Opinion
Index No. 002760/2010 Mot. Seq. No. 007-MD
06-14-2022
US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-3, Plaintiff, v. ROBERT A. CONK; RENE A. NEVILLE-CONK AKA RENEE A. NEVILLE-CONK AKA RENEE A. CONK; CHASE BANK USA, NA, Defendants.
FRIEDMAN VARTOLO LLP Attorneys for the Plaintiff LAW OFFICE OF CHRISTOPHER THOMPSON Attorneys for Defendant Rene A. Neville-Conk a/kJa Renee A. Neville-Conk a/k/a Renee A. Conk TODD ERIC HOUSLANGER, ESQ. Referee
Unpublished Opinion
FRIEDMAN VARTOLO LLP Attorneys for the Plaintiff
LAW OFFICE OF CHRISTOPHER THOMPSON Attorneys for Defendant Rene A. Neville-Conk a/kJa Renee A. Neville-Conk a/k/a Renee A. Conk
TODD ERIC HOUSLANGER, ESQ. Referee
PRESENT: HON. JAMES HUDSON Acting Justice of the Supreme Court
HON. JAMES HUDSON, ACTING JUSTICE
The cross-motion (seq. no.: 007) by the Defendant Rene A. Neville-Conk a/k/a Renee A. Neville-Conk a/k/a Renee A. Conk ("Defendant") requests an Order pursuant to CPLR Rule 2221(e) granting renewal of the December 4, 2018 Judgment of Foreclosure and Sale upon theground that there has been a change in the law that would change the prior determination; and to strike interest pursuant to CPLR §4001.
This is a residential foreclosure action against the Defendant's premises which address is 35 Greenlawn Road, Huntington, New York ("Subject Premises"). The property is encumbered by a consolidated mortgage and note. On August 1, 2009 the Defendant defaulted on that loan; which default continues through the present. Judgment of Foreclosure and Sale was granted to the Plaintiff on December 4, 2018, entered on December 31, 2018 and served with Notice of Entry on February 28, 2019 (Doc. 42). Defendant/Debtor Rene Conk subsequently twice filed petitions in Bankruptcy Court for the Eastern District of New York to avoid the scheduled foreclosure sale of the Subject Premises. On May 9, 2019, the Defendant filed for chapter 13 bankruptcy protection under case number 8-19-73385-ast. On July 19, 2019 the case was automafically dismissed (Doc. 18). On May 7, 2020, Judge Trust dismissed Defendant's chapter 13 case number 20-70697-ast (Doc. 19). The Defendant filed a Hardship Declaration during the COVID-19 Pandemic emergency; which hardship expired on January 15, 2022.
The Defendant has filed her instant cross-motion (seq. no.: 007) requesting renewal of the motion for judgment of foreclosure and sale. Neither the Notice of Cross-Motion nor the Affirmation in Support request that upon granting renewal, the Court deny the prior motion for judgment of foreclosure and sale due to a change in the law which would change the prior determination. Defendant's counsel, in her supporting affirmation states that the basis for the cross-motion is "new evidence, namely that post granting of the judgment of foreclosure and sale it has been determined that the Plaintiff was using a third party vendor to mail the notice of default and RPAPL §1304 notice and based on new case law which has established the burden a foreclosing plaintiff must meet to be entitled to judgment of foreclosure and sale" (Doc. 27, para 2).
At the outset, the Notice of Motion requests "to strike interest pursuant to CPLR §4001." That section of the N.Y. Civil Practice Law and Rules pertains to powers of referees and is inapplicable to the requested relief. It is not the province of the Court nor an adversary to speculate as to what relief is sought by the movant." 'The failure to provide proper notice of motion can readily be viewed as a fundamental [jurisdictional] defect because it deprives the opposing party of a fair opportunity to oppose the motion' [Pautus v. Christopher Vacirca, Inc., 128 A.D.3d 116, 125. 6 N.Y.S.3d 572 (2d Dep't. 2015); cf. Manhattan Telecom, Corp. v. H&A Locksmith, Inc., 21 N.Y.3d 200, 203-204, 969 N.Y.S.2d 424, 991 N.E.2d 198 (2013); Lacks v. Lacks, 41 N.Y.2d 71, 75. 390 N.Y.S.2d 875, 359 N.E.2d 384 (1976)]." (21st Mortgage Corporation v. Raghu, 197 A.D.3d 1212, 154 N.Y.S.3d 84, 94 [2d Dep't. 2021]).
The balance of the Defendant's motion requests renewal pursuant to CPLR Rule 2221(e) of the motion which, on December 4, 2018 resulted in the Plaintiff being granted a Judgment of foreclosure and sale ("JFS").
A motion for renewal "...shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination..." (CPLR Rule 2221[e]: HSBC Bank USA, N.A. v. Halls, 98 A.D.3d 718, 950 N.Y.S.2d 172, 174 [2d Dep't. 2012]).
In the case at bar. the Judgment of Foreclosure and sale was served upon the Defendant on February 28, 2019 with Notice of Entry. Pursuant to CPLR Rule 5513(a), the Defendant's right to appeal as of right from a judgment must be taken within thirty (30) days after service of a copy of the judgment or order appealed from and written notice of its entry. The Defendant's right to appeal expired no later than April 1, 2019. The instant cross-motion (seq. no.: 007) was tiled on April 4, 2022. The Defendant's cross-motion is untimely (Opalinski v. City of New York, 2022 WL 1561001. ___ N.Y.S.3d ___ [2d Dep't. May 18, 2022]).
Additionally, as noted by Plaintiffs counsel in his opposition to the instant cross-motion, the JFS was granted without opposition upon the Defendant's default. The record reflects that the Defendant did not move to vacate that default (CPLR Rule 5015[a](1 ]) prior to making her instant cross-motion for renewal. The Defendant is barred from making the instant cross-motion (see Hutchinson Burger, Inc. v. Bradshaw, 149 A.D.3d 545, 545-546, 50 N.Y.S.3d 267 [1st Dep't. 2017] - "The proper vehicle for defendant to challenge the [Order] which was granted on her default, was a motion to vacate a default order under CPLR Rule 5015[a]H], and not a motion for renewal or reargument under CPLR Rule 2221[d] and [e] [see Country Wide Home Loans, Inc. v. Dunia, 138 A.D.3d 533, 533, 28 N.Y.S.3d 319 (1st Dep't. 2016), 'the court properly denied plaintiffs motion since the prior order was granted on default, and the proper remedy for plaintiff was to move to vacate the default pursuant to CPLR Rule 5015, rather than by motion to renew"; 300 W. 46th St. Corp. v. Clinton Hous. W. 46th St. Partners, LP., 19 A.D.3d 136, 796 N.Y.S.2d 340 (1st Dep't. 2005); Vasquez v. Koret, Inc., 151 A.D.2d 448, 543 N.Y.S.2d 907 (1st Dep't. 1989); Siegel, NY Prac §426 (6'" ed.)]."
Accordingly, it is
ORDERED, that the cross-motion (seq. no. 007) by Defendant Rene A. Neville-Conk a/k/a Renee A. Neville-Conk a/k/a Renee A. Conk which requests, pursuant to CPLR Rule 222 l(e), renewal of the December 4, 2018 Judgment of Foreclosure and Sale is denied; and it is further
ORDERED, that the request to strike interest pursuant to CPLR §4001, is denied.
This Memorandum is also the Order of the Court.