Opinion
2008-28191
09-13-2018
CHASE HOME FINANCE LLC, Plaintiff v. Bilinda M. MCMANUS, et ano., Defendants.
Matthew D. Hindin Esq., Rosicki, Rosicki & Associates PC, 2 Summit Court, Fishkill, New York 12524, Attorneys for Plaintiff. Richard J. Kaufman Esq., Referee, 646 Main Street, Port Jefferson, New York 11777. Bilinda McManus, Defendant (in default), 6 Bowdoin Road, Centereach, New York 11720.
Matthew D. Hindin Esq., Rosicki, Rosicki & Associates PC, 2 Summit Court, Fishkill, New York 12524, Attorneys for Plaintiff.
Richard J. Kaufman Esq., Referee, 646 Main Street, Port Jefferson, New York 11777.
Bilinda McManus, Defendant (in default), 6 Bowdoin Road, Centereach, New York 11720.
Jeffrey Arlen Spinner, J.
Plaintiff has applied to this Court, by Notice of Motion dated June 29, 2017 seeking an Order vacating the dismissal of this matter, restoring same to the Court's active calendar and granting a Judgment of Foreclosure & Sale. The application was returnable before Part 49 but was thereafter referred to the undersigned on August 20, 2018. No opposition of any kind has been interposed to the application.
Plaintiff commenced this action claiming foreclosure of a mortgage dated February 16, 2006 in the original amount of $ 365,000.00. Said mortgage was given to secure an Adjustable Rate Balloon Note of the same date and was recorded with the Clerk of Suffolk County on September 26, 2006 in Liber 21389 of Mortgages, Page 201. Said mortgage constitutes a first lien upon residential real property known as 6 Bowdoin Road, Town of Brookhaven, New York.
The within action was commenced on July 28, 2008. Defendant was personally served with process pursuant to CPLR § 308(1) but defaulted in appearance and no foreclosure settlement conferences were held. An Order of Reference pursuant to RPAPL § 1321 was granted on September 14, 2009 (seq. 001). On April 22, 2010, Plaintiff moved for a Judgment of Foreclosure & Sale (seq. 002) but withdrew said application by letter dated October 28, 2010. Following the entry of Administrative Orders AO548/10 and AO431/11 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 19, 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 12, 2012 (116 days following the conference) which dismissed the action. The Order was mailed by the Court, on November 12, 2012, to Plaintiff's counsel and to all parties.
Plaintiff now applies to this Court, by way of a Notice of Motion, for an Order vacating the dismissal, restoring the matter to the Court's active calendar and granting a Judgment of Foreclosure & Sale.
As a threshold matter, Plaintiff's application is procedurally improper in that it should have been brought by way of an Order To Show Cause and this deficiency alone would constitute a sufficient basis for denial, Smith v. Smith 291 AD2d 828 (4th Dept. 2002) . However, the undersigned Justice is a firm adherent to the philosophy of "substance over form" and will therefore overlook this procedural irregularity and will instead address the merits of Plaintiff's application.
The decidedly lengthy Affirmation of Matthew D. Hindin Esq. dated June 29, 2017 sets forth what purports to be a timeline of events herein. It asserts that, in essence, this Court was without jurisdiction to dismiss the matter resulting from Plaintiff's failure to move forward.
In addition to the procedural history recited supra , Counsel advises the Court that the mortgage at issue was transferred, on December 30, 2013, to Christiana Trust, A Division Of Wilmington Savings Fund Society F.S.B.. This transfer was effected more than thirteen months after the dismissal herein. Appended to Plaintiff's papers is an Affidavit of one Cedric Small which is dated April 17, 2017 (some 53 months post-dismissal) which, it is claimed, is in full compliance with the mandates of AO431/11. Plaintiff does not articulate a detailed explanation for the passage of well over four years though Counsel asserts, inter alia , that "Plaintiff was working as swiftly and efficiently as possible in order to proceed..." that "Plaintiff had no intention of missing the Court's deadline and was diligently trying to obtain all necessary documentation so that we may proceed with the herein action." and further "...we experienced numerous hurdles in obtaining all required documents which were out of Plaintiff's control." A careful review of the Affirmation reveals that it is devoid of actual detail, instead containing vague and non-specific descriptions, such as explanations provided to the client as to new rules and procedures. Perhaps most telling is the fact that the Administrative Orders (AO548/10 and AO431/11) to which Plaintiff attributes the delays herein were both promulgated long before the July 19, 2012 Compliance Conference.
What this Court finds to be glaringly absent from all of the papers submitted on this application is any degree of specificity. While it is true that the Court has the inherent discretion to vacate any of its orders 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.
Although Plaintiff does not specifically invoke the provisions of CPLR § 5015(a)(1), it is clear that the same applies to the instant application. CPLR § 5015(a)(1) mandates 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 the Order was served by the Court (November 12, 2012), Plaintiff would have been required to file its application not later than November 12, 2013. No explanation whatsoever is advanced for the passage of 4 years, 8 months, 17 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 Order or withon one year of service of the copy of the Order, 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 necessarily result in denial, Cummings v. Rossoff 101 AD3d 713 (2nd Dept. 2012) .
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 56 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.
Counsel's Affirmation fails to 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 credible and replete with specific details, Vujanic v. Petrovic 103 AD3d 791 (2nd Dept. 2013) . Where as, here, there has been a failure to offer up such an excuse for the delay, vacatur is clearly not warranted, Weber v. Peller 82 AD3d 1331 (3rd Dept. 2011) .
Plaintiff's counsel has failed to advance any colorable excuse for its delay in this matter. Over fifty six 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.