Michaelis v. Wilmington Savings Fund Soc'y (Sept. 25, 2025)

Case details
Full caption
Ellen Michaelis v. Wilmington Savings Fund Society
Country
United States
Jurisdiction
New York (NY)
Court
New York Court of Appeals
Decided
Sept. 25, 2025
Disposition
Motion Denied
Ellen Michaelis, Plaintiff, v. Wilmington Savings Fund..., --- N.Y.S.3d ---- (2026)2026 N.Y. Slip Op. 26048 © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 959797Supreme Court, Dutchess County, New York.Ellen Michaelis, Plaintiff,v.Wilmington Savings Fund Society, FSB, D/B/A CHRISTINA TRUST, NOT INDIVIDUALLYBUT AS TRUSTEE FOR PRETIUM MORTGAGEACQUISITION FSB Trustee, Defendant.Index No. 2023-50982|Decided on April 3, 2026Attorneys and Law FirmsEllen Michaelis, Plaintiff, Pro SeWilmington Savings Fund Society, Defendant - no counselOpinionChristi J. Acker, J.*1 The Court considered NYSCEF Doc. #s 93-109 withrespect to Plaintiff Ellen Michaelis' (hereinafter "Plaintiff")motion for an Order pursuant to CPLR §§ 5015(a)(2), (3)and (5) and CPLR § 2221(3), vacating this Court's Decisionand Order dated September 25, 2025, granting renewalof Plaintiff's motion for default judgment and reinstatingthis action and accepting for filing the Verified AmendedComplaint annexed to the application.Plaintiff commenced the instant action against DefendantWilmington Savings Fund Society, FSB, d/b/a ChristinaTrust, Not Individually but as Trustee for Pretium MortgageAcquisition FSB, Trustee ("Defendant") on or about March24, 2023, seeking to quiet title in her favor to property locatedat 33 Cumberland Road, Fishkill, New York ("Property").Procedural HistoryThe procedural history of this matter has been set forth atlength in this Court's December 10, 2024 and September 25,2025 Decisions and Orders, however, a brief overview isnecessary. As relevant hereto, the Property was the subjectof a foreclosure action entitled Green Tree Servicing LLCv. Alterio, et al, Dutchess County Index No. 6397/2012("Foreclosure Action"), in which a Judgment of Foreclosurewas entered on November 23, 2016. The Property was soldat auction and title was transferred to Defendant pursuant aReferee's Deed dated August 14, 2018. Thereafter, non-partyPinhaus Rabenou ("Rabenou ") purchased the Property fromDefendant on or about July 24, 2025.This Court's December 10, 2024 Decision denied Plaintiff'smotion for default against Defendant and directed Plaintiff toshow cause why the action should not be dismissed. Plaintifffiled an unsworn "Answer" in response thereto but failed toprovide proof of service of the Decision upon Defendant asdirected.On or about August 26, 2025, Plaintiff filed a motionseeking permission to file an Amended Verified Complaint,for an Order declaring that Plaintiff is a devisee underJoseph Smith's 1991 will, declaring that a June 29, 1992Deed to the Property is fraudulent and void, as well as allsubsequent conveyances flowing therefrom and quieting titleto the Property in accordance with Plaintiff's undivided one-fifth inheritance interest. Before that application was fullysubmitted, Plaintiff filed a new application seeking to addadditional defendants, including, inter alia, Rabenou.By Decision and Order dated September 25, 2025, thisCourt denied Plaintiff's motion to amend her Complaint anddismissed the action in its entirety based upon Plaintiff'sfailure to establish that she has a valid quiet title action relatedto this Property.On that same day, Plaintiff filed a motion for an Ordergranting renewal of the September 25, 2025 Decision,vacating the dismissal and deeming Plaintiff's proposedAmended Complaint filed and restoring the Notice ofPendency.Plaintiff then filed the instant application on October 27,2025. The Notice of Motion states that this motion is a"corrected and supplemental motion," superseding Plaintiff'sprior motion to renew. The Notice further states thatit incorporates "new evidence and legal argument notpreviously available," including the duly executed Last Willand Testament of Joseph Smith and a "comprehensive matrixof forty-four (44) verified title defects." NYSCEF Doc. #93.*2 DiscussionAs an initial matter, the majority of the legal cases profferedby Plaintiff appear to have been "hallucinated" throughthe use of Generative Artificial Intelligence ("GenAI").
Ellen Michaelis, Plaintiff, v. Wilmington Savings Fund..., --- N.Y.S.3d ---- (2026)2026 N.Y. Slip Op. 26048 © 2026 Thomson Reuters. No claim to original U.S. Government Works.2"Hallucinated cases may look like a real case becausethey include familiar-looking reporter information, but theircitations lead to cases with different names, in different courtsand on different topics -- or even to no case at all." DeutscheBank Nat'l Tr. Co. v. LeTennier, --- AD3d ---, 2026 WL 53120(3d Dept. 2026). "Even where GenAI provides accurate casecitations, it nonetheless may misrepresent the holdings of thecited cases -- often in favor of the user supplying the query."Id.Such is the case here. For example, in the third paragraph ofPlaintiff's affirmation, she purports to quote from Matter ofSakow, 97 NY2d 436, 439 [2022] — "A void decree is opento collateral attack at any time." While this is an accurate casecitation, the quoted language does not appear in the case. Thesecond case cited in that paragraph, Kruger v. Kruger, 107AD3d 1285, 1287 [3d Dept. 2013], does not exist. Rather, thecitation is for Matter of Blocker v. Fischer, 107 AD3d 1285[3d Dept. 2013], which involves an Article 78 proceeding.These type hallucinations affect virtually every legal citationthat appears in Plaintiff's affirmation.This Court's Part Rules require litigants, including theself-represented, to submit an certification or affirmationthat either (1) no generative artificial intelligence programwas used in the drafting of any affidavit, affirmation, ormemorandum of law contained within the submission, or (2)that a generative artificial intelligence program was used butall generated text, including citations, quotations, and legalanalysis was reviewed for accuracy and approved by thecertifying attorney or the self-represented litigant.In the normal course, Plaintiff's motion would be deniedwithout prejudice for lack of this affirmation and clearevidence that GenAI was used without review. However,the determination of the instant motion is dependent uponthe proffered "new facts," and not the hallucinated case law.Therefore, the Court will address the merits of Plaintiff'smotion.Renewal"A motion for leave to renew 'shall be based upon newfacts not offered on the prior motion that would change theprior determination or shall demonstrate that there has been achange in the law that would change the prior determination'and 'shall contain reasonable justification for the failure topresent such facts on the prior motion' [citations omitted]."Citimortgage, Inc. v. Sparozic, 223 AD3d 867, 868 [2d Dept.2024]. "What constitutes a reasonable justification is withinthe discretion of the Supreme Court." HSBC Bank USA, Nat'lAss'n v. Joseph, 238 AD3d 1009, 1011 [2d Dept. 2025]." 'When no reasonable justification is given for failing topresent new facts on the prior motion, the Supreme Courtlacks discretion to grant renewal [citation omitted].' " Id.In support of her renewal motion, Plaintiff offers threecategories of "newly discovered evidence:" (1) the mortgageservicer's correspondence from 2022-2025 treating themortgage as "active" years after the foreclosure; (2) theAugust 2025 "admissions" of non-party Rabenou and (3) the2018 referee's deed which Plaintiff maintains was not timelyexecuted, rendering the deed void.1*3 Plaintiff's motion for leave to renew fails as sheprovides no reasonable justification for not presentingthis "newly discovered" evidence on her prior motions.First, Plaintiff's only explanation for not presenting theSelene correspondence is because she "obtained" it afterdismissal. This falls short of a reasonable justification.Plaintiff previously submitted mortgage statements fromSelene dated November 7, 2023 and December 7, 2023(NYSCEF Doc. #s 72-74). Notably, the "newly discovered"correspondence, dated December 23, 2024 and January 21,2025, was in existence well-before before Plaintiff filed herprior motion. Given her access to the 2023 correspondence,it is improbable that Plaintiff did not also have access tothe "newly discovered" documents when she made her priormotion.In a similar vein, in support of her motion to amend theComplaint, Plaintiff had relied upon a text message thatRabenou sent to Plaintiff's "co-occupant" Judith Alterio, inSeptember 2025 (NYSCEF Doc. # 79). She now submits"new" text messages, which appear to be the earlier texts thatled up to the September 2025 message. Therefore, Plaintiff'sclaim that these prior text messages were "unavailable" is notcredible.Finally, Plaintiff contends that the 2018 Referee's Deed is voidbecause it was not executed until 67 days after the foreclosuresale. Significantly, Plaintiff has twice submitted the Referee'sDeed in support of her previous applications. See NYSCEFDoc. #13 and #39. She claims that she only discoveredthe "timing defect" through "post-dismissal investigation."However, given that Plaintiff has been in possession of thisdeed since at least March 24, 2023,2 her failure to raise thisargument for more than two (2) years is rejected.3
Ellen Michaelis, Plaintiff, v. Wilmington Savings Fund..., --- N.Y.S.3d ---- (2026)2026 N.Y. Slip Op. 26048 © 2026 Thomson Reuters. No claim to original U.S. Government Works.3" '[A] motion for leave to renew is not a second chancefreely given to parties who have not exercised due diligencein making their first factual presentation [citations omitted].'" U.S. Bank Nat'l Ass'n v. Cuencas, 233 AD3d 913, 915[2d Dept. 2024]. This is Plaintiff's sixth motion. As Plaintiffhas given no reasonable justification for failing to presentthese new facts on any of her prior motions, this Court lacksdiscretion to grant leave to renew and her motion is denied.HSBC Bank USA, Nat'l Ass'n v. Joseph, supra.Motion pursuant to CPLR 5015(a)Point VII of Plaintiff's Affirmation asserts that "vacatur" isrequired under CPLR 5015(a) to prevent manifest injusticebut Plaintiff fails to expressly identify what she seeks tovacate.According to one of the few cases accurately cited byPlaintiff, the Court of Appeals held that "[u]nder CPLR5015(a), a court is empowered to vacate a default judgmentfor several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or othermisconduct by an adverse party; lack of jurisdiction; orupon the reversal, modification or vacatur of a prior order[emphasis supplied]." Woodson v. Mendon Leasing Corp.,100 NY2d 62, 68 [2003].To the extent Plaintiff seeks to "vacate" this Court'sSeptember 25, 2025 Decision and Order pursuant to CPLR5015(a), her application fails. The Court considered all ofPlaintiff's submissions before dismissing her Complaint, sothere is no default for Plaintiff to vacate. See HSBC Bank USA,Nat'l Ass'n v. Krebs, 219 AD3d 1417, 1419 [2d Dept. 2023].If, instead, Plaintiff seeks to vacate the 2016 Judgmentof Foreclosure pursuant to CPLR § 5015(a), this Court'sSeptember 25, 2025 Decision specifically advised Plaintiffthat "any challenge to the Judgment of Foreclosure mustbe obtained by way of a motion to vacate the judgment offoreclosure and sale in the earlier action pursuant to CPLR5015(a). IndyMac Bank, F.S.B. v. Vincoli, 105 AD3d 704, 706[2d Dept. 2013]." Given that Plaintiff was on notice that shecould not challenge the 2016 Judgment of Foreclosure in thisaction pursuant to CPLR § 5015(a), her attempt to do is deniedin its entirety.4*4 As noted previously, this is Plaintiff's sixth motion,most of which have raised repetitive and legally insufficientarguments. Accordingly, any further applications by Plaintiffshall be made by proposed order to show cause.The Court has considered the additional contentions ofPlaintiff not specifically addressed herein. To the extent anyrelief requested was not addressed by the Court, it is herebydenied. Now, it is herebyORDERED that Plaintiff's motion for leave to renew is deniedin its entirety; and it is furtherORDERED that Plaintiff's motion for an Order pursuant toCPLR § 5015(a) is denied in its entirety.The foregoing constitutes the Decision and Order of theCourt.Dated: April 3, 2026Poughkeepsie, New YorkCHRISTI J. ACKER, J.S.C.All Citations--- N.Y.S.3d ----, 2026 WL 959797, 2026 N.Y. Slip Op. 26048Footnotes1Plaintiff does not identify the 1991 will as newly submitted evidence in support of her motion to renew.Regardless, Plaintiff provides no explanation, let alone a reasonable one, why it took her three attempts tosubmit a complete copy of the purported will. As noted in the December 10, 2024 Decision, Plaintiff did notoriginally submit a copy of the alleged will and Plaintiff's subsequent submission lacked the requisite numberof witness signatures, making that instrument invalid. See NYSCEF Doc. #s 76-78.
Ellen Michaelis, Plaintiff, v. Wilmington Savings Fund..., --- N.Y.S.3d ---- (2026)2026 N.Y. Slip Op. 26048 © 2026 Thomson Reuters. No claim to original U.S. Government Works.42This is the date on which Plaintiff first filed the 2018 referee's deed to NYSCEF, Doc. #13.3It bears mention that Plaintiff's argument regarding the Referee's Deed is unsupported by proof as to the dateof the foreclosure sale and a misreading of RPAPL § 1353(1).4See Fenton v. Floce Holdings, LLC, 229 AD3d 768, 770 [2d Dept. 2024] ("Relief under CPLR 5015(a) mustbe sought by a motion in the court that rendered the challenged judgment"); see also Matter of Egloff v. Townof Lewisboro, 89 AD3d 792, 793 [2d Dept. 2011] ("the Supreme Court erred in conditionally vacating the finaljudgment of foreclosure entered in a separate proceeding. Any such relief must be obtained by motion filedin that proceeding.").End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
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