WELLS FARGO BANK NA v. RIEDEL LLC USA (2019)

Upon the following papers read on this application for an order dismissing the complaint and striking the note of issue; Notice of Motion/Order to Show Cause and supporting papers Doc #41 - 50; Notice of Cross-Motion Doc #53 - 56; Affirmation in Opposition to Motion to Strike and supporting papers Doc # 57 - 60; Other; it is

ORDERED that the motion by defendants Maryann Riedel aka Maryann Reidel and Louis Reidel for an order dismissing the complaint pursuant to CPLR 3216, striking the action from the trial calendar, and vacating the note of issue is denied; and it is further

ORDERED that the cross-motion by plaintiff Wells Fargo Bank, N.A. pursuant to CPLR 2004 deeming the note of issue timely filed nunc pro tunc to April 27, 2018 is granted; and it is further

ORDERED that this action is scheduled for a trial limited to the issue of plaintiff's proof of compliance with the mailing requirements of RPAPL 1304 on January 10, 2020 at 9:30 AM in this part.

PRIOR PROCEEDINGS

The prior history of this action to foreclose a mortgage upon residential real property located at 15 Sunwood Drive, Mille Place, Suffolk County, New York (“the property”) given by defendant Maryann Riedel (“defendant”)is set forth in the decision of the court placed on the record on December 11, 2017 of plaintiff Wells Fargo Bank, N.A.'s (“plaintiff”) motion for summary judgment (Seq. #001) and defendant's cross-motion to dismiss (Seq. #002). That decision granted plaintiff partial summary judgment pursuant to CPLR 3212 (g) dismissing all of defendant's affirmative defenses except that part of defendant's 2nd affirmative defense which raised issues of plaintiff's compliance with the mailing requirements of RPAPL § 1304, set the default of all non-appearing, non-answering defendants, amended the caption, and denied defendant's cross-motion to dismiss. Because all affirmative defenses could not be dismissed based upon plaintiff's submissions, the court set a limited issue trial on these remaining issues pursuant to CPLR § 2218, and denied plaintiff's application for the appointment of a referee to compute pursuant to RPAPL § 1321. At that time the court issued a written discovery and scheduling order, authorizing a limited period of discovery, set a compliance/certification conference for March 27, 2018 and authorized the parties to file successive summary judgment motions within 30 days of the filing of a note of issue. The compliance/certification conference was held as scheduled on March 27, 2018, only plaintiff's counsel appeared. The court noted defendant's counsel's failure to appear, and certified the case ready for trial, directing plaintiff file a note of issue on or before April 27, 2018 and setting a pre-trial conference for June 5, 2018 which was adjourned to August 22, 2018. Plaintiff filed its note of issue on June 1, 2018 (Doc #38) and on June 18, 2018 defendant's present counsel filed a consent to change attorney (Doc #39) as well as a letter to the court indicating defendant's intent to move to strike the note of issue as untimely (Doc #40).

Defendant now moves to dismiss the complaint, with prejudice, pursuant to CPLR 3216 based on plaintiff's failure to file its note of issue by the deadline set in the certification order, and striking the action from the trial calendar and vacating the note of issue pursuant to 22 NYCRR § 208.17 [sic]¹ (Seq. #003). Plaintiff opposes the motion and cross-moves for an order pursuant to CPLR 2004 deeming the note of issue timely filed nunc pro tunc to April 27, 2018 (#004). Despite granting of the request of defendant's counsel to adjourn the motions to allow defendant an opportunity to oppose plaintiff's motion, no opposition to the cross-motion has been filed by defendant.

ONLY ANSWERING DEFENDANT MAY MOVE

The court first notes that defendant styles her motion as being made not only on her behalf, but also on behalf of co-defendant Lewis Reidel s/h/a Louis Reidel. As noted above, only defendant filed an answer and the court's decision of December 11, 2017 fixed and set the default of Mr. Reidel. A party may not move for affirmative relief of a non-jurisdictional nature without first moving to vacate his default (see Chase Home Finance, LLC v. Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mortgage, LLC v. Avella, 142 AD3d 594 [2d Dept 2016];Southstar III, LLC v. Ettienne, 120 AD3d 1332 [2d Dept 2014]; U.S. Bank Natl. Assn. v. Gonzalez, 99 AD3d 694 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011]; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011]). This is so even if the issue before the court is compliance with RPAPL § 1304, as here on the limited issue trial (see HSBC Bank, N.A. v. Clayton, 146 AD3d 942 [2d Dept 2017]); therefore defendant's motion is considered only as to her, not Mr. Reidel.

VACATUR OF NOTE OF ISSUE DENIED

Vacatur of a note of issue is governed by 22 NYCRR 202.21(e), which requires that such a motion be made within twenty (20) days after service of the note of issue and certification of readiness, and requires a showing of why the case is not ready for trial, if a material fact in the certificate is incorrect, or if the certificate fails to comply with 22 NYCRR 202.21 in a material respect. Here defendant argues that the note of issue must be vacated as disclosure is incomplete. In support of her motion defendant submits her Combined Demands dated January 11, 2018, and plaintiff's Response to Combined Demands dated March 8, 2018. As an initial matter the court's December 11, 2017 order limited discovery solely to the issue of plaintiff's compliance with the mailing requirements of RPAPL 1304, therefore any demands as to plaintiff's standing, compliance with RPAPL 1303 and RPAPL 1306 were improper. Plaintiff having responded to defendant's discovery demand, the proper course for defendant if she was dissatisfied with the response, was to move to compel discovery (CPLR 3124) after making a good faith effort to resolve any discovery dispute. The record does not reflect any attempt by defendant to contact plaintiff requesting a further response to her demands. Accordingly as there is no material fact in the certificate of readiness that is incorrect, and the certificate complies with 22 NYCRR 202.21, that part of defendant's motion is denied.

STRIKING OF COMPLAINT WOULD HAVE BEEN ABUSE OF DISCRETION

Even if the court had granted vacatur of the note of issue, defendant's application to dismiss plaintiff's complaint pursuant to CPLR 3126 would have been denied. The drastic remedy of striking a pleading for failure to comply with disclosure lies within the sound discretion of the trial court (see Arpino v F.J. F. & Sons Elec. Co., Inc., 102 AD3d 201 [2d Dept 2013]; Teitelbaum v Maimonides Medical Center, 144 AD3d 1013 [2d Dept 2016]). Generally this has been limited to situations in which, unlike here, court-ordered disclosure has been disregarded and the failure to comply is clearly wilful and contumacious (see Orgel v Stewart Title Ins. Co., 91 AD3d 922 [2d Dept 2012]; Mangione v Jacobs, 121 AD3d 953 [2d Dept 2014]). Here, plaintiff responded to defendant's discovery demand, thus dismissal pursuant to CPRL 3126 does not apply. This portion of defendant's application is denied.

NOTE OF ISSUE DEEMED TIMELY

By its cross-motion plaintiff argues that due to inadvertent oversight it missed the deadline to file the note of issue, filing thirty-five days after the deadline set in the compliance conference order. As noted previously, defendant does not oppose the cross-motion, and all discovery is complete. Accordingly, as there is no prejudice to defendant, plaintiff's cross-motion requesting the note of issue filed June 1, 2018 be deemed timely filed nunc pro tunc to April 27, 2018 is granted.

TRIAL SET

The action is scheduled for a trial limited to the issues of plaintiff's proof of compliance with the mailing requirements of RPAPL 1304 on January 10, 2020 at 9:30 AM in this part. No further motions are authorized.

This constitutes the Order and decision of the Court.

FOOTNOTES

1.   Vacatur of a Note of Issue in Supreme Court is governed by 22 NYCRR 202.21(e).

Robert F. Quinlan, J.