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WELLS FARGO BANK N.A. As Indenture Trustee Under The Indenture Relating To IMH Assets Corp. Collateralized Asset-Backed Bonds, Series 2004-9, Plaintiff v. Lenora STUART, Verne Stuart, Citibank N.A., New York State Department of Taxation and Finance, et. ano., Defendants
Plaintiff has applied to this Court, by Notice of Motion dated June 15, 2017, for an Order vacating the dismissal of this matter and restoring same to the Court's active calendar. The application was returnable before Part 49 but was thereafter referred to the undersigned Justice. The application has not been opposed by Defendant nor their counsel of record, which is somewhat curious in light of the fact that there is an Affidavit of Service thereunto appended.
Plaintiff, through its predecessor counsel, commenced this action claiming foreclosure of a mortgage dated September 10, 2004 in the original amount of $ 410,000.00. Said mortgage was given to secure a Note of the same date and was recorded with the Clerk of Suffolk County on October 7, 2004 in Liber 20878 of Mortgages, Page 316. Said mortgage constitutes a first lien upon residential real property known as 3 Petes Path, Manorville, Town of Brookhaven, New York.
The within action was commenced on September 21, 2009. Defendants were served with process on April 14, 2009 and Defendants LENORA STUART and VERNE STUART appeared through counsel and timely interposed an Answer with Affirmative Defenses. On December 10, 2009, March 16, 2010, May 25, 2010, June 29, 2010, August 24, 2010, September 14, 2010, November 9, 2010 and December 21, 2010 mandatory foreclosure settlement conferences in compliance with CPLR § 3408 were held before the Court, which did not result in any resolution herein. Following the entry of Administrative Order AO548/10 and a protracted period in which there was no movement on the matter, the Court issued an order scheduling a compliance conference for July 21, 2012. Counsel for Plaintiff appeared at that conference, the matter was addressed, the Court ordered resumption of prosecution within sixty days else the matter would be subject to dismissal. Upon the failure of Plaintiff to resume prosecution as directed or to seek additional time in which to do so, the Court issued an Order dated November 21, 2012 which dismissed the action. The Order was mailed by the Court to Plaintiff's counsel and to all parties on November 21, 2012.
Plaintiff now applies to this Court, by Notice of Motion dated December 11, 2017 for an Order vacating the dismissal and, in essence, restoring the matter to the Court's active calendar. Plaintiff's application expressly invokes CPLR § 2221 as the basis for its application.
The Affirmation of Marcelo E. Martinez Esq. dated June 15, 2017, though quite lengthy, vociferously asserts that Plaintiff's delay in moving forward was excusable and that vacatur and restoration would in no wise be prejudicial to Defendants. Counsel expressly states, in Paragraph 5 of his Affirmation, that “Plaintiff respectfully explains that it could not comply with the Court's deadline because the parties had been engaged in settlement negotiations and further, Plaintiff's prior counsel was having difficulties obtaining the affidavit from the client needed to file the motion for order of reference. Now that there are no ongoing settlement negotiations and Plaintiff's current counsel has all the necessary documents, Plaintiff respectfully requests that the matter be restored so that this action can be argued on its merits.” In support of the Affirmation, counsel appends, as Exhibit 5, a copy of a letter, dated January 21, 2011, which was addressed to Defendants and which referred to possible settlement.
While it is true that the Court has the inherent discretion to vacate a default upon the showing of good cause, McMahon v. City of New York 105 AD2d 101 (1st Dept. 1984), Gurin v. Pogge 112 AD3d 1028 (3rd Dept. 2013), it is certainly incumbent upon the applicant to make such a showing of good cause for the relief that it seeks.
Plaintiff's application is procedurally improper on a number of levels. First, it expressly and solely invokes the operative provisions of CPLR § 2221. However, it does not specify whether it is an application to renew or to reargue, thus running afoul of the clear language of CPLR § 2221(d)(1) & (e)(1). Moreover, the application does not specify any instance wherein the Court may have overlooked or misapprehended the law or whether Plaintiff has discovered new facts which were previously unavailable. Finally, applications made under CPLR § 2221 must be filed within thirty days of the entry of the Order at issue, a time limitation which is construed strictly, Itzkowitz v. King Kullen Grocery Co. Inc. 22 AD3d 636 (2nd Dept. 2005).
Nowhere in its application does Plaintiff invoke the provisions of CPLR § 5015(a), which are properly applicable to a matter such as the one presently before the Court. Even assuming arguendo that Plaintiff did so, its application would be untimely as a matter of fact and law.
Plaintiff's time in which to bring this application began to run on the date that it was served by the Court (November 21, 2012) and hence, Plaintiff would have been required to file its application not later than November 21, 2013. Where the movant fails to apply for relief within one year of obtaining knowledge of the default or withon one year of service of the copy of the default judgment, vacatur will not lie, Malik v. Noe 54 AD3d 733 (2nd Dept. 2008), Bistre v. Rongrant Associates 109 AD3d 778 (2nd Dept. 2013).
However, such an application must clearly demonstrate to the Court that there is both a reasonable excuse for the delay as well as a meritorious claim or cause of action, Li Gang Ma v. Hong Guang Hu 54 AD3d 312 (2nd Dept 2008), NYCTL 1998-2 Trust v. McGill 138 AD3d 1077 (2nd Dept. 2016). Failure to satisfy both of these requirements will necessarily result in denial of the application, Cummings v. Rossoff 101 AD3d 713 (2nd Dept. 2012). The only explanation advanced for the inordinate passage of time between the dismissal and the matter that is sub judice (5 years 6 months 25 days) is that the parties were engaged in settlement negotiations coupled with a paucity of documentation. The Court finds Plaintiff's explanation as to the “settlement negotiations” to be wholly insupportable and completely unworthy of belief. This is necessarily so because the documentary proof of the same actually pre-dates the Dismissal Order by almost two years.
Finally, the present application by Plaintiff is procedurally improper in that it has been commenced by way of a notice of motion rather than by Order To Show Cause and it would certainly fail for this reason alone, Smith v. Smith 291 AD2d 828 (4th Dept. 2002).
Counsel's Affirmation does not articulate any facially reasonable or believable excuse for the delay in proceeding upon this matter. Where an application such as the instant one is proffered to the Court, it is incumbent upon the movant to provide an explanation that is both detailed and credible, Vujanic v. Petrovic 103 AD3d 791 (2nd Dept. 2013). Where as, here, there has been a failure to offer up an excuse for the delay, vacatur is clearly not warranted, Weber v. Peller 82 AD3d 1331 (3rd Dept. 2011).
In assessing the reasonableness of the excuse proffered, the Court can consider the length of time that has elapsed between the rendition of the order at issue and the application to vacate (in this case, 571/212 months), Dominguez v. Carioscia 1 AD3d 396 (2nd Dept. 2003). Indeed, in the matter of DeLisca v. Courtesy Transportation Ltd. 6 AD3d 646 (2nd Dept. 2004), the Court determined that there was no reasonable excuse for a mere six month delay.
Plaintiff's counsel has failed to advance any believable excuse for its inordinate delay in this matter. Over 54 months elapsed between the date of the Order of Dismissal and the instant application seeking vacatur thereof. An excuse which is amorphous is not a reasonable one under these circumstances, Dugan v. Belik 170 AD2d 746 (3rd Dept. 1991) and is both legally and factually inefficacious.
In view of the lack of any believable excuse for the delay, coupled with the gross procedural irregularities hereinabove cited, the Court need not consider whether or not the Plaintiff's claims are meritorious.
It is, therefore,
ORDERED that the within application by the Plaintiff shall be and the same is hereby denied in its entirety.
Jeffrey Arlen Spinner, J.
Response sent, thank you
Docket No: 2009-35944
Decided: July 30, 2018
Court: Supreme Court, Suffolk County, New York.
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