Opinion
Index No. 35100/2007
09-19-2024
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HOME EQUITY MORTGAGE LOAN ASSET BACKED TRUST SERIES INABS 2006-D, HOME EQUITY MORTGAGE LOAN ASSET BACKED CERTIFICATES SERIES INABS 2006, Plaintiff, v. PORTIA WALTON, et al., Defendants.
Unpublished Opinion
PRESENT: HON. CAROLYN WALKER-DIALLO, J.S.C.
DECISION/ORDER
Hon. Carolyn Walker-Diallo, J.S.C.
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:
Papers
Numbered
Notice of Motion, Affirmation, Exhibits
NYSCEF Doc. Nos. 53-57
Papers considered: Motion Sequence 3
INTRODUCTION
Plaintiff Deutsche Bank National Trust Company, as Trustee for Home Equity Mortgage Loan Asset Backed Trust Series INABS 2006-D, Home Equity Mortgage Loan Asset Backed Certificates Series INABS 2006 ("Plaintiff') moves for an order pursuant to CPLR 2004 seeking to extend the note of issue date from November 12, 2008. Upon the foregoing papers and for the reasons set forth below, Plaintiffs motion is GRANTED.
FACTUAL AND PROCEDURAL HISTORY
This residential mortgage foreclosure proceeding was commenced on September 18, 2007, with the filing of a Summons and Complaint and Notice of Pendency. NYSCEF Doc. No. 1 at 1 -14. Plaintiff filed the action seeking to foreclose on the mortgage for 375 Rockaway Parkway, Brooklyn, New York 11212, due to Portia Walton's ("Defendant Walton") alleged failure to pay the mortgage. Defendant Walton did not file an answer. On November 13, 2007, Plaintiff moved for an Order of Reference, which the Honorable Donald S. Kurtz granted on February 11, 2008. See Order of Reference of the Honorable Donald S. Kurtz dated February 11,2008, NYSCEF Doc. No. 1 at 25-95. Subsequently, Defendant Walton moved to vacate the default and file an answer by Order to Show Cause on December 23, 2008, which the Honorable Donald S. Kurtz granted on January 29, 2009. See Order to Show Cause dated December 23, 2008, and Order of the Honorable Donald S. Kurtz dated January 29, 2009, NYSCEF Doc. No. 1 at 297-299, 109-110. Defendant Walton filed a verified answer on January 10, 2012. See Verified Answer, NYSCEF Doc. No. 1 at 283-296.
Plaintiff filed a motion to restore and for summary judgment dated June 18, 2021, as the case had been marked off the calendar on June 1, 2012. See Motion for Summary Judgment, NYSCEF Doc. Nos. 4-26. By Order of the Honorable Larry D. Martin dated April 21, 2023, the action was restored, and Justice Martin directed the case to proceed to trial. See Order of the Honorable Larry D. Martin dated April 21, 2023, NYSCEF Doc. No. 49. Plaintiff filed a Note of Issue on May 23, 2023, and on May 16, 2024, both of which were rejected for having been filed past the due date. See NYSCEF Doc. No. 52 [attempted filings], Affirmation of Evan N. Soyer in Support of Motion ("Soyer Aff"), dated June 17, 2024 at ¶ 12 (NYSCEF Doc. No. 54).
Subsequently, Plaintiff filed the instant motion on June 17, 2024. Defendant Walton has not opposed the motion.
DISCUSSION
"Pursuant to CPLR 2004, '(e)xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.' It is within the discretion of the Supreme Court whether to grant such an extension of time." Oliver v. Town of Hempstead, 68 A.D.3d 1079 (2d Dep't 2009), citing Carota v. Massapequa Union Free Sch. Dist., 272 A.D.2d 428 (2d Dep't 2000). However, "[w]hen a plaintiff has failed to file a note of issue by a court-ordered deadline, restoration of the action to the active calendar is automatic, unless either a 90-day notice has been served pursuant to CPLR 3216 or there has been an order directing dismissal of the complaint pursuant to 22 NYCRR 202.27. In the absence of those two circumstances, the court need not consider whether the plaintiff had a reasonable excuse for failing to timely file a note of issue." Rosario v. Cummins, 222 A.D.3d 897 (2d Dep't 2023) (internal citations omitted).
Here, although Plaintiff filed a Notice of Intent to Prosecute in 2017 and did not move forward with this case for several years, Defendant Walton has not served any 90-day notice or moved to dismiss this action for failure to prosecute, and the Court has not previously directed filing of a note of issue. See Notice of Intent to Prosecute dated April 25, 2017 (NYSCEF Doc. No. 1 at 442-445). In addition, while Plaintiff has already successfully moved to restore the action to the active calendar, Plaintiff s previous attempts to file the Note of Issue have been rejected as untimely, given that the time to file a note of issue has expired. See Order of the Honorable Larry D Martin dated April 21, 2023, NYSCEF Doc. No. 49; NYSCEF Doc. No. 52, Soyer Aff, dated June 17, 2024, at ¶ 12 (NYSCEF Doc. No. 54). Therefore, as Defendant Walton has not: (1) opposed the instant motion; (2) objected to Plaintiff being granted an extension of time to file the note of issue; or (3) served a 90-day notice, the Court must extend the time to file the note of issue.
Accordingly, Plaintiffs motion to extend the time to file a note of issue is granted. The note of issue date is extended to October 15, 2024.
CONCLUSION
Based on the foregoing, Plaintiffs motion sequence 3 is granted in its entirety. Plaintiff is directed to serve a copy of this order with notice of its entry within twenty (20) days of the date of this order.
This constitutes the Decision and Order of the Court.