Opinion
Index No.: 20291/2005
11-18-2014
425 East 26th Street Owners Corp., Plaintiff, v. Laurel Beaton, Ruth Jones, et. al., Defendant(s).
Present: HON. DONALD SCOTT KURTZ Justice, Supreme Court At Part 26 of the Supreme Court of the State of New York, Kings Country on the 18th day of November, 2014 Motion Calender No.: 8,10,11
DECISION/ORDER
Realtation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
| Papers | Numbered |
|---|---|
| Order to Show Cases/Notice of Motion and Affidavits/Affirmations Amend | 1,3 |
| Answering Affidavits/Affirmations | 2,7 |
| Reply Affidavits/Affirmations | 8 |
| Memorada of Law | |
| Other |
Upon the foregoing cited papers, defendant Laurel Beaton (hereinafter "defendant")'s motion to vacate the Final Judgment of Foreclosure and Sale dated June 26, 2013; plaintiff's cross-motion to impose sanctions on defendant and her attorney and to prevent her from filling any further motions in this actions; and the referee's motion to set and award the referee's fees are decided to follows:
Plaintiff commenced this foreclosure action by the filling of a summons and verified complaint on July 1, 2005. Defendant failed to answer said complaint and on March 31, 2006, the Court granted plaintiff a default judgment and signed an ex parte order appointing a referee to compute. Thereafter defendant moved to vacate her default and by order dated January 22, 2007, the Court granted the motion provided that defendant serve an answer within thirty days theroof. Defendant failed to serve an answer and plaintiff moved for a Final Judgment of Foreclosure and Sale. By order dated May 31, 2007, the Court granted plaintiff's motion based upon defendant's failure to timely serve and file an answer. Defendant then moved to vacate the foreclosoure proceedings; to vacate the Final Judgment of Foreclosoure and Sale submitted for signature; to dismiss the foreclosure action pursuant to CPLR §3215(c); and for an order modifying or modifying the Court's order dated May 31, 2007. By order dated November 19, 2007, said motion was denied in its entirety, Defendant appealed from the orders dated May 31, 2007 and November 19, 2007. By order dated April 15, 2008, the Appellate Division Second Department dismissed the appeal from the order dated Mary 31, 2007 and affirmed this Court's order dated November 19, 2007.
On February 7, 2008, the Court refereed this matter to a Judicial Hearing Officer to determine the reasomble attorneys fees with respect to this foreclosure action. Thereafter, plaintiff submitted another Judgment of Foreclosure and Sale and on May 27, 2010, the Court issued an order appointing a new referee to compate and provide an amended updated report. At that point, plaintiff moved for an order, in essence, clarifying the order dated May 27, 2010 and defendant again cross-moved to dismiss the action. By order dated August 17, 2012, the Court amended the May 27, 2010 order and denied the cross-motion to dismiss for the reasons set forth in the Appellate Division decision dated April 15, 2008. The referee issued an updated report and plaintiff then moved to confirm the report and for a Final Judgment of Foreclosure and Sale. Defendant once again denied defendant's cross-motion to dismiss the action or in the alternative, to set aside the referees' reports. By order dated March 22, 2013, the Court confirmed the referee's report and again denied defendant's cross-motion to dismiss for the reasons set forth in this Court's decisions dated May 31, 2007, November 19, 2007, and August 17, 2012 and the decision of the Appellate Division dated April 15, 2008. On March 22, 2013, the Court Issued a Final Judgment of Foreclosure and Sale. On June 26, 2013, the Court issued an order amending the Final Judgment rto reflect the correct amount due palintiff pursuant to the referee's affirmation. On October 3, 2013, the shares of stock appartenant to the subject cooperative apartment and the pruprietary lease were sold at auction and subsequently, sold to a bona fide, good faith purchaser for value.
Although it is not entirely clear as to which orders or Judgments defendant's current motion is addressed, the Court will presume that defendant now moves to vacate the order of March 22, 2013 which confirmed the referee's report and denied defendant's cross-motion to dismiss the proceeding; to vacate the Final Judgment of Foreclosure and Sale, also dated March 22, 2013; and to vacate the order of June 26, 2013, which amended the Final Judgment of Foreclosure and Sale. Plaintiff cross-moves for sanctions and to preclude defendant from filing any further motions without leave of the Court. The referee moves to set his fee.
Defendant argues that the Final Judgment of Foreclosure and Sale should be vacated due to fraud, persuant to CPLR §5015(a)(3). Defendant alleges that plaintiff misled the Court into thinking it possessed original stock certificates. Additionally, defendant alleges that palintiff had innumerable ex parte communications with the Court and the referee. Finally, defendant argues that the referee apllied the wtong standard when calculating plaintiff's attorney's fees.
Plaintiff argues that this matter is moot since the stock appurtenane to the subject premises has been sold to a bona fide, good faith purchasse for value. Plaintiff also maintains that the arguements made berein were already made by defendant and decided by this Court or could have been raised by defendant in the previous, underlying motions. Finally, plaintiff argues that the assertion of fraud or misconduct by defendant is unsubstantiated since defendant mistakenlyrelies on plaintiff's billing entries which refelt routine communications with administrative staff for case management and scheduling perposes.
The Rule of the Chief Administrator of the Court entitled " Judicial Conduct", 22 NYCRR §100.3(b)(6) provides that:
A Judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law. A Judge shall not initiate, permit, or comider ex parte communications, or consider other communications made to the judge outside the process of the parties or their lawyers concerning a pending or impending proceeding or impending proceeding, except: (a) Ex parte communications that are made for scheduling or administrative purposes and that do not affect a substaintial right of any part are authorized, provided the judge reasonably believes that no part will gain a procedural or tactical advantage as a result of the ex parte communication, and the judge, insofar as practical and appropriate, makes provision for prompt notification of other parties or their lawyers of the substance of the ex parte communication and allows an opportunity to respond.
Neither in the moving papers set at oral argument, could defendant substantiate theb allegation of improper ex parte communications between plaintiff's representatives and the Court. Plaintiff's attorney maintained that she called the Court several times regarding ministerial takes such as locating an order that had been signed. Defendant's attorney merely alleges that he did not know what conversations took place and that the Court should have called him every time it received a phone call from plaintiff's counsel. However, all ex parte communications between the Court and plaintiff's counsel were clearly for administrative purposes only and the Court detemined that it was impractical and inappropriate to modify defendant or her attorney of the substance of thow communications. Therefore, the Court finds that defendant's allegation of inappropriate ex parte communications is unfounded.
The report of the referees were confirmed in the order dated March 22, 2013. Defendant railed to timely move to reargue that order as prescribed by CPLR §2231(4)(3). Therefore, any challenge to the referee's application of the standard used to calculate the attorney's fee awarded to plaintiff's anmney is untimely. The remainder of defendant's arguments are, in essence , attempts to reargue the issues previously decided, or to present arguments different from those originally presented. See McGill v. Goldman, 261 AD3d 593, 594 (2d Dept 1999); Amato v. Lord &Taylor, Inc., 10 AD3d 374, 375 (2d Dept 2004).
"A matter it moot when a determination is sought on a matter which, if rendered, could not have any practical effect on the existing controversy (citation omitted)." Lighting Horirons, Inc. v. S.A. Kahn & Co. Inc., 120 AD2d 648.649 (2d Dept 1986). Here, all arguments made by defendant are moot and academic as the remedy sought, to vacate the Final Judgment of Forectosure and Sale, will not directly affect the parties, as the share appartment to the subject promises have already been sold. See Matter of Hantington Hobrew Congregation of Hwtington v Tanenbawn, 62 AD3d 704, Iv dismissed to part, Iv denied in part, 13 NY3d 854 (2009) (wherein the Appellate Division Second Department held that "since the property which is the subject of this proceeding has been sold to a bona fide purchaser for value during the pendency of this appeal, and since the appellant failed to obtain a stay pursuant to CPLR 5519 to prevent the property from being sold, the relief sought by the appellant is no longer available and the rights of the parties will not be directly affected by the resolution of this appeal."); Equieredu Corp. of America v. Cabrero, 17 AD3d 520 (2d Dept 2005).
In view of that foregoing, the motion to vacate the order of this Court dated March 22, 2013; to vacate the Final Judgment of Foreclosure and Sale also dated March 22, 2013; and to vacate the order dated June 26, 2013 is denied in its entirety. Plaintiff's cross-motion to impose sanction on defendant and her attorney and to prevent them from filing any further motions in this action is granted to the extent that defendant and her attorney are prohibited from filing any further motions in this proceeding without permission of the Court which application shall be on notice to plaintiff's counsel. Finally, the referee's motion for fees is hereby granted to the extent that the referee, Richard A. Klass, Esq., is hereby awarded the amount of $8,470.00 as his fee, inclusive of disbursements, to be paid by plaintiff.
The foregoing shall conutinue the Decision and Order of the Court.
/s/_________
DONALD SCOTT KURTZ
Justice, Supreme Court