Opinion
No. 17488/10.
06-25-2015
ONE WEST BANK, FSB, Plaintiff, v. Pertab CHOYLING, Michael Pertab, et al., Defendants.
RAS Boriskin, LLP, Westbury, attorney for plaintiff. Brian McCaffrey, Esq., Jamaica, attorney for defendant.
RAS Boriskin, LLP, Westbury, attorney for plaintiff.
Brian McCaffrey, Esq., Jamaica, attorney for defendant.
Opinion
PHYLLIS ORLIKOFF FLUG, J.
The following papers numbered 1 to 4 read on this motion
| Notice of Motion | 1–2 |
| Affirmation in Opposition | 3 |
| Reply Affirmation | 4 |
Defendants, Choyling Pertab s/h/a Pertab Choying and Michael Pertab, move inter alia to dismiss plaintiff's complaint as asserted against them.
This is an action to foreclose a mortgage on the real property located at 90–01 209th Street, in the County of Queens, City and State of New York.
Pursuant to the affidavits of service filed by plaintiff, defendant Michael Pertab was personally served with the summons and complaint on July 16, 2010 and defendant Cholying Pertab was served with the summons and complaint via substitute service, with service being deemed complete, pursuant to CPLR 308 [2 ], on August 2, 2010.
The subject application, filed on February 11, 2015, more than four and a half years after defendants were served, constitutes defendants first appearance in this action. Pursuant to CPLR 320[a], defendants have been in default since September 1, 2010.
CPLR § 3215[c] provides that “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned ... unless sufficient cause is shown why the complaint should not be dismissed.”
Plaintiff claims that the action should not be dismissed because the delay was attributable to the assignment of the mortgage to a new party. However, plaintiff's own submissions admit that this assignment did not take place until October 24, 2013, more than a year after plaintiff was required to seek the entry of judgment. Under these circumstances, the subject assignment fails to provide a sufficient excuse for the delay.
As plaintiff's change of attorney was not filed until more than a year and a half after plaintiff was required to seek entry of judgment, the change in attorney is likewise insufficient to excuse the delay.
Plaintiff also claims that the delay was caused by Administrative Order 431/11 which requires that an attorney for plaintiff in a residential foreclosure action certify the accuracy of the papers filed in support of the action.
Contrary to plaintiff's contentions, as this Order merely requires that attorneys certify that they have met a minimum standard of diligence in prosecuting their cases, it should not cause any delay in the underlying action and it certainly does not excuse the extensive delay in this action.
Moreover, even if all of plaintiff's excuses were accepted as valid, plaintiff has still failed to specifically account for the entirety of the delay (See Winfield v. Garenani, 246 A.D.2d 537 [2d Dept.1998] ; Grosso v. Hauck, 99 A.D.2d 750 [2d Dept.1984] ).
Notably, although plaintiff admits that counsel had all the documents necessary to proceed by May 13, 2014, plaintiff delayed an additional nine months before making an application for the entry of judgment.
Plaintiff's claim that this nine month delay was caused by “various issues” needed to be discussed between counsel and client is unsubstantiated and far too vague to provide good cause for plaintiff's delay.
Accordingly, the motion is granted, in its entirety, and plaintiff's complaint is dismissed as asserted against defendants Choyling Pertab s/h/a Pertab Choyling and Michael Pertab.