Preview
FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017
NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE
CERTIFCATEHOLDERS OF MORGAN STANLEY ABS
CAPITAL I INC., TRUST 2005-WMC, MORTGAGE
PASS THROUGH CERTIFICATES, SERIES 2005-
WMC5, Index No.: 716943/2017
Plaintiff,
AFFIRMATION IN
-against- OPPOSITION TO
DEFENDANT’S MOTION TO
RONFAYZI INC., PEOPLE OF THE STATE OF NEW VACATE JUDGMENT
YORK, NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD, NEW YORK CITY TRANSIT
ADJUDICATION BOARD, NEW YORK CITY
DEPARTMENT OF FINANCE, JOHN DOE (Those
unknown tenants, occupants, persons or corporations or
their heirs, distributes, executors, administrators, trustees,
guardians, assignees, creditors or successors claiming an
interest in the mortgaged premises),
Defendants.
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TERENCE D. WATSON, an attorney duly admitted to practice in the State of New York,
pursuant to New York Civil Practice Law and Rules (“CPLR”) section 2106, and under the
penalty of perjury, affirms as follows:
1. I am an attorney with Fidelity National Law Group, co-counsel for Plaintiff,
Wells Fargo Bank, N.A., as Trustee, for the Certifcateholders of Morgan Stanley ABS Capital I
Inc., Trust 2005-WMC, Mortgage Pass Through Certificates, Series 2005-WMC5 (“Plaintiff”) in
the above captioned action (the “Action”).
2. I have knowledge of the facts set forth herein based upon a review of the files
maintained by my office, except those facts set forth upon information and belief, and as to those
facts, I believe them to be true.
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3. I respectfully submit this affirmation in opposition to the motion of defendant,
Almando Izquierdo (“Defendant”) (NYSCEF Doc. 81), to vacate the Court’s October 25, 2022
decision that granted summary judgment in Plaintiff’s favor (the “Motion”).
INTRODUCTION
4. This affirmation is limited to addressing the portion of the Motion that alleges that
“[t]he deed in this action was transferred to named Defendant by means of fraud.” (Motion at p.
5). This standalone allegation clearly lacks specificity, including with respect to which deed was
allegedly fraudulently transferred, and to which named defendant. To make matters worse,
however, Defendant previously alleged fraud in connection with the transactions at issue in this
Action, and more importantly, the Court has already determined that Plaintiff’s predecessor in
interest lacked any notice of any alleged fraud, was therefore a bona fide encumbrancer under
New York Real Property Law (“RPL”) section 266:
The Court also finds that Plaintiff’s submissions establish that its
predecessor in interest was a bona fide encumbrancer for value,
protected under RPL 266.
Decision, NYSCEF Doc. 77, at p. 3.
5. Defendant’s Motion does not include any specific or additional allegations
concerning any alleged fraud. Consequently, the result should remain the same that Plaintiff’s
predecessor was a bona fide encumbrancer for value without any notice of any alleged fraud.
This conclusion is now the law of the case.
6. Accordingly, the Motion should be denied in this regard because Defendant had a
full and fair opportunity to show that Plaintiff’s predecessor had notice of the alleged fraud, but
failed to do so.
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RELEVANT BACKGROUND
7. As set forth in Plaintiff’s Summary Judgment Motion (NYSCEF Docs. 33-57; 66-
74), Merline McDowell a/k/a Merlene McDowell (“Merline McDowell”) acquired title to real
property located at 177-26 Ursina Road, St. Albans, New York 11434 (Block 12484, Lot 105)
(the “Property”) by deed dated November 14, 1974 and recorded in the Office of the City
Register of the City of New York, Queens County on November 25, 1974 at Reel 801, Page
1116.
8. By deed dated February 17, 2005, and recorded on April 15, 2006 at
CRFN2005000220495 (the “Deed”), Merline McDowell conveyed the Property to her brother,
Walter McDowell II (“Walter McDowell”) and to herself, “as Joint Tenants with Rights of
Survivorship.”
9. Merline McDowell’s signature on the Deed is notarized, and in this regard, CPLR
§ 4538 provides that:
Certification of the acknowledgment or proof of a writing, except a
will, in the manner prescribed by law for taking and certifying the
acknowledgment or proof of a conveyance of real property within the
state is prima facie evidence that it was executed by the person who
purported to do so. A conveyance of real property, situated within
another state, territory or jurisdiction of the United States, which has
been duly authenticated, according to the laws of that state, territory
or jurisdiction, so as to be read in evidence in the courts thereof, is
admissible in evidence in the state.
(Emphasis added).
10. In accordance with CPLR § 4538, the Second Department has repeatedly held that
an acknowledged signature is prima facie evidence that it was executed by the person who
purported to do so, absent a handwriting expert or a disinterested witness with personal
knowledge to establish otherwise. See Clark v. Mortgage Services Unlimited, 78 A.D.3d 1104
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(2d Dep't 2010).
PROCEDURAL HISTORY
11. The Action was commenced with the filing of a summons, complaint (the
“Complaint”), notice of pendency and certificate of merit on December 6, 2017 (NYSCEF Doc.
Nos. 1-4). The Complaint seeks, inter alia, to foreclose on the Mortgage. Id.
12. On January 22, 2018, Defendant filed a verified answer to the Complaint (the
“Answer”), which generally alleged fraud:
[t]he transfer of ownership from Merline McDowell to Merline
McDowell and Walter McDowell, II as joint tenants with the rights
of survivorship was obtained through fraudulent means through the
use of a power of attorney that was fraudulently obtained while
Merline McDowell was hospitalized. Thus the subject mortgage
that Walter McDowell, II obtained using this power of attorney
was obtained under fraudulent means. Likewise, the conveyance
of the subject property to Ronfayze, Inc. was done through
fraudulent means because Walter McDowell, II did not have legal
authority to transfer the property.
See Answer (NYSCEF Doc. 26).
Plaintiff’s Summary Judgment Motion
13. On December 22, 2020, Plaintiff moved for the entry of summary judgment, order
of reference and ancillary relief (NYSCEF Docs. 33-57) (the “Summary Judgment Motion”). In
this regard, Plaintiff specifically and directly asserted that its predecessor in interest was a bona
fide encumbrancer under RPL § 266. See e.g., NYSCEF Doc. 50 at ¶¶ 39-56 (“[c]onsequently,
Plaintiff’s predecessor in interest was a bona fide encumbrancer for value, and as a result, the
Mortgage is protected under RPL § 266 and the [Summary Judgment] Motion should be granted
on this basis alone”).
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14. Defendant filed an opposition to the Summary Judgment Motion on March 18,
2022 (NYSCEF Doc. 64), and Plaintiff filed a reply in further support of the Summary Judgment
Motion on June 3, 2022. (NYSCEF Docs. 66-74).
The Decision
15. Following oral argument held on May 18, 2022, the Court entered the Decision on
October 25, 2022, which granted the Summary Judgment Motion in Plaintiff’s favor. See
Decision, NYSCEF Doc. 77.
16. In particular, the Court determined that Plaintiff’s predecessor in interest lacked
any notice of any alleged fraud, and was therefore a bona fide encumbrancer under RPL § 266:
The Court also finds that Plaintiff’s submissions establish that its
predecessor in interest was a bona fide encumbrancer for value,
protected under RPL 266.
Decision, NYSCEF Doc. 77, at p. 3.
17. Notice of entry of the Decision was filed and served on October 26, 2022. See
NYSCEF Doc. 78.
18. No appeal was filed with respect to the Decision, and the time to do so has
expired. CPLR § 5513. Instead, Defendant filed the Motion, which should be denied in its
entirety.
ARGUMENT
Defendant is precluded from challenging the Court’s determination
that Plaintiff’s predecessor is a bona fide encumbrancer under RPL § 266
19. A bona fide encumbrancer for value “is protected in its title unless it had
previous notice of a fraud nullifying the title of its grantor.” Fleming-Jackson v. Fleming, 41
A.D.3d 175, 176, 838 N.Y.S.2d 506 (1st Dept. 2007). Accordingly, where a party seeking to
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vacate or subordinate a mortgage on the basis of fraud, but does not, or cannot allege that the
mortgagee participated in, knew of, or should have known of the fraud, that party’s claim should
be dismissed. Merritt v. Merritt, 47 A.D.3d 689, 849 N.Y.S.2d 888 (2d Dept. 2008) (allegedly
defrauded owner’s claims dismissed where she “failed to allege any facts that the defendants
[mortgagees] were on notice of the fraud allegedly committed by the plaintiff’s son Travis
Merritt so as to deprive [them] of the status of good faith encumbrancer for value”).
20. Defendant had a full and fair opportunity to satisfy his burden of proof in this
regard, but failed to do so. See Decision. Consequently, Defendant is precluded from re-
litigating this issue for the following reasons.
Law of the case
21. The Court’s determination that Plaintiff’s predecessor in interest lacked any
notice of any alleged fraud, and was therefore a bona fide encumbrancer under RPL § 266, is
now the law of the case. See Matter of Oyster Bay Assoc. Ltd. Partnership v. Town Bd. of Town
of Oyster Bay, 21 AD3d 964, 966 (2d Dep’t 2005) (“the law of the case doctrine is a rule of
practice, an articulation of sound policy that, when an issue is once judicially determined, that
should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are
concerned”).
Res Judicata
22. “Under the doctrine of res judicata, a final adjudication of a claim on the merits
precludes relitigation of that claim and all claims arising out of the same transaction or series of
transactions by a party or those in privity with a party.” Ciraldo v. JP Morgan Chase Bank,
N.A., 140 A.D. 3d 912, 913 (2d Dep’t 2016) citing Djoganopoulos v. Polkes, 67 A.D.3d 726 (2d
Dep’t 2009); Sclafani v. Story Book Homes, Inc., 294 A.D.2d 559, 560 (2d Dep’t 2002). “Res
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judicata is designed to provide finality in the resolution of disputes to assure that parties may not
be vexed by further litigation.” Reilly v. Reid, 45 N.Y.2d 24, 28 (1978).
23. Indeed, “[t]he policy against relitigation of adjudicated disputes is strong enough
generally to bar a second action even where further investigation of the law or facts indicates that
the controversy has been erroneously decided, whether due to oversight by the parties or error by
the courts.” Reilly, 45 N.Y.2d at 28 (1978) (emphasis added). “Considerations of judicial
economy as well as fairness to the parties mandate, at some point, an end to litigation.
Afterthoughts or after discoveries however understandable and morally forgivable are generally
not enough to create a right to litigate anew.” Id.
Collateral Estoppel
24. The doctrine of collateral estoppel bars relitigation of an issue which has
necessarily been decided in a prior action and is determinative of the issues disputed in the
present action, provided that there was a full and fair opportunity to contest the decision now
alleged to be controlling. Mahler v. Campagna, 60 A.D.3d 1009, 1011 (2d Dep’t 2009); see also
Sclafani v. Story Book Homes, Inc., 294 A.D.2d 559, 560 (2d Dep’t 2002) (“[t]he doctrine of
collateral estoppel precludes a party from relitigating an issue identical to one previously raised
and necessarily decided in another action, provided the party had a full and fair opportunity to
litigate the issue”).
25. Defendant filed an opposition to the Summary Judgment Motion (NYSCEF Doc.
64), and appeared at the oral argument on the motion. Consequently, Defendant had a full and
fair opportunity to satisfy his burden of proving that Plaintiff’s predecessor in interest had notice
of any alleged fraud. See Maiorano v. Garson, 65 A.D.3d 1300, 886 N.Y.S.2d 190 (2d Dep’t
2009). The Court’s determination, however, that Plaintiff’s predecessor in interest lacked any
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notice of any alleged fraud, and was therefore a bona fide encumbrancer under RPL § 266,
confirms that Defendant failed to satisfy his burden of proof in this regard.
26. Nevertheless, Defendant has provided no legal or factual basis to justify his
current attempt to re-litigate this issue at this late juncture of the proceedings, ostensibly in the
context of a motion challenging service of process.
27. Accordingly, the Motion should be denied in this regard because Defendant had a
full and fair opportunity to show that Plaintiff’s predecessor had notice of the alleged fraud, but
failed to do so. Indeed, Defendant has already acknowledged that the Mortgage is valid:
Q. I just want to clarify one thing. You testified earlier that
the mortgage loan is valid; correct?
A. Yes.
See Transcript of January 16, 2019 Deposition of Defendant (NYSCEF Doc. 51) at Tr.121:8-11.
CONCLUSION
WHEREFORE, Plaintiff respectfully requests the entry of an Order denying the Motion,
and granting Plaintiff such other relief the Court deems equitable and just.
Dated: New York, New York
December 6, 2022
/s/ Terence D. Watson
TERENCE D. WATSON
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Preview
FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------------------X WELLS FARGO BANK, N.A., AS TRUSTEE, FOR THE CERTIFCATEHOLDERS OF MORGAN STANLEY ABS CAPITAL I INC., TRUST 2005-WMC, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2005- WMC5, Index No.: 716943/2017 Plaintiff, AFFIRMATION IN -against- OPPOSITION TO DEFENDANT’S MOTION TO RONFAYZI INC., PEOPLE OF THE STATE OF NEW VACATE JUDGMENT YORK, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BOARD, NEW YORK CITY DEPARTMENT OF FINANCE, JOHN DOE (Those unknown tenants, occupants, persons or corporations or their heirs, distributes, executors, administrators, trustees, guardians, assignees, creditors or successors claiming an interest in the mortgaged premises), Defendants. ----------------------------------------------------------------------X TERENCE D. WATSON, an attorney duly admitted to practice in the State of New York, pursuant to New York Civil Practice Law and Rules (“CPLR”) section 2106, and under the penalty of perjury, affirms as follows: 1. I am an attorney with Fidelity National Law Group, co-counsel for Plaintiff, Wells Fargo Bank, N.A., as Trustee, for the Certifcateholders of Morgan Stanley ABS Capital I Inc., Trust 2005-WMC, Mortgage Pass Through Certificates, Series 2005-WMC5 (“Plaintiff”) in the above captioned action (the “Action”). 2. I have knowledge of the facts set forth herein based upon a review of the files maintained by my office, except those facts set forth upon information and belief, and as to those facts, I believe them to be true. 1 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 3. I respectfully submit this affirmation in opposition to the motion of defendant, Almando Izquierdo (“Defendant”) (NYSCEF Doc. 81), to vacate the Court’s October 25, 2022 decision that granted summary judgment in Plaintiff’s favor (the “Motion”). INTRODUCTION 4. This affirmation is limited to addressing the portion of the Motion that alleges that “[t]he deed in this action was transferred to named Defendant by means of fraud.” (Motion at p. 5). This standalone allegation clearly lacks specificity, including with respect to which deed was allegedly fraudulently transferred, and to which named defendant. To make matters worse, however, Defendant previously alleged fraud in connection with the transactions at issue in this Action, and more importantly, the Court has already determined that Plaintiff’s predecessor in interest lacked any notice of any alleged fraud, was therefore a bona fide encumbrancer under New York Real Property Law (“RPL”) section 266: The Court also finds that Plaintiff’s submissions establish that its predecessor in interest was a bona fide encumbrancer for value, protected under RPL 266. Decision, NYSCEF Doc. 77, at p. 3. 5. Defendant’s Motion does not include any specific or additional allegations concerning any alleged fraud. Consequently, the result should remain the same that Plaintiff’s predecessor was a bona fide encumbrancer for value without any notice of any alleged fraud. This conclusion is now the law of the case. 6. Accordingly, the Motion should be denied in this regard because Defendant had a full and fair opportunity to show that Plaintiff’s predecessor had notice of the alleged fraud, but failed to do so. 2 2 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 RELEVANT BACKGROUND 7. As set forth in Plaintiff’s Summary Judgment Motion (NYSCEF Docs. 33-57; 66- 74), Merline McDowell a/k/a Merlene McDowell (“Merline McDowell”) acquired title to real property located at 177-26 Ursina Road, St. Albans, New York 11434 (Block 12484, Lot 105) (the “Property”) by deed dated November 14, 1974 and recorded in the Office of the City Register of the City of New York, Queens County on November 25, 1974 at Reel 801, Page 1116. 8. By deed dated February 17, 2005, and recorded on April 15, 2006 at CRFN2005000220495 (the “Deed”), Merline McDowell conveyed the Property to her brother, Walter McDowell II (“Walter McDowell”) and to herself, “as Joint Tenants with Rights of Survivorship.” 9. Merline McDowell’s signature on the Deed is notarized, and in this regard, CPLR § 4538 provides that: Certification of the acknowledgment or proof of a writing, except a will, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so. A conveyance of real property, situated within another state, territory or jurisdiction of the United States, which has been duly authenticated, according to the laws of that state, territory or jurisdiction, so as to be read in evidence in the courts thereof, is admissible in evidence in the state. (Emphasis added). 10. In accordance with CPLR § 4538, the Second Department has repeatedly held that an acknowledged signature is prima facie evidence that it was executed by the person who purported to do so, absent a handwriting expert or a disinterested witness with personal knowledge to establish otherwise. See Clark v. Mortgage Services Unlimited, 78 A.D.3d 1104 3 3 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 (2d Dep't 2010). PROCEDURAL HISTORY 11. The Action was commenced with the filing of a summons, complaint (the “Complaint”), notice of pendency and certificate of merit on December 6, 2017 (NYSCEF Doc. Nos. 1-4). The Complaint seeks, inter alia, to foreclose on the Mortgage. Id. 12. On January 22, 2018, Defendant filed a verified answer to the Complaint (the “Answer”), which generally alleged fraud: [t]he transfer of ownership from Merline McDowell to Merline McDowell and Walter McDowell, II as joint tenants with the rights of survivorship was obtained through fraudulent means through the use of a power of attorney that was fraudulently obtained while Merline McDowell was hospitalized. Thus the subject mortgage that Walter McDowell, II obtained using this power of attorney was obtained under fraudulent means. Likewise, the conveyance of the subject property to Ronfayze, Inc. was done through fraudulent means because Walter McDowell, II did not have legal authority to transfer the property. See Answer (NYSCEF Doc. 26). Plaintiff’s Summary Judgment Motion 13. On December 22, 2020, Plaintiff moved for the entry of summary judgment, order of reference and ancillary relief (NYSCEF Docs. 33-57) (the “Summary Judgment Motion”). In this regard, Plaintiff specifically and directly asserted that its predecessor in interest was a bona fide encumbrancer under RPL § 266. See e.g., NYSCEF Doc. 50 at ¶¶ 39-56 (“[c]onsequently, Plaintiff’s predecessor in interest was a bona fide encumbrancer for value, and as a result, the Mortgage is protected under RPL § 266 and the [Summary Judgment] Motion should be granted on this basis alone”). 4 4 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 14. Defendant filed an opposition to the Summary Judgment Motion on March 18, 2022 (NYSCEF Doc. 64), and Plaintiff filed a reply in further support of the Summary Judgment Motion on June 3, 2022. (NYSCEF Docs. 66-74). The Decision 15. Following oral argument held on May 18, 2022, the Court entered the Decision on October 25, 2022, which granted the Summary Judgment Motion in Plaintiff’s favor. See Decision, NYSCEF Doc. 77. 16. In particular, the Court determined that Plaintiff’s predecessor in interest lacked any notice of any alleged fraud, and was therefore a bona fide encumbrancer under RPL § 266: The Court also finds that Plaintiff’s submissions establish that its predecessor in interest was a bona fide encumbrancer for value, protected under RPL 266. Decision, NYSCEF Doc. 77, at p. 3. 17. Notice of entry of the Decision was filed and served on October 26, 2022. See NYSCEF Doc. 78. 18. No appeal was filed with respect to the Decision, and the time to do so has expired. CPLR § 5513. Instead, Defendant filed the Motion, which should be denied in its entirety. ARGUMENT Defendant is precluded from challenging the Court’s determination that Plaintiff’s predecessor is a bona fide encumbrancer under RPL § 266 19. A bona fide encumbrancer for value “is protected in its title unless it had previous notice of a fraud nullifying the title of its grantor.” Fleming-Jackson v. Fleming, 41 A.D.3d 175, 176, 838 N.Y.S.2d 506 (1st Dept. 2007). Accordingly, where a party seeking to 5 5 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 vacate or subordinate a mortgage on the basis of fraud, but does not, or cannot allege that the mortgagee participated in, knew of, or should have known of the fraud, that party’s claim should be dismissed. Merritt v. Merritt, 47 A.D.3d 689, 849 N.Y.S.2d 888 (2d Dept. 2008) (allegedly defrauded owner’s claims dismissed where she “failed to allege any facts that the defendants [mortgagees] were on notice of the fraud allegedly committed by the plaintiff’s son Travis Merritt so as to deprive [them] of the status of good faith encumbrancer for value”). 20. Defendant had a full and fair opportunity to satisfy his burden of proof in this regard, but failed to do so. See Decision. Consequently, Defendant is precluded from re- litigating this issue for the following reasons. Law of the case 21. The Court’s determination that Plaintiff’s predecessor in interest lacked any notice of any alleged fraud, and was therefore a bona fide encumbrancer under RPL § 266, is now the law of the case. See Matter of Oyster Bay Assoc. Ltd. Partnership v. Town Bd. of Town of Oyster Bay, 21 AD3d 964, 966 (2d Dep’t 2005) (“the law of the case doctrine is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned”). Res Judicata 22. “Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party.” Ciraldo v. JP Morgan Chase Bank, N.A., 140 A.D. 3d 912, 913 (2d Dep’t 2016) citing Djoganopoulos v. Polkes, 67 A.D.3d 726 (2d Dep’t 2009); Sclafani v. Story Book Homes, Inc., 294 A.D.2d 559, 560 (2d Dep’t 2002). “Res 6 6 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 judicata is designed to provide finality in the resolution of disputes to assure that parties may not be vexed by further litigation.” Reilly v. Reid, 45 N.Y.2d 24, 28 (1978). 23. Indeed, “[t]he policy against relitigation of adjudicated disputes is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts.” Reilly, 45 N.Y.2d at 28 (1978) (emphasis added). “Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation. Afterthoughts or after discoveries however understandable and morally forgivable are generally not enough to create a right to litigate anew.” Id. Collateral Estoppel 24. The doctrine of collateral estoppel bars relitigation of an issue which has necessarily been decided in a prior action and is determinative of the issues disputed in the present action, provided that there was a full and fair opportunity to contest the decision now alleged to be controlling. Mahler v. Campagna, 60 A.D.3d 1009, 1011 (2d Dep’t 2009); see also Sclafani v. Story Book Homes, Inc., 294 A.D.2d 559, 560 (2d Dep’t 2002) (“[t]he doctrine of collateral estoppel precludes a party from relitigating an issue identical to one previously raised and necessarily decided in another action, provided the party had a full and fair opportunity to litigate the issue”). 25. Defendant filed an opposition to the Summary Judgment Motion (NYSCEF Doc. 64), and appeared at the oral argument on the motion. Consequently, Defendant had a full and fair opportunity to satisfy his burden of proving that Plaintiff’s predecessor in interest had notice of any alleged fraud. See Maiorano v. Garson, 65 A.D.3d 1300, 886 N.Y.S.2d 190 (2d Dep’t 2009). The Court’s determination, however, that Plaintiff’s predecessor in interest lacked any 7 7 of 8 FILED: QUEENS COUNTY CLERK 12/06/2022 01:16 PM INDEX NO. 716943/2017 NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 12/06/2022 notice of any alleged fraud, and was therefore a bona fide encumbrancer under RPL § 266, confirms that Defendant failed to satisfy his burden of proof in this regard. 26. Nevertheless, Defendant has provided no legal or factual basis to justify his current attempt to re-litigate this issue at this late juncture of the proceedings, ostensibly in the context of a motion challenging service of process. 27. Accordingly, the Motion should be denied in this regard because Defendant had a full and fair opportunity to show that Plaintiff’s predecessor had notice of the alleged fraud, but failed to do so. Indeed, Defendant has already acknowledged that the Mortgage is valid: Q. I just want to clarify one thing. You testified earlier that the mortgage loan is valid; correct? A. Yes. See Transcript of January 16, 2019 Deposition of Defendant (NYSCEF Doc. 51) at Tr.121:8-11. CONCLUSION WHEREFORE, Plaintiff respectfully requests the entry of an Order denying the Motion, and granting Plaintiff such other relief the Court deems equitable and just. Dated: New York, New York December 6, 2022 /s/ Terence D. Watson TERENCE D. WATSON 8 8 of 8