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WILIMINGTON SAVINGS FUND SOCIETY, FSB v MATAMORO, 200 AD3d 79 (October 2021) by Dillon, J.

In a residential mortgage foreclosure action, the plaintiff’s complaint was accompanied by a certificate
of merit pursuant to CPLR 3012-b, which was executed by plaintiff’s counsel. The defendants moved to
dismiss the complaint on various grounds, including that the plaintiff lacked standing due to various
alleged defects with the plaintiff’s certificate of merit.

The Second Department held that a defendant moving to dismiss a complaint on the ground of the
plaintiff’s lack of standing does not meet the affirmative burden of proof by merely relying upon any
defects that might exist with the certificate of merit submitted by the plaintiff’s attorney under CPLR
3012-b, or otherwise, if the certificate of merit fails to address all potential aspects of standing.

CITIBANK, N.A. v WU, 199 AD3d 48 (September 2021) by Iannacci, J.

In a mortgage foreclosure action, the defendants served an answer in which they asserted several
affirmative defenses, including that the plaintiff failed to allege that it had obtained a license to act as a
“debt collection agency” pursuant to Administrative Code § 20-490, and cross-moved to dismiss the
complaint pursuant to CPLR 3211(a)(7).

The Second Department held that the plaintiff bank indeed was not required to be licensed as a “debt
collection agency” in order to prosecute the mortgage foreclosure action, and thus, the complaint was
not subject to dismissal under CPLR 3211(a)(7) for the failure of the plaintiff to plead that it had
obtained such a license.

MATTER OF B.Z. CHIROPRACTIC, P.C. v ALLSTATE INS. CO., 197 AD3d 144 (July 2021) by Dillon, J.
This case presents the issue of whether an advisory opinion or dicta in a court order qualifies under res
judicata, collateral estoppel, or the law of the case doctrines to preclude a court in a later proceeding
from considering the same issue.

In a hybrid turnover proceeding pursuant to CPLR 5225 to compel the turnover of property owed to a
judgment debtor and an action for declaratory relief, the defendant appealed from an order which,
inter alia, declared that a judgment in favor of the plaintiff against the defendant accrued interest at the
rate of 2% per month.

The Second Department held that the reference to the applicable rate of interest in the prior decision
was advisory, rather than a determination on the merits, and therefore did not trigger the doctrines of
res judicata, collateral estoppel, or law of the case so as to bar the declaratory relief sought by the
plaintiff. The reference to the applicable rate of interest was never litigated by the parties on the merits,
and the court’s reference to the rate of interest was sua sponte. Thus, the Second Department held that
a court’s dicta is not subject to the preclusive effect of the doctrines of res judicata, collateral estoppel,
or law of the case.

WELLS FARGO BANK, N.A. v KURIAN, 197 AD3d 173 (July 2021) by Dillon, J.

In a residential foreclosure action, the initial attorney representing the defendant was suspended from
the practice of law, which triggered the automatic stay provision of CPLR 321(c). The plaintiff moved,
inter alia, for summary judgment on the complaint without first serving a CPLR 321(c) notice to appoint