The opinion
U.S. Bank N.A. v Cabrera
2026 NY Slip Op 30861(U)
February 27, 2026
Supreme Court, Kings County
Docket Number: Index No. 19463/2013
Judge: Carolyn Walker-Diallo
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file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.194632013.KINGS.001.LBLX000_TO.html[03/17/2026 3:45:46 PM]
FILED: KINGS COUNTY CLERK 03/03/2026 02:19 PM INDEX NO. 19463/2013
NYSCEF DOC. NO. 239 RECEIVED NYSCEF: 03/03/2026
At an IAS Term, Part FRP4, of the Supreme
Court of the State of New York, held in and for
the County of Kings, at the Courthouse, at 320
Jay Street, Brooklyn, New York, on the 27th day
of February 2026.
PRESENT:
HON. CAROLYN WALKER-DIALLO, J.S.C.
Index No.: 19463/2013
_____________________________________________ x
U.S. BANK N.A.,
Plaintiff, DECISION AND ORDER
-against-
HEYLIN CABRERA, et al.,
Defendants.
_____________________________________________ x
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this
Order to Show Cause:
Papers Numbered
Order to Show Cause, and Exhibits NYSCEF Doc. Nos. 159-180, 182-184
Affirmation in Opposition NYSCEF Doc. Nos, 186-223
Affirmation in Reply NYSCEF Doc. Nos. 225-227
Correspondence to Court NYSCEF Doc. Nos. 228-229
Correspondence to Court NYSCEF Doc. No. 237
Motion Sequence #11
Upon the foregoing cited papers, the Decision/Order on this Order to Show Cause is as
follows:
Heylin Cabrera (“Defendant”) moves for an order (1) staying the foreclosure sale pending
Defendant’s appeal of the July 2, 2024 order that denied Defendant’s order to show cause pursuant
to CPLR 5519 (a)(6); (2) vacating the Judgment of Foreclosure and Sale (“Judgment”), and
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dismissing the action pursuant to CPLR 5015 (a)(4), 3211 (a) (7), 6514 (a), 6512, and 308 (2); (3)
restoring Motion Sequence 10, which was marked off; (4) dismissing the action for failure to
comply with RPAPL 1304; (5) staying enforcement of the Judgment to allow for tolling due to
Plaintiff’s delay; and (6) staying the foreclosure pending determination of the instant motion
pursuant to CPLR 2201. Plaintiff submits opposition papers and Defendant submits reply papers.
For the foregoing reasons, Defendant’s order to show cause is DENIED.
DISCUSSION
“A party seeking to vacate an order entered upon his or her failure to appear at a hearing
must demonstrate a reasonable excuse for the default and a potentially meritorious claim or defense
to be raised at the hearing. The determination of what constitutes a reasonable excuse lies within
the Supreme Court's discretion, and the court has discretion to accept law office failure as a
reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible
explanation of the default at issue.” Residential Mtge. Loan Trust v. Battle, 207 A.D.3d 764, 766
(2d Dep’t 2022) (Internal quotation marks and citations omitted), citing CPLR 5015 (a) (1). Here,
counsel proffers a reasonable excuse for the nonappearance. However, Defendant does not have a
potentially meritorious claim or defense, as discussed below.
“[A] judgment of foreclosure and sale entered against a defendant is final as to all questions
at issue between the parties, and all matters of defense which were or which might have been
litigated in the foreclosure action are concluded. Furthermore, a judgment by default which has
not been vacated is conclusive for res judicata purposes.” 83-17 Broadway Corp. v. Debcon Fin.
Servs., Inc., 39 A.D.3d 583, 584-85 (2d Dep’t 2007) (Internal quotation marks and citations
omitted). Finally, “the entry of the judgment of foreclosure and sale in this action bars
consideration of the issues raised by the defendant, since those issues either were raised or could
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have been raised during the pendency of the action.” Deutsche Bank Natl. Trust Co. v. Matheson,
229 A.D.3d 505, 506 (2d Dep’t 2024). Here, Defendant has appeared and extensively litigated this
action, and the numerous arguments raised have been rejected by the court. At this juncture,
Defendant attempts to raise arguments to warrant vacatur of the Judgment. Additionally, the
Judgment was previously upheld by the Appellate Division, Second Department in 2021. See
Order of the Appellate Division, dated March 31, 2021, NYSCEF Doc. No. 3.
“The doctrine of the law of the case seeks to prevent relitigation of issues of law that have
already been determined at an earlier stage of the proceeding.” Bank of N.Y. Mellon v. Singh, 205
A.D.3d 866, 867 (2d Dep’t 2022). This doctrine “is a rule of practice, an articulation of sound
policy that, when an issue is once judicially determined, that should be the end of the matter as far
as Judges and courts of co-ordinate jurisdiction are concerned. Such a rule is essential to an orderly
and seemly administration of justice in a court composed of several judges.” U.S. Bank N.A. v.
Tenenbaum, 228 A.D.3d 696, 699-700 (2d Dep’t 2024) (Internal quotation marks and citations
omitted). Here, Defendant raises issues in her current motion papers that were previously raised in
prior motions denied by the court. Additionally, Defendant previously stated that she transferred
the property in order to “attempt to shield the property for judgment creditors and to avoid being
personally liable for any deficiency judgments” and now seeks to take step back in time to
recapture her traverse defense. See Supplemental Affidavit of Defendant dated January 6, 2017,
NYSCEF Doc. No. 17. Therefore, the relief sought is barred by law of the case. Further, if as
Defendant alleges, the court overlooked matters that were argued in prior motions, timely motions
to reargue or appeals should have been filed to the appropriate court.
Moreover, the Honorable Noach Dear previously granted Defendant’s motion for a stay
pending a previous appeal, provided that a bond be posted. See Order of the Hon. Noach Dear,
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entered May 20, 2019, Kings County Clerk’s Minutes. However, Defendant did not post bond.
Defendant again requests that the Court set bond in the motion papers filed but avers that she will
not do so. See Correspondence by Defendant, NYSCEF Doc. No. 2341. Therefore, this Court will
not order that a bond be posted and will not extend the stay.
Lastly, Defendant’s request to toll interest is DENIED. Defendant does not demonstrate,
and the record does not reflect, any conduct by Plaintiff that warrants this relief. Delays attributable
to Defendant do not justify tolling.
CONCLUSION
Accordingly, Defendant’s order to show cause is DENIED. All stays are lifted. The Court
has considered the additional contentions of the parties not specifically addressed herein. To the
extent that any relief requested was not addressed by the Court, it is hereby DENIED. Defendant
shall serve notice of entry of this order within ten (10) days of the upload of the order to NYSCEF
upon Plaintiff, Defendants, the Referee, and all parties who have appeared in this action, with those
not participating in e-filing to be noticed via first-class mail.
This constitutes the Decision and Order of the Court.
ENTER:
_____________________________
Hon. Carolyn Walker-Diallo, J.S.C.
1
Defendant filed correspondence to the Court, which is considered for the sole purpose of demonstrating that
Defendant will not post bond and waives the request for same. The additional contentions raised by Defendant are
beyond the scope of what the Court permitted to be filed and will not be considered as impermissible sur-reply papers
filed after the motion was submitted.
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