Opinion
603465-2018
02-07-2020
WELLS FARGO BANK, NA, Plaintiff, v. Sean P. ROCHE, Kristine A. Roche, Huntington Medical Group, Clerk of the Suffolk County Traffic & Parking Violations Agency, Clerk of the Suffolk County District Court, New York State Department of Taxation and Finance, "John Doe" (Refused Name) and "Jane Doe" (Refused Name), Defendants.
FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP, 53 Gibson Street, Bay Shore, NY 11706, Attorneys for Plaintiff CHRISTOPHER THOMPSON, ESQ., 33 Davison Lane East, West Islip, NY 11795, Attorney for Defendant Kristine A. Roche
FRENKEL, LAMBERT, WEISS, WEISMAN & GORDON, LLP, 53 Gibson Street, Bay Shore, NY 11706, Attorneys for Plaintiff
CHRISTOPHER THOMPSON, ESQ., 33 Davison Lane East, West Islip, NY 11795, Attorney for Defendant Kristine A. Roche
Robert F. Quinlan, J.
Upon the following papers read on this Order To Show Cause for an order vacating judgment of foreclosure and sale, and dismissal by defendant Kristine A. Roche; Order to Show Cause and supporting papers (NYSCEF Docs #41-61); Affirmation in Opposition and supporting papers (Doc # 63-71); it is,
ORDERED that those portions of the Order To Show Cause of defendant Kristine A. Roche seeking to vacate the judgment of foreclosure and sale dated October 25, 2018 pursuant to CPLR 5015 (a) (4) and dismiss the complaint; pursuant to CPLR 5015 (a) (1) to vacate her default in answering and CPLR § 317 to file a late answer; and to vacate the order for failure to comply with RPAPL § 1309 are denied; and it is further
ORDERED that the portion of the Order To Show Cause of defendant Kristine A. Roche seeking to vacate the judgment of foreclosure and sale dated October 25, 2018 for failure to comply with the requirements of CPLR § 6512 and RPAPL § 1331, is granted to the extent that the court amends the order of October 25, 2018 by striking therefrom all language following the second decretal paragraph on page 3, except for the amount of the judgment calculated by the court to be $437,672.59 and the award of attorneys fees of $2,900.00 indicated on page 7, as well as that portion of the final decretal paragraph on page 8 representing the court's determination that the property is to be sold in one parcel, and the first full decretal paragraph on page 10 discontinuing the action against certain defendants and amending the caption as set forth therein; and it is further
ORDERED that the court signs the amended order contemporaneously with this order; and it is further
ORDERED that the referee appointed pursuant to the order of October 25, 2018, Terry Woodard, Esq., 320 Carleton Avenue, Ste 1000, Central Islip, NY 11722 is relieved and discharged of all duties under that order; and it is further
ORDERED that plaintiff is directed to file a successive notice of pendency pursuant to CPLR § 6516 (a) within forty-five (45) days of the date of this order, serving a copy by mail upon defendant's counsel, and to file a successive motion for judgment of foreclosure and sale, in compliance with RPAPL § 1331, the rules of Part 27 and the terms of this order within one hundred-eighty (180) days of the date of this order, serving a copy of such motion upon defendant's counsel; and it is further
ORDERED that this action is calendared for a conference before this Part on Monday, June 15, 2020 at 9:30 AM.
This is an action to foreclose a mortgage on a residential property known as 11 Hilden Street, Kings Park, Suffolk County, New York ("the property") given by defendants Sean P. Roche and Kristine A. Roche ("defendants") on January 30, 2012 to a predecessor in interest to plaintiff Wells Fargo Bank, NA ("plaintiff"). Plaintiff commenced this action by filing the summons, complaint and notice of pendency on February 21, 2018 with the Suffolk County Clerk. Defendants failed to appear or answer the complaint, and also failed to appear at the conferences scheduled before this court's dedicated Foreclosure Settlement Conference Part ("FSCP") on June 7 and July 10, 2018. Upon defendants failure to appear on the last conference date, the action was referred to an IAS Part.
Upon defendants default in answering, plaintiff's counsel submitted a "combined motion" for the court to perform the determinations required by RPAPL § 1321 (1) without reference, and upon making such determinations to grant a judgment of foreclosure and sale pursuant to RPAPL § 1351 (Mot. Seq. #001). Plaintiff provided affidavits of service of the combined motion, including the proposed judgment of foreclosure and sale, as well as records upon which the court would base its calculations, upon all defendants. No defendant filed opposition, cross-motion or other motion. On October 25, 2018, after reviewing the submissions, the court fixed the default of defendants, determined that the parcel should be sold as one parcel, performed the necessary calculations based upon plaintiff's submissions, amended the original caption to reflect the caption above and granted plaintiff a judgment on default and a judgment of foreclosure and sale.
By Order to Show Cause signed February 13, 2019 (Reilly, J.), defendant Kristine A. Roche ("defendant") moved for an order vacating the judgment of foreclosure and sale pursuant to CPLR 5015 (a) (4) and dismissing the complaint for lack of jurisdiction; alternatively seeking vacatur pursuant to CPLR 5015 (a) (1), or CPLR § 317, and upon vacatur allowing her to file a late answer; or vacating the judgment of foreclosure and sale for plaintiff's failure to file a notice of pendency at least twenty (20) days prior to the rendering of that judgment as required by RPAPL § 1331 ; and/or vacating the judgment of foreclosure and sale because the proceeding on the complaint did not comply with the provisions of RPAPL § 1309. Plaintiff filed opposition to the motion.
Although the court is aware that procedure is to determine an application to vacate a default based upon a claim pursuant to CPLR 5015 (a) (4) before considering an application pursuant to CPLR 5015 (a) (1), or pursuant to CPLR § 317, (see Wells Fargo v. Besemer , 131 AD3d 1047 [2d Dept 2015] ; Deutsche Bank Natl. Trust v. Saketos , 158 AD3d 610 [2d Dept 2018] ; West Coast Servicing, Inc. v. Yusupova , 172 AD3d 789 [2d Dept 2019] ), and that a motion to dismiss based upon non-jurisdictional grounds cannot be considered from a defendant in default until the default is vacated (see Deutsche Bank Trust Co., Am. v. Stathaklis , 90 AD3d 694 [2d Dept 2011] ; Nationstar Mortgage, LLC v. Avella , 142 AD3d 594 [2d Dept 2016] ; Nationstar Mtg., LLC v. Kamil , 155 AD3d 968 [2d Dept 2017] ), the court addresses the last claim raised by defendant first.
RPAPL § 1309 NOT APPLICABLE
Defendant's counsel mischaracterizes plaintiff's motion, it was not a motion pursuant to RPAPL § 1309 and therefore did not have to meet the requirements of that statute, including that the property be vacant. This combined motion was addressed to the discretion of the court to perform the determinations most often assigned to a referee, after having determined defendants default, and upon doing so to also issue a judgment of foreclosure and sale. This procedure was authorized by Administrative Order of the Chief Administrative Judge of the Courts, AO/356/17, dated November 28, 2017, implemented in Suffolk County by Suffolk County District Administrative Order AO 125-17, and in this Part by its own published rules (see HSBC Bank, USA, N.A. v. Bouchard , 61 Misc 3d 497 [Sup Ct. Suffolk Co., 2018] ). As the combined motion met the requirement of AO 125-17 that defendants failed to appear for the CPLR 3408 conference, and the additional requirement of this Part's rules that plaintiff waive a deficiency judgment, and as plaintiff's unopposed submissions appeared sufficient, the court signed the order.
On a motion for leave to enter a default judgment, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's default in answering or appearing ( CPLR 3215[f] ; see Dupps v. Betancourt , 99 AD3d 855 [2d Dept 2012] ; Green Tree Serv., LLC v. Cary , 106 AD3d 691[2d Dept 2013] ). To demonstrate the facts constituting the cause of action, the plaintiff need only submit sufficient evidence to enable a court to determine if the cause of action is viable, since "defaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them" (see Vanderbilt Mtge & Fin., Inc. v. Ammon , ––– AD3d ––––, 2020 NY Slip Op 00638 [2d Dept 2020] ; Wilmington Sav. Fund Socty, FSB v. Chisthy , ––– AD3d ––––, 2020 NY Slip Op 00641 [2d Dept 2020] ). The principle noted in Bank of New York Mellon v. Gordon , 171 AD3d 197, 202 (2d Dept 2019) that inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess, is as applicable here as in a motion for summary judgment.
Accordingly that portion of defendant's motion seeking to vacate the order of October 25, 2018 for failure to comply with the requirements of RPAPL § 1309 is denied.
VACATUR PURSUANT TO CPLR 5015 (a) (4) AND DISMISSAL DENIED
Defendant's application to vacate the order of October 25, 2018 pursuant to CPLR 5015 (a) (4) and to dismiss the complaint against her for lack of jurisdiction is denied.
Defendant's conclusory attack on the affidavit of service, which affidavit shows that service of process of the summons, complaint and other papers required by CPLR § 3012-b, RPAPL §§ 1303 and 1320 was made upon her pursuant to CPLR 308 (4), is inadequate to overcome plaintiff's process server's affidavit (NYSCEF Doc. #9) and require a traverse hearing (see Deutsche Bank Natl. Trust v. Saketos , 158 AD3d 610 [2d Dept 2018] ; West Coast Servicing, Inc. v. Yusupova, supra ). Acknowledging that she resides at the property, defendant's attack on the four (4) attempts at service at the property as not meeting the due diligence required for service pursuant to CPLR 308 (4) is insufficient (see Countrywide Home Loans v. Smith , 171 AD3d 858 [2d Dept 2019] ). The process server's affidavit shows that he attempted service on four (4) different days, over a period of twelve (12) days, at four (4) different times when defendant, or another resident, could reasonably be expected to be home, and that he verified that defendants resided at the property from a neighbor. The affidavit shows that the process server exercised due diligence before resorting to service pursuant to CPLR 308 (4) (see Countrywide Home Loans v. Smith, supra ; Countrywide Home Loan ( USA) v. Hollender , 159 AD3d 883 [2d Dept 2018] ; Wells Fargo Bank, N.A. v. Mauser , ––– AD3d ––––, 2020 NY Slip Op 00891 [2d Dept 2020] ). When the fourth (4th) attempt at service pursuant to CPLR 308 (1) or (2) was unsuccessful on March 20, 2018, his affidavit shows that he affixed those papers to the door of the property, completed the required mailing by First Class Mail on March 30, 2018 and filed his affidavit with the Clerk on April 3, 2018.
Three (3) attempts at service under similar circumstances have been held to be sufficient to establish due diligence justifying "nail and mail" service pursuant to CPLR 308 (4) (see JPMorgan Chase Bank, NA v. Szajna , 72 AD3d 902 [2d Dept 2010] ; U.S. Bank, NA v. Cepeda , 155 AD3d 809 [2d Dept 2017] ; Countrywide Home Loan (USA) v. Hollender, supra ;), as have four (4) such attempts (see JPMorgan Chase Bank v. Baldi , 128 AD3d 777 [2d Dept 2015] ; Nationstar v. Dekom , 161 AD3d 995 [2d Dept 2018] ).
The cases cited by defendant's counsel for his claim that the process server was required to attempt service before 9 AM do not stand for that proposition. The holding in US 1 Brookville Real Estate Corp. v. Spallone , 21 AD3d 480 (2d Dept 2005) rests on the fact that rather than resorting to "nail and mail" service under CPLR 308 (4), the process server should have served the adult who answered the door at the residence pursuant to CPLR 308 (2). The remainder of the cases cited by defendant's counsel deal with challenges to service pursuant to CPLR 308 (1), Wells Fargo v. Decesare , 148 AD3d 761 (2d Dept 2017) ; or service under CPLR 308 (2), US Bank v. Arias , 85 AD3d 1014 (2d Dept 2011), US Bank, N.A. v. Tauber , 140 AD3d 1154 (2d Dept 2016).
In her affidavit (NYSCEF Doc. No. 45) defendant argues for a traverse hearing, incorrectly claiming that the process server's affidavit shows he attempted to serve her at the property on March 8, 12, 18, 19 and 20, 2018, claiming that he "forgot that he had allegedly served me and allegedly spoken to me on March 18, 2018 - and then returned an additional two (2) times." But the process server's affidavit never mentions an attempt at service on March 18, 2018. It appears that defendant has confused the service made upon her on May 18, 2018 pursuant to CPLR 308 (1), and discussed below, where the process server stated he spoke to her (NYSCEF Doc. No. 24), with a non-existent attempt at service on March 18, 2018.
Defendant attempts to posit that plaintiff believed, and now acknowledges, that the "nail and mail service" upon her was ineffective, therefore it had the second service made on defendant on May 18, 2018 pursuant to CPLR 308 (1) (NYSCEF Doc. No. 24). Plaintiff's counsel's affirmation does not acknowledge that the service pursuant to CPLR 308 (4) was ineffective, and in fact she relies upon that service in opposition to defendant's motion. Although no explanation for this second service is given by plaintiff's counsel, "belt and suspenders" is often a good idea. Although the court does not consider the unsupported hearsay claims made by plaintiff's counsel of alleged statements made by defendant to unidentified representatives of her law firm, the record does show that along with the "second service" pursuant to CPLR 308 (1) made upon defendant on May 18, 2018 and service made upon defendant Sean P. Roche pursuant to CPLR 308 (2) at the same time (NYSCEF Doc. No. 23), another service pursuant to CPLR 308 (4) was made on defendant Sean P. Roche prior to that date at an address other than the property (NYSCEF Doc. No. 22).
In reference to the second service made upon defendant pursuant to CPLR 308 (1) on May 18, 2018, defendant claims that the description contained in the affidavit of service does not fit her, therefore a traverse hearing should be held. The description of her in the process server's affidavit is: "Age: 46, Skin Tone: White, Gender: Female, Weight: 125, Height 5'9; Hair: Brown." To support her claim, defendant includes a copy of her New York State driver's license, on which her date of birth is blacked out, containing a black and white photograph of her, states her height is 5'8, and her eyes are hazel. Her affidavit provides no information to refute the process server's affidavit's listing of her age and weight. Her license shows her skin tone to be white with dark hair and of the appropriate age. A 1" difference in her height is of no moment. Although she states in her affidavit that her "personal records indicate that I was not home at the time of service," she fails to provide those records. Minor discrepancies between the appearance of defendant and her description by a process server are not enough to warrant a traverse hearing, nor can they serve as the basis to vacate a judgment of foreclosure and sale based upon her default or to dismiss the action (see JPMorgan Chase Bamk v. Daar , 161 AD3d 835 [2d Dept 2018] ; Bayview Loan Servicing, LLC v. Yusupova , 172 AD3d 699 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Johnston ,175 AD3d 744 [2d Dept 2019] ).
Defendant's counsel's unsupported argument that a process server named "Feldman" allegedly made "sewer service" and filed false affidavits in the past, requiring the scrutiny of a traverse hearing is without support or merit, since "Feldman" served none of the process here.
Any claim by defendant that the court lacked subject matter jurisdiction over her because the notice of pendency may not have been served upon her within thirty (30) days of its filing as required by CPLR § 6512 is without merit, as the notice of pendency requirement of RPAPL § 1331 is an element of plaintiff's cause of action and not a jurisdictional defect (see Slutsky v. Blooming Grove Inn , 147 AD2d 208 [2d Dept 1989] ; Maspeth Fed. Sav. And Loan Assn. v. Sloup , 123 AD3d 672 [2d Dept 2014] ; Deutsche Bank Natl. Trust Co. v. Brown , 133 AD3d 563 [2d Dept 2015] ).
The court finds that plaintiff obtained jurisdiction over defendant pursuant to both CPLR 308 (1) and (4), and accordingly that part of defendant's motion seeking to vacate the order of October 25, 2018 pursuant to CPLR § 5105 (a) (4) and to dismiss the action against her is denied.
VACATUR PURSUANT TO CPLR § 317 OR CPLR 5015 (a) (1) DENIED
A party who was not personally served seeking to vacate her default pursuant to CPLR § 317 must show that she did not personally receive notice of the summons in time to defend and has a meritorious defense (see Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr., Co. , 67 NY2d 138 [1986] ; ACT Prop., LLC v. Ana Garcia , 102 AD3d 712 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Gutierrez , 102 AD3d 825 [2d Dept 2013] ). A mere denial of receipt of the summons and complaint, as here, is insufficient to establish lack of actual knowledge to obtain relief under CPLR § 317 (see Stevens v. Charles , 102 AD3d 763 [2d Dept 2013] ; Bank of NY v. Samuels , 107 AD3d 653 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Russo , 170 AD3d 952 [2d Dept 2019] ; Bethpage Fed. Credit Union v. Grant , 178 AD3d 997 [2d Dept 2019] ).
Accordingly, defendant's application to vacate the judgment and file a late answer pursuant to CPLR § 317, based upon her claim that service pursuant to CPLR 308 (4) was defective is denied. The court notes that even if it had found that such service was insufficient, it would have denied defendant's motion as it has found that the service made pursuant to CPLR 308 (1) on May 18, 2018 was valid and sufficient to obtain jurisdiction over defendant giving her notice.
A defendant who has failed to timely appear or answer and seeks to vacate her default pursuant to CPLR 5015 (a) (1) and file an answer must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to vacate her default (see Maspeth Fed. Sav. & Loan Assn. v. McGown , 77 AD3d 890 [2d Dept 2010] ; Karalis v. New Dimensions HR, Inc. , 105 AD3d 707 [2d Dept 2013] ; Bank of Am., N.A. v. Agarwal , 150 AD3d 651 [2d Dept 2017] ). Similarly, a party who has failed to oppose a motion must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to vacate that default (see Aurora Loan Service v. Ahmed , 122 AD3d 557 [2d Dept 2014] ; Hudson City Sav. Bank v. Bomba , 149 AD3d 704 [2d Dept 2017] ; Nationstar Mtg, LLC v. Rodriguez , 166 AD3d 990 [2d Dept 2018] ).
The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v. Ortov Light. , 278 AD2d 494 [2d Dept 2000] ; Segovia v. Delcon Constr. Corp. , 43 AD3d 1143 [2d Dept 2007] ). Where there is a failure to provide a reasonable excuse, the court need not consider claims of meritorious defenses by defendant (see HSBC Bank USA v. Miller , 121 AD3d 1044 [2d Dept 2014] ; Deutsche Bank National Trust Co v. Kuldip , 136 AD3d 969 [2d Dept 2016] ; US Bank, N.A. v. Dedomenico , 162 AD3d 962 [2d Dept 2018] ).
The only excuse offered by defendant for her default is her unsupported claim that she was never properly served, which cannot constitute a reasonable excuse when faced with a valid affidavit of service and the court's finding that she was properly served (see US Bank, N.A. v. Dedomenico, supra ; West Coast Servicing, Inc. v. Yusupova, supra ; Bank of New York Mellon v. Tedesco , 174 AD3d 490 [2d Dept 2019] ). Defendant's further claims that plaintiff failed to comply with the conditions precedent to commencing a foreclosure action contained in RPAPL Article 13 are without merit as those conditions are not jurisdictional and have been held not to constitute a reasonable excuse for her default entitling her to relief pursuant to either CPLR § 317 or CPLR 5015 (a) (1) (see Flagstar Bank, FSB v. Jambelli , 140 AD3d 829 [2d Dept 2016] ; HSBC Bank USA v. Hasis , 154 AD3d 832 [2d Dept 2017] ; Wilmington Sav. Fund Socty, FSB v. Chisthy, supra ). Additionally defendant's claims of lack of capacity or standing to sue and alleged legal insufficiency of the pleadings and submissions are also not jurisdictional in nature, have been found inadequate as a reasonable excuses to vacate a default, and in fact act as waivers of those issues (see Deutsche Bank Natl. Trust Co. v. Hunter , 100 AD3d 810 [2d Dept 2012] ; HSBC Bank USA, N. A. v. Dalessio , 137 AD3d 860 [2d Dept 2016] ; US Bank, N.A. v. Nelson , 169 AD3d 110 [2d Dept 2019] ; Bank of NY Mellon v. Gordon, supra ; Deutsche Bank Natl. Trust Co. v. Matzen , 174 AD3d 504 [2d Dept 2019] ).
Accordingly, defendant's application to vacate her default pursuant to CPLR 5015 (a) (1) and for permission to file an answer is denied.
FAILURE TO COMPLY WITH CPLR 6512 AND RPAPL § 1331
Defendant's final argument is that the judgment of foreclosure and sale should not have been issued as there was no valid notice of pendency filed within twenty (20) days of the rendering of the judgment as required by RPAPL § 1331. Defendant's argument appears to rest upon her claim of improper service upon her pursuant to CPLR 308 (4) and that even if the court finds the service pursuant to CPLR 308 (1) valid, that service is almost two months past the time for service of the notice of pendency required to make it effective pursuant to CPLR § 6512.
CPLR § 6512 requires that to be effective a notice of pendency must be served on a property owner within thirty (30) days of its filing. The notice of pendency here was filed on February 21, 2018 (NYSCEF Doc. # 2). As noted above, the court has found that service of the summons, complaint and other papers required by CPLR § 3012-b, RPAPL §§ 1303 and 1320 were effected upon both defendants by service upon them pursuant to CPLR 308 (4) and for the purpose of this discussion will assume arguendo that the notice of pendency was served at the same time. Service pursuant to CPLR 308 (4) is deemed completed ten (10) days after filing of the process servers' affidavits with the Clerk, which must be within twenty (20) days of the later of the affixing or mailing ( CPLR 3408 [4] ). Here, the filing with the Clerk occurred on April 3, 2018 (NYSCEF Docs # 8 & 9), well within the one hundred-twenty (120) days after the filing of the summons and complaint required by CPLR § 306-b, making service of the action timely to sustain the action (as was the personal service made pursuant to CPLR 308 [1] on May 18, 2018).
However, although this service and filing was sufficient to obtain jurisdiction over defendants enabling plaintiff to prosecute the foreclosure action, it was insufficient to meet the requirements of CPLR § 6512 (see Varon v. Ciervo , 170 AD2d 446 [2d Dept 1991] ; Bank of New York v. Vandermeulen , 10 AD3d 624 [2d Dept 2004] ; Conde v. Zaganjor , 66 AD3d 947 [2d Dept 2009] ). Although the period of time between the mailing on March 30, 2018 and the filing with the Clerk on April 3, 2018 is excluded from the time period required by CPLR § 6512 as a mere ministerial act (see Varon v. Ciervo, supra ; Conde v. Zaganjor, supra ), the period between the affixing and the mailing is not. The affixing to the property was done on March 20, 2018, within thirty (30) days of the filing of the notice of pendency, but the mailing was not done until March 30, 2018, outside that time period. As the mailing was thirty-seven (37) days after the filing of the notice of pendency, the terms of CPLR § 6512 renders the notice of pendency ineffective (see Debcon Fin. Svcs., Inc. v. 83-17 Broadway Corp. , 61 AD3d 712 [2d Dept 2009] ; Deutsche Bank Natl. Trust Co. v. Brown, supra ).
The personal service made on May 18, 2018 clearly is incapable of meeting the requirement of CPLR § 6512.
RPAPL § 1331 requires that at least twenty (20) days before a final judgment directing a sale is rendered, a notice of pendency must be filed with the Clerk which, in addition to other requirements, lists the date of the mortgage, the parties thereto, and the time and place of recording as a prerequisite to a valid judgment (see Federal Natl. Mtge. Assn. v. Chiusano , 60 Misc 3d 326, 336 [Sup Ct. Suffolk County, 2018] ). NYSCEF Doc. #2 complies with the statutory requirement as to content, but as it was not timely served in compliance with CPLR § 6512, it is automatically ineffective to meet the requirement of RPAPL § 1331.
Plaintiff could have remedied this by making a successive filing authorized by CPLR § 6516 (a) (see Deutsche Bank Natl. Trust Co. v. Brown, supra ) before submitting the motion, but did not, relying on the mistaken belief that the original filing and service was effective, as represented to the court in submitting the combined motion.
Although a property owner may move pursuant to CPLR § 6514 (a) to clear title by canceling and removing a notice of pendency filed with the Clerk when service of the summons was not in compliance with CPLR § 6512, she is not required to do so to as to make the filing "ineffective." The language of CPLR § 6512 makes the notice of pendency only effective if service is timely completed. The language of CPLR § 6516 (a) further reinforces this.
Additionally, the court points both counsel to the affidavits of service, which are silent on any service of the notice of pendency, and the fact that a copy of the notice of pendency is not included in the summons and complaint "package" filed as NYSCEF Doc. # 1 and served upon defendant.
The failure to comply with these statutes make that portion of the court's order of October 25, 2018 granting plaintiff a judgment of foreclosure and sale defective and requires the court to vacate that part of its findings and amend its order. It has no effect upon that portion of the order which set and fixed the default of defendants and other non-answering defendants, nor the court's determination that the property be sold in one parcel, the amount the court calculated as owed to plaintiff, the setting of plaintiff's counsel's legal fees, the discontinuance of the action against certain defendants and the amending of the caption. As a referee was appointed only to sell the property, that appointment is vacated and upon submission of a successive motion for judgment of sale the court will appoint a referee. The court therefore amends the order of October 25, 2018 to conform with this decision.
Contemporaneously with the execution of this decision, to reflect the above, the court is signing an amended order.
Plaintiff is directed to file a successive notice of pendency pursuant to CPLR § 6516 (a) within forty-five (45) days of the date of this decision, mailing a copy to defendant's counsel, as there is no statutory authority requiring service upon defendant of such a notice of pendency. Plaintiff is to file a further judgment of foreclosure and sale consistent with the terms of this decision, and the rules of Part 27, within one hundred-eighty (180) days of the date of this decision, serving a copy of such motion on defendant's counsel.
The court schedules a status conference to monitor this case on Monday, June 15, 2020 at 9:30 AM before this Part.
This constitutes the Order and decision of the Court.