Opinion
No. 33772/2009.
2012-09-25
ONEWEST BANK, FSB, Plaintiff, v. Junior RYES, Pylon Ryes, et al., Defendants.
Fein, Such & Crane, LLP, by Craig K. Beideman, Esq., Rochester, for Plaintiff. Cabanillas & Associates, by Sawsan Y. Zaky, Esq., White Plains, for Defendant, Junior Ryes.
Fein, Such & Crane, LLP, by Craig K. Beideman, Esq., Rochester, for Plaintiff. Cabanillas & Associates, by Sawsan Y. Zaky, Esq., White Plains, for Defendant, Junior Ryes.
CHARLES J. MARKEY, J.
The following papers numbered 1 to 9 read on this motion by defendant Junior Ryes for an order dismissing the complaint for the failure to take a default judgment within one year of the default, pursuant to CPLR 3025(c) and granting the movant fees and costs incurred in this motion.
+---------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +----------------------------------------------------------+----------¦ ¦Notice of Motion–Affirmation–Affidavit of Service–Exhibits¦1–4 ¦ +----------------------------------------------------------+----------¦ ¦Opposing Affirmation–Exhibits ¦5–7 ¦ +----------------------------------------------------------+----------¦ ¦Reply Affirmation ¦8–9 ¦ +---------------------------------------------------------------------+
Plaintiff Onewest Bank FSB commenced this mortgage foreclosure action on December 17, 2009, and personally served defendant Junior Ryes with process on December 29, 2009. An additional copy of the summons was mailed to Junior Ryes on December 31, 2009, pursuant to CPLR 3215(g)(3). Defendant Junior Ryes has been in default since January 6, 2010, and now, upon the foregoing papers, seeks an order dismissing the complaint on the grounds that the plaintiff failed to take a default judgment within one year of his default, pursuant to CPLR 3215(c).
CPLR 3215(c) provides that “if 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, in opposition, asserts that it submitted a request for a settlement conference, a prerequisite for an application for an order of reference in a mortgage foreclosure action, on April 10, 2010, and that although the filing fee request for judicial intervention (RJI) was processed, no settlement conference was ever scheduled. Plaintiff's counsel further asserts that, in 2010, it was not uncommon for the scheduling of settlement conferences to take upwards of a year, and thus it was not unusual that plaintiff did not receive immediate notification of a settlement conference. Counsel asserts that by the time it became apparent that its request had not been processed or was lost by the County Clerk's Office, an Administrative Order issued by the Honorable Ann Pfau went into effect, requiring counsel to create proper procedures for receiving and reviewing all foreclosure filings, and prevented plaintiff from filing a new RJI. Plaintiff asserts that, as it submitted its request for a settlement conference well within a year of defendant's default, it took sufficient steps towards the entry of a default judgment, and did not abandon the action. Plaintiff requests that the Court schedule a settlement conference pursuant to CPLR 3804.
Plaintiff has submitted a copy of a letter from its counsel, dated April 10, 2010, addressed to D & V Legal Advertising LLC in Brooklyn, New York, requesting that it submit the RJI and RJI fee to Queens County to schedule a settlement conference. The RJI is dated February 22, 2010. A copy of that letter and the RJI were mailed to Mr. Ryes.
Defendant, in his reply, asserts that it should not have taken more than two years for plaintiff to discover that a settlement conference had not been scheduled and that the RJI had not been filed; that plaintiff's need to create procedures to review their records in order to comply with the Administrative Order does not excuse its inaction in this matter; and that plaintiff offers no explanation as to why it did not timely move for a default judgment, or an order of reference, or otherwise follow up with the Court with respect to its RJI. In the alternative, defendant seeks leave to serve a late answer and for a settlement conference in the event that his motion is denied.
Plaintiff's contention that it took sufficient steps towards obtaining a default judgment, is rejected. Contrary to plaintiff's assertion, there is no evidence that it made a proper request to the Court for a settlement conference, when it filed its RJI. A review of the Court's file reveals that an RJI, dated February 22, 2010, was filed in this action on April 14, 2010, and that the filing fee was paid. The April 10, 2010 letter requesting a settlement conference, which was not addressed to the court, was not filed with the RJI.
At the time, plaintiff filed its RJI on April 14, 2010, the Rules of the Court required the filing of a specialized RJI, on a form prescribed by the Chief Administrator of the Courts, applicable to residential mortgage foreclosure actions covered by 22 NYCRR § 202.12–a, requesting a settlement conference. The utilization of the special RJI serves to alert the Court in the first instance that a mandatory conference under CPLR 3408 may need to be scheduled ( see generally, Citimortgage, Inc. v. Mattera, 2009 WL 5072275, 2009 N.Y. Slip Op 32869(U) [Sup Ct Suffolk County 2009] ).
The special RJI forms for residential mortgage actions were available and used by litigants in this Court in April 2010. Plaintiff, however, failed to comply with the Rules of the Court, in that it used an ordinary RJI form, rather than a special RJI form applicable to residential mortgage foreclosure actions. Although the plaintiff marked the box on the ordinary RJI form entitled “Other ex parte application (specify)” and typed in the word “FORECLOSURE,” there is nothing on this form which indicates that plaintiff was seeking a settlement conference. The plaintiff also failed to file any application for relief in connection with its RJI. Unsurprisingly, no settlement conference was ever scheduled in this action.
The plaintiff's need to develop proper procedures for receiving and reviewing all foreclosure filings following the issuance of Administrative Order 548/10 does not constitute a reasonable excuse for its failure to comply with CPLR 3215(c). Plaintiff did not make any inquiries with respect to the scheduling of a settlement conference after it filed the RJI on April 14, 2010. Administrative Order 548/10 went into effect on October 20, 2010, and has since been replaced by Administrative Order 431/11. The Administrative Order requires a plaintiff's counsel in a residential foreclosure action to file with the court an affirmation confirming the accuracy of plaintiff's pleadings ( see, Wells Fargo Bank, N.A. v. Hudson, 98 A.D.3d 576, 949 N.Y.S.2d 703, slip op. at 2 [2nd Dept.2012]; U.S. Bank, NA v. Boyce, 93 A.D.3d 782, 940 N.Y.S.2d 656 [2nd Dept.2012] ).
In cases pending on the effective date of the Administrative Order, where no judgment of foreclosure has been entered, the attorney affirmation must be filed at the time of the filing of either the proposed order of reference or the proposed judgment of foreclosure ( id.). There is no requirement that the attorney affirmation be submitted to the Court at the settlement conference. Furthermore, plaintiff's counsel offers no indication that he will be able to comply with the Administrative Order which has been in effect for at least 19 months prior to the service of the within motion to dismiss ( see generally, U.S. Bank, N.A. v. Solorin, 34 Misc.3d 292, 934 N.Y.S.2d 655 [Sup Ct. Queens County 2011] [Flug, J.] ).
Accordingly, defendant Junior Ryes's motion to dismiss the complaint against him is granted.
The foregoing constitutes the decision, opinion, and order of the Court.