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Supreme Court, New York,

COUNTRYWIDE HOME LOANS SERVICING, L.P., 400 Countrywide Way SimiValley, CA 93065, Plaintiff, v. Peter RANDAZZO, Jeannie Randazzo, Board of Directors of Sleepy Hollow Lake Inc., JP Morgan Chase Bank, N.A., John Doe (said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.


Decided: September 17, 2019

RYAN D. MITOLA, ESQ., RAS Boriskin LLC, 900 Merchants Concourse, Suite 310, Westbury, NY 11590, Attorney for Plaintiff Carl E. Person, Esq., Law Office of Carl E. Person, 225 E. 36th Street — Suite 3A, New York, NY 10016-3664, Attorney for Defendants Peter and Jeannie Randazzo

Before the Court is a Motion seeking to vacate a prior order of this Court made pursuant to 22 NYCRR 202.27. In February 2006, Defendants Peter Randazzo and Jeannie Randazzo (hereinafter Defendants) executed a Note and Mortgage for 119 Sleepy Hollow Road, in the Town of Athens, Greene County. In April 2009, Plaintiff commenced this action by filing a Notice of Pendency as well as a Summons and Complaint. In the same year, Supreme Court (Teresi, J.) granted an Order of Reference and a Judgment of Foreclosure and Sale. Around April 2013, Plaintiff sough to vacate the order; however, the Court denied the motion, noting a list of incorrect information supplied as part of the motion. The Court ordered Plaintiff to resolve these “discrepancies” in order to move for vacatur again.

Instead of resolving the discrepancies, Plaintiff proceeded with the foreclosure sale. An auction was conducted in February 2014. In August 2015, Defendants, with newly obtained counsel, moved to cancel the sale of the property, vacate the Order of Reference and Judgment of Foreclosure and Sale and allow Defendants to answer. In a through decision in October 2016, Supreme Court (Tailleur, J.) recounted the history of the case and found that Plaintiff had erroneously moved ahead with the foreclosure. Therefore, the Court vacated the earlier orders.

In January 2017, this case was assigned to this Court. A conference was held on February 28, 2017. At this conference, this Court directed parties to submit a proposed Discovery Schedule no later than March 17, 2017.

On March 28, 2017, the Court still had not received a proposed Discovery Schedule in noncompliance with the Court's clear directive and wrote to all parties pointing out the oversight. Immediately after the letter, the Court received notice of a change in Plaintiff's counsel and sent a copy of the March 28, 2017, letter to new counsel, directing counsel to “[p]lease immediately respond to the letter by advising the Court of the status of the matter.” A month later, the Court had received no response to its correspondence and emailed copies of its correspondence as well as the Order from October 2016. The Court directed parties to appear for a conference scheduled June 6, 2017.

At the conference on June 6, 2017, the Court set a control date of July 28, 2017, for a discovery schedule, settlement, or a motion seeking whatever other relief Plaintiff deemed was necessary. By correspondence dated August 9, 2017, the Court ordered a mandatory conference for September 5, 2017, after Plaintiff failed to file any motion and parties failed to stipulate to a discovery schedule. By correspondence dated August 31, 2017, Plaintiff's counsel notified the Court that it was prepared to proceed by filing a Motion for Summary Judgment and requested the conference be adjourned. This Court denied the adjournment.

At the conference held on September 5, 2017, while Plaintiff appeared via counsel, it was not ready to proceed as no motion had been filed in contradiction to its earlier assurances to the Court. The Court, therefore, directed that as Plaintiff was not ready to proceed, the Court would allow Plaintiff until October 20, 2017, to file the Motion it had informed the Court it was prepared to file, or the case would be dismissed pursuant to 22 NYCRR 202.27.

Subsequent to the conference on September 5, 2017, Plaintiff failed to file a motion for summary judgment, failed to request an extension of time, and failed to seek any other relief. On November 15, 2017, pursuant to the conditional order made on September 5, 2017, this Court ordered the case dismissed pursuant to 22 NYCRR 202.27. In November 2018, almost exactly a year after the order of dismissal, Plaintiff appeared via new counsel. Subsequently, Plaintiff filed a motion seeking to vacate the prior order of dismissal. In February 2019, Plaintiff's counsel notified the Court that Defendant was being reviewed by Plaintiff for Loss Mitigation and, therefore, the motion was withdrawn.

Currently before the Court is Plaintiff's new motion seeking to vacate the Order of Dismissal filed in July 2019, more than a year after the Order in question and more than a decade after the case began. Plaintiff asserts that the Court improperly applied 22 NYCRR 202.27, that the standard of CPLR 3216 must apply, that CPLR 3212 prevents the Court from directing a different date for summary judgment, that public policy favors vacating and that vacatur under CPLR 5015 is warranted. Defendants oppose the Motion, noting that CPLR 3216 does not apply to 22 NYCRR 202.27, and Plaintiff has failed to present a reasonable excuse for its default.


22 NYCRR 202.27 provides that “[a]t any scheduled call of a calendar or at any conference, if all parties do not appear and proceed or announce their readiness to proceed immediately or subject to the engagement of counsel, the judge may note the default on the record and enter an order as follows: (a) If the plaintiff appears but the defendant does not, the judge may grant judgment by default or order an inquest. (b) If the defendant appears but the plaintiff does not, the judge may dismiss the action and may order a severance of counterclaims or cross-claims. (c) If no party appears, the judge may make such order as appears just.”

Plaintiff asserts that there was “no actual appearance or call of the calendar” and, therefore, 22 NYCRR 202.27 is improper. This is an error of fact and law. It is well settled that where a party appears, but is not ready to proceed, a court may give the party additional time to proceed subject to dismissal should the party fail to proceed (see Financial Freedom Acquisition, LLC v. Unknown Heirs to the Estate of Kenner, 172 AD3d 1173, 1175 [2d Dept 2019]; BAC Home Loans Servicing, LP v. Funk, 154 AD3d 1244, 1245 [3d Dept 2017]; Chase Home Fin., LLC v. Desormeau, 152 AD3d 1033, 1034 [3d Dept 2017]; US Bank N.A. v. Thurm, 140 AD3d 1578, 1579 [3d Dept 2016]).

Here, by correspondence dated August 9, 2017, the Court gave notice to both parties that a mandatory conference had been scheduled pursuant to 22 NYCRR 202.27 and specifically advised the parties that failure “to appear ready to proceed may result in a default or dismissal” [emphasis added]. Plaintiff's counsel specifically, and in writing, informed the Court that Plaintiff intended to proceed by submitting a motion for summary judgment. Despite stating this to the Court, Plaintiff's counsel appeared at the conference but was unready to proceed. The Court thus, pursuant to 22 NYCRR 202.27, allowed additional time for Plaintiff to file the motion that Plaintiff's counsel stated was its intention to file. The Court did not set a deadline in contradiction of CPLR 3212, but rather explicitly gave Plaintiff additional time to proceed in the manner it had stated it intended to do.

“Here, [P]laintiff was not ready to proceed at the time of the conference, and, thereafter, despite being given [more than] 30 days to proceed, [P]laintiff failed to submit a formal motion. Accordingly, [this] Court properly dismissed the action as abandoned pursuant to 22 NYCRR 202.27” (US Bank N.A. v. Thurm, 140 AD3d at 1579). In fact, not only did this Court provide several additional weeks, in the approximately two months after the conference until this Court issued its Order of Dismissal, Plaintiff had filed no motion, sought no additional time, and did not advise the Court of any excuse for delay.

Turning to Plaintiff's contention that the Court erred by failing to follow the procedure under CPLR 3216, this is also an error of law. CPLR 3216 provides a “90-day protective warning device enacted to insulate plaintiffs from sudden motions to dismiss for want of prosecution: the defendant must first serve a 90-day notice to give the plaintiff a chance to ready the case now and file a note of issue, thereby avoiding a CPLR 3216 dismissal. This shield of CPLR 3216 may have been leading plaintiffs to assume that any kind of pre-note of issue laxness can't be used against them without the 90-day warning. This overlooks - and many plaintiffs have apparently overlooked it - the independent status of the third member of the [Lopez v. Imperial Delivery Serv., 282 AD2d 190 (2d Dept 2001), lv dismissed 96 NY2d 937 (2001)] trio: Uniform Rule 202.27. The rule, applicable in the supreme and county courts, prescribes the powers of the court when there's a missed calendar call or a pretrial conference default prior to the filing of the note of issue. Among them is the power to dismiss the case when the plaintiff is the defaulter. The point that many seem to have been missing is that this category of dismissal does not require the 90-day warning that CPLR 3216 does. It can be inflicted on a plaintiff with no further ado” (148 Siegel's Prac. Rev. 2). “Where an action is dismissed pursuant to 202.27, the inattentive party receives no warning other than notice to appear at the calendar call. Dismissal pursuant to the rule is just that—dismissal” (Campos v. New York City Health & Hosps. Corp., 307 AD2d 785, 786 [1st Dept 2003]). Therefore, it is clear that Plaintiff's argument, that the dismissal was in error for failure to follow the mandates of CPLR 3216, is without merit. Similarly, Plaintiff's argument that it did not receive notice and an opportunity to be heard, therefore, vacatur pursuant to CPLR 5015 (a) (4) is appropriate is without merit.

Turning to Plaintiff's contention that vacatur pursuant to CPLR 5015 (1) is required, the Court also rejects this argument. “A motion to vacate a dismissal pursuant to 22 NYCRR 202.27 must be supported by a reasonable excuse for the failure to proceed and a meritorious cause of action” (US Bank N.A. v. Thurm, 140 AD3d at 1579 [citations omitted]; accord BAC Home Loans Servicing, LP v. Funk, 154 AD3d at 1245; see generally CPLR 5015 [a] [1]). Further, “[a] motion to vacate a prior judgment or order is addressed to the court's sound discretion, subject to reversal only where there has been a clear abuse of that discretion” (Hayes v. Village of Middleburgh, 140 AD3d 1359, 1362 [3d Dept 2016] [internal quotation marks and citations omitted]; accord BAC Home Loans Servicing, LP v. Funk, 154 AD3d at 1245).

Here, inasmuch as Plaintiff's motion to vacate the order from November 2017, was not made until July 2017 “its motion to vacate [is] untimely” (Chase Home Fin., LLC v. Desormeau, 152 AD3d at 1034). Considering the original motion was made in November 2018, the Court will look alternatively to the merits of the current Motion. Plaintiff asserts that its reasonable excuse was the lack of notice and opportunity to be heard. As outlined above, the record demonstrates this is factually inaccurate. Plaintiff received notice of the conference and the requirement that it be ready to proceed or face dismissal. Plaintiff appeared but was not ready to proceed. Despite being given additional time and despite informing the Court of its specific intention to file a motion for summary judgment, Plaintiff still failed to proceed. Therefore, Plaintiff's contention that lack of notice provides a reasonable excuse is without merit and this Court need not consider the merits of the underlying action (see Chase Home Fin., LLC v. Desormeau, 152 AD3d at 1035; US Bank N.A. v. Thurm, 140 AD3d at 1579).

Even more concerning, Plaintiff's failure to proceed was a continuation of a pattern. Plaintiff had previously provided Supreme Court (Teresi, J.) with a motion containing “discrepancies.” Rather than correct these errors, Plaintiff proceeded to foreclose. This resulted in Supreme Court (Tailleur, J.) vacating the earlier orders. When this Court received the case, Plaintiff continued its dilatory behavior, ignoring repeated directions from the Court from the February 2017, June 2017, and September 2017 conferences. Plaintiff asserts that this is a case of equity and that public policy favors resolution of cases on the merits. “It is well settled that while there is a preference that disputes be resolved on their merits, a party seeking to vacate a default judgment must demonstrate a reasonable excuse for default and a meritorious defense” (Capital Compost & Waste Reduction Servs., LLC v. MacDonald, 73 AD3d 1311, 1312 [3d Dept 2010]). Further, considering Plaintiff's history of failing to follow directions of the Court and other questionable behavior, dismissal was proper (see Hill v. McCrae, 146 AD3d 1131, 1132-1133 [3d Dept 2017]).

According, it is

ORDERED, Plaintiff's Motion to Vacate the Order of this Court, dated November 15, 2017, is denied.

This shall constitute the Decision, Order and Judgment of the court. This Decision, Order and Judgment is being returned to the attorney for Defendant. All original supporting documentation is being filed with the Greene County Clerk's Office. The signing of this Decision, Order and Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provision of that rule relating to filing, entry and notice of entry.


Papers Considered:

1. Plaintiff's Notice of Motion to Vacate dated July 8, 2019; Attorney Affirmation dated June 19, 2019, in Support of the Motion; Annexed Exhibits A-Q.

2. Defendants Peter and Jeannie Randazzo's Attorney Affirmation, dated August 28, 2019, in Opposition to the Motion to Vacate; Annexed Exhibits A-B.

3. Plaintiff's Reply Affirmation, dated September 9, 2019, in Further Support of the Motion to Vacate; Annexed Exhibit A.

4. Decision and Order of the Supreme Court (Tailleur, J.) dated October 5, 2016.

5. Decision and Order of Supreme Court (Elliott, III, J.) dated November 15, 2017.

6. Court Correspondence with Parties dated January 19, 2017.

7. Court Correspondence with Parties dated March 28, 2017.

8. Court Correspondence with Parties dated March 29, 2017.

9. Court Correspondence with Parties dated April 24, 2017.

10. Court Correspondence with Parties dated August 9, 2017.

11. Correspondence from Loudie Srebnick, Esq., attorney for Plaintiff, dated August 31, 2017.

Raymond J. Elliott, III, J.

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