Preview
INDEX NO. 036567/2009
FILED: SUFFOLK COUNTY CLERK 08730/2023 11:39 PM
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
US BANK, N.A. AS TRUSTEE FOR CSMC MORTGAGEBACKED
SECURITIES PASS-THROUGH CERTIFICATES SERIES 2006-3, Index No.
ACTION 1:036567/2009
Plaintiff,
-against- ACTION 2: 61381/2017
BARBARA D. ROSENBLATT; JOHN P. ROSENBLATT; NATIONAL
CITY BANK; NEW YORK STATE DEPARTMENT OF TAXATION AND NOTICE OF APPEAL
FINANCE,
Defendants.
NATIONSTAR MORTGAGE LLC,
Plaintiff,
-against-
CLERK OF THE SUFFOLK COUNTY DISTRICT COURT,
Defendant.
PLEASE TAKE NOTICE that the above-named Defendant, Barbara D. Rosenblatt and
John P. Rosenblatt hereby appeals to the Appellate Division of the Supreme Court of the State of
New York, Second Judicial Department, from a Memo Decision and Order of Hon. Thomas F.
Whelan J.S.C., of the Supreme Court of Suffolk County, dated July 24, 2023 and entered on July
28, 2023, in the Office of the Clerk for the County of Suffolk and from a J udgment of F oreclosure
and Sale of Hon. Thomas F. Whelan J.S.C., of the Supreme Court of Suffolk County, dated
January 27, 2023 and entered on August 02, 2023, in the Office of the Clerk for the County of
Suffolk.
Dated: August 30, 2023
Melville, NY
=a /s/ —-- —
Charles Walls
The Law Offices of Charles Wallshein, PLLC
Attorney for Defendants Rosenblatt
35 Pinelawn Road, Suite 106E
Melville, New Y ork 11747
631-824-6555
To:
McCalla Raymer Leibert Pierce, LLC
420 Lexington Avenue, Suite 840
New Y ork, New Y ork 10170
Phone: 347-534-1258
Attorneys for Plaintiff
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023
Supreme Court of the State of New York
Appellate Division: S econd Judicial Department
Informational Statement (Pursuantto 22 NYCRR 1250.3 [a]) - Civil
[or~ We ms soca CLominte. FUiopesLomincrnnnrenmraneclomecr moto cutey For Court of Original Instance
Srey) AV@imiecderciiomicKomcpepecLonensneceMemectnncne cen
ACTION 1: G36567/20005 BANK, WA. AS TRUSTEE FOR CSMC MORTGAGEBACKED SECURITIES PASS-THROUGH CERTIFICATES SERIES
AND
ACTION 2: 61381/2017 NATIONSTAR MORTGAGE LLC,
Date Notice of Appeal Filed
- against -
ACTION 1: 036567/200-BARBARA D. ROSENBLATT; J OHN P. ROSENBLATT; NATIONAL CITY BANK; NEW YORK STATE DEPARTMENTOF
TAXATION AND FINANCE,
For Appellate Division
AND
ACTION 2: 61381/2017-CLERK OF THE SUFFOLK COUNTY DISTRICT COURT,
[e-SM hy) Saliivemhyec)
Civil Action OO CPLRarticle78 Proceeding | imi Appeal OC Transferred Proceeding
O CPLRatticle 75 Arhitration (1 Special Proceeding Other | [1] Original Proceedings O CPLRArtide 78
C1 Executive Law§ 298,
(1 Habeas Corpus Proceeding O CPLR Artide 78
© Eminent Domain C CPLR 5704 Review
© Labor
Law 220 or 220-b
O Public Officers Law § 36
CO Real Property Tax Law§ 1278
EMC RUM) Once. @lehiehincRomincsollouinegeciine @ncR i sOMeccmtcilomincBisHULOMINckecccy
C1 Administrative Review Ci Business Relationships | 11 Commercial CO Contracts
O Declaratory Judgment OC Domestic Relations 0 Election Law C) Estate Matters
O Family Court C] Mortgage Foreclosure O Miscellaneous OU Prisoner Discipline & Parole
OO Real Property CO Statutory O) Taxation CO) Torts
(other than foreclosure)
Informational Statement - Civil
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NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023
EN eyelet]
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
CO Amended Decree CO Determination O Order CO Resettled Order
TC Amended Judgement O Finding fm Order
& Judgment O Ruling
CO Amended Order UH Interlocutory Decree O Partial Decree O Other (specify):
1 Decision O Interlocutory Judgment C Resettled Decree
C Decree D Judgment LD Resettled Judgment
Court: Supreme Court EJ County: Suffolk EJ
Dated: 07/24/2023 Entered:07/28/2023
Judge (name in full):Thomas F. Whelan Index No.:036567/2009 and 61381/2017
Stage: Oi Interlocutory m Final CO) Post-Final Trial: CO Yes imi No IfYes: O Jury O Non-Jury
Prior Unperfected Appeal and Related Case Information
Are any appeals arising in the same action or proceeding currently pending in the court? OYes O No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
olarii-macelestvellal 4
Commenced by: OI Order to Show Cause LJ Notice of Petition LD Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
| Court: Choose Court
[aelectctel
le Me laiicleece Mele Tr- a) cen Oa wr\0)-1(-3)
County: Choose Countv
Judge (name in full): Order of Transfer Date:
ol TRS Sy 07/8 mela a1 Oa
Court: Choose Court County: Choose Countv
Judge (name in full): Dated:
ipy-rrogl Lace) aolm-\s)*\-r-l em acele1-el
at -Melar-Ve) eile ele-TATMSTC LCN ALCL ESSEC
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
Informational Statement - Civil
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Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds
for reversal, or modification to be advanced and the specific relief sought on appeal.
aN)
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this
form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this
court.
No. Party Name Original Status Appellate Division Status
US BANK, WA AS TRUSTEE FOR CSMC MORTGAGESACKED SECURITIES PASS-THROUGH CERTIFICATES SERIES 20063, Plaintiff EJ/Respondent el
NATIONSTAR MORTGAGE LLC, Plaintiff EJ/Respondent &
BARBARA D. ROSENBLATT Defendant Ed/Appellant &
J OHN P. ROSENBLATT Defendant EdiAppellant EI
NATIONAL CITY BANK Defendant Ge
NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, Defendant &
CLERK OF THE SUFFOLK COUNTY DISTRICT COURT Defendant EJ
10
11
12
13
14
15
16
17
18
19
20
Informational Statement - Civil
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PN acolan Melati}
Instructions: ll in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or orderto show cause by which a special proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herselfor
himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name:McCalla Raymer Leibert Pierce, LLC
Address:420 Lexington Avenue, Suite 840
City: New York l State:New York | Zip:10170 | Telephone No:347-534-1258
E-mail Address:
Attorney Type: Retained (1 Assigned 1 Government C Pro Se Cl Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above)4, 2
Attorney/Firm Name: The Law Offices of Charles Wallshein
Address: 35 Pinelawn Road
City:Melville l State:NY | Zip:11747 | Telephone No:6318246555
E-mail Address:cwallshein@ wallsheinlegal.com
Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):3, 4
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Attorney/Firm Name:
Address:
City: l State: | Zip: l Telephone No:
E-mail Address:
Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
Informational Statement - Civil
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INDEX NO. 036567/2009
FILED: SUFFOLK COUNTY CLERK 08730/2023 11:39 PM
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023
1. Did the lower court commit error in its decisions dated July 24, 2023 and January 27,
2023, where it granted Judgment of Foreclosure and Sale? Y ES
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(FILED: SUFFOLK COUNTY CLERK 0872072023 03:59 PM INDEX NO. 036567/2009
NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2023
MEMO DECISION & ORDER INDEX No. _036567/2009
INDEX No. 601381/2017
Actions Consolidated
SUPREME COURT - STATE OF NEW YORK
IAS PART 33 - SUFFOLK COUNTY
PRESENT
Hon. THOMAS F. WHELAN Actions Consolidated
Justice of the Supreme Court Index No. 036567/2009
MOTION DATE _ 12/28/2022
SUBMIT DATE 2/10/2023
Mot. Seq. #002 - MD
Mot. Seq. #003 - XMG
CDISP Y_X N a
Index No. 601381/2017
CDisp. YES - by Consol.
x ACTION1- 9365-4 | 2004
US Bank, N.A. as Trustee for CSMC McCalla Raymer Leibert Pierce, LLC
MortgageBacked Securities Pass-Through Certificates Attys. for Plaintiff
Series 2006-3 420 Lexington Avenue, Suite 840
New York, New York 10170
Plaintiff,
-against-
BarbaraD. Rosenblatt; John P. Rosenblatt; National The Law Offices of Charles Wallshein
City Bank; New York State Department of Taxation Attys. for Def. Rosenblatt
and Finance 35 Pinelawn Road Suite 106e
Defendants Melville, NY 11747
wenn n nanan nnn nnn nnn nnn nnn nnn nen nnn
ACTION 2- 61381/2017
Nationstar Mortgage LLC McCalla Raymer Leibert Pierce, LLC
Attys. for Plaintiff
Plaintiff, 420 Lexington Avenue, Suite 840
New York, New York 10170
-against-
Clerk of the Suffolk County District Court
Defendant.
me wenennnnnnn nanan nena n= n-ne enna nnnewnwecneneneneneneceneeees
7 offAL
7 INDEX NO. 036567/2009
NYSCEF DOC. NO. 44 RECEIVED NYSCEF 08/28/2023
Nationstar v Rosenblatt
Index No. 036567/2009
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Page 2
Upon the following papers numbered as indicated and read on this motion _ for dismissal of the complaint (#002).
cross motion for judgment of foreclosure and sale (#003); Notice of Motion/Order to Show Cause and supporting
papers NYSCEF Docs 10 - 17__ (#002) ; Notice of Cross Motion and supporting papers: NYSCEF Does 22-40
(#003); Opposing papers: _; Reply papers ; Other 3¢
opposedtethe-motion) it is,
ORDERED that the motion of defendants Barbara Rosenblatt and John Rosenblatt (#002
seeking dismissal of the complaint pursuant to CPLR 3215(c) or, alternatively, vacatur of their
default judgments pursuant to CPLR 5015(a)(1) is denied; and it is further
ORDERED that the branches of plaintiffs cross-motion (#003) for, inter alia, leave to
enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law
(RPAPL) §1351, and to substitute the plaintiff are granted; and it is further
ORDERED that plaintiff's motion (#003) under Index Number 036567/2009 (Action #1)
seeking an order consolidating this action with another action commenced by the plaintiff and
arising out of the same circumstances and bearing Suffolk County Index No. 601381/2017
(Action #2), is considered under CPLR 602 and is granted. Accordingly, the aforementioned
related action bearing Index Number 601381/2017 is hereby consolidated and merged into the
above action and shall bear Index Number 036567/2009. The caption is hereby amended to
reflect this consolidation as follows.
Sec cen nis setet tiectietesenecesuneniecnictenessnesedcssete
nemesis
Nationstar Mortgage LLC
Plaintiff
Index Number 36567/2009
-against-
BarbaraD. Rosenblatt; John P. Rosenblatt; National
City Bank; New York State Department of Taxation
and Finance, Clerk of the Suffolk County District
Court
Defendants
wanna nnn nnn nnn nn nn nnn nnn nnn nnn eee nnn nen en en en en nenenene
All future proceedings shall be captioned accordingly and counsel are advised to duly
note the change in the caption and the index number now assigned to this consolidated action
and it is further
ORDERED that upon receipt of this order, the Clerk of the Court shall remove all papers
filed as Nationstar Mortgage LLC v Clerk of the Suffolk County District Court bearing Suffolk
County Index Number 601381/2017 and file same in the file maintained under Index Number
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Nationstar v Rosenblatt
Index No. 036567/2009
Index No. 601381/2017
Page 3
036567/2009; and it is further
ORDERED that the Calendar Clerk mark Nationstar Mortgage LLC v Clerk of the
Suffolk County District Court bearing Suffolk County Index Number 601381/2017 as disposed
by consolidation in the court’s electronic filing system and shall note the amendment of the
caption of the action bearing Index Number 036567/2009 to reflect the consolidation directed
herein; and it is further
ORDERED that the proposed order submitted by plaintiff, as modified by the court, is
signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of
this Order pursuant to 22 NYCRR § 202.5-b(h)(2).
This is an action to foreclose a mortgage on residential property located in Melville. In
essence, on May 16, 2005, defendant John Rosenblatt borrowed $960,000.00 borrowed from
plaintiff's predecessor in interest and signed a promissory note and, together with Barbara
Rosenblatt, a mortgage. No payments have been made on the monthly installments due since
October 1, 2008. This action was, therefore, commenced by filing on October 8, 2009. On
March 7, 2014, the plaintiff filed a Request for Judicial Intervention together with a notice of
motion (#001) to appoint a referee to compute and for the issuance of default judgments as
against all non-answering parties. In response, the Court scheduled a foreclosure settlement
conference pursuant to CPLR 3408. According to court records, plaintiff and defendants
appeared for the conferences which took place on September 26, 2014 and November 25, 2014.
An additional conference was scheduled to take place on February 17, 2015, however the
defendants failed to appear. The court therefore released the matter from further conferencing.
The plaintiff's motion (#001) was thereafter granted by Order dated August 28, 2015. On
October 19, 2022, an ex parte order was signed appointing a substitute referee to compute.
In the midst of the above, the plaintiff learned that it failed to name a judgment creditor as
a party defendant in the foreclosure action. The plaintiff therefore commenced an action at
Suffolk County Index Number 601381/2017 (Action #2) captioned US Bank NA as Trustee for
CSMC Mortgage-backed Securities Pass-Through Certificates, Series 2006-3 v Clerk of the
Suffolk County District Court. The plaintiff noted in the complaint that the action was related to
the foreclosure proceeding and that plaintiffs intent was to join this action with the foreclosure
action prior to judgment (see Verified Complaint “Wherefore” para. 10 [NYSCEF Doc. 1]). An
Order of Default Judgment, which also provided for substitution of the plaintiff from US Bank
NA as Trustee for CSMC Mortgage-backed Securities Pass-Through Certificates, Series 2006-3
to Nationstar Mortgage LLC was signed in Action #2 on March 16, 2022.
By the instant motion (#002), defendants Barbara Rosenblatt and John Rosenblatt seek an
order dismissing the action pursuant to CPLR 3215(c). Alternatively, the defendants seek
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vacature of the default order signed on August 28, 2015. The plaintiff
has cross-moved (#003)
seeking to consolidate the instant foreclosure action with Action #2, as well as an order
confirming the referee’s report and a judgment of foreclosure and sale. No opposition to the
cross-motion has been filed.
The Court first considers the defendants’ motion (#002), which seeks dismissal of the
complaint as against her on the basis that the plaintiff failed to seek a default judgment within
one year of the defendants’ respective defaults pursuant to CPLR 3215(c).
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” (CPLR 3215[c]; HSBC Bank USA, N.A. v Hasis, 154 AD3d 832, 833, 62 NYS3d
467 [2d Dept 2017], citing Wells Fargo Bank, NA v Bonanno, 146 AD3d 844, 45 NYS3d 173
[2d Dept 2017]). To avoid dismissal, the plaintiff need not actually obtain or specifically seek
the default judgment within one year (see HSBC Bank USA, NA v Hasis, 154 AD3d at 833,
supra; see also Wells Fargo Bank, N.A. v Daskal, 142 AD3d 1071, 1072, 37 NYS3d 353 [2d
Dept 2016]). As long as “proceedings” are being taken that manifest “an intent not to abandon
the case but to seek a judgment, the case should not be subject to dismissal” (Citibank, N.A. v
Kerszko, 203 AD3d 42, 50-51, 161 NYS3d 232 [2d Dept 2022]; see also U.S. Bank, N.A. v
Duran, 174 AD3d 768, 770, 106 NYS3d 160 [2d Dept 2019]; Wells Fargo Bank, N.A. v.
Combs, 128 AD3d 812, 813, 10 NYS3d 121 [2d Dept 2015]). Courts have held that the term
“proceedings” encompasses such acts as filing a motion for default judgment (see Mige. Elec.
Registration Sys., Inc. v Smith, 111 AD3d 804, 806, 975 NYS2d 121 [2d Dept 2013]) and
presentment of an ex parte proposed order of reference (see Citibank, N.A. v Kerszko, 203 AD3d
at 241, supra). Additionally, “[t]o ‘take proceedings’ is a broader and more encompassing
concept than a more tightly defined ‘filing’ or ‘service’ of a motion for leave to enter a default
judgment or other type of motion” (Citibank, N.A. v Kerszko, 203 AD3d at 50, supra). Thus, the
filing of a request for judicial intervention as a step towards seeking an Order is sufficient (see
Fed. Natl. Mtge. Assn. v Edmund-Henry, 188 AD3d 652, 654-55,134 NYS3d 64 [2d Dept
2020]). Whether the motion is ultimately denied or subsequently withdrawn is ofno consequence
(see Washington Mut. Bank, FA v Milford-Jean-Gille, 153 AD3d 754, 755, 59 NYS3d 781 [2d
Dept 2017]), citing Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 773, 32 NYS3d 249 [2d
Dept 2016]). Finally, “where an action is subject to a mandatory settlement conference, the
one-year deadline imposed by CPLR 3215(c) is tolled while settlement conferences are pending”
(Deutsche Bank Natl. Tr. Co. v Attard, 197 AD3d 619, 621, 153 NYS3d 92 [2d Dept 2021]
[internal citations omitted]).
The plaintiff herein filed its request for judicial intervention with its notice of motion to
appoint a referee and for default judgments in April, 2014. The Court then scheduled the matter
for a foreclosure settlement conference pursuant to CPLR 3408 in September 2014. The
conferencing continued through February 2015, at which time the motion (#001) was processed
and assigned for submission. Because the plaintiff's intention to proceed towards judgment is
evidenced by filing of the request for judicial intervention and notice of motion, which took place
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prior to the mandated foreclosure settlement conferences and were held in abeyance pending
completion of the conferences, the Court finds that the plaintiff
has demonstrated its “intent not
to abandon the case but to seek a judgment” (Citibank, N.A. v Kerszko, 203 AD3d 42, 50-51,
161 NYS3d 232 [2d Dept 2022]) and therefore denies this branch of defendants’ motion (#002).
To the extent the defendants seek to vacate this Court’s Order dated October 19, 2022
pursuant to CPLR 5015(a)(1), such is also denied. To vacate a default in opposing a motion
pursuant to CPLR 5015(a)(1), a party must demonstrate “both a reasonable excuse for the
default and the existence of a potentially meritorious opposition to the motion” (U.S. Bank, N.A.
v Essaghof, 178 AD3d 876, 877, 113 NYS3d 238 [2d Dept 2019], citing Bhuiyan v New York
City Health & Hosps. Corp., 120 AD3d 1284, 1284, 993 NYS2d 62 [2d Dept 2019]; see CPLR
5015{a][1]; Kondrotas—Williams v. Westbridge Enters., Inc., 170 AD3d 983, 985, 97 NYS3d
127 [2d Dept 2019];Soto v. Chelsea W26, LLC, 166 AD3d 1048.d 1049, 89 NYS3d 199 [2d
Dept 2018]). The determination of what constitutes a reasonable excuse lies within the sound
discretion of the Court (see Hudson City Sav. Bank v Bomba, 14 AD3d 705, 51 NYS3d_ 570 [2d
Dept 2017]and Loan Servs. LLC v Ahmed, 122 AD3d 557, 996 NYS2d 92 [2d Dept 2014]).
Here, the defendants’ submission does little more than mention CPLR 5015(a)(1), and
glaringly absent is any excuse, much less a reasonable one, for failing to appear. The defendants’
respective affidavits, too, fail to set forth any support for the relief requested. This branch, too, is
denied.
The Court turns then to the plaintiff's motion (#003) which, as noted, has been submitted
without any opposition. The plaintiff has demonstrated its entitlement to the relief sought. CPLR
602 provides that "[w]hen actions involving a common question of law or fact are pending before
a court, the court, upon motion, may order a joint trial of any or all the matters in issue, [or] may
order the actions consolidated" (see CPLR 602[a]). Whether to grant such a motion “rests within
the sound discretion of the trial court" (Am. Home Mtge. Servicing, Inc. v Sharrocks,
92AD3d620, 622, 938 NYS2d 202 [2dDept2012]), citing CPLR 602; Matter of Long Is.
Indus.Group v Board of Assessors, 72 AD3d 1090, 1091, 900 NYS2d 128 [2d Dept 2010];
North Side Sav- Bunk v. Nyack Waterfront Assoc., 203 AD2d 439,610 NYS2d 862 [2d Dept
1994]). “A motion to consolidate pursuant to CPLR 602(a) should be granted absent a showing
of prejudice to a substantial right by the party opposing the motion” (Rhoe v Reid,166 AD3d
919, 921, 88 NYS3d_ 564 [2d Dept 2018]: Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846,
850, 864 NYS2d 479 [2d Dept 2008] [citations omitted]; see also Bruno v Capetola, 101 AD3d
785, 786, 957 NYS2d 156 [2d Dept 20121).
The plaintiff also seeks confirmation of referee Michael Clancy, Esq.’s report and leave
to enter a judgment of foreclosure and sale of the subject property incorporating the referee’s
findings. The plaintiff's submissions include a Referee’s Report of Amount Due dated
November 23, 2022, copies of the note and mortgage, and an accounting of plaintiff's attorneys’
costs in prosecuting this action. Upon review, the Court finds that plaintiff
has established its
entitlement to a judgment of foreclosure and sale (see US Bank N.A. v Saraceno, 147 AD3d
1005, 48 NYS3d 163 [2d Dept 2017]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930, 5
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NYS3d 175 [2d Dept 2015]). No hearing was required (see Wells Fargo Bank v Zelaya, 56
Misc.3d 1219[A], 2017 NY Slip Op. 51068[U]). Although the Court is not bound by the
referee’s findings, the report of a referee should be confirmed whenever the findings are
substantially supported by the record (see Citimortgage, Inc. v Kidd, 148 AD3d 767, 49 NYS3d
482 [2d Dept 2017]; Matter of Cincotta, 139 AD3d 1058, 32 NYS3d 610 [2d Dept 2016]:
Hudson v Smith, 127 AD3d 816, 4 NYS3d 894 [2d Dept 2015]). The Court so finds in this case.
The portion of plaintiff's motion seeking attorney’s fees is granted, as the terms of the
subject loan documents allow for same. Here, the plaintiff has supplied the Court with an
affirmation of services totaling $9,250.00. The Court finds this amount to be reasonable given
the extent of litigation incurred and will award plaintiff same (see Vigo v 501 Second Street
Holding Corp., 121 AD3d 778, 994 NYS2d 354 [2d Dept 2014]).
Accordingly, the defendants’ motion (#002) is denied, and the cross-motion of plaintiff
(#003) is granted. The proposed judgment, as modified by the court, has been signed
simultaneously with this memorandum decision and order.
pao. 7/2¥/23 THO! WHELAN, J.
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Ae ork
1L\| OCG At IAS Part 33 of the Supreme Court
held in the County of Suffolk, at the \ Covi Sk
ono di
op a
Suffolk Courthouse thereof/0n the
UG day of 2023.
PRESENT: Tomas k whrten JSC WIS
4 003
JUSTICE OF THE SUPREME COURT
US Bank, NA as Trustee for CSMC Mortgage-
Back Securities Pass-Through Certificates, | INDEX NO.: 036567/2009
Series 2006-3,
JUDGMENT OF FORECLOSURE AND
Plaintiff(s), SALE
vs.
MORTGAGED PROPERTY:
Barbara D.
Rosenblatt; John P. Rosenblatt;|88 Ponderosa Lane
National City Bank; New York State|Melville, NY 11747
Department of Taxation and Finance,
District: 0400 Section: 253.00 Block: 01.00
Defendant(s). Lot: 073.003
Servicer name: Nationstar Mortgage LLC d/b/a
Action #1 Mr. Cooper
Servicer phone number: 888-480-2432
US Bank, N.A. as Trustee for CSMC INDEX NO.: 601381/2017
Mortgage-Backed Securities Pass-Through
Certificates Series 2006-3, ENTERED: AUG 02 2023
Plaintiff(s),
AT: 7-2 yy
vs.
Clerk-of the Suffolk County District Court,
Defendant(s).
Action #2
1B offTL
INDEX NO. 036567/2009
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/20/2023
UPON the Summons, Complaint, and Notice of Pendency filed in this action on October
9, 2009, the Notice of Cross-Motion dated January 27, 2023, the affirmation by Thomas Zegarelli,
Esq., the affidavit of merit and amount due by Rebecca C. Wallace who is a Doc Execution
Associate of Nationstar Mortgage LLC, the Successor Plaintiff and servicer of the mortgage loan,
duly sworn to on September 1, 2022, together with the exhibits annexed thereto, all in support of
Plaintiff's motion for an Order Confirming Referee Report and Judgment of Foreclosure and Sale;
and
UPON proof that each of the defendants herein has been duly served with the Summons
and Complaint in this action, and has voluntarily appeared either personally or by an attorney or
has not served any answer to the Complaint or otherwise appeared, nor had their time to do so
extended; and it appearing that more than the legally required number of days has elapsed since
Defendants, Barbara D. Rosenblatt, John P. Rosenblatt, National City Bank, New York State
Department of Taxation and Finance, and Clerk of the Suffolk County District Court were so
served and/or appeared; and Plaintiff having established to the court's satisfaction that a judgment
against defendants is warranted; and
UPON the affidavit of mailing reflecting compliance with CPLR 3215(g)(3)(iii); and
UPON proof that non-appearing defendants Barbara D. Rosenblatt, John P. Rosenblatt,
and New York State Department of Taxation and Finance, and Clerk of the Suffolk County District
are not absent, in accordance with RPAPL §1321(2); and
UPON the Notice of Appearance of Appearance and Waiver in Foreclosure and Claim to
Surplus dated February 2, 2010, file by Fein Such & Crane, LLP, on behalf of National City Bank;
and
of
INDEX NO. 036567/2009
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/20/2023
UPON A Referee having been appointed to compute the amount due to Plaintiff upon the
bond/note and mortgage set forth in the Complaint and to examine whether the mortgaged property
can be sold in parcels; and
UPON reading and filing the Report of Michael T. Clancy, Esq., dated November 23, 2022,
showing the sum of $2,236,904.60 due as of the date in said Report and that the mortgaged property
may not be sold in parcels; and
UPON proof of due notice of this motion upon all parties entitled to receive same, and
upon all the prior proceedings and papers filed herein,
‘
Now, on motion by Thomas Zegarell i, Esq,, attorney for the Plaintiff, ONd iN _ACw dance
wih the Memm Decisian lel APRA “WKS
ORDERED, that the Motion to Dismiss by Barbara D. Rosenblatt and John P. Rosenblatt
is denied in its entirety
ORDERED, ADJUDGED AND DECREED that the Plaintiff's Cross-Motion is granted
in its entirety; and it is further
ORDERED, ADJUDGED AND DECREED that the Referee's Report be, and the same
is, hereby in all respects ratified and confirmed; and it is further
ORDERED, ADJUDGED AND DECREED, that the mortgaged property described in
the Complaint and as hereafter described, or such part thereof as may be sufficient to discharge
the mortgage debt, the expenses of the sale, and the costs of this action as provided by the RPAPL
Auf!
be sold, within 90 days of the date of this Jud; ent, in one parcel, at a public auction at the
— by and
Preview
INDEX NO. 036567/2009 FILED: SUFFOLK COUNTY CLERK 08730/2023 11:39 PM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK US BANK, N.A. AS TRUSTEE FOR CSMC MORTGAGEBACKED SECURITIES PASS-THROUGH CERTIFICATES SERIES 2006-3, Index No. ACTION 1:036567/2009 Plaintiff, -against- ACTION 2: 61381/2017 BARBARA D. ROSENBLATT; JOHN P. ROSENBLATT; NATIONAL CITY BANK; NEW YORK STATE DEPARTMENT OF TAXATION AND NOTICE OF APPEAL FINANCE, Defendants. NATIONSTAR MORTGAGE LLC, Plaintiff, -against- CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, Defendant. PLEASE TAKE NOTICE that the above-named Defendant, Barbara D. Rosenblatt and John P. Rosenblatt hereby appeals to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, from a Memo Decision and Order of Hon. Thomas F. Whelan J.S.C., of the Supreme Court of Suffolk County, dated July 24, 2023 and entered on July 28, 2023, in the Office of the Clerk for the County of Suffolk and from a J udgment of F oreclosure and Sale of Hon. Thomas F. Whelan J.S.C., of the Supreme Court of Suffolk County, dated January 27, 2023 and entered on August 02, 2023, in the Office of the Clerk for the County of Suffolk. Dated: August 30, 2023 Melville, NY =a /s/ —-- — Charles Walls The Law Offices of Charles Wallshein, PLLC Attorney for Defendants Rosenblatt 35 Pinelawn Road, Suite 106E Melville, New Y ork 11747 631-824-6555 To: McCalla Raymer Leibert Pierce, LLC 420 Lexington Avenue, Suite 840 New Y ork, New Y ork 10170 Phone: 347-534-1258 Attorneys for Plaintiff 1 of 31 iD: U 0 OUN NK Yd DV INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023 Supreme Court of the State of New York Appellate Division: S econd Judicial Department Informational Statement (Pursuantto 22 NYCRR 1250.3 [a]) - Civil [or~ We ms soca CLominte. FUiopesLomincrnnnrenmraneclomecr moto cutey For Court of Original Instance Srey) AV@imiecderciiomicKomcpepecLonensneceMemectnncne cen ACTION 1: G36567/20005 BANK, WA. AS TRUSTEE FOR CSMC MORTGAGEBACKED SECURITIES PASS-THROUGH CERTIFICATES SERIES AND ACTION 2: 61381/2017 NATIONSTAR MORTGAGE LLC, Date Notice of Appeal Filed - against - ACTION 1: 036567/200-BARBARA D. ROSENBLATT; J OHN P. ROSENBLATT; NATIONAL CITY BANK; NEW YORK STATE DEPARTMENTOF TAXATION AND FINANCE, For Appellate Division AND ACTION 2: 61381/2017-CLERK OF THE SUFFOLK COUNTY DISTRICT COURT, [e-SM hy) Saliivemhyec) Civil Action OO CPLRarticle78 Proceeding | imi Appeal OC Transferred Proceeding O CPLRatticle 75 Arhitration (1 Special Proceeding Other | [1] Original Proceedings O CPLRArtide 78 C1 Executive Law§ 298, (1 Habeas Corpus Proceeding O CPLR Artide 78 © Eminent Domain C CPLR 5704 Review © Labor Law 220 or 220-b O Public Officers Law § 36 CO Real Property Tax Law§ 1278 EMC RUM) Once. @lehiehincRomincsollouinegeciine @ncR i sOMeccmtcilomincBisHULOMINckecccy C1 Administrative Review Ci Business Relationships | 11 Commercial CO Contracts O Declaratory Judgment OC Domestic Relations 0 Election Law C) Estate Matters O Family Court C] Mortgage Foreclosure O Miscellaneous OU Prisoner Discipline & Parole OO Real Property CO Statutory O) Taxation CO) Torts (other than foreclosure) Informational Statement - Civil 2 of 31 iD: U 0 OUN NK Yd Div INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023 EN eyelet] Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. CO Amended Decree CO Determination O Order CO Resettled Order TC Amended Judgement O Finding fm Order & Judgment O Ruling CO Amended Order UH Interlocutory Decree O Partial Decree O Other (specify): 1 Decision O Interlocutory Judgment C Resettled Decree C Decree D Judgment LD Resettled Judgment Court: Supreme Court EJ County: Suffolk EJ Dated: 07/24/2023 Entered:07/28/2023 Judge (name in full):Thomas F. Whelan Index No.:036567/2009 and 61381/2017 Stage: Oi Interlocutory m Final CO) Post-Final Trial: CO Yes imi No IfYes: O Jury O Non-Jury Prior Unperfected Appeal and Related Case Information Are any appeals arising in the same action or proceeding currently pending in the court? OYes O No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: olarii-macelestvellal 4 Commenced by: OI Order to Show Cause LJ Notice of Petition LD Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: | Court: Choose Court [aelectctel le Me laiicleece Mele Tr- a) cen Oa wr\0)-1(-3) County: Choose Countv Judge (name in full): Order of Transfer Date: ol TRS Sy 07/8 mela a1 Oa Court: Choose Court County: Choose Countv Judge (name in full): Dated: ipy-rrogl Lace) aolm-\s)*\-r-l em acele1-el at -Melar-Ve) eile ele-TATMSTC LCN ALCL ESSEC Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. Informational Statement - Civil 3 of 31 iD: U 0 OUN NK Yd DV INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023 Issues: Specify the issues proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal, or modification to be advanced and the specific relief sought on appeal. aN) Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of original instance and his, her, or its status in this court, if any. If this form is to be filed for a proceeding commenced in this court, fill in only the party’s name and his, her, or its status in this court. No. Party Name Original Status Appellate Division Status US BANK, WA AS TRUSTEE FOR CSMC MORTGAGESACKED SECURITIES PASS-THROUGH CERTIFICATES SERIES 20063, Plaintiff EJ/Respondent el NATIONSTAR MORTGAGE LLC, Plaintiff EJ/Respondent & BARBARA D. ROSENBLATT Defendant Ed/Appellant & J OHN P. ROSENBLATT Defendant EdiAppellant EI NATIONAL CITY BANK Defendant Ge NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, Defendant & CLERK OF THE SUFFOLK COUNTY DISTRICT COURT Defendant EJ 10 11 12 13 14 15 16 17 18 19 20 Informational Statement - Civil 4 of 31 iD: U 0 OUN NK Yd DV INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023 PN acolan Melati} Instructions: ll in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or orderto show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herselfor himself, the box marked “Pro Se” must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name:McCalla Raymer Leibert Pierce, LLC Address:420 Lexington Avenue, Suite 840 City: New York l State:New York | Zip:10170 | Telephone No:347-534-1258 E-mail Address: Attorney Type: Retained (1 Assigned 1 Government C Pro Se Cl Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above)4, 2 Attorney/Firm Name: The Law Offices of Charles Wallshein Address: 35 Pinelawn Road City:Melville l State:NY | Zip:11747 | Telephone No:6318246555 E-mail Address:cwallshein@ wallsheinlegal.com Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above):3, 4 Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Attorney/Firm Name: Address: City: l State: | Zip: l Telephone No: E-mail Address: Attorney Type: Oo Retained CO Assigned 1 Government C Pro Se Cl Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): Informational Statement - Civil 5 of 31 INDEX NO. 036567/2009 FILED: SUFFOLK COUNTY CLERK 08730/2023 11:39 PM NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/30/2023 1. Did the lower court commit error in its decisions dated July 24, 2023 and January 27, 2023, where it granted Judgment of Foreclosure and Sale? Y ES 6 of 31 (FILED: SUFFOLK COUNTY CLERK 0872072023 03:59 PM INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2023 MEMO DECISION & ORDER INDEX No. _036567/2009 INDEX No. 601381/2017 Actions Consolidated SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT Hon. THOMAS F. WHELAN Actions Consolidated Justice of the Supreme Court Index No. 036567/2009 MOTION DATE _ 12/28/2022 SUBMIT DATE 2/10/2023 Mot. Seq. #002 - MD Mot. Seq. #003 - XMG CDISP Y_X N a Index No. 601381/2017 CDisp. YES - by Consol. x ACTION1- 9365-4 | 2004 US Bank, N.A. as Trustee for CSMC McCalla Raymer Leibert Pierce, LLC MortgageBacked Securities Pass-Through Certificates Attys. for Plaintiff Series 2006-3 420 Lexington Avenue, Suite 840 New York, New York 10170 Plaintiff, -against- BarbaraD. Rosenblatt; John P. Rosenblatt; National The Law Offices of Charles Wallshein City Bank; New York State Department of Taxation Attys. for Def. Rosenblatt and Finance 35 Pinelawn Road Suite 106e Defendants Melville, NY 11747 wenn n nanan nnn nnn nnn nnn nnn nnn nen nnn ACTION 2- 61381/2017 Nationstar Mortgage LLC McCalla Raymer Leibert Pierce, LLC Attys. for Plaintiff Plaintiff, 420 Lexington Avenue, Suite 840 New York, New York 10170 -against- Clerk of the Suffolk County District Court Defendant. me wenennnnnnn nanan nena n= n-ne enna nnnewnwecneneneneneneceneeees 7 offAL 7 INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF 08/28/2023 Nationstar v Rosenblatt Index No. 036567/2009 Index No. 601381/2017 Page 2 Upon the following papers numbered as indicated and read on this motion _ for dismissal of the complaint (#002). cross motion for judgment of foreclosure and sale (#003); Notice of Motion/Order to Show Cause and supporting papers NYSCEF Docs 10 - 17__ (#002) ; Notice of Cross Motion and supporting papers: NYSCEF Does 22-40 (#003); Opposing papers: _; Reply papers ; Other 3¢ opposedtethe-motion) it is, ORDERED that the motion of defendants Barbara Rosenblatt and John Rosenblatt (#002 seeking dismissal of the complaint pursuant to CPLR 3215(c) or, alternatively, vacatur of their default judgments pursuant to CPLR 5015(a)(1) is denied; and it is further ORDERED that the branches of plaintiffs cross-motion (#003) for, inter alia, leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RPAPL) §1351, and to substitute the plaintiff are granted; and it is further ORDERED that plaintiff's motion (#003) under Index Number 036567/2009 (Action #1) seeking an order consolidating this action with another action commenced by the plaintiff and arising out of the same circumstances and bearing Suffolk County Index No. 601381/2017 (Action #2), is considered under CPLR 602 and is granted. Accordingly, the aforementioned related action bearing Index Number 601381/2017 is hereby consolidated and merged into the above action and shall bear Index Number 036567/2009. The caption is hereby amended to reflect this consolidation as follows. Sec cen nis setet tiectietesenecesuneniecnictenessnesedcssete nemesis Nationstar Mortgage LLC Plaintiff Index Number 36567/2009 -against- BarbaraD. Rosenblatt; John P. Rosenblatt; National City Bank; New York State Department of Taxation and Finance, Clerk of the Suffolk County District Court Defendants wanna nnn nnn nnn nn nn nnn nnn nnn nnn eee nnn nen en en en en nenenene All future proceedings shall be captioned accordingly and counsel are advised to duly note the change in the caption and the index number now assigned to this consolidated action and it is further ORDERED that upon receipt of this order, the Clerk of the Court shall remove all papers filed as Nationstar Mortgage LLC v Clerk of the Suffolk County District Court bearing Suffolk County Index Number 601381/2017 and file same in the file maintained under Index Number 2 of A INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2023 Nationstar v Rosenblatt Index No. 036567/2009 Index No. 601381/2017 Page 3 036567/2009; and it is further ORDERED that the Calendar Clerk mark Nationstar Mortgage LLC v Clerk of the Suffolk County District Court bearing Suffolk County Index Number 601381/2017 as disposed by consolidation in the court’s electronic filing system and shall note the amendment of the caption of the action bearing Index Number 036567/2009 to reflect the consolidation directed herein; and it is further ORDERED that the proposed order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2). This is an action to foreclose a mortgage on residential property located in Melville. In essence, on May 16, 2005, defendant John Rosenblatt borrowed $960,000.00 borrowed from plaintiff's predecessor in interest and signed a promissory note and, together with Barbara Rosenblatt, a mortgage. No payments have been made on the monthly installments due since October 1, 2008. This action was, therefore, commenced by filing on October 8, 2009. On March 7, 2014, the plaintiff filed a Request for Judicial Intervention together with a notice of motion (#001) to appoint a referee to compute and for the issuance of default judgments as against all non-answering parties. In response, the Court scheduled a foreclosure settlement conference pursuant to CPLR 3408. According to court records, plaintiff and defendants appeared for the conferences which took place on September 26, 2014 and November 25, 2014. An additional conference was scheduled to take place on February 17, 2015, however the defendants failed to appear. The court therefore released the matter from further conferencing. The plaintiff's motion (#001) was thereafter granted by Order dated August 28, 2015. On October 19, 2022, an ex parte order was signed appointing a substitute referee to compute. In the midst of the above, the plaintiff learned that it failed to name a judgment creditor as a party defendant in the foreclosure action. The plaintiff therefore commenced an action at Suffolk County Index Number 601381/2017 (Action #2) captioned US Bank NA as Trustee for CSMC Mortgage-backed Securities Pass-Through Certificates, Series 2006-3 v Clerk of the Suffolk County District Court. The plaintiff noted in the complaint that the action was related to the foreclosure proceeding and that plaintiffs intent was to join this action with the foreclosure action prior to judgment (see Verified Complaint “Wherefore” para. 10 [NYSCEF Doc. 1]). An Order of Default Judgment, which also provided for substitution of the plaintiff from US Bank NA as Trustee for CSMC Mortgage-backed Securities Pass-Through Certificates, Series 2006-3 to Nationstar Mortgage LLC was signed in Action #2 on March 16, 2022. By the instant motion (#002), defendants Barbara Rosenblatt and John Rosenblatt seek an order dismissing the action pursuant to CPLR 3215(c). Alternatively, the defendants seek 8 offAL INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2023 Nationstar v Rosenblatt Index No. 036567/2009 Index No, 601381/2017 Page 4 vacature of the default order signed on August 28, 2015. The plaintiff has cross-moved (#003) seeking to consolidate the instant foreclosure action with Action #2, as well as an order confirming the referee’s report and a judgment of foreclosure and sale. No opposition to the cross-motion has been filed. The Court first considers the defendants’ motion (#002), which seeks dismissal of the complaint as against her on the basis that the plaintiff failed to seek a default judgment within one year of the defendants’ respective defaults pursuant to CPLR 3215(c). 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” (CPLR 3215[c]; HSBC Bank USA, N.A. v Hasis, 154 AD3d 832, 833, 62 NYS3d 467 [2d Dept 2017], citing Wells Fargo Bank, NA v Bonanno, 146 AD3d 844, 45 NYS3d 173 [2d Dept 2017]). To avoid dismissal, the plaintiff need not actually obtain or specifically seek the default judgment within one year (see HSBC Bank USA, NA v Hasis, 154 AD3d at 833, supra; see also Wells Fargo Bank, N.A. v Daskal, 142 AD3d 1071, 1072, 37 NYS3d 353 [2d Dept 2016]). As long as “proceedings” are being taken that manifest “an intent not to abandon the case but to seek a judgment, the case should not be subject to dismissal” (Citibank, N.A. v Kerszko, 203 AD3d 42, 50-51, 161 NYS3d 232 [2d Dept 2022]; see also U.S. Bank, N.A. v Duran, 174 AD3d 768, 770, 106 NYS3d 160 [2d Dept 2019]; Wells Fargo Bank, N.A. v. Combs, 128 AD3d 812, 813, 10 NYS3d 121 [2d Dept 2015]). Courts have held that the term “proceedings” encompasses such acts as filing a motion for default judgment (see Mige. Elec. Registration Sys., Inc. v Smith, 111 AD3d 804, 806, 975 NYS2d 121 [2d Dept 2013]) and presentment of an ex parte proposed order of reference (see Citibank, N.A. v Kerszko, 203 AD3d at 241, supra). Additionally, “[t]o ‘take proceedings’ is a broader and more encompassing concept than a more tightly defined ‘filing’ or ‘service’ of a motion for leave to enter a default judgment or other type of motion” (Citibank, N.A. v Kerszko, 203 AD3d at 50, supra). Thus, the filing of a request for judicial intervention as a step towards seeking an Order is sufficient (see Fed. Natl. Mtge. Assn. v Edmund-Henry, 188 AD3d 652, 654-55,134 NYS3d 64 [2d Dept 2020]). Whether the motion is ultimately denied or subsequently withdrawn is ofno consequence (see Washington Mut. Bank, FA v Milford-Jean-Gille, 153 AD3d 754, 755, 59 NYS3d 781 [2d Dept 2017]), citing Aurora Loan Servs., LLC v Gross, 139 AD3d 772, 773, 32 NYS3d 249 [2d Dept 2016]). Finally, “where an action is subject to a mandatory settlement conference, the one-year deadline imposed by CPLR 3215(c) is tolled while settlement conferences are pending” (Deutsche Bank Natl. Tr. Co. v Attard, 197 AD3d 619, 621, 153 NYS3d 92 [2d Dept 2021] [internal citations omitted]). The plaintiff herein filed its request for judicial intervention with its notice of motion to appoint a referee and for default judgments in April, 2014. The Court then scheduled the matter for a foreclosure settlement conference pursuant to CPLR 3408 in September 2014. The conferencing continued through February 2015, at which time the motion (#001) was processed and assigned for submission. Because the plaintiff's intention to proceed towards judgment is evidenced by filing of the request for judicial intervention and notice of motion, which took place 1@ of B1 INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2023 Nationstar v Rosenblatt Index No. 036567/2009 Index No. 601381/2017 Page 5 prior to the mandated foreclosure settlement conferences and were held in abeyance pending completion of the conferences, the Court finds that the plaintiff has demonstrated its “intent not to abandon the case but to seek a judgment” (Citibank, N.A. v Kerszko, 203 AD3d 42, 50-51, 161 NYS3d 232 [2d Dept 2022]) and therefore denies this branch of defendants’ motion (#002). To the extent the defendants seek to vacate this Court’s Order dated October 19, 2022 pursuant to CPLR 5015(a)(1), such is also denied. To vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), a party must demonstrate “both a reasonable excuse for the default and the existence of a potentially meritorious opposition to the motion” (U.S. Bank, N.A. v Essaghof, 178 AD3d 876, 877, 113 NYS3d 238 [2d Dept 2019], citing Bhuiyan v New York City Health & Hosps. Corp., 120 AD3d 1284, 1284, 993 NYS2d 62 [2d Dept 2019]; see CPLR 5015{a][1]; Kondrotas—Williams v. Westbridge Enters., Inc., 170 AD3d 983, 985, 97 NYS3d 127 [2d Dept 2019];Soto v. Chelsea W26, LLC, 166 AD3d 1048.d 1049, 89 NYS3d 199 [2d Dept 2018]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Court (see Hudson City Sav. Bank v Bomba, 14 AD3d 705, 51 NYS3d_ 570 [2d Dept 2017]and Loan Servs. LLC v Ahmed, 122 AD3d 557, 996 NYS2d 92 [2d Dept 2014]). Here, the defendants’ submission does little more than mention CPLR 5015(a)(1), and glaringly absent is any excuse, much less a reasonable one, for failing to appear. The defendants’ respective affidavits, too, fail to set forth any support for the relief requested. This branch, too, is denied. The Court turns then to the plaintiff's motion (#003) which, as noted, has been submitted without any opposition. The plaintiff has demonstrated its entitlement to the relief sought. CPLR 602 provides that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, [or] may order the actions consolidated" (see CPLR 602[a]). Whether to grant such a motion “rests within the sound discretion of the trial court" (Am. Home Mtge. Servicing, Inc. v Sharrocks, 92AD3d620, 622, 938 NYS2d 202 [2dDept2012]), citing CPLR 602; Matter of Long Is. Indus.Group v Board of Assessors, 72 AD3d 1090, 1091, 900 NYS2d 128 [2d Dept 2010]; North Side Sav- Bunk v. Nyack Waterfront Assoc., 203 AD2d 439,610 NYS2d 862 [2d Dept 1994]). “A motion to consolidate pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion” (Rhoe v Reid,166 AD3d 919, 921, 88 NYS3d_ 564 [2d Dept 2018]: Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850, 864 NYS2d 479 [2d Dept 2008] [citations omitted]; see also Bruno v Capetola, 101 AD3d 785, 786, 957 NYS2d 156 [2d Dept 20121). The plaintiff also seeks confirmation of referee Michael Clancy, Esq.’s report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee’s findings. The plaintiff's submissions include a Referee’s Report of Amount Due dated November 23, 2022, copies of the note and mortgage, and an accounting of plaintiff's attorneys’ costs in prosecuting this action. Upon review, the Court finds that plaintiff has established its entitlement to a judgment of foreclosure and sale (see US Bank N.A. v Saraceno, 147 AD3d 1005, 48 NYS3d 163 [2d Dept 2017]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930, 5 14 of B1 INDEX NO. 036567/2009 NYSCEF DOC. NO. 44 RECEIVED NYSCEF: 08/28/2023 Nationstar v Rosenblatt Index No. 036567/2009 Index No. 601381/2017 Page 6 NYS3d 175 [2d Dept 2015]). No hearing was required (see Wells Fargo Bank v Zelaya, 56 Misc.3d 1219[A], 2017 NY Slip Op. 51068[U]). Although the Court is not bound by the referee’s findings, the report of a referee should be confirmed whenever the findings are substantially supported by the record (see Citimortgage, Inc. v Kidd, 148 AD3d 767, 49 NYS3d 482 [2d Dept 2017]; Matter of Cincotta, 139 AD3d 1058, 32 NYS3d 610 [2d Dept 2016]: Hudson v Smith, 127 AD3d 816, 4 NYS3d 894 [2d Dept 2015]). The Court so finds in this case. The portion of plaintiff's motion seeking attorney’s fees is granted, as the terms of the subject loan documents allow for same. Here, the plaintiff has supplied the Court with an affirmation of services totaling $9,250.00. The Court finds this amount to be reasonable given the extent of litigation incurred and will award plaintiff same (see Vigo v 501 Second Street Holding Corp., 121 AD3d 778, 994 NYS2d 354 [2d Dept 2014]). Accordingly, the defendants’ motion (#002) is denied, and the cross-motion of plaintiff (#003) is granted. The proposed judgment, as modified by the court, has been signed simultaneously with this memorandum decision and order. pao. 7/2¥/23 THO! WHELAN, J. 18 of B1 INDEX NO. 036567/2009 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/20/2023 Ae ork 1L\| OCG At IAS Part 33 of the Supreme Court held in the County of Suffolk, at the \ Covi Sk ono di op a Suffolk Courthouse thereof/0n the UG day of 2023. PRESENT: Tomas k whrten JSC WIS 4 003 JUSTICE OF THE SUPREME COURT US Bank, NA as Trustee for CSMC Mortgage- Back Securities Pass-Through Certificates, | INDEX NO.: 036567/2009 Series 2006-3, JUDGMENT OF FORECLOSURE AND Plaintiff(s), SALE vs. MORTGAGED PROPERTY: Barbara D. Rosenblatt; John P. Rosenblatt;|88 Ponderosa Lane National City Bank; New York State|Melville, NY 11747 Department of Taxation and Finance, District: 0400 Section: 253.00 Block: 01.00 Defendant(s). Lot: 073.003 Servicer name: Nationstar Mortgage LLC d/b/a Action #1 Mr. Cooper Servicer phone number: 888-480-2432 US Bank, N.A. as Trustee for CSMC INDEX NO.: 601381/2017 Mortgage-Backed Securities Pass-Through Certificates Series 2006-3, ENTERED: AUG 02 2023 Plaintiff(s), AT: 7-2 yy vs. Clerk-of the Suffolk County District Court, Defendant(s). Action #2 1B offTL INDEX NO. 036567/2009 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/20/2023 UPON the Summons, Complaint, and Notice of Pendency filed in this action on October 9, 2009, the Notice of Cross-Motion dated January 27, 2023, the affirmation by Thomas Zegarelli, Esq., the affidavit of merit and amount due by Rebecca C. Wallace who is a Doc Execution Associate of Nationstar Mortgage LLC, the Successor Plaintiff and servicer of the mortgage loan, duly sworn to on September 1, 2022, together with the exhibits annexed thereto, all in support of Plaintiff's motion for an Order Confirming Referee Report and Judgment of Foreclosure and Sale; and UPON proof that each of the defendants herein has been duly served with the Summons and Complaint in this action, and has voluntarily appeared either personally or by an attorney or has not served any answer to the Complaint or otherwise appeared, nor had their time to do so extended; and it appearing that more than the legally required number of days has elapsed since Defendants, Barbara D. Rosenblatt, John P. Rosenblatt, National City Bank, New York State Department of Taxation and Finance, and Clerk of the Suffolk County District Court were so served and/or appeared; and Plaintiff having established to the court's satisfaction that a judgment against defendants is warranted; and UPON the affidavit of mailing reflecting compliance with CPLR 3215(g)(3)(iii); and UPON proof that non-appearing defendants Barbara D. Rosenblatt, John P. Rosenblatt, and New York State Department of Taxation and Finance, and Clerk of the Suffolk County District are not absent, in accordance with RPAPL §1321(2); and UPON the Notice of Appearance of Appearance and Waiver in Foreclosure and Claim to Surplus dated February 2, 2010, file by Fein Such & Crane, LLP, on behalf of National City Bank; and of INDEX NO. 036567/2009 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 08/20/2023 UPON A Referee having been appointed to compute the amount due to Plaintiff upon the bond/note and mortgage set forth in the Complaint and to examine whether the mortgaged property can be sold in parcels; and UPON reading and filing the Report of Michael T. Clancy, Esq., dated November 23, 2022, showing the sum of $2,236,904.60 due as of the date in said Report and that the mortgaged property may not be sold in parcels; and UPON proof of due notice of this motion upon all parties entitled to receive same, and upon all the prior proceedings and papers filed herein, ‘ Now, on motion by Thomas Zegarell i, Esq,, attorney for the Plaintiff, ONd iN _ACw dance wih the Memm Decisian lel APRA “WKS ORDERED, that the Motion to Dismiss by Barbara D. Rosenblatt and John P. Rosenblatt is denied in its entirety ORDERED, ADJUDGED AND DECREED that the Plaintiff's Cross-Motion is granted in its entirety; and it is further ORDERED, ADJUDGED AND DECREED that the Referee's Report be, and the same is, hereby in all respects ratified and confirmed; and it is further ORDERED, ADJUDGED AND DECREED, that the mortgaged property described in the Complaint and as hereafter described, or such part thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of this action as provided by the RPAPL Auf! be sold, within 90 days of the date of this Jud; ent, in one parcel, at a public auction at the — by and