Opinion
2015–604751
05-15-2018
U.S. BANK NATIONAL ASSOCIATION as Trustee relating to Chevy Chase Funding LLC Mortgage Backed Certificates Series 2006–4, Plaintiff v. Allan BERGER, Marcia Berger, Chevy Chase Bank F.S.B., Signature Bank, Huntington Hospital, Department of Treasury–Internal Revenue Service, et. al., Defendants
Cheryl L. Nielsen, Esq., Davidson Fink LLP, 28 East Main Street, Rochester, New York 14614, Attorneys for Plaintiff Melissa Corwin, Esq., Somer Heller & Corwin LLP, 2171 Jericho Turnpike, Commack, New York 11725, Attorneys for Defendant ALLAN BERGER Marcia Berger, Defendant In Person Platzer Swergold Levine Goldberg Katz & Jaslow LLP, 475 Park Avenue, New York, New York 10022, Attorneys for Defendant SIGNATURE BANK Beth P. Schwartz, Esq., Assistant U. S. Attorney, 271 Cadman Plaza East, Brooklyn, New York 11201, Attorney for Defendant DEPARTMENT OF TREASURY–INTERNAL REVENUE SERVICE
Cheryl L. Nielsen, Esq., Davidson Fink LLP, 28 East Main Street, Rochester, New York 14614, Attorneys for Plaintiff
Melissa Corwin, Esq., Somer Heller & Corwin LLP, 2171 Jericho Turnpike, Commack, New York 11725, Attorneys for Defendant ALLAN BERGER
Marcia Berger, Defendant In Person
Platzer Swergold Levine Goldberg Katz & Jaslow LLP, 475 Park Avenue, New York, New York 10022, Attorneys for Defendant SIGNATURE BANK
Beth P. Schwartz, Esq., Assistant U. S. Attorney, 271 Cadman Plaza East, Brooklyn, New York 11201, Attorney for Defendant DEPARTMENT OF TREASURY–INTERNAL REVENUE SERVICE
Jeffrey Arlen Spinner, J.
Plaintiff commenced this action claiming foreclosure of a mortgage dated August 24, 2006 in the amount of $ 698,500.00 which was recorded with the Clerk of Suffolk County on September 26, 2006 in Liber 21388 of Mortgages at Page 788. Said mortgage was given to secure an Adjustable Rate Note in the amount of $ 635,000.00 of the same date. The mortgage constitutes a first lien encumbering premises known as 25 Blacksmith Lane, East Northport, Town of Huntington, New York.
The within matter was assigned to the undersigned Justice on May 1, 2017.
Plaintiff, alleging a default in payment by Defendants occurring on February 1, 2011, filed its Summons, Verified Complaint and Notice of Pendency herein on May 5, 2015 and effected service upon all Defendants. Specifically, service was effected upon Defendant ALLAN BERGER pursuant to CPLR § 308(4) on May 20, 2015, service was completed on May 29, 2015 and his time to appear or answer expired on June 28, 2015. In accordance with the provisions of CPLR § 3408, a mandatory settlement conference was held on October 16, 2015. No further action was taken on the matter until the filing by Plaintiff of its motion, dated January 31, 2017, which seeks an Order of Reference pursuant to RPAPL § 1321 (seq. 001). In response thereto, Defendant ALLAN BERGER, through counsel, has both opposed the motion and has moved to dismiss this action (seq. 002), invoking the provisions of CPLR § 3215(c).
Turning first to Plaintiff's application, the same has been submitted one year, seven months and three days subsequent to the default by Defendant ALLAN BERGER. The only explanation advanced by Plaintiff for the passage of time is that the matter had been scheduled for a mandatory foreclosure settlement conference pursuant to CPLR § 3408, which was held on October 16, 2015. This has been coupled with the decidedly vague assertion by Plaintiff's counsel that "From October 17, 2015 to October 18, 2016, we were working with Plaintiff to obtain documents necessary to continue with the action."
Plaintiff seems to rely upon the mandatory foreclosure settlement conference as an added explanation for the inordinate passage of time herein. Plaintiff cites the authority of Iorizzo v. Mattikow 25 AD3d 762 (2nd Dept. 2006) in support of this position. Plaintiff's reliance upon the holding in Iorizzo is wholly misplaced and is clearly distinguishable from the matter that is presently before the Court. In Iorizzo , the Court found that a delay of nine years in moving for a default was excusable because of the affirmative acts of Defendant which were designed to, and which did delay the proceedings, without fault on the part of Plaintiff. Here, there has been no indication that Plaintiff and Defendant have been engaged in any settlement negotiationsband the passage of more than one and one half years from the time of default is essentially unexplained.
Plaintiff further asserts that its filing a Request For Judicial Intervention in June of 2015 in order to schedule a mandatory settlement conference satisfied the criteria of initiating proceedings within one year of default, which would be sufficient to avert dismissal. This argument is both specious and unavailing in that it has been repeatedly held, in the context of a mortgage foreclosure action, that moving for an Order of Reference pursuant to RPAPL § 1321 is the first recognized step toward the fixing of a default, Citimortgage Inc. v. Kowalski 130 AD3d 558 (2nd Dept. 2013), US Bank NA v. Dorestant 131 AD3d 467 (2nd Dept. 2015), HSBC Bank USA NA v. Traore 139 AD3d 1009 (2nd Dept. 2016). Plaintiff's claims along these lines are therefore wholly unavailing.
Plaintiff's application for summary judgment against Defendants is hence inexplicably untimely and must be denied in accordance with the mandatory provisions of CPLR § 3215(c). That section requires the Court to dismiss an action, whether on motion or sua sponte , if a default judgment is not sought within one year, unless "...sufficient cause is shown why the complaint should not be dismissed," Rendelman v. Southside Hospital 141 AD2d 521 (2nd Dept. 1988), Perricone v. City Of New York 62 NY2d 661 (1984). The statute does not require the entry of a default judgment within one year but merely requires the filing of an application for the same within that time period, Kay Waterproofing Corp. v. Ray Realty Fulton Inc. 23 AD3d 624 (2nd Dept. 2005).
It is the exclusive province of the trial court, in a provident exercise of its discretion, to assess the reasonableness of any excuse proffered for delay, which necessarily includes consideration of the length of time which has elapsed, Dominguez v. Carioscia 1 AD3d 396 (2nd Dept. 2003), Pipinias v. Sackaris & Sons Inc. 116 AD3d 749 (2nd Dept. 2014), Lv To App Denied 24 NY3d 990. In the matter of Wells Fargo Bank NA v. Bonanno 146 AD3d 844 (2nd Dept. 2017) , a case remarkably similar to the one that is sub judice , the Appellate Division directed dismissal, finding that the Plaintiff delayed applying for a default judgment for almost two years following the release from the conference part, without any other explanation. Further, in the matter of Giglio v. NTIMP Inc. 86 AD3d 301 (2nd Dept. 2011), a case cited by Plaintiff in its motion papers, the Second Department affirmed a judgment of dismissal where the application for a default judgment was made one year and eight days after the event of default. As noted above, Plaintiff has failed to advance any colorable excuse for the lengthy delay in the prosecution of this matter. An excuse which is amorphous or otherwise specious constitutes no excuse at all, Dugan v. Belik 170 AD2d 746 (3rd Dept. 1991). Here, Plaintiff has not articulated any legally or factually efficacious reason for the lapse of time herein, thus failing to demonstrate the sufficient cause that is contemplated by the statute. This fact standing alone is sufficient to mandate granting of the cross-motion and ordering dismissal of Plaintiff's action.
Moreover, an action claiming foreclosure of a mortgage is a suit sounding in equity, Dunkley v. Van Buren 3 Johns Ch 330 (1818), Reichert v. Stilwell 172 NY 83 (1902), Jamaica Savings Bank v. M.S. Investing Co. Inc. 274 NY 215 (1937) and all of the rules and maxims of equity are extant therein. It has long been the rule that one must do equity in order to obtain equitable relief. In the matter that is sub judice , this Court is of the opinion that Plaintiff has acted inequitably, thus barring it from seeking equitable relief.
Accordingly, the Court need not reach any of the other defenses and issues that were so succinctly articulated by counsel for Defendant ALLAN BERGER.
Accordingly, it is
ORDERED that the application of the Plaintiff (seq. 001) for summary judgment pursuant to CPLR § 3212 and an Order of Reference pursuant to RPAPL § 1321 is hereby denied in its entirety; and it is further
ORDERED that the cross-motion by Defendant ALLAN BERGER (seq. 002) for an Order of dismissal pursuant to CPLR § 3215(c) shall be and the same is hereby granted in its entirety; and it is further
ORDERED that upon payment of the proper fees by Plaintiff, the Clerk of Suffolk County shall cause the notice of pendence to be cancelled and discharged of record; and it is further
ORDERED that any relief not expressly granted shall be and the same is hereby denied.