Opinion
600886-2015
09-10-2019
The BANK OF NEW YORK MELLON AS TRUSTEE FOR CIT MORTGAGE LOAN TRUST 2007-1, Plaintiff, v. John A. DILAVORE a/k/a John DiLavore, HSBC Mortgage Services, Inc, Candice DiLavore, Defendant(s).
PARKER IBRAHIM & BERG, 5 Penn Plaza, Suite 2371, New York, NY 10001, Attorneys for Plaintiff IRWIN POPKIN, ESQ., 445 Broadhollow Road, Suite 25, Melville, NY 11747, Attorney for Defendant John DiLavore
PARKER IBRAHIM & BERG, 5 Penn Plaza, Suite 2371, New York, NY 10001, Attorneys for Plaintiff
IRWIN POPKIN, ESQ., 445 Broadhollow Road, Suite 25, Melville, NY 11747, Attorney for Defendant John DiLavore
Robert F. Quinlan, J.
Upon the following papers read on this application by defendant John DiLavore seeking an order granting renewal; notice of motion and supporting papers: NYSCEF Docs No.53-56 ; plaintiff's opposition and cross-motion for summary judgment: NYSCEF Docs #62-94 ; defendant's reply and opposition: NYSCEF Docs #95-97 ; plaintiff's reply: NYSCEF Docs #98-99 ; it is
ORDERED that defendant John DiLavore's motion seeking renewal and reargument of the court's decision placed on the record on March 6, 2017 granting plaintiff The Bank of New York Mellon as Trustee for Cit Mortgage Loan Trust 2007-1 partial summary judgment against the answering defendant John DiLavore is denied; and it is further
ORDERED that plaintiff The Bank of New York Mellon as Trustee for Cit Mortgage Loan Trust 2007-1's motion seeking a relaxation of the time period for filing a successive summary judgment motion set by the court's order of March 6, 2017, and upon such relaxation being granted, for an order granting plaintiff summary judgment as to the limited issues set for trial by the order of March 6, 2017, is denied and plaintiff's submitted proposed order is marked "Not Signed;" and it is further
ORDERED that the trial control date of September 27, 2019 is removed from the court's calendar and the action is scheduled for a limited issue trial on October 25, 2019 at 2:00 PM before this part in the Cromarty Court Complex, 210 Center Drive, 4th floor, Riverhead, NY is set.
This is an action to foreclose a mortgage on residential real property known as 6 Donnelly Court, Manorville, Suffolk County, New York ("the property"). The history of this action is set forth in the court's decision placed on the record after oral argument on March 6, 2017 (Mot. Seq. # 001), at which time the court granted plaintiff The Bank of New York Mellon As Trustee for CIT Mortgage Loan Trust 2007-1 ("plaintiff") partial summary judgment dismissing defendant John DiLavore's ("defendant") third and sixth affirmative defenses, but denying plaintiff full summary judgment as issues of fact and law remained as to plaintiff's standing to bring the action (defendant's first, fourth and fifth affirmative defenses) and plaintiff's proof of mailing of the notice of default required by the mortgage to defendant (defendant's second affirmative defense); as well as the court's decision of December 26, 2018 (Mot. Seq. #002) which denied plaintiff's motion to "renew and reargue" its motion for full summary judgment denied by the order of March 6, 2017.
After plaintiff filed a note of issue as to the limited issue trial on February 25, 2019, a pre-trial conference was held on April 8, 2019 where a trial date of June 24, 2019 was set. As the court was engaged in a jury trial which would prevent the trial of this action to proceed, by letter dated June 18, 2019 (NYSCEF Doc. #52) the court notified counsel for both parties that the trial had to be adjourned to August 5, 2019. On July 13, 2019 plaintiff's present counsel filed a notice of consent to change attorneys, dated July 11, 2019, with the court (NYSCEF Doc. #58), and subsequently on July 25, 2019 filed plaintiff's present motion.
DEFENDANT'S MOTION TO RENEW DENIED
In his motion defendant argues that the basis for renewal is that the holding in Bank of New York Mellon v. Gordon , 171 AD3d 197 (2d Dept 2019) changed the law as to the sufficiency of the affidavit of plaintiff's representative submitted in support of Motion Seq. # 001 to establish defendant's default in payment pursuant to the terms of the note and mortgage. Defendant had only submitted his opposition to that motion and had not cross-moved for dismissal. As correctly pointed out by plaintiff in opposition to defendant's present motion, in neither his submission or at oral argument in opposition to Mot. Seq. #001, had defendant denied his default in payment, nor had he raised any question concerning the sufficiency of proof of his default in payment submitted by plaintiff. Having never previously raised the issue, from a reading of defendant's counsel's present affirmation, apparently because defendant believed that plaintiff's submission in Mot. Seq. #001 was adequate under the law at that time, he now seeks the court to reopen the issue of proof of his default. As he had never moved to dismiss on this ground, contrary to plaintiff's argument he is not seeking summary judgment dismissing the action, at best what he could hope for is the court to "add" this as an issue for the already set limited issue trial. The court declines to do so.
Plaintiff's counsel's opposition correctly points to other instructive language in Bank of New York Mellon v. Gordon , 171 AD3d at 202 in discussing the "General Principles" applicable to legal analysis in summary judgment motions:
However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v. St. George Health & Racquetball Assoc., 119 AD3d at 55, 948 N.Y.S.2d 401), .... "Indeed in civil cases, ‘inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess’ " (Rosenblatt v. St. George Health & Racquetball Assoc. , 119 AD3d at 54-55, 948 N.Y.S.2d 401, quoting Jerome Prince, Richardson on Evidence § 8-108 [Farrell 11th ed 2008]; see Matter of Findlay, 253 NY 1, 11, 170 N.E. 471 ; Ford v. Snook , 205 App. Div 194, 198, 199 N.Y.S. 630 aff'd 240 NY 624, 148 N.E.732).
Applying those principles to this case, by failing to object that plaintiff's proof of his default was inadmissible hearsay in Mot. Seq. #001, defendant waived the objection. Having never argued the issue in opposition to Mot. Seq. #001, there is nothing for defendant to "renew." The court denies defendant's motion to renew.
As plaintiff's counsel also argues in opposition that defendant's motion violates the order of March 6, 2017 as a "summary judgment motion," the court also points to the provision of that order that would allow other motions by permission of the court by a simple method defendant's counsel used previously to seek permission to file a motion to compel discovery. Defendant's counsel e-filed a letter to the court on July 12, 2017 seeking authority to compel compliance with interrogatories defendant had served (NYSCEF Doc. # 35). The court responded the same day stating that the parties were to be prepared to discuss the issue at the conference of August 2, 2017 (NYSCEF Doc. # 36). At the certification conference held on August 2, 2017, the court granted defendant's application to make the motion, set a schedule for filing of the motion by October 5, 2017, with any opposition to the motion or cross-motion to be filed by October 19, 2017 and defendant to file any reply by November 9, 2017. Defendant abandoned the opportunity, never filing the motion. Although the court will not say that it would have granted defendant the opportunity to file the present motion, defendant did not follow this simple procedure to seek such permission as he had done before.
Having denied renewal for the reasons above, the court rejects plaintiff's argument that defendant's motion is an impermissible successive summary judgment motion and should be denied on those grounds. But the court suggests, as set forth below, that in so arguing plaintiff "is hoisted on his own petard."
PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT DENIED
Plaintiff's cross-motion for summary judgment is denied as it is outside the time period authorized by the court pursuant to the order of March 6, 2017, as well as the statutory period set by CPLR 3212 (a), in violation of the principles set forth by the Court of Appeals as to multiple and/or "late" summary judgment motions and also in clear violation of the court's order of December 26, 2018.
Multiple summary judgment motions are discouraged without a showing of newly discovered evidence, or other sufficient cause, but a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v. McDonald's Restaurants of New York, Inc , 198 AD2d 208 [2d Dept 1993] ; Valley National Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012] ; Graham v. City of New York, 136 AD3d 754 [2d Dept 2016] ; Kolel Damsek Eliezer, Inc. v. Schlesinger , 139 AD3d 810 [2d Dept 2016] ). It is appropriate to consider a second summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few, eliminating the burden on judicial resources which would otherwise require a trial (see Rose v. Horton Med. Ctr. , 29 AD3d 977 [2d Dept 2006] ; Landmark Capital Investments, Inc. v. Li-Shan Wang , 94 AD3d 418 [1st Dept 2012] ). This is why the court's order of March 6, 2017 authorized successive summary judgment motions as to the limited issues remaining after the completion of the discovery period and within 30 days after the filing of the note of issue ( CPLR 3212 [a] ). But prohibitions against late summary judgment motions still apply to such motions.
The note of issue was filed on February 25, 2019. Plaintiff filed its cross-motion for summary judgment on July 25, 2019, well after both the date authorized by the order and the 120 days set by CPLR 3212 (a). As such, plaintiff's motion is an unauthorized late summary judgment motion.
The general prohibition against considering late summary judgment motions (see Brill v. City of New York , 2 NY3d 648 [2004] ; Micelli v. State Farm Mut. Auto Ins. Co. , 3 NY3d 725 [2004] ) applies not just to "stand alone" summary judgment motions, but to cross-motions for summary judgment as well (see Podlaski v. Long Island Paneling Center of Centereach, Inc. , 58 AD3d 825 [2d Dept 2009] ; Medina v. R.M. Resources , 107 AD3d 859 [2d Dept 2013] ). Any movant filing a late summary judgment must make a showing of good cause for delay, establishing a satisfactory explanation for the untimeliness, rather than the court simply permitting a meritorious, non-prejudicial filing (see Brill v. City of New York , supra; Micelli v. State Farm Mut. Auto Ins. Co. , supra). Here plaintiff provides no good cause for the delay, merely arguing the merits of its motion. Where, as here, a movant has failed to demonstrate in its papers good cause, the trial court was found to have improperly exercised its discretion to consider a summary judgment motion made over 128 days after filing of the note of issue (see Nationstar Mtg., LLC v. Weisblum , 143 AD3d 866 [2d Dept 2016] ); how much more so for such a motion made five months after the filing of the note of issue?
As plaintiff has argued that the court should consider defendant's motion as an untimely summary judgment motion in violation of the court's order and CPLR 3212 (a), case law that allows a late cross-motion based upon the identical issues raised in a timely summary judgment could not possibly apply to plaintiff's cross-motion (see Tapia v. Prudential Richard Albert Realty Org. , 79 AD3d 735 [2d Dept 2010] ; Sheng Hai Tong v. K and K 7619 Inc., 144 AD3d 887 [2d Dept 2016] ; Sikorjak v. City of New York , 168 AD3d 778 [2d Dept 2019] ). In any event, the two motions are not based on identical facts and issues and would not fall within the parameters of the above cited cases.
Additionally, plaintiff already has filed two summary judgment motions, and the consideration of a third motion, late or not, under circumstances where a trial had been set would be an abuse of discretion by the court. As discussed above, after the close of the discovery period set by the order of March 6, 2017 at the certification conference held on August 2, 2017, defendant requested permission to file a motion to compel to discovery, which the court granted, setting a schedule for the filing of that motion and any cross-motion. Defendant never filed his motion, but instead plaintiff filed Mot. Seq. #002, which it characterized as a motion to renew and/or reargue, but in reality was really a just a successive summary judgment.
As the court's Discovery and Scheduling Order of March 6, 2017, setting forth the granting of partial summary judgement, was filed by plaintiff with the Clerk with notice of entry on March 9, 2017, a motion to reargue was untimely (CPLR 2121 [d] [3]). Plaintiff's motion was ineffective as one for renewal, as plaintiff failed to point out any change in the law or any "new" evidence that it did not have available at the time of the prior motion. For the reasons set forth in the decision of December 26, 2018, the motion was denied. In reality, plaintiff's motion (Mot. Seq. #002) was merely a second unsuccessful motion for summary, and to consider a third such motion under these circumstances would be improper.
Finally plaintiff's "new" counsel filing its motion shortly after its appearance, may have failed to read the penultimate paragraph of the decision of December 26, 2018 which read : "No further summary judgment motions will be entertained." This court will not countenance a direct disregard of its orders.
Plaintiff's motion for summary judgment is not considered and is denied.
The trial control date of September 27, 2019 is removed from the court's calendar. The action is set for limited issue trial on October 25, 2019 at 2:00 PM , before this part in the Cromarty Court Complex, 210 Center Drive, 4th floor, Riverhead, NY.
As stated in the order of December 26, 2018, no further summary judgment motions are to be made.
This constitutes the decision and order of the court.