross-moved for and order to (l) to vacatethe court's March 8th Order, and (2) permitdefendantJosephi.ne Cianflone- Oliveri to interpose opposition. On July P\ 2022, this court denied defendant's cross- motion to vacate the order for summary judgment againstthe defendant. On October 25 th, 2023; this court similarly denied the defendant's motion to vacate the judgment of foreclosure and sale. Defendant Josephine Cianflone-Oliveri files this instant motion to reargue and/or renewal,pursuant to CPLR §2221, (l) the order dated October25 th ,2023, (2) to vacate Short form Order dated July 1st, 2022, and (3) to vacate the Judgment of Foreclosure and Sale dated July 5 th , 2022.

Disc11ssi()n (1) Motion to R~itew CPLR § 2221 (e) states that a motion to renew: ( 1} $hail be identified specifically

2 of 4 [* 2] FILED: KINGS COUNTY CLERK 07/15/2024 02:45 PM INDEX NO. 514111/2015 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 07/15/2024 as such, (2} Shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the priordetennination; and (3) Shall contain reasonable justification for the failure to present such facts on the priormotion. "A motion for leave to renew is. not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" Carmikc Holding I, LLC v. Smith, 120 N~Y.S.3d 141, 144 (2nd Dept. 2020).

Here, the defendant fails to present a reasonablejustificationfor failure to present such facts onthe prior motion. The defendantasserts that the. record does not show that defendant, Josephine Cianflone-Oliveri, holds the deed to the property. As a result, the defendant argues this fact would change the court's prior detennination. However, the defendant does not present a reasonable justification asto the failure of mentioning this fact in their prior motion; (2) Motion to Reargue CPLR §2221(d) provides that a motion forleave to reargue: (l) shall·beidentified specifically as such; (2}shallbe based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and (3) shall be made within thirty days after service ofa copy ofthe order determining the prior motion artd written notice of its entry; "While the. detennination to grant leave to re argue lies within the sound discretion of the court,,a motion for leave to reargue 'is riot designeci to prcwide art unsuccessful party with suocessive opportunities to .re argue issues .previously decided, or to present

3 of 4 [* 3] FILED: KINGS COUNTY CLERK 07/15/2024 02:45 PM INDEX NO. 514111/2015 NYSCEF DOC. NO. 179 RECEIVED NYSCEF: 07/15/2024 argument different from those originally presented." Degraw Constr. Group, Inc. v. McGowan Bldrs,, Inc., 1 U N.Y.S.3D 898,899 (2 nd D~p't 2019\ Here, the defendant has failed to establish that this court overlooked or misapprehended tnatters oflaw or fact in determining the prior order. The defendant asserts·thatOliveri was a necessary party·because he was the executor of the estate but did not tra.nsfer the property to anyone before his death. The defendant contends that the Judgment of Fore closure and Sale dated July 5th , 2022., was issued after Oliveri' s death, and before a new executor was appointed. As a result, the defendant moves to reargue because there was no executor of the estate before the judgment was rendered by the court. However, these Same facts and arguments were already addressed in the court's prior order dated October 25 th , 2023. Thus, the court did not overlook or misapprehend the facts presented by the defendant.

Accordingly, it is ORDERED that defendant's motion is denied in its entirety.

This constitutes the decision and order ofthe court.

ENTER,

HON~ DEREFIM B. NECKLES A.J. S, C. ·--·ttofr.11~•.~ieftffl~efJIN'.I.• ....... ~ .. ' : ' ' : ' ' ! " " ! ' ~ ~ i._,:J·.~: •, .•. . ·-.~-·.,:. ~~·-:· . -~· -~~ ·tt,i.',: ~- ·.,,. I • ~ ,.,....... ~ '1d -~ ',:,,i:\11')~ 7 I~

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Case-law data current through December 31, 2025. Source: CourtListener bulk data.