Defendant Frankel, Lambert, Weiss, Weissman & Gordon LLP s/h/a Frankel Lambert Weiss, Weissman & Gordon, LLP (Frankel et al) move for an Order Pursuant to CPLR §3211 (a) (5) on the ground of res judicata and collateral estoppel, CPLR §3211 (a) (1), to dismiss the Complaint on the ground that a defense has been found upon documentary evidence and pursuant to CPLR §3211 (a) (7) on the ground that the complaint fails to state a cause of action against the Defendant. PROCEDURAL HISTORY Plaintiff Sylvia C. Simmons executed a note and security agreement as a borrower, dated January 26, 2007 in the sum of $218,875.00. This security agreement was in favor of Franklin First Financial Ltd., which was secured by 517 shares of stock of 175-20 Wexford Terrace Owners, Inc., owners of Plaintiffs cooperative apartment known as 175-20 Wexford Terrace, Apt. 14S, Jamaica, NY. The UCC 1, evidencing the lien in favor of Franklin First Financial Ltd, was recorded on January 22, 2007 in CRFN: 2007000038804. The lien was thereafter assigned by a UCC3 to Bank of America, N.A. s/b/m BAC Home Loans Servicing LP f/k/a Countrywide Home Loan Services which was recorded on January 17, 2012 in CRFN: 2012000019566. The lien was further assigned to Federal National Mortgage Association (hereinafter “FNMA”) by a UCC3 recorded on May 27, 2016 in CRFN: 2016000181807. The Plaintiff Sylvia C. Simmons defaulted upon the loan by failing to remit payments under the terms of the note and security agreement from August 1, 2009 and all subsequent payments. Defendant Frankel Lambert was retained by Seterus Inc. as servicing agent for FNMA to initiate a non-judicial foreclosure, pursuant to the Uniform Commercial Code Article 9, on behalf of FNMA, to foreclose upon the shares owned by the Plaintiff pursuant to the terms of the note and security agreement. The sale of Plaintiffs shares was held on July 1, 2016. The Plaintiff was served with notice of the auction. The shares of stock were sold to a third party purchaser, Botia Plotch, for the sum of $93,701.00. On or about August 16, 2018, Plaintiff served Defendant with a Summons and Complaint filed by the Plaintiff under index number 5371/18. Defendant filed a motion to dismiss the complaint for failure to state a cause of action. Plaintiff thereafter file two Orders to Show Cause to stay the eviction proceeding that was commenced in Queens District Court entitled ‘Batia Plotch v. Sylvia Simmons’ under Index No. LT 62154/18. The Orders to Show cause were denied and the Motion to Dismiss was granted by Decision dated February 14, 2019 and March 7, 2019. The Order with Notice of Entry was served on March 19, 2019. Thereafter, Plaintiff served Defendant with a Summons and Complaint under the instant Index Number 2001/19 and Order to Show Cause. Plaintiff asserts that Defendant, Frankel Lambert, conspired to illegally sell the shares to her cooperative apartment as there is no record of an assignment into FNMA which would authorize FNMA to foreclose on its lien. Defendant asserts that the instant action is based upon the same allegations asserted in Plaintiff’s first action for the identical relief requested. Oral argument for the Order to Show Cause was held on May 2, 2019 before this Court. Plaintiff failed to appear and the Court marked the Order to Show Cause off the calendar with prejudice. STATUTORY AUTHORITY AND APPLICABLE CASE LAW On a motion to dismiss pursuant to CPLR §3211, the role of the court is determine if the facts as alleged fit within any cognizable legal theory. See Foley v. D’ Agostino, 21 A.D.2d. 60, 248 N.Y.S.2d. 121 (2nd d Dept 1964). Additionally, the complaint will be declared legally sufficient if the court determines that Plaintiff would be entitled to relief on any reasonable view of the facts stated. See Campaign for Fiscal Equity, Inc. v. State of New York. et aI., 86 NY2d 307, 29 AD3d 175 (1995). A motion to dismiss pursuant to CPLR §32l1 (a)(1) should be granted when the documentary evidence conclusively refutes plaintiffs factual allegations. Leon v. Martinez, 84 N.Y.2nd 83, 88 (1994); See further Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314 (2002). Additionally, the documentary evidence must be such that it resolves all factual issue as a matter of law and conclusively disposes the plaintiffs claim. AG Cap Funding Partners, L.P. v. State Street Bank and Trust Co.5 NY3d 582, 590-591, 842 N.E.2d 471,808 NYS2nd 573 (2005). Furthermore, a motion to dismiss must be granted on documentary evidence as long as the documents alone dispose of the Plaintiffs claims. Rabos v. R&R Bagels & Bakery, Inc. 100 AD3d 849 (2012). On a motion to dismiss for failure to state a cause of action, the court accepts facts alleged in the complaint as true and provides the plaintiff the benefit of every possible favorable inference, however, claims consisting of bare legal conclusions are not entitled to such consideration. Connaughton v. Chipolte Mexican Grill, Inc., 29 N.Y.3d 137,53 N.Y.S.3d 598, 75 N.E.2d 1159 (2017). Also, a dismissal is warranted if it can be shown that a material fact as claimed by the plaintiff is not fact at all and that no significant dispute exists regarding it. See Guggenheimer v. Ginzburg, 43 N.Y.2d. 268, 275, 401 N.Y.S2d 182 (1977). Plaintiffs complaint is further barred by the doctrine of res judicata and collateral estoppel. The Order denying the plaintiffs Orders to Show Cause and dismissing the Plaintiffs complaint is entitled to res judicata and collateral estoppel effect. The collateral estoppel doctrine prohibits a party from re-litigating an issue which said party has already had a full opportunity to litigate. See Schwartz v. Public Administrator, 24 N.Y.2d 65, 69 (1969). Even a judgment by default or by consent, is subject to the doctrine of collateral estoppel. See Walston & Co. v. Klein, 44 Misc.2d 607, 254 N.Y.S.2d 734. Furthermore, collateral estoppel has two requirements: one, that the identical issue was decided in the prior action and is decisive in the present action and second, that the party to be precluded from re-litigating this identical issue must have had full and fair opportunity to contest the prior action. See Mahl v. Citibank, 234 A.D.2d. 348, 651 N. Y.S.2d. 543 (2nd Dept. 1996). ANALYSIS In the case at bar, it is clear that the Plaintiff is attempting to re-litigate her action which was dismissed by order in March 2019. Love, J. The Plaintiff claims in her complaint that FNMA was not assigned the lien, therefore, FNMA had no interest in the shares and Defendant Frenkel Lambert did not have authority to proceed with the auction. FNMA was assigned the lien and a UCC3 assignment was recorded on May 27, 2016 in CRFN: 2016000181807. The Plaintiff claims that the foreclosure auction never occurred as there is no record of the auction being held. However, it is clear that the auction was scheduled for July 1, 2016 and the shares were sold to Botia Plotch, as shown in the terms of sale. Based on the documentary evidence provided by the Defendant, FNMA was not only assigned the lien by a properly recorded UCC3, but Seterus, Inc. had the authority to refer the matter to Frankel Lambert for foreclosure and Frankel Lambert had the authority to proceed with the auction. The auction was, in fact, held and the Plaintiffs shares were sold. The documentary evidence provided by Defendant in opposition to the motion, clearly refutes the claims of the Plaintiff. It is undisputed that the lien was held by FNMA as shown by the UCC3 recorded on May 27, 2016 in CRFN: 2016000181807. Frankel Lambert had the authority to proceed with the foreclosure pursuant to Article 9 of the Uniform Commercial Code. Lastly, the foreclosure auction did, in fact, take place on July 1, 2016 and the shares to the Plaintiffs cooperative apartment were sold as also shown by the terms of sale. The Plaintiffs complaint fails to state a cause of action pursuant to CPLR §3211 (a)(7). While the Court is sympathetic to the Plaintiff, who has appeared before the Court diligently in the company of her two adult sons who respectfully support their mothers position, it is clear the Plaintiff is attempting to re-litigate this matter by asserting the identical claims and allegations which the Court had found to be without merit and warranting dismissed of the action. A Court must apply the rules of res judicata followed in the jurisdiction that rendered the earlier court decision. See Uzamere v. Uzamere, 89 AD 2d 1013, 1014 (2nd Dept. 2011). CONCLUSION After a careful analysis of the applicable statutory authority and case law, as well as a review of the ancillary procedural legal history between the parties, and with a sympathetic lens to the Plaintiff, the Court finds that the Plaintiff’s complaint and opposition to Defendant’s motion to dismiss fails to demonstrate a cause of action against defendant Frankel et al and is contrary to the documentary evidence provided by the Defendant in support of the Motion to Dismiss. Accordingly, Defendant Frankel et al’s motion for an Order to Dismiss pursuant to CPLR §3211 (a) (5) on the ground of res judicata and collateral estoppel, CPLR §3211 (a) (1), to dismiss the Complaint on the ground that a defense has been found upon documentary evidence and pursuant to CPLR §3211 (a) (7) on the ground that the complaint fails to state a cause of action against the Defendant is GRANTED. This constitutes the Decision and Order of this Court. Dated: August 27, 2019
