U.S. Bank National Ass'n v. DLJ Mortgage Capital, Inc. , 146 A.D.3d 603 ( 2017 )

U.S. Bank N.A. v DLJ Mtge. Capital, Inc. (2017 NY Slip Op 00396)

U.S. Bank N.A. v DLJ Mtge. Capital, Inc.

2017 NY Slip Op 00396

Decided on January 19, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 19, 2017
Andrias, J.P., Saxe, Feinman, Gische, Kahn, JJ.

2790 653140/15

[*1]U.S. Bank National Association, solely in its capacity as Trustee of the Asset Backed Securities Corporation Home Equity Loan Trust, Series AMQ 21006-HE7 (ABSHE 2006-HE7), Plaintiff-Respondent,

v

DLJ Mortgage Capital, Inc., Defendant, Ameriquest Mortgage Company, Defendant-Appellant.

Knuckles, Komosinki & Manfro, LLP, Elmsford (John E. Brigandi of counsel), for appellant.

Kasowitz, Benson, Torres & Friedman, LLP, New York (Hector Torres of counsel), for respondent.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered on or about April 6, 2016, which, to the extent appealed from as limited by the briefs, denied defendant Ameriquest Mortgage Company's (Ameriquest) motion to dismiss the complaint, unanimously affirmed, with costs.

The heart of Ameriquest's appeal is premised on a provision of the parties' Mortgage Loan Purchase and Interim Servicing Agreement (MLPA) that was not raised before the motion court. Ameriquest contends that this provision, found in the fourth paragraph of Section 7.04 of the MLPA (the Notice Restriction Provision), bars plaintiff's claims because it purportedly required plaintiff to notify Ameriquest within 90 days of discovery of any breach of the representations and warranties found in that agreement, which plaintiff failed to do. On this basis, Ameriquest contends that the action should be dismissed.

We decline to consider Ameriquest's new theory, which is not a purely legal argument, and was waived due to Ameriquest's failure to raise it below (Facie Libre Assoc. I, LLC v SecondMarket Holdings, Inc., 103 AD3d 565 [1st Dept 2013], lv denied 21 NY3d 866 [2013]).

We have considered Ameriquest's remaining contentions, including the argument raised below that CPLR 205(a) is unavailable to plaintiff because the original action was a nullity by virtue of the plaintiff's failure to identify itself in the caption of the summons, and find them [*2]unavailing. We also find the bulk of Ameriquest's contentions to be at odds with our prior ruling in the earlier-filed prior action (U.S. Bank N.A. v DLJ Mtge. Capital, Inc., 141 AD3d 431 [1st Dept 2016]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2017

CLERK