Opinion
2009-15315
07-30-2018
U.S. BANK NATIONAL ASSOCIATION As Trustee FOR The STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE LOAN TRUST 2006-NC1, Plaintiff, v. Melchior SANSONE, New Century Mortgage Corporation, et. ano., Defendants.
Andrew B. Messite Esq., Reed Smith LLP, 599 Lexington Avenue, New York, New York 10022-7650, Attorneys for Plaintiff Richard Wolfson Esq., Richard Wolfson P.C., 626 RXR Plaza, Uniondale, New York 11556, Attorney for Defendant MELCHIOR SANSONE
Andrew B. Messite Esq., Reed Smith LLP, 599 Lexington Avenue, New York, New York 10022-7650, Attorneys for Plaintiff
Richard Wolfson Esq., Richard Wolfson P.C., 626 RXR Plaza, Uniondale, New York 11556, Attorney for Defendant MELCHIOR SANSONE
Jeffrey Arlen Spinner, J.
Plaintiff has applied to this Court, by Order To Show Cause dated July 27, 2016 (Hudson, J.), for an Order vacating the dismissal of this matter and restoring same to the Court's active calendar. The application was returnable before Part 49 but was thereafter referred to the undersigned. The application has been strenuously opposed by Defendant MELCHIOR SANSONE.
Plaintiff, through its predecessor counsel, commenced this action claiming foreclosure of a mortgage dated February 33, 2006 in the original amount of $ 361,200.00. Said mortgage was given to secure an Adjustable Rate Note of the same date and was recorded with the Clerk of Suffolk County on March 3, 2006 in Liber 21247 of Mortgages, Page 286. Said mortgage constitutes a first lien upon residential real property known as 779 Peconic Avenue, North Babylon, Town of Babylon, New York.
The within action was commenced on April 23, 2009. Defendant was served with process and issue was joined when he timely filed an Answer together with seven Affirmative Defenses. On September 8, 2009, November 10, 2009, January 12, 2010, March 9, 2010, May 11, 2010, June 15, 2010, July 20, 2010, September 21, 2010, November 16, 2010 and January 26, 2011, mandatory foreclosure settlement conferences under the authority of CPLR § 3408 were held before the Court, which did not result in any resolution herein. Following the entry of Administrative Order AO548/10 and a decidedly protracted period in which there was no movement on the matter, the Court issued an order scheduling a compliance conference for July 20, 2012. Counsel for Plaintiff appeared at that conference, the matter was addressed and the Court directed resumption of prosecution within sixty days else the matter would be subject to dismissal. The Court also advised counsel that, upon application by Plaintiff, it would grant additional time for compliance if the same were found to be necessary under the circumstances. Upon the failure of Plaintiff to resume prosecution as directed coupled with its failure to request additional time in which to do so, the Court issued an Order dated November 29, 2012 (132 days following the conference) which dismissed the action. The Order was mailed by the Court, on November 29, 2012, to Plaintiff's counsel and to all parties.
Plaintiff now applies to this Court, by Order To Show Cause dated July 27, 2016 for an Order vacating the dismissal and, in essence, restoring the matter to the Court's active calendar. Plaintiff's application expressly invokes CPLR § 5015 as the basis for its application.
The Affirmation of Andrew B. Messite Esq. dated July 25, 2016, though rather lengthy, vociferously asserts that, in essence, this Court was without jurisdiction to dismiss the matter resulting from Plaintiff's failure to move forward. Counsel makes reference to a certain FEMA Declaration Order no. DR-4085, issued on October 30, 2012 which, it is asserted, effectuated a stay of proceedings in this matter. It is both interesting and highly significant to note that no such order has been furnished to this Court and counsel has advanced no authority whatsoever under which the Federal Emergency Management Administration may, unilaterally and without notice, direct the Supreme Court of the State of New York to refrain from the continuation of its proceedings. Moreover, counsel expressly mis-states, in Paragraph 8 of his Affirmation, that "...Plaintiff was never advised by the Court that the consequence of noncompliance was dismissal."
Most notably, nowhere in counsel's Affirmation is there any explanation or excuse for the protracted delays in the matter that is sub judice . Instead, counsel's Affirmation is devoted to a prolonged discussion of the perceived merits of Plaintiff's claim against Defendant together with the assertion that the Court was without power to enter the Orders which were issued. While it is true that the Court has the inherent discretion to vacate a default upon the showing of good cause, McMahon v. City of New York 105 AD2d 101 (1st Dept. 1984) , Gurin v. Pogge 112 AD3d 1028 (3rd Dept. 2013) , it is certainly incumbent upon the applicant to make such a showing of good cause for the relief that it seeks.
A fair reading of CPLR § 5015(a)(1) reveals that an application such at the one presently before the Court must be made within one year of the Order against which relief is sought. Assuming arguendo that the time began to run on the date that it was served by the Court (November 29, 2012), Plaintiff would have been required to file its application not later than November 29, 2013. No explanation whatsoever is advanced for the passage of 3 years, 4 months, 3 days between the date of the dismissal order and that of the instant application. Where the movant fails to apply for relief within one year of obtaining knowledge of the default or within one year of service of the copy of the default judgment, vacatur will not lie, Malik v. Noe 54 AD3d 733 (2nd Dept. 2008), Bistre v. Rongrant Associates 109 AD3d 778 (2nd Dept. 2013) .
Moreover, such an application must demonstrate to the Court that there is both a reasonable excuse for the delay as well as a meritorious claim or cause of action, Li Gang Ma v. Hong Guang Hu 54 AD3d 312 (2nd Dept 2008), NYCTL 1998-2 Trust v. McGill 138 AD3d 1077 (2nd Dept. 2016) . Failure to satisfy both of these requirements will result in denial, Cummings v. Rossoff 101 AD3d 713 (2nd Dept. 2012) .
Counsel's Affirmation does not articulate any facially reasonable excuse for Plaintiff's delay in proceeding upon this matter. Where an application such as the instant one is proffered to the Court, it is incumbent upon the movant to provide an explanation that is both detailed and credible, Vujanic v. Petrovic 103 AD3d 791 (2nd Dept. 2013) . Where as, here, there has been a failure to offer up an excuse for the delay, vacatur is clearly not warranted, Weber v. Peller 82 AD3d 1331 (3rd Dept. 2011) .
In assessing the reasonableness of the excuse proffered, the Court can consider the length of time that has elapsed between the rendition of the order at issue and the application to vacate (in this case, over 40 months), Dominguez v. Carioscia 1 AD3d 396 (2nd Dept. 2003) . Indeed, in the matter of DeLisca v. Courtesy Transportation Ltd. 6 AD3d 646 (2nd Dept. 2004) , the Court determined that there was no reasonable excuse for a mere six month delay.
Plaintiff's counsel has failed to advance any colorable excuse for its delay in this matter. Over forty months elapsed between the date of the Order of Dismissal and the instant application seeking vacatur thereof. An excuse which is amorphous is not a reasonable one under these circumstances, Dugan v. Belik 170 AD2d 746 (3rd Dept. 1991) and is legally and factually inefficacious.
In view of the lack of any proffered excuse for the delay, as mandated by CPLR § 5015(a)(1), the Court need not consider whether or not the Plaintiff's claims are meritorious.
It is, therefore,
ORDERED that the within application by the Plaintiff shall be and the same is hereby denied in its entirety.