Federal Natl. Mtge. Assn. ("FANNIE MAE") v Walter

2024 NY Slip Op 33098(U)

September 4, 2024

Supreme Court, Kings County

Docket Number: Index No. 511185/2018

Judge: Carolyn Mazzu Genovesi

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
FILED: KINGS COUNTY CLERK 09/04/2024 01:18 PM INDEX NO. 511185/2018

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Present Hon. Carolyn Mazzu Genovesi 

At an IAS Part FRP-5 of the Supret11e Coutt of 

thcState of New York, held in and for the County 

ofKings, at t~e Cour~house, at 360 Adams~~;~ 

Brooklyn, New York, on thef day~~ 

--. ----- .--- .--------· --- .-------------· ------- ·------. -·- .· -----. X. 

FEDER:A:L NATIONAL MORTGAGE 

ASSOCIATION ("FANNIE MAE"), A 

CORPORATION ORGANIZED AND 

EXISTING UNDER THE LAWS OF THE 

lJN[TEDSTATESOF AMERICA, 

Plaintiff: 

-againstCHAIM WALTER AS HEIR TO THE ESTA TE 

OF FERENCE WALTER, GITTY ORIGINAL FILED 

WITH THE NIEDERMANAS HEIR TO THE 

ESTATE OF.FERENCE WALTER, ESTHER 

SCHWARTZ AS HEIR TO THE ESTATE OF 

FERENCE WALTER, CHANA WOSNER AS HEIR 

TO THE ESTATE.OF FERENCE WALTER 

MARTIN WALTER AS HEIR TO THE 

ESTATE OF FERENCE WALTER, ANSI·TEL 

WALTER AS HEIR TO THE ESTATE OF 

FERENCE WALTER, SHULEM V.1ALTER AS 

HEIR TO TIIE ESTATE OF FERENCE 

WALTER, DAVID WALTER AS HEIR TO 

THE ESTATE OF FERENCE WALTER, 

SIMON WALTER AS HEIRTO THE ESTA TE 

OF FERENCEWALTER, UNKNOWN HEIRS 

TO THE EST ATE OF FERENCE \V ALTER IF 

LIVING.AND IF HE/SHE BE DEAD, ANY 

AND ALL PERSONS UNKNOWN TO 

PLAINTIFF, CLAIMING, OR WHO MAY 

CLAIM TO HAVE AN INTEREST IN, OR 

GENERAL OR SPECIFIC. LIEN UPON THE 

RIZAL PROPE:R'fY DESCRIBED IN tHIS 

ti~g~~E1~E~ g~~~I~~ Jt~1(i~~BED 

AND INTENDED TO BE INCLUDED IN 

WIFE, WIDOW, HUSBAND; VfIDOWER; 

HEIRS AT LAW; NEXT.OF KIN, 

DECISION AND ORDER 

Index No.: 51 1 185/2018 

Motim1 Cal. No.; 9 

Mot. Seq. 2 

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DESCENDANTS, EXECUTORS. 

ADMINISTRATORS, DEVISEES, 

LEGATEES,. CREDITO RS, TRUSTEES, 

COMMITTEES, LIEN ORS, AND ASSIGNEES 

OF . SUCH . DECEASED . ' ANY . AND . . ALL 

PERSONS DERIVING INTEREST IN OR 

LIEN UPON, OR TITLE TO SAID REAL 

PROPERTY BY, THROUGHOR UNDER 

THEI'vl,OR EITHER OF THEM. AND THEIR 

RESPECTIVE·WJVES, WIDOWS, 

I-TU SB ANDS, WIDOWERS, HEIRS AT LAW, 

NEXT OF KIN, DESCENDANTS, 

EXECUTORS, ADMINISTRATORS, 

DEVISEES; LEGATEES, CREDITORS, 

TRUSTEES, COMMITTEES, LIEN ORS, AND 

ASSIGNS, ALL OF WHOM AND \VF-I.OSE 

NAMES; EXCEPT AS STATED, ARE 

UNKNOWN TO PLAINTIFF1 PEOPLE OF 

THE STATE OF NEV/ YORK. UNITED 

STATES OF AMERICA ACTING THROUGH 

THE IRS, BOARD OF MANAGERS OF THE 

89 HARRISON AVENUE CONDOMINIUM, 

NEW JERSEY ECONOMIC DEVELOPMENT 

AUTHORITY, NEV/ YORK ST ATE 

DEPARTMENT OF TAXATION AND 

FINANCE; COMMISSIONER OF JURORS 

KINGS COUNTY SELDA TURAN . . . . ' . . . . ~ 

MUSTAFATURAN 

JOHN DOE (Those unknov,,rn tenants, occupants; 

persons or corporations ortheir heirs; 

distributees, executors, administrators, trustees, 

gual'dians, assignees, creditors; or successors 

claiming an interest in the inortgaged 

pretn ises) 

Defendants, 

· .. --------. - ·-. -.-- ·---- ·--------------.. ----- .. ·-------. ---. ----X 

The following papers were read on this.mqtion·pursuant to CPLR 22 l 9(a):. 

Pnpers 

.Order to Show Cause (MS# 2), Affirmation in !Support, 

Ex[ ii bits, A t'fi dhation .·in Su ppo1t of Proposed OSC 

Aftirma,tion in Opposition to ()SC · 

Numbered 

77. 69- 76 

79 

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Upon the fotegoing papers, Federal National.Mortgage Association ("plaintiff') moves, 

by order to show cause, to enforce a settlement agreement dated November 29, 2023, pursuant to 

CPLR2104 (MS# 2). 

Plaintiff commenced a Foreclosure Action \\'ith the filing of a Smnmons and Complaint 

on May 3 I , 2 0 18. The defendantsjoined issf1e with the filing of an Answer on July 2 5, 20 1 8. 0 n 

Nqvcmber 29. 2023, the parties entered into a Stipulation ofAgreementwhich provided that 

defendant had agreed to pay $200,000 in a settlement of the outstanding amount of money due. 

Oi1 February 9. 2024, the parties filed a Stipulation ofWi.thdrawal of the Answer with 

Counterclaiilis arid a Voluntmy Disccintintmnce of the action executed by both parties. 

The stipulation of withdta\val in re\evatit part provided the following: 

t. The Eoreclosi.1re Complaint filed by Plain:tiffon May 31, 2018 and under index 

number 511185/2018 in the Supreme Court of New York, County of Kings is hereby 

voluntarily discontinued. . . 

2, TheAnswer,vith Comiterdaims filed by Defendants mi July 25, 2018 is hereb)' 

withdrawnwith pr~judice: 

3. The foredosure action has been settled as a result of a short payoff 

Further, the parties executed and filed a stipulation ofthe cancellation of the Lis Pendei1s (m 

February 9, 2024. 

Plaintiff seeks b5; Order to Show Cause to enforce the terms of the Settlement Agreement. 

by securing the payment of the note and mottgage that defendants had executed on March 20, 

2003. Plaintiff asserts that after the parties entered theStipulation of Agreement on November 

29; 2023, the defendants were to pay $200,000 pursuant to tlie settleme11.t. Defendants did not 

provide the amount due at the deadline for the payment uoder the terms of the agreement. That 

date in the settlement agreement was December 29, 2023. Pursuant to an addendum to agreement 

the plaintiff extended the defendants' deadline to pay to January 9, 2024. Defendants then wired 

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the payments to plaii1tiff 011 January 9, 2024. Plaintitlthen explains that on.February26,.2024, . . 

they notified the defendants that the payment was being returned to theii: issuing bank and 

requested that the defendants resubmit the payment. The reason for this remittance and request 

for defondants·to resubmit the. settlement amount was not provided to·the court. Thereafter,. 

plaintiff asserts that defendants·never provided the paymei1ts purst1ant to the Settletnen:t 

Agreei'neht. On March 28, 2024; the ban:k provided de fondants With it(1tice of the bteach of the 

settlementagreemei1t as (llltlined in the agreehtent. 

Plaintiff argues that pursuant to CPLR 2104 and the Court of Appeals case of Bonnette v 

Long ls: Coll. Hosp., 3 N.Y.3d 281 (2004), they are entitled to set aside the Settlement 

Agreement because defendants have breached that agreement Further, they seek to enforce the 

tei"ms of the agreement vv'bich include the ability to continue the foreclosure Action commenced 

on May 31, 20 l 8, lii1der the index nm11berin this 1nattet (51 I 185/2018). Addhionally, they 

request an order frbtri the court dit'ectingthe defendants cure their breach of failure to pay 

pursuant· to the agreement. 

Defendants filed an Affirmation in Opposition to plaintiff's Orel.er to Show Cause arguing 

that the court lacks subject matterjurisdiction in order to grantthi:!relief sought by plaintiff. 

Defei1dant argliesthat the court lacks subject matter jurisdiction because the action had been 

discontim1ed and is.therefore no \011ger pending; Dd:endant proi./idesanAppellate Division; 

Second Department case of Estate q[Abranis 1,. SeavieH' Assn of Fire ls. New Yifrk, Inc., 151 

AP3 d 809 (2d Dept 201 7). ln that matter t h.eh:i ,.:vas a motion to ettfo rce a sti1::>ulation of 

settlement w\1ich was denied after the action was tetminated by a stipulatioi1 of discontinirnrice 

and the Appellate Court determined that the .. denial \Vas.proper becatise the. relie{ requestecl was 

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not m;ailable by way ofmotion since the action was terminated by the stipulation of 

discontinuance. 

The court finds that it lacks subject matterjurisdiction to decide plaintiff's orclei- to show 

cause to ehJ'otce the agreement because there ,,vas a stipulation of discontinuance of this action 

on February 9_, 2024 and that the forecfosute case index numbet51185/20 I 8 is no longer 

pending. Estate q/Abrdms v Seaview Assn q{Fire ls. New Ydrk, Inc., 151 AD3d 809 (2d Dept 

2017}, Teitelbaum Holdii7gs v Gold, 48 NY2d 51 (1979), hlatter ofSerpico, 62AD3d 887, 887-

'888 (2009). 

Accordingly; plaititiff's order to show cause is denied. 

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