Opinion
606810/2015
05-29-2019
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR RESIDENTIAL ASSET SECURITIZATION TRUST 2006-A5CB MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-E, Plaintiff, v. Jan MALACHOWSKI, Alicja Malachowski, Deutsche Bank National Trust Company as Indenture Trustee of the Indymac Home Equity Mortgage Loan Asset-Backed Trust Series 2007-H1, Jane Smith, Defendants.
RAS BORISKIN, PLLC, Attorneys for Plaintiff, 900 Merchants Concourse, Suite 310, Westbury, NY 11590 MARZEC LAW FIRM, PC Attorneys for Malachowski Defendants, 776A Manhattan Avenue, 2nd Floor, Rm 104, Brooklyn, NY 11222
RAS BORISKIN, PLLC, Attorneys for Plaintiff, 900 Merchants Concourse, Suite 310, Westbury, NY 11590
MARZEC LAW FIRM, PC Attorneys for Malachowski Defendants, 776A Manhattan Avenue, 2nd Floor, Rm 104, Brooklyn, NY 11222
Robert F. Quinlan, J.
Upon the following papers read on defendants' motion to vacate default and the appointment of a referee, to dismiss the complaint, and other reliefs ; Order to Show Cause and supporting papers Doc #38-58, 60 ; Answering Affidavits and supporting papers Doc #63-66 ; Replying Affidavits and supporting papers Doc #68 ; and upon the following papers read on plaintiff's motion pursuant to CPLR 306-b for leave to extend time to serve ; Notice of Motion and supporting papers Doc #72-86 ; Answering Affidavits and supporting papers Doc #87-90 ; Replying Affidavits and supporting papers; it is,
ORDERED that this order to show cause by defendants Jan Malachowski and Alicja Malachowski to vacate the default and the appointment of a referee and to dismiss the complaint and plaintiff's motion pursuant to CPLR 306-b for leave to extend time to serve the summons and complaint upon defendants are consolidated for purposes of this determination; and it is further
ORDERED that the February 24, 2017 order (Seq. #001) granting default judgment and order of reference and the November 22, 2017 judgment of foreclosure and sale (Seq. #002) are hereby vacated; and it is further
ORDERED that plaintiff's application pursuant to CPLR 306-b for leave to extend time to serve process upon defendants Jan Malachowski and Alicja Malachowski is granted provided service is completed within 60 days from the date of entry of this order; and it is further
ORDERED that the December 21, 2017 temporary restraining order staying the action is hereby vacated; and it is further
ORDERED that this action shall be calendared for a status conference on Monday September 30, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action.
This is an action to foreclose a mortgage on real property known as 162 North Greene Avenue, Lindenhurst, Suffolk County, New York. Defendants Jan Malachowski and Alicja Malachowski ("defendants") executed a note in favor of IndyMac Bank, F.S.B. on April 11, 2006, at the same time giving a mortgage on the property to secure the note. Defendants defaulted on the note and mortgage and plaintiff Deutsche Bank National Trust Company, as Trustee for Residential Asset Securitization Trust 2006-A5CB Mortgage Pass-through Certificates, Series 2006-E ("plaintiff") commenced this action by filing the summons and complaint on June 29, 2015. None of the defendants answered or appeared. Plaintiff's unopposed motion for default judgment and appointment of a referee to compute was granted February 24, 2017 (Seq. #001) and their unopposed motion for judgment of foreclosure and sale was granted November 22, 2017 (Seq. #002).
Defendants now move by order to show cause signed December 21, 2017 to vacate their default and appointment of a referee pursuant to CPLR 5015(a)(4) and CPLR 5015(a)(1) and to dismiss the complaint pursuant to CPLR 3211(a)(8), 3211(a)(1), and 3211(a)(2) or in the alternative for leave to file an answer (Seq. #003). By that order the court granted a temporary restraining order staying the action pending decision on the motion. By order dated April 27, 2018 the court determined based on the evidence submitted defendants demonstrated entitlement to a hearing on the issue of service and adjourned defendants' motion to June 4, 2018 for the court to conduct a traverse hearing. The traverse hearing was adjourned on consent of counsel to July 16, 2018 and on that date plaintiff's counsel advised the court that the process server was deceased. As the traverse hearing could not go forward the court adjourned the conference to September 20, 2018 to allow plaintiff time to file a motion to extend time to serve defendants. At the September 20, 2018 hearing plaintiff's counsel requested additional time to file its motion because the attorney assigned to this matter had recently left the firm without notice. Based on this representation the court gave plaintiff a final adjournment and set the traverse hearing for November 27, 2018 unless plaintiff filed its motion to extend time to serve. Plaintiff electronically filed its motion on September 24, 2018 (Seq. #003) and the traverse hearing did not go forward.
Pursuant to CPLR 306-b a plaintiff must serve a defendant within 120 days after the filing of the action. The 120-days can be extended by a court, upon motion, upon good cause shown or in the interest of justice (CRLR 306-b). To establish good cause, a plaintiff must demonstrate reasonable diligence in attempting service (see , Leader v. Maroney, Ponzini & Spencer , 97 NY2d 95 [2001] ). Good cause will not exist where a plaintiff fails to make any effort at service (see Valentin v. Zaltsman , 39 AD3d 852 [2d Dept 2007]. The interest of justice standard requires a careful judicial analysis of the factual setting of the case and a balancing of the competing interests presented by the parties; the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the statute of limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendants (see Leader v. Maroney, Ponzini & Spencer , supra ).
Under the facts of this case plaintiff has satisfied the interest of justice ground for an extension by demonstrating its diligent prosecution of the action, including its compliance with the courts directive to proceed with the motion, as well as the existence of a potentially meritorious claim, and the lack of any prejudice to defendants from the delay in service (see Emigrant Bank v. Estate of Robinson , 144 AD3d 1084 [2d Dept 2016] ). Further since an extension of time to serve the summons and complaint under CPLR 306-b in the interest of justice is also available where service is timely made within the 120-day period but is subsequently found to have been defective (see Citron v. Schlossberg , 282 AD2d 642 [2d Dept 2001] ; Earle v. Valente , 302 AD2d 353 [2d Dept 2003] ; Estate of Fernandez v. Wyckoff Hgts. Med. Ctr. , 162 AD3d 742 [2d Dept 2018] ) an extension is warranted in the present case where service was made within the 120-day period but due to unforseen circumstances the court is unable to determine the validity of service of process.
As the court is unable to determine the validity of service of process and likewise its jurisdiction over defendants, the court is required to vacate and set aside its February 24, 2017 order (Seq. #001) granting default judgment and order of reference and its November 22, 2017 judgment of foreclosure and sale (Seq. #002)(see Prudence v. Wright , 94 AD3d 1073 [2d Dept 2012] ; Bank United FSB v. Verbitsky ,167 AD3d 833 [2d Dept 2018] ).
Finally, as to that part of defendants' application to dismiss pursuant to CPLR 3211(a)(2) for plaintiff's failure to comply with RPAPL § 1304 and the condition precedent in the mortgage, that application is denied. A defendant who moves for summary judgment dismissing the complaint for failure of plaintiff to comply with the mailing requirements, just as any movant for summary judgment, has the burden to establish plaintiff's failure to comply as a matter of law (see LGF Holdings, LLC v. Skydel , 139 AD3d 814 [2d Dept 2016] ; MLB Sub I, LLC v. Bains , 148 AD3d 881 [2d Dept 2017] ). Here defendants' affidavits, at best, only established that defendants did not receive the notices, not that plaintiff did not mail the notices. A simple denial of receipt, without more, is insufficient to establish a prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the mailing requirements of RPAPL 1304 and the condition precedent in the mortgage (see Wells Fargo Bank, N.A. v. Moran , 168 AD3d 1128 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Taylor , 170 AD3d 921 [2d Dept 2019] ; US Bank N.A. v. Lawson , 170 AD3d 1068 [2d Dept 2019] ; CitiBank, N.A. v. Conti-Scheurer , ––– AD3d ––––, 2019 NY Slip Op 02846 [2d Dept 2019] ; LNV Corp. v. Sofer , 171 AD3d 1033 [2d Dept 2019] ).
This constitutes the Order and decision of the court.