

Emigrant Mtge. Co., Inc. v Lifshitz (2016 NY Slip Op 06676)





Emigrant Mtge. Co., Inc. v Lifshitz


2016 NY Slip Op 06676


Decided on October 12, 2016


Appellate Division, Second 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 October 12, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RUTH C. BALKIN, J.P.
THOMAS A. DICKERSON
JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.


2015-10824
 (Index No. 10272/09)

[*1]Emigrant Mortgage Company, Inc., appellant,
vYosef Y. Lifshitz, also known as Yoseph Lifshitz, respondent, et al., defendants.


Borchert & LaSpina, P.C.,White Plains, NY (Helmut Borchert, Robert W. Frommer, Edward A. Vincent, and Jason P. Sackoor of counsel), for appellant.
Tedd Blecher, New York, NY, for respondent.

DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Lewis, J.), dated August 18, 2015, which denied its motion to confirm the report of a referee and for leave to enter a judgment of foreclosure and sale.
ORDERED that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in declining to apply the doctrine of law of the case and in reconsidering the issue of whether RPAPL 1304 was applicable to the loan in this case (see National Mtge. Consultants v Elizaitis, 23 AD3d 630, 630; see generally People v Evans, 94 NY2d 499, 503; Matter of Mazur Bros. Realty, LLC v State of New York, 117 AD3d 949, 952). Moreover, the court did not improvidently exercise its discretion in considering the evidence belatedly submitted by the respondent. The court gave the plaintiff a full opportunity to respond to and submit further evidence addressing that evidence (see Citimortgage, Inc. v Espinal, 134 AD3d 876, 879-880; Gluck v New York City Tr. Auth., 118 AD3d 667, 668).
Finally, the Supreme Court properly denied the plaintiff's motion in light of the outstanding issues of fact as to whether RPAPL 1304 was applicable to the loan in this case and, if RPAPL 1304 notice was required, whether it was properly and timely sent (see JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536, 537).
BALKIN, J.P., DICKERSON, COHEN and BRATHWAITE NELSON, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


