Wilmington Sav. Fund Soc'y v. 140 W. 121, LLC

Full title: WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT…

Court: Supreme Court, New York County

Date published: Jul 1, 2022

2022 N.Y. Slip Op. 32194 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 850171/2021 Motion Seq. No. 001

07-01-2022

WILMINGTON SAVINGS FUND SOCIETY, FSB, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR VERUS SECURITIZATION TRUST 2020- NPL, Plaintiff, v. 140 WEST 121, LLC, NAVIGATOR BUSINESS SERVICES, LLC, INVICTUS RESIDENTIAL POOLER L.P., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS ADMINISTRATOR FOR INVICTUS RESIDENTIAL POOLER TRUST 1A/2A, JOHN DOE #1 THROUGH JOHN DOE #12, Defendant.

Francis A. Kahn, III Judge

Unpublished Opinion

PRESENT: HON. FRANCIS KAHN, III PART JUSTICE

DECISION + ORDER ON MOTION

Francis A. Kahn, III Judge

The following e-filed documents, listed by NYSCEF document number (Motion 001) 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52 were read on this motion to/for DEFAULT JUDGMENT/ORD of REFERENCE .

Upon the foregoing documents, the motion and cross-motion are determined as follows:

This is an action to foreclose on a mortgage encumbering real property located at 140 West 121^stStreet, New York, New York given by Defendant 140 West 121, LLC ("140 West"). The mortgage secures a note which evidences a loan with an original principal amount of $2,681,250.00. The note and mortgage were executed by non-party Beatrice Sibbles ("Sibbles") as President of 140 West. Plaintiff commenced this action wherein it is alleged Defendants defaulted in repayment of the subject note. 140 West was served via the New York Secretary of State and Sibbles was personally delivered the pleadings as a "John Doe" defendant.

Now, Plaintiff moves for a default judgment against all defendants, an order of reference and to amend the caption. Defendant 140 West opposes the motion and cross-moves pursuant to CPLR §3012[d] to compel Plaintiff to accept a late answer. Plaintiff opposes the cross-motion.

"An applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant's failure to answer or appear" (Deutsche Bank Natl. Trust Co. v Silverman, 178 A.D.3d 898, 899 [2d Dept 2019]). Plaintiff has established prima facie its entitlement to a default judgment against Defendants by submitting proof of the mortgage, the unpaid note, notice of default, proof of service on each Defendant as well as proof of their failure to appear or answer (see CPLR §3215[f]; SRMOFII 2012-1 Trust v Tella, 139 A.D.3d 599, 600 [1^st Dept 2016]). Accordingly, Plaintiff has demonstrated its entitlement to a default judgment against 140 West, as well as the other Defendants.

'"To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense'" (Deutsche Bank Natl. Trust Co. v Silverman, 178 A.D.3d 898, 901 [2d Dept 2020], citing U.S. Bank N.A. v Dorestant, 131 A.D.3d 467, 470 [2d Dept 2015]).

"Under CPLR 3012 (d), a trial court has the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading 'upon such terms as may be just,'" (Emigrant Bank v Rosabianca, 156 A.D.3d 468, 472 [1^st Dept 2017]). "To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action" (Bank of N.Y.Mellon v Tedesco, 174 A.D.3d 490, 491 [2d Dept 2019]). When exercising its discretion in determining a motion under this section "a court should consider such relevant factors as the extent of the delay, prejudice or lack of prejudice to the opposing party as well as the strong public policy in favor of resolving cases on the merits (Orwell Bldg. Corp. v Bessaha, 5 A.D.3d 573, 574 [2d Dept 2004][internal citations omitted]).

Here, Defendant 140 West did not file its cross-motion until almost six-months after its default. 140 West attributed the delay in moving to vacate its default to an economic hardship incurred because of the COVID-19 pandemic and its filing of a hardship declaration pursuant to the COVID-19 Emergency Protect Our Small Business Act of 2021 (L. 2021, c. 73). In support of these claims, 140 West proffered copies of emails between Sibbles, its principal, and Plaintiffs servicer as well as what purports to be the second page of a hardship declaration dated June 5, 2021, a month before service was made on 140 West and Sibbles. However, all this information is offered in the form of an attorney's affirmation, not an affidavit from an individual authorized to act on behalf of 140 West (see Sargsyan v Kaieteur Constr., Inc., 171 A.D.3d 826, 827 [2d Dept 2019]; see also Dawkins v. Isole,___A.D.3d___, 2022 NY Slip Op 04006 [2d Dept 2022]). Moreover, no potential meritorious defense to the action has been proffered by affidavit or in a verified proposed answer. Defendant's appeals to this Court's exercise of equity and for sympathy are unavailing as application of the former in foreclosure proceedings is rare and the latter cannot undermine the stability of contractual relations (see L & L Assoc. Holding Corp. v Seventh Day Church of God of the Apostolic Faith, 188 A.D.3d 1180 [2d Dept 2020]).

The branch of Plaintiff s motion to amend the caption is granted without opposition (see generally CPLR §3025; JP Morgan Chase Bank, N.A. v Laszio, 169 A.D.3d 885, 887 [2d Dept 2019]).

Accordingly, it is

ORDERED that the branch of the motion for a default judgment against all Defendants is granted; and it is

ORDERED that Roberta Ashkin, Esq., 300 E 42^nd Street Floor 14 New York, NY 10017-5984 (646) 779-8520is hereby appointed Referee in accordance with RPAPL § 1321 to examine whether the tax parcel can be sold in parcels; and it is further

ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further

ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) ("Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further

ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); and it is further;

ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further

ORDERED that if the Referee holds a hearing, the Referee may seek additional compensation at the Referee's usual and customary hourly rate; and it is further

ORDERED that plaintiff shall forward all necessary documents to the Referee and to defendants who have appeared in this case within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further

ORDERED that if defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiff s submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further

ORDERED the failure by defendants to submit objections to the referee shall be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further

ORDERED that plaintiff must bring a motion for a judgment of foreclosure and sale within 30 days of receipt of the referee's report; and it is further

ORDERED that if plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to plaintiffs failure to move this litigation forward; and it further

ORDERED, ADJUDGED AND DECREED that the caption be amended to substitute BEATRICE SIBBLIES, ENRIQUE CRUZ, "JOHN DOE 1", and "JOHN DOE 2" for "JOHN DOE #1" through "JOHN DOE # 4" respectively and to strike from the caption of this the names of "JOHN DOE #5" through "JOHN DOE #12" as party Defendants; and it is further

ORDERED that the amended caption shall read as follows:

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

WILMINGTON SAVINGS FUND SOCIETY, FSB NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS OWNER TRUSTEE FOR VERUS SECURITIZA TION TRUST 2020-NP Plaintiff, v.

140 WEST 121, LLC MORTGAGED PROPERTY: NAVIGATOR BUSINESS SERVICES, LLC INVICTUS RESIDENTIAL POOLER L.P., NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS ADMINISTRATOR FOR INVICTUS RESIDENTIAL POOLER TRUST 1A/2A, BEATRICE SIBBLIES, ENRIQUE CRUZ "JOHN DOE 1" "JOHN DOE 2" Defendants.

Index No. 850171/2021

and it is further

ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant hereto; and it is further

ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office, shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's j website at the address (www.nycourts.gov/supctmanh)]; and it is further

ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein. All parties are to appear for a virtual conference via Microsoft Teams on October 13, 2022 at 11:00 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part •' 1 Clerk Tamika Wright (tswright(o),nvcourt.gov) in writing to request that the conference be cancelled. If a motion has not been made, then a conference is required to explore the reasons for the delay.