Merino v. Wells Fargo Bank, N.A.

Merino v Wells Fargo Bank, N.A. (2021 NY Slip Op 03666)

Merino v Wells Fargo Bank, N.A.

2021 NY Slip Op 03666

Decided on June 10, 2021

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 and Entered: June 10, 2021
Before: Manzanet-Daniels, J.P., Gische, Oing, Shulman, JJ.

Index No. 33011/19 Appeal No. 14043 Case No. 2021-00363

[*1]Reyes Merino, Plaintiff-Appellant,

v

Wells Fargo Bank, N.A., Defendant-Respondent.

Petroff Amshen LLP, Brooklyn (James Tierney of counsel), for appellant.

Reed Smith LLP, New York (Michael V. Margarella of counsel), for respondent.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered on or about August 19, 2020, which granted defendant Wells Fargo's motion to dismiss the complaint, unanimously affirmed, without costs.

This Court's June 11, 2019 dismissal of Wells Fargo's prior, 2013 foreclosure action on RPAPL 1304 grounds triggered the six-month grace period provided by CPLR 205(a) (173 AD3d 491 [1st Dept 2019]; see CitiMortgage, Inc. v Moran, 188 AD3d 407, 408 [1st Dept 2020]). Wells Fargo's subsequent motion in that action to dismiss an already dismissed case should have been denied, as "termination" of the prior action occurred when any appeal was exhausted (Lehman Bros. v Hughes Hubbard & Reed, 92 NY2d 1014, 1016-1017 [1998]; see Matter of Arnold v New York State Div. of Human Rights, 110 AD3d 466, 466 [1st Dept 2013]; Black v Randall Med. Offs., 237 AD2d 110, 111 [1st Dept 1997]).

Supreme Court properly found that Wells Fargo timely refiled the 2019 foreclosure action pursuant to CPLR 205(a) on October 14, 2019, and since the action was timely commenced, Merino was barred from bringing this action to quiet title under RPAPL 1501(4).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: June 10, 2021