DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR AMERICAN HOME MORTGAGE
ASSETS TRUST 2006-5 MORTGAGE-BACKED PASS-HROUGH
CERTIFICATES, SERIES 2006-5
4600 Regents Boulevard
Irving, TX 75063-1730
MARTIN SEIDLIN, JUNGKIL HAN, INA ZALOOM
HON SALIANN SCARPULLA, J.:
In this foreclosure action, plaintiff (hereinafter “Deutsche Bank”) moves for leave to voluntarily discontinue without prejudice pursuant to CPLR 3217(b) “due to the assignment of the mortgage being incorrectly and/or incompletely acknowledged.” (Anderson Affirm., 7 6). Defendant Ina Zaloom (“Zaloom”), on behalf of herself and codefendant Martin B. Seidlin (“Seidlin”), cross-moves for summary judgment, seeking dismissal of the plaintiffs complaint with prejudice and an order (a) that no amounts are owed by Zaloom to Deutsche Bank under the mortgage note; (b) that plaintiff may not foreclose the subject mortgage; (c) that bars Deutsche Bank from seeking a deficiency judgment against Zaloom; and (d) that awards sanctions against Deutsche Bank pursuant to 22 NYCRR 5 130- 1.1, including reasonable attorney’s fees.
However, Deutsche Bank’s pleading against defendant Jungkil Han, previous owner of the subject apartment, is dismissed with prejudice, because Deutsche Bank has not alleged any basis of claim against him.
With respect to Zaloom’s counterclaim, it must also be dismissed without – prejudice. Because both parties agree that plaintiff cannot currently establish by admissible documentation assignment of the note and therefore may not foreclose on defendants’ mortgage, Zaloom cannot currently establish that Deutsche Bank at any time assumed liability for the actions of non-parties American Brokers Conduit and Cutaia Mortgage Group, Inc.
In accordance with the foregoing, it is hereby
ORDERED that plaintiffs motion brought pursuant to CPLR 32 17(b) for leave to discontinue its application of foreclosure is granted in part and denied in part; and it is further
ORDERED that plaintiffs pleading is dismissed without prejudice as against defendants Ina Zaloom and Martin Seidlin; and it is further
ORDERED that plaintiffs pleading is dismissed with prejudice as against defendant Jungkil Wan; and it is further
ORDERED that the Clerk of the County of New York shall cancel and discharge the Notice of Pendency filed in this action in the Office of the Clerk of the County of New York on the 13* day of April, 2009; and it is further
ORDERED that defendant Ina Zaloom’s cross-motion is denied in its entirety; and it is further
ORDERED that defendant Ina Zaloom’s counterclaim is dismissed without prejudice.
This constitutes the decision and order of the Court.
Dated: New York, New York
June 6,201 1
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