In *Fernando v Wilmington Savings Fund Society, FSB* (2022 NY Slip Op 05202), the Appellate Division, Second Department, affirmed a lower court's order dismissing Bernadette M. Fernando's complaint to set aside a foreclosure sale. The Supreme Court, Westchester County, had granted motions by defendants Wilmington Savings Fund Society, FSB, and 14 State, LLC, to dismiss the complaint based on the doctrine of res judicata, which bars future actions arising from the same transaction after a valid final judgment. Fernando's property had been sold at auction following a foreclosure judgment obtained by Wilmington.
While the lower court viewed the action as a collateral attack on the foreclosure judgment, the appellate court clarified that the complaint actually contested the subsequent sale, not the foreclosure itself. However, the court affirmed the dismissal on the alternative ground that the complaint failed to state a cause of action under CPLR 3211(a)(7). The appeal regarding the sua sponte dismissal of the complaint against Francis J. Malara was dismissed as not appealable as of right. The court awarded one bill of costs to the respondents.
In evaluating a motion to dismiss under CPLR 3211(a)(7) for failure to state a cause of action, the court must liberally interpret the pleading, accept all alleged facts as true, and provide every possible inference to the pleader, focusing on whether the facts align with any legal theory. However, factual claims contradicted by the record are not presumed true. RPAPL 231(2)(a) mandates that foreclosure sale notices be published in a local newspaper, and parties involved in the sale must receive all legal documents, including the notice of sale, as per CPLR 2103. In this case, the notice of sale and accompanying affidavits provided by Wilmington and 14 State directly contradicted the complaint's assertion that Wilmington failed to notify about the sale on November 7, 2019. The plaintiff did not contest this evidence, leading to the proper dismissal of the complaint against Wilmington and 14 State under CPLR 3211(a)(7). The court deemed it unnecessary to address other arguments presented by the parties.
