Opinion
Index No. 41970/2007 Motion Seq. No. 9
11-22-2023
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR IN INTEREST TO BANK ONE, NATIONAL ASSOCIATION, AS TRUSTEE FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., CFSB MORTGAGE PASSTHROUGH CERTIFICATES, SERIES 20003-8, Plaintiff, v. MICHAEL HANDLER, MIRIAM HANDLER, FIRST FINANCIAL EQUITIES INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC AS NOMINEE FOR FIRST FRANKLIN EQUITIES INC., NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, PEOPLE OF THE STATE OF NEW YORK, and JOHN DOE, Defendants.
Unpublished Opinion
Papers Submitted on November 2, 2023
DECISION AND ORDER
RACHEL E. FREIER, A.J.S.C
Recitation as required by CPLR 2219(a) of die papers considered in the review of this Motion:
Papers ...........Numbered
Order to Show Cause, Affidavits, and Exhibits.......... NYSCEF 38-43,48-49
Opposition .........NYSCEF 51-55
Reply ............NYSCEF 60
Defendants move, pursuant to CPLR 2221(d), for leave to reargue Plaintiffs motion to vacate a dismissal order and restore the case to the active calendar. Defendants establish that, in deciding the underlying motion, the Court overlooked Plaintiffs failure to meet its two-pronged burden to vacate its default. Therefore, upon papers submitted and after oral argument, Defendants motion for leave to reargue is GRANTED and the underlying motion to vacate Plaintiffs default is DENIED.
RELEVANT FACTS AND PROCEDURAL HISTORY
Plaintiff commenced the instant action by filing a Summons and Complaint on June 25, 2009, to foreclose upon a residential property. Defendants joined issue by filing an Answer on February 29, 2008. A Preliminary Conference ("PC") Order was issued on October 4, 2018, and a Central Compliance Part ("CCP") Order was issued on February 11, 2019. Neither party appeared for the Final Conference Part ("FCP") Conference date on April 9, 2019 and, upon Plaintiffs failure to appear for a Final Disposition Part ("FDP") date on July 31, 2019, the Court issued an Order dismissing the case, deeming the failures to comply with the PC and CCP Orders and failure to appear for two court dates to be willful and contumacious conduct.
On December 11, 2019, Plaintiff filed a motion to vacate the FDP decision and restore the case to the active calendar. Although Plaintiff claims the motion was marked off, the Court marked the motion orally "denied" on January 9, 2020.
On September 9, 2021, Plaintiff filed a new motion to vacate the FDP order and restore the case. The motion was granted on February 16, 2023, restoring the case and setting a new discovery schedule ("Restoration Order"). Plaintiff served Defendant with Notice of Entry of this Order on March 9, 2023.
Thereafter, on April 4, 2023, Defendants filed an appeal of the Restoration Order. The following day, Defendants filed an Order to Show Cause in this Court to reargue the motion underlying the Restoration Order. The Order to Show Cause was not returned to them for two weeks, at which time it was returned with a note that Defendants should proceed by Notice of Motion rather than by Order to Show Cause. Defendants spent several weeks trying to reach the Justice who declined to sign the Order to Show Cause to explain that this was the proper procedure as they were seeking, as part of their relief, a stay of the proceedings pending a hearing of the application. After several weeks, Defendants were advised by the Ex Parte Part of this Court to bring the Order to Show Cause anew, which they did on May 30, 2023, on which date it was signed.
The matter then appearing before the Honorable Leon Ruchelsman in the Central Compliance Part, the Order to Show Cause was referred to this Court by an order dated July 12, 2023, as this Court determined the underlying motion as "a motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order" (CPLR 2221 [a]).
The parties appeared for oral arguments on the motion virtually via Microsoft Teams on November 2, 2023.
MOTION PAPERS
Defendants filed the instant Order to Show Cause, seeking leave pursuant to CPLR 2221(d) to reargue the motion underlying the Restoration Order and, upon reargument, vacatur of that Order and denial of Plaintiff s motion to restore the instant action to the active calendar. The Order to Show Cause is supported by the affirmation of attorney Jeremy Rosenberg, as well as Exhibit A - Notice of Entry of the Restoration Order, Exhibit B - Plaintiff s motion underlying the Restoration Order by reference to its NYSCEF document numbers, Exhibit C - Defendants' opposition to that motion, by reference to its NYSCEF document numbers, and Exhibit D -Defendants' letter noticing Plaintiff that the Order to Show Cause would be filed.
The letter filed as Exhibit D references the filing of the Order to Show Cause on April 5, 2023. NYSCEF Document #45 is Defendant's letter noticing the re-filing of die Order to Show Cause on May 30, 2023.
In response, Plaintiff filed an affirmation in opposition by attorney David Wildermuth, along with Exhibit A - the notice letter submitted as Defendnats' Exhibit D, Exhibit B - Plaintiff s reply in the motion underlying the Restoration Order, and Exhibit C - the PC Order of October 4, 2018.
Defendants then filed a reply affirmation of Jeremy Rosenberg.
DISCUSSION
I. Timeliness
Plaintiff argues that Defendants' motion for leave to reargue should be denied at the outset as untimely. While it is true that CPLR 2221(d)(3) requires a motion for leave to reargue to be filed within thirty (30) days of Notice of Entry of the underlying Order, the Second Department has held that where a party has filed a timely appeal of the underlying order and that appeal is not yet perfected at the time the motion to reargue is made, "the Supreme Court was not bound to deny the defendant's motion to reargue merely because the motion to reargue was made beyond the 30-day limit defined in CPLR 2221(d)(3)" (Itzkowitz vKingKullen Grocery Co., Inc., 22 A.D.3d 636, 638 [2d Dept 2005]).
Here, Defendants had timely filed an appeal twenty-six (26) days following Notice of Entry of the Restoration Order and that appeal was not yet perfected at the time the Order to Show Cause was filed on April 5, 2023, nor again on May 30, 2023, nor when the Order to Show Cause was served - that is, made - on June 6, 2023. Accordingly, the Court may consider the motion.
II. Motion for leave to reargue
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR[d][2]). Defendants argue that Plaintiffs motion to vacate the FDP dismissal should have been denied and that, in granting the motion, the Court overlooked the fact that Plaintiffs motion to vacate a default failed to include any information regarding their cause of action as potentially meritorious. In order to vacate a default pursuant to CPLR 5015(a)(1), the moving party must demonstrate both a reasonable excuse for the default and a meritorious cause of action (Wild v Target Corp., 74 A.D.3d 799 [2d Dept 2010]).
Defendants are correct that Plaintiff s affirmation in support of their underlying motion (NYSCEF Doc. #9), despite noting the two-prong test for vacating a default pursuant to CPLR 5015(a)(1), did not include any information to support a meritorious cause of action. Although Plaintiff addressed the issue of a meritorious claim of action in their reply (NYSCEF Doc. #25), "[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant, not to permit the movant to introduce new arguments or new grounds for the requested relief' (Matter of Allstate Ins. Co. v Dawkins, 52 A.D.3d 826, 827 [2d Dept 2008]). The failure to introduce this information in Plaintiff s motion until the reply papers was overlooked by the Court.
Accordingly, Defendants' motion for leave to reargue is GRANTED. Upon reargument, the Court finds the Plaintiff failed to meet its burden to vacate their default by demonstrating both a reasonable excuse for their default and a meritorious cause of action. Therefore, Plaintiffs motion to vacate the FDP Order and restore the case to the calendar is DENIED. The July 31, 2019, dismissal of the case therefore remains in effect.
This is the Decision and Order of the Court.