Opinion
No. 135885/2015.
03-17-2016
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for Morgan Stanley ABS Capital I Inc. Trust 2004–NC4, Mortgage DCM Part 6 Pass–Through Certificates, Series 2004–NC4, Plaintiff, Hon. Philip G. Minardo v. Joanne GAMBINO, Barbara Capozzi, American Express Centurion Bank, Household Finance Corp., New York City Parking Violations Bureau, New York State Department of Taxation and Finance, Berkshire Financial Group Inc., Richmond County Clerks Office, “John Doe No.1” through “John Doe # 12,” the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any having or claiming an interest in or lien upon the premises, described in the complaint, Defendants.
PHILIP G. MINARDO, J.
Upon the foregoing papers, the motion of defendant Joanne Gambino to dismiss the complaint pursuant to CPLR 3211(a)(5) and to discharge of record the underlying mortgage pursuant to RPAPL 1501(4) is denied, in accordance with the following.
This action was commenced on September 17, 2015, to foreclose a mortgage on residential property located at 105 Mansion Avenue, Staten Island, New York 10308, executed by Joanne Gambino (hereinafter, “Gambino”) on January 13, 2004, in favor of plaintiff's predecessor-in-interest, Berkshire Financial Group Inc., to secure a note memorializing her indebtedness to said lender in the principal sum of $455,000.00. It is alleged in the complaint that defendant Gambino defaulted on the above loan agreement by failing to pay the monthly mortgage installment due on August 1, 2008 and thereafter.
Previously, i.e., on January 7, 2009, a foreclosure action relating to the same mortgage and the same purported default was commenced in this Court under Index No. 130026/2009. In that action, defendant Gambino, by her attorney, filed a notice of appearance on March 3, 2010, but failed to interpose an answer to the complaint. Court records reveal that the 2009 action was subsequently assigned to the Foreclosure Conference Part of the Richmond County Supreme Court, whereat defendant again appeared by counsel. In all, ten settlement conferences were conducted pursuant to CPLR 3408 between March 20, 2009 and March 3, 2010, but the matter could not be resolved. During these settlement conferences, the parties initially attempted to negotiate a loan modification and, subsequently, a short sale. However, a resolution remained elusive, and on March 3, 2010, the case was released to proceed with the foreclosure. Subsequently, the matter appeared on this Court's calendar nine times between September 1, 2011 and July 12, 2012, as a result of which an order was issued on May 3, 2012, directing plaintiff to file a motion for an Order of Reference no later than May 31, 2012, “or the matter will be dismissed for plaintiffs' failure to prosecute.” Insofar as it appears, no further proceedings in the 2009 action were taken by either party. Instead, this foreclosure action was commenced, based upon the same 2009 default alleged in the earlier complaint against, inter alia, defendant Gambino.
In a pre-answer motion to dismiss the complaint, Gambino maintains that the instant action is time barred (see CPLR 3211[a][5] ). More particularly, defendant cites the applicable Statute of Limitations, which provides that “an action ... upon a mortgage of real property, or interest therein” is six years (CPLR 213[4] ; see also CPLR 213[1] ). In this regard, defendant Gambino alleges that (1) the acceleration of her mortgage and the underlying note occurred on January 7, 2009 (i.e., the date of commencement of the 2009 foreclosure action), (2) plaintiff has never evoked that acceleration, (3) the 2009 foreclosure action was “administratively dismissed” by this Court effective July 12, 2012, and (4) this (second) action was commenced approximately eight months after the expiration of the six-year Statute of Limitations. Defendant further maintains that in view of the foregoing, she is entitled to the cancellation and a discharge of record of the subject mortgage (see RPAPL 1501[4] ).
Turning, first, to defendant's contention that the 2009 foreclosure action was administratively dismissed on July 12, 2012, a review of the Court Records reveals that no such dismissal was ever effectuated. More specifically, the Court notes that CPLR 3216, which governs the dismissal of an action for neglect to prosecute before the filing of the note of issue (see generally Arroyo v. Board of Educ. of City of NY, 110 AD3d 17 ; Lopez v. Imperial Delivery Serv., Inc., 282 A.D.2d 190 ), differs substantially from CPLR 3404 (i.e., the so-called “automatic” dismissal for neglect to prosecute), which governs the dismissal of abandoned cases after the filing of the note of issue (see generally Countrywide Home Loans, Inc. v. Gibson, 111 AD3d 875, 875–876 ; Siegel, Practice Commentaries, Cons Laws of NY, Book 7B, C3404:7, p. 93–96 [citations omitted] ).
Here, since the purported dismissal of the 2009 foreclosure action occurred at a pre-note stage of the proceedings, the alleged dismissal was subject to the rules affecting a dismissal pursuant to CPLR 3216, which provides, in pertinent part that “[n]o dismissal shall be directed ... and no court initiative shall be taken or motion made [hereunder] unless ... [three] conditions precedent have been complied with”. Among these is the requirement that “[t]he court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand” (CPLR 3216[b][3] ). Pertinently, the Court of Appeals has held that “courts do not possess the power to dismiss an action for general delay where the plaintiff has not been served with a 90–day demand to serve and file a note of issue pursuant to CPLR 3216(b) ” (Chase v. Scavuzzo, 87 N.Y.2d 228, 233 [emphasis added]; see also Siegel, Practice Commentaries, Cons Laws of NY, Book 7B, C3216:11, p. 618). No such demand was ever served in the 2009 action.
Although directory in form, there is no indication that the Court intended its May 3, 2012 Order to be self-executing. To the contrary, the phrase “will be dismissed” implies a need for further action by the Court in order to effectuate the dismissal.
Consonant with the foregoing, the 2009 foreclosure action can not be deemed to have been “administratively” dismissed on July 12, 2012 or at any other time, since one of the mandatory conditions precedent set forth in CPLR 3216 (i.e., the provision of a 90–day notice) was never satisfied. As a result, the 2009 mortgage foreclosure action is still pending, and given that these two actions are based on the same default, it cannot be argued that they are not “intertwined with common questions of law and fact” (Teitelbaum v. PTR Co., 6 AD3d 254, 255 ). As a result, consolidation is clearly prefferable in order “to avoid unnecessary costs or delay” (CPLR 602[a] ). Nevertheless, this Court is powerless under CPLR 602(a) to act sua sponte to order either a consolidation or a joint trial (see AIU Ins. Co. v. ELRAC, Inc., 269 A.D.2d 412 ). While it is beyond the power of this Court to act sua sponte in this matter, the parties may, if they be so advised, move for that relief in order to obviate the possibility of inconsistent results (see New York Annual Conference of Methodist Church v. Nam Un Cho, 156 A.D.2d 511, 514 ).
Accordingly, it is
ORDERED, the motion of defendant Joanne Gambino to dismiss the complaint pursuant to CPLR 3211(a)(5) and to discharge of record the underlying mortgage pursuant to RPAPL 1501(4) is denied.