Preview
FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF 11/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------------------+--+ x Index No. 600753/2023
FIFTH THIRD BANK, NATIONAL
ASSOCIATION,
Plaintiff,
-against-
9 COMMODORE CIRCLE, LLC, EDWIN NOTICE OF APPEAL
STINVIL, THE BOARD OF MANAGERS OF
STONINGTON AT PORT JEFFERSON
CONDOMINIUM I, BOARD OF DIRECTORS
OF STONINGTON AT PORT JEFFERSON
HOME OWNERS ASSOCIATION, INC.,
CLERK OF THE SUFFOLK COUNTY
TRAFFIC & PARKING VIOLATIONS
AGENCY,
"JOHN DOE #1" through "JOHN DOE
#12," the last twelve names being
fictitious and unknown to plaintiff,
the persons or parties intended being
the tenants, occupants, persons or
corporations, if any, having or
claiming an interest in or lien
upon the premises, described in
the complaint,
Defendants.
----------------------------
+--+
PLEASE TAKE NOTICE that the defendant, 9 Commodore Circle,
LLC, hereby appeals to the Appellate Division of the Supreme
Court of the State of New York, Second Judicial Department, from
each and every part of the order of this Court by the Hon.
Thomas F. Whelan dated November 9, 2023 duly entered in the
within Court on November 13, 2023 which denied 9 Commodore
blak-134
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FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
Circle's motion for leave to file a late answer and other
relief.
Dated: Farmingville, New York
November 17, 2023
Yours etc,
ENN P. WARMUTH
STIM & WARMUTH, P.C.
Attorneys for Defendant
9 Commodore Circle, LLC
2 Eighth Street
Farmingville, NY 11738
631-732-2000
gpw@stim-warmuth.com
TO:
CLERK OF THE COUNTY OF SUFFOLK
ROBERTSON, ANSCHUTZ, SCHNEID,
CRANE & PARTNERS, PLLC
Attorneys for Plaintiff
900 Merchants Concourse
Suite 310
Westbury, NY 11590
516-280-7675
SBoriskin@RASLG.com
EDWIN STINVIL
Defendant in Default
9 Commodore Circle
Unit 1310
Port Jefferson Station, NY 11776
CARYN LYNN MEYER, ESQ.
COHEN, WARREN, MEYER & GITTER, P.C.
Attorneys for Defendants
The Board of Managers of
Stonington at Port Jefferson
Condominium 1 and Board Of
Directors of Stonington
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FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
At Port Jefferson Home
Owners Association, Inc.
98 Maple Avenue, Suite 100
Smithtown, NY 11787
cmeyer@cohenandwarren.com
CLERK OF THE SUFFOLK COUNTY
TRAFFIC & PARKING VIOLATIONS
AGENCY
100 Veterans Memorial Highway
Hauppauge, NY 11788
JOHN DOE #1
9 Commodore Circle
Unit 1310
Port Jefferson Station, NY 11776
JOHN DOE #2
9 Commodore Circle
Unit 1310
Port Jefferson Station, NY 11776
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INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
Supreme Court of the State of New York
Appellate Bivision: Second Sudicial Bepartment
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil
fort iat Tom UNUM Cem tC Core) CRU AL O Eames CERO Kame)
m a) RST UIM ICAU fa a rel) Tre tice
FIFTH THIRD BANK, NATIONAL ASSOCIATION,
Date Notice of Appeal Filed
- against -
9 COMMODORE CIRCLE, LLC, et al.,
erent anemia
fm Civil Action O CPLRarticle 78 Proceeding | imi Appeal OO Transferred Proceeding
O CPLR article 75 Arbitration Special Proceeding Other C1 Original Proceedings CO CPLR Article 78
(Action Commenced under CPLR 214-g [] Habeas Corpus Proceeding O CPLR Article 78 1 Executive Law § 298
O Eminent Domain OO CPLR 5704 Review
D. Labor Law 220 or 220-b
O Public Officers Law § 36
Real Property Tax Law § 1278
SEC UER CR) Md UT eam Qu Lele UTOm COM UT Kexome) MCHC LOL ECON TORer Celso em kee) omer
O Administrative Review C Business Relationships O Commercial C Contracts
C Declaratory Judgment CO Domestic Relations O Election Law O Estate Matters
O Family Court & Mortgage Foreclosure 0 Miscellaneous O Prisoner Discipline & Parole
O Real Property C Statutory O Taxation O Torts
(other than foreclosure)
Informational Statement - Civil
4 of 13
FILED: SUFFOLK COUNTY CLERK 1171772023 06:29 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
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.
C Amended Decree C1 Determination igi Order C Resettled Order
Amended Judgement O Finding O Order & Judgment D Ruling
Cl Amended Order O Interlocutory Decree O Partial Decree CO Other (specify):
O Decision 0 Interlocutory Judgment CO Resettled Decree
O Decree 0 Judgment CO Resettled Judgment
Court: Supreme Court County: Suffolk
Dated: 11/09/2023 Entered: 11s20%
Judge (name in full): Thomas F. Whelan Index No.: 600753/2023
Stage: @ Interlocutory 0 | OO Po: inal O Yes i No ifYes: O Jury O Non jury
Are any appeals arising in the same action or proceeding currently pending in the court? Oves 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:
Commenced by: U1 Order to Show Cause [1 Notice of Petition [1 Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
ag ters a aeUE LS anes!
Court: Choose Court County: Choose Countv
Judge (name in full): Order of Transfer Date:
lea aA Cola ala =
Court: Choose Court County: Choose Countv
Judge (name in ful Date
ize} atta
Description: If an appeal, fly describe the paper appealed from. If the appeal 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.
Appeal from an order dated November 9, 2023 which amoung other things, denied defendant's motion for
permission to file a late answer.
Informational Statement - Civil
5 of 13
INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
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.
4. Whether the lower court committed error in ruling that the defendant, the owner of the property being
foreclosed, did not have any potentially meritorious defenses to the foreclosure action.
2. Whether the lower court committed error in ruling that, in effect, the owner of the premises being foreclosed
could never have a defense to the foreclosure action, where the owner purchased the property at a duly held
auction which was held pursuant to a judgment issued by the Court.
3. Whether the lower court committed error in denying the motion to file a late answer where the delay had been
caused by the Secretary of State.
4, Whether the lower court committed error by ruling that standing was not a potentially meritorious defenses,
when the law provides that standing can always be raised by a defendant in a foreclosure action.
5. Whether each and every part of the order appealed from was correctly decided.
elas my enerl sce)
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
Fifth Third Bank, National Association Plaintiff Respondent
9 Commodore Circle, LLC Defendant Appellant
Edwin Stinvil Defendant None
‘The Board of Managers of Stonington at Port Jefferson Condominium | | Defendant None
Board of Directors of Stonington at Port Jefferson Home Owners Association | Defendant None
Clerk of the Suffolk County Traffic & Parking Violations Agency Defendant None
John Doe #1 Defendant None
John Doe #2 Defendant None
10
11
12
13
14
15
16
17
18
19
20
Informational Statement - Civil
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= INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
Ta
Instructions: Il 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 order to 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 herself or
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: Robertson, Anschuz, Schneid, Crane
& Partners, PLLC
Address: 900 Merchants Concouse, Suite 310
City: Westbury __[ State: NY | Zip: 11590 [Telephone No: 516 280-7675
E-mail Address: SBoriskin@RASLG.com
Attorney Type: ij Retained (1 Assigned C1 Government O Prose (1 ProHac Vice
Party or Parties s Represented (set forth party number(s) from table above):
IDE EE EDT REL EEMED NRE ORE POOR EEE LOCATE EBT
Attorney/Firm ‘Name: Stim & Warmuth, P.c.
Address: 2 Eighth Street
City: Farmingville | State: ny | Zip: 11738 [ Telephone No: 631-732-2000
E-mail Address: gpw@stim-warmuth.com
Attorney Type: fi Retained [1 Assigned [1] Government 0 Pro Se 1 Pro Hac Vice
Pat or Partie: d | (set forth h partty number! m table
KEEPER AS we ALOMAR AOE! we PB RAOP ERAN PAROSR ARBRE
Attorney/Firm Name: Edwin Stinvil
Address: 9 Commodore Circle, Unit 1310
City: Port Jefferson Station _[ State: nY “[ Zip: 11776 [ Telephone-No
E-mail Address:
Attorney Type: O Retained (1 Assigned (1) Government i ProSe 0 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table abov
Po MAE ERLE EER ars tt
Attorney/Firm Name: COHEN, WARREN, MEYER
& GITTER, P.C
Address: 98 Maple Avenue, Suite 100
City: Smithtown [ State: NY | Zip: 11787 _ [Telephone No
E-mail Address: cmeyer@cohenandwarren.com
Attorney Type ii Retained (1 Assigned [1 Government O Prose (1 Pro Hac Vice
Party or Parti ‘epresent
Pa ee
t forth party
A BRAG
from table
RE SILO II AER SE 0.07
cnr aR
Attorney/! irm Name: Clerk of the Suffolk County Traffic & Parking Violations Agency
Address: 100 Veterans Memorial Highway’
City: Hauppauge [ State: NY | Zip: 11788 | Telephone No
E-mail Address:
Attorney Type: Retained O Assigned fl Government O ProSe CO Pro Hac Vice
Party or Parties Represented {set forth party | number(s) from table > above): eo
POOLE RD eI eo: are vostro sescoens
Attorney/Firm | Nam John Doe #1
Address: 9 Commodore Circle, Unit 1310
City: Port Jefferson Station [ State: NY | Zip:1176 _[ Telephone No:
E-mail Address:
Attorney Type: O Retained (1 Assigned ([) Government ig ProSe CO Pro Hac Vice
Party or Parties Represented (set forth Party number(s)
ae from:
fi table2 above): 7
MELE RS A EERE TACO EE RL ER A EL ETD PRa ie Tee RC ATE ELD EASES TD
Informational Statement - Civil
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= INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
Instructions: Fill 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 order to 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 herself or
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: John Doe #2
Address: 9 Commodore Circle, Unit 1310
City: Port Jefferson Station | State: NY | Zip: 11776 | Telephone No
E-mail Address:
Attorney Type: Cl Retained C Assigned [J Government O Pro Se (Pro Hac Vice
Party or Parties’s Represented (set forth party number(s) from table > above) 8
PBT EEE PEOPLES EBERLE ED LD ETER ROE EEL CPOE PAROLE SOULE POETS NERO TPE BORD
‘Attorney/Firm NzName:
Address:
City: [ state: _Lzie’ [Telephone No:
E-mail Address:
Attorney Type: O Retained C1 Assigned 1 Government C1 Pro Se U1 Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above):
DRUG ORLOV ES PUAN ARIES ASKER MRR IAS OCDE. PRM LE VRE DBEOL ERLE RIED REGEN
Attorney/Firm Nam
Address
City: [ state: [ Zip’ [Telephone No
E-mail Address:
Attorney Type: OO Retained (1 Assigned LI Government UO ProSe OO Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table
t above):LS BCAA UAL AeA AEM Rat
BEELER BS ER SEE RSS ACH REA ANB
Attorney/Firm Name:
Address:
City: [state [zip: | Telephone No:
E-mail Address:
Attorney Type: C1 Retained OO Assigned [] Government O Pro Se C1 Pro Hac Vice
Party or Parties Re, resented (set forth party number(s) from table above): nem sad
MRM ATED AEWA OL DOES LAER PIRTER EER ERT LARA AACS,
Attorney/Firm Nami
Address
City: [State: | Zip | Telephone No
E-mail Address:
Attorney Type: O] Retained (1 Assigned (I) Government O ProSe 0 Pro Hac Vice
Party
beara
or Parties Ri resented (set forth party nur be (s) fi m tabl above):
Pe Pe a REDCAR pews) wets omceeseroe ini
|Attorney/Firm Name:
Address:
City: [ state: | Zip [ Telephone No:
E-mail Address:
Attorney Type: Retained O Assigned [i Government UO ProSe 0 Pro Hac Vice
Party or Parties Represented (set forth party | number(s) from table above):
BO AR PSOE LTDA TREE: DIRS MA SPEER EE ON LEHE ROEM IEE TEA
Informational Statement - Civil
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INDEX NO. 600753/2023
(FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM
NY. Fite: SUFFOLK COUNTY CLERK 11/13/2053 02:58 DM) RECEIVED
NYSE £97 72479833
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023
MEMO DECISION &ORDER
INDEX No. 600753/2023
SUPREME COURT - STATE OF NEW YORK
IAS PART 33 - SUFFOLK COUNTY
PRESENT:
Hon. THOMAS F. WHELAN MOTION DATE | 6/2/23
Justice of the Supreme Court SUBMIT DATE _ 9/8/23
Mot. Seq. #001 - MD
CDISP Y N_X
lane none x
FIFTH THIRD BANK, NATIONAL ASSOCIATION, ROBERTSON, ANSCHUTZ,
SCHNEID CRANE &
Plaintiff, PARTNERS, PLLC
Attys for Plaintiff
-against- 900 Merchants Concourse
Suite 310
9 COMMODORE CIRCLE, LLC; EDWIN STINVIL; THE Westbury, NY 11590
BOARD OF MANAGERS OF STONINGTON AT PORT
JEFFERSON COMDOMINIUM 1; BOARD OF STIM & WARMUTH, P.C,
DIRECTORS OF STONINGTON AT PORT JEFFERSON Attys for Defendant
HOME OWNERS ASSOCIATION; CLERK OF THE 9 Commodore Circle, LLC
SUFFOLK COUNTY TRAFFIC & PARKING 2 Eighth Street
VIOLATIONS AGENCY Farmingville, NY 11738
"JOHN DOE #1" through "JOHN DOE #12." the last twelve
names being fictitious and unknown to plaintiff, the persons
or parties intended being the tenants, occupants, persons or
corporations, if any, having or claiming an interest irt or lien
upon the premises, described in the complaint,
Defendants.
wnee x
Upon the following papers read.on this motions __for leave to file alate answer ; Notice of Motion/Order.
to Show Cause and supporting papers NYSCEF Doc. 25 - 35 ; Notice of Cross Motion and supporting papers:
aes papers: NYSCEF Doe. 39-40 ; Reply papers __NYSCEF Doc. 41 ; Other «
fon) it is
ORDERED that the motion (#001) by defendant 9 Commodore Circle, LLC for leave to file
a late answer is denied; and it is further
9 oPAZ
OUN IK INDEX NO. 600753/2023
NY C UFROLK COUNTY CLERK :58 PD RECEIVED
NY Cer £°9172979833
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023
Fifth Third Bank v 9 Commodore
Index No, 600753/2023
Page 2
ORDERED that movant 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 Port Jefferson
Station. In essence, on January 8, 2015, Edwin Stinvil borrowed $232,750.00 from the plaintiff's
predecessor in interest and executed a promissory note and a mortgage. Since June 1, 2019, no
payments: have been made on the monthly installments due and owing. This action was later
commenced by filing on January 10,2023. On April 24, 2023, defendant 9 Commodore Circle, LLC
(hereinafter “9 Commodore”), title owner of the property, filed an answer asserting seventeen
affirmative defenses, The plaintiff rejected the answer as untimely by Notice of Rejection dated April
27,2023. The instant motion (#001) followed. 9 Commodore seeks to vacate its default in answering
the complaint pursuant to CPLR 317, CPLR §5015(a)(1), CPLR §5015(a)(4), CPLR. §2001, and
CPLR.§2005 and, upon such vacatur, granting the movant extension of time to. serve its answer or,
alternatively, compelling the plaintiff to:accept the answer previously served. The plaintiff opposes
the motion, and the defendant has filed.a reply.
“A defendant who has failed to timely answer a complaint and seeks to-compel the plaintiff
to accept an untimely answer must provide a reasonable excuse for the delay in answering and
demonstrate a potentially meritorious defense to the action” (Moonachi, Inc. v U.S. Bank Tr., N.A.
213 AD3d 838, 838-39, 184 NYS3d 112 (2d Dept 2023] citing Nationstar Mtge., LLC v Farrell,
172:AD3d 1077, 98 NYS3d 479 [2d Dept 2019]. The determination of what constitutes.a reasonable
excuse lies within the sound discretion of the Court (see Rosario v Naranjo, 165 AD3d 860, 861
84 NYS3d 556, 557 [2d Dept 2018], citing Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-77.
800 NYS2d 613, 614 [2d Dept 2005)). If the movant fails “to proffer a reasonable excuse for their
delay in answering the complaint, it is not necessary to determine whether they demonstrated a
potentially meritorious defense to the action” (Green Tree Servicing, LLC v Weiss, 180 AD3d 654,
655, 115 NYS3d 693 [2d Dept 2020], citing HSBC Bank USA, N.A. v. Smart, 155 AD3d 843, 63
NYS3d 700 [2d Dept 2017)).
Pursuant to CPLR § 311(a)(1), a business corporation may be served pursuant to New York
Business Corporation Law § 306, which dictates that service of process on a corporation is complete
when duplicate copies of the summons and complaint are delivered to the Secretary of State and the
propriate fee is paid (BCL § 306[b][1]; Perkins v. 686 Halsey Food Corp., 36 AD3d 881, 881
829 NYS2d 185, 186 [2d Dept 2007] [citations omitted]). “Service of process on a corporate
defendant by serving the summons and complaint on the Secretary of State pursuant to Business
Corporation Law § 306 is valid service” (Perkins v 686 Halsey Food Corp. , 36 AD3d at 881, supra,
quoting Shimel v $ S. Fulton Ave. Corp., 11 AD3d 527, 527, 783 NYS2d 54, 55 [2d Dept. 2004)
“Ordinarily, the affidavit of a process server constitutes a prima facie showing of ‘proper service” (JP
Morgan Chase Bank, NA v Adventure Corp., 155 AD3d 1013, 1014, 65 NYS3d 531, 533 [2d Dept
2017], quoting FV-1, Inc. v Reid, 138 AD3d 922, 923, 31 NYS3d 119, 120 [2d Dept 2016])
10206£13
(FILED: SUFFOLK COU CLERK I1/717/72023 06:29 P] ) INDEX NO. 600753/2023
NY. ELEC | UFROLK COUNTY CLERK I1713/ PM) RECEIVED
WY SUEr £°P7 72475633 |
NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023
Fifth Third Bank v 9 Commodore
Index No. 600753/2023
Page 3
Here, the affidavit of service demonstrates that the plaintiff properly effected service of
process upon 9 Commodore on January 17, 2023 by delivering two copies of the summons and
complaint to the Secretary of State and paying the associated fee (see BCL § 306[b][1]; (Perkins v
686 Halsey Food Corp., 36 AD3d at 881, supra). As such, pursuant to Business Corporation Law
§306.and CPLR §320(a), the defendant had 30 days from completion of service (i.e., until February
16, 2023) to answer the complaint or otherwise appear in the action. As the movant demonstrates,
however, the summons and complaint were not mailed to 9 Commodore by the Secretary of State
until over almost three months later, on April 7, 2023. As this was well after 9 Commodore’s
deadline to answer or otherwise respond, the movant opines, there exists a reasonable excuse.
Under the unique circumstances herein, the Court finds that 9 Commodore has set forth a
reasonable excuse for delay in serving its answer. The Court further finds, however, that 9
Commodore has failed to set forth. meritorious defense. The movant is “a stranger to the transaction
between the mortgagee and mortgagor” (NYSCEF Doc. No. 35, page 3), and, as such, lacks standing
to bootstrap into any claim or defense which would be personal to the mortgagor. 9 Commodore
is not subject to the rights and obligations of the promissory note and mortgage, yet here seeks to
advance several claims and defenses which would be personal to the borrower. Nevertheless, the
movant has set forth merely conclusory assertions, and such is insufficient to demonstrate a
meritorious defense (Matter of Mongitore v Linz, 95 AD3d 1130, 1131, 943 NYS 2d 899 [2d Dept
2012], citing Matter of Atkin v Atkin, 55 AD34.905, 865 NYS2d 577 [2d Dept 2008)].
Finally, the Court notes that the movant’s reliance upon CPLR 317, 5015(a)(1) and
5015(a)(4) is in error, as no judgment or order has been entered in this case and therefore cannot be
vacated.
For these reasons, the defendant’s motion (#001) is denied.
DATED: |} lq | 8
THO! LAI
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FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
AFFIRMATION OF SERVICE BY MAIL: Glenn P. Warmuth
GLENN P. WARMUTH does hereby affirm under the penalties
of perjury:
I am not a party to this action. I am over the age of
21 years. I reside at 83 Buffalo Avenue, Medford, New York.
I am duly admitted to practice law in the State of New York.
On November 17, 2023 I served the annexed notice of appeal
informational statement, and order dated November 9, 2023 on:
ROBERTSON, ANSCHUTZ, SCHNEID,
CRANE & PARTNERS, PLLC
Attorneys for Plaintiff
900 Merchants Concourse
Suite 310
Westbury, NY 11590
516-280-7675
SBoriskin@RASLG.com
EDWIN STINVIL
Defendant in Default
9 Commodore Circle
Unit 1310
Port Jefferson Station, NY 11776
CARYN LYNN MEYER, ESQ.
COHEN, WARREN, MEYER & GITTER, P.C.
Attorneys for Defendants
The Board of Managers of
Stonington at Port Jefferson
Condominium 1 and Board Of
Directors of Stonington
At Port Jefferson Home
Owners Association, Inc.
98 Maple Avenue, Suite 100
Smithtown, NY 11787
cmeyer@cohenandwarren.com
blak-134
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FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023
CLERK OF THE SUFFOLK COUNTY
TRAFFIC & PARKING VIOLATIONS
AGENCY
100 Veterans Memorial Highway
Hauppauge, NY 11788
JOHN DOE #1
9 Commodore Circle
Unit 1310
Port Jefferson Station, NY 11776
JOHN DOE #2
9 Commodore Circle
Unit 1310
Port Jefferson Station, NY 11776
which address was designated by said attorney (s) or
person(s), by depositing it enclosed in a postpaid properly
addressed wrapper by first class mail [if excess of weight
limit for first class mail, by priority mail] in the post
office or official depository at Farmingville, New York State
under the exclusive care and custody of the United States
Postal Service.
Dated: November 17, 2023
GLENN P. WARMUTH
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Preview
FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF 11/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ----------------------------+--+ x Index No. 600753/2023 FIFTH THIRD BANK, NATIONAL ASSOCIATION, Plaintiff, -against- 9 COMMODORE CIRCLE, LLC, EDWIN NOTICE OF APPEAL STINVIL, THE BOARD OF MANAGERS OF STONINGTON AT PORT JEFFERSON CONDOMINIUM I, BOARD OF DIRECTORS OF STONINGTON AT PORT JEFFERSON HOME OWNERS ASSOCIATION, INC., CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY, "JOHN DOE #1" through "JOHN DOE #12," the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, Defendants. ---------------------------- +--+ PLEASE TAKE NOTICE that the defendant, 9 Commodore Circle, LLC, hereby appeals to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department, from each and every part of the order of this Court by the Hon. Thomas F. Whelan dated November 9, 2023 duly entered in the within Court on November 13, 2023 which denied 9 Commodore blak-134 1 of 13 FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 Circle's motion for leave to file a late answer and other relief. Dated: Farmingville, New York November 17, 2023 Yours etc, ENN P. WARMUTH STIM & WARMUTH, P.C. Attorneys for Defendant 9 Commodore Circle, LLC 2 Eighth Street Farmingville, NY 11738 631-732-2000 gpw@stim-warmuth.com TO: CLERK OF THE COUNTY OF SUFFOLK ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC Attorneys for Plaintiff 900 Merchants Concourse Suite 310 Westbury, NY 11590 516-280-7675 SBoriskin@RASLG.com EDWIN STINVIL Defendant in Default 9 Commodore Circle Unit 1310 Port Jefferson Station, NY 11776 CARYN LYNN MEYER, ESQ. COHEN, WARREN, MEYER & GITTER, P.C. Attorneys for Defendants The Board of Managers of Stonington at Port Jefferson Condominium 1 and Board Of Directors of Stonington 2 of 13 FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 At Port Jefferson Home Owners Association, Inc. 98 Maple Avenue, Suite 100 Smithtown, NY 11787 cmeyer@cohenandwarren.com CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY 100 Veterans Memorial Highway Hauppauge, NY 11788 JOHN DOE #1 9 Commodore Circle Unit 1310 Port Jefferson Station, NY 11776 JOHN DOE #2 9 Commodore Circle Unit 1310 Port Jefferson Station, NY 11776 3 of 13 INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 Supreme Court of the State of New York Appellate Bivision: Second Sudicial Bepartment Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) - Civil fort iat Tom UNUM Cem tC Core) CRU AL O Eames CERO Kame) m a) RST UIM ICAU fa a rel) Tre tice FIFTH THIRD BANK, NATIONAL ASSOCIATION, Date Notice of Appeal Filed - against - 9 COMMODORE CIRCLE, LLC, et al., erent anemia fm Civil Action O CPLRarticle 78 Proceeding | imi Appeal OO Transferred Proceeding O CPLR article 75 Arbitration Special Proceeding Other C1 Original Proceedings CO CPLR Article 78 (Action Commenced under CPLR 214-g [] Habeas Corpus Proceeding O CPLR Article 78 1 Executive Law § 298 O Eminent Domain OO CPLR 5704 Review D. Labor Law 220 or 220-b O Public Officers Law § 36 Real Property Tax Law § 1278 SEC UER CR) Md UT eam Qu Lele UTOm COM UT Kexome) MCHC LOL ECON TORer Celso em kee) omer O Administrative Review C Business Relationships O Commercial C Contracts C Declaratory Judgment CO Domestic Relations O Election Law O Estate Matters O Family Court & Mortgage Foreclosure 0 Miscellaneous O Prisoner Discipline & Parole O Real Property C Statutory O Taxation O Torts (other than foreclosure) Informational Statement - Civil 4 of 13 FILED: SUFFOLK COUNTY CLERK 1171772023 06:29 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 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. C Amended Decree C1 Determination igi Order C Resettled Order Amended Judgement O Finding O Order & Judgment D Ruling Cl Amended Order O Interlocutory Decree O Partial Decree CO Other (specify): O Decision 0 Interlocutory Judgment CO Resettled Decree O Decree 0 Judgment CO Resettled Judgment Court: Supreme Court County: Suffolk Dated: 11/09/2023 Entered: 11s20% Judge (name in full): Thomas F. Whelan Index No.: 600753/2023 Stage: @ Interlocutory 0 | OO Po: inal O Yes i No ifYes: O Jury O Non jury Are any appeals arising in the same action or proceeding currently pending in the court? Oves 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: Commenced by: U1 Order to Show Cause [1 Notice of Petition [1 Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: ag ters a aeUE LS anes! Court: Choose Court County: Choose Countv Judge (name in full): Order of Transfer Date: lea aA Cola ala = Court: Choose Court County: Choose Countv Judge (name in ful Date ize} atta Description: If an appeal, fly describe the paper appealed from. If the appeal 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. Appeal from an order dated November 9, 2023 which amoung other things, denied defendant's motion for permission to file a late answer. Informational Statement - Civil 5 of 13 INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 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. 4. Whether the lower court committed error in ruling that the defendant, the owner of the property being foreclosed, did not have any potentially meritorious defenses to the foreclosure action. 2. Whether the lower court committed error in ruling that, in effect, the owner of the premises being foreclosed could never have a defense to the foreclosure action, where the owner purchased the property at a duly held auction which was held pursuant to a judgment issued by the Court. 3. Whether the lower court committed error in denying the motion to file a late answer where the delay had been caused by the Secretary of State. 4, Whether the lower court committed error by ruling that standing was not a potentially meritorious defenses, when the law provides that standing can always be raised by a defendant in a foreclosure action. 5. Whether each and every part of the order appealed from was correctly decided. elas my enerl sce) 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 Fifth Third Bank, National Association Plaintiff Respondent 9 Commodore Circle, LLC Defendant Appellant Edwin Stinvil Defendant None ‘The Board of Managers of Stonington at Port Jefferson Condominium | | Defendant None Board of Directors of Stonington at Port Jefferson Home Owners Association | Defendant None Clerk of the Suffolk County Traffic & Parking Violations Agency Defendant None John Doe #1 Defendant None John Doe #2 Defendant None 10 11 12 13 14 15 16 17 18 19 20 Informational Statement - Civil 6 of 13 = INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 Ta Instructions: Il 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 order to 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 herself or 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: Robertson, Anschuz, Schneid, Crane & Partners, PLLC Address: 900 Merchants Concouse, Suite 310 City: Westbury __[ State: NY | Zip: 11590 [Telephone No: 516 280-7675 E-mail Address: SBoriskin@RASLG.com Attorney Type: ij Retained (1 Assigned C1 Government O Prose (1 ProHac Vice Party or Parties s Represented (set forth party number(s) from table above): IDE EE EDT REL EEMED NRE ORE POOR EEE LOCATE EBT Attorney/Firm ‘Name: Stim & Warmuth, P.c. Address: 2 Eighth Street City: Farmingville | State: ny | Zip: 11738 [ Telephone No: 631-732-2000 E-mail Address: gpw@stim-warmuth.com Attorney Type: fi Retained [1 Assigned [1] Government 0 Pro Se 1 Pro Hac Vice Pat or Partie: d | (set forth h partty number! m table KEEPER AS we ALOMAR AOE! we PB RAOP ERAN PAROSR ARBRE Attorney/Firm Name: Edwin Stinvil Address: 9 Commodore Circle, Unit 1310 City: Port Jefferson Station _[ State: nY “[ Zip: 11776 [ Telephone-No E-mail Address: Attorney Type: O Retained (1 Assigned (1) Government i ProSe 0 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table abov Po MAE ERLE EER ars tt Attorney/Firm Name: COHEN, WARREN, MEYER & GITTER, P.C Address: 98 Maple Avenue, Suite 100 City: Smithtown [ State: NY | Zip: 11787 _ [Telephone No E-mail Address: cmeyer@cohenandwarren.com Attorney Type ii Retained (1 Assigned [1 Government O Prose (1 Pro Hac Vice Party or Parti ‘epresent Pa ee t forth party A BRAG from table RE SILO II AER SE 0.07 cnr aR Attorney/! irm Name: Clerk of the Suffolk County Traffic & Parking Violations Agency Address: 100 Veterans Memorial Highway’ City: Hauppauge [ State: NY | Zip: 11788 | Telephone No E-mail Address: Attorney Type: Retained O Assigned fl Government O ProSe CO Pro Hac Vice Party or Parties Represented {set forth party | number(s) from table > above): eo POOLE RD eI eo: are vostro sescoens Attorney/Firm | Nam John Doe #1 Address: 9 Commodore Circle, Unit 1310 City: Port Jefferson Station [ State: NY | Zip:1176 _[ Telephone No: E-mail Address: Attorney Type: O Retained (1 Assigned ([) Government ig ProSe CO Pro Hac Vice Party or Parties Represented (set forth Party number(s) ae from: fi table2 above): 7 MELE RS A EERE TACO EE RL ER A EL ETD PRa ie Tee RC ATE ELD EASES TD Informational Statement - Civil 7 of 13 = INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 Instructions: Fill 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 order to 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 herself or 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: John Doe #2 Address: 9 Commodore Circle, Unit 1310 City: Port Jefferson Station | State: NY | Zip: 11776 | Telephone No E-mail Address: Attorney Type: Cl Retained C Assigned [J Government O Pro Se (Pro Hac Vice Party or Parties’s Represented (set forth party number(s) from table > above) 8 PBT EEE PEOPLES EBERLE ED LD ETER ROE EEL CPOE PAROLE SOULE POETS NERO TPE BORD ‘Attorney/Firm NzName: Address: City: [ state: _Lzie’ [Telephone No: E-mail Address: Attorney Type: O Retained C1 Assigned 1 Government C1 Pro Se U1 Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above): DRUG ORLOV ES PUAN ARIES ASKER MRR IAS OCDE. PRM LE VRE DBEOL ERLE RIED REGEN Attorney/Firm Nam Address City: [ state: [ Zip’ [Telephone No E-mail Address: Attorney Type: OO Retained (1 Assigned LI Government UO ProSe OO Pro Hac Vice Party or Parties Represented (set forth party number(s) from table t above):LS BCAA UAL AeA AEM Rat BEELER BS ER SEE RSS ACH REA ANB Attorney/Firm Name: Address: City: [state [zip: | Telephone No: E-mail Address: Attorney Type: C1 Retained OO Assigned [] Government O Pro Se C1 Pro Hac Vice Party or Parties Re, resented (set forth party number(s) from table above): nem sad MRM ATED AEWA OL DOES LAER PIRTER EER ERT LARA AACS, Attorney/Firm Nami Address City: [State: | Zip | Telephone No E-mail Address: Attorney Type: O] Retained (1 Assigned (I) Government O ProSe 0 Pro Hac Vice Party beara or Parties Ri resented (set forth party nur be (s) fi m tabl above): Pe Pe a REDCAR pews) wets omceeseroe ini |Attorney/Firm Name: Address: City: [ state: | Zip [ Telephone No: E-mail Address: Attorney Type: Retained O Assigned [i Government UO ProSe 0 Pro Hac Vice Party or Parties Represented (set forth party | number(s) from table above): BO AR PSOE LTDA TREE: DIRS MA SPEER EE ON LEHE ROEM IEE TEA Informational Statement - Civil 8 of 13 INDEX NO. 600753/2023 (FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM NY. Fite: SUFFOLK COUNTY CLERK 11/13/2053 02:58 DM) RECEIVED NYSE £97 72479833 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023 MEMO DECISION &ORDER INDEX No. 600753/2023 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT: Hon. THOMAS F. WHELAN MOTION DATE | 6/2/23 Justice of the Supreme Court SUBMIT DATE _ 9/8/23 Mot. Seq. #001 - MD CDISP Y N_X lane none x FIFTH THIRD BANK, NATIONAL ASSOCIATION, ROBERTSON, ANSCHUTZ, SCHNEID CRANE & Plaintiff, PARTNERS, PLLC Attys for Plaintiff -against- 900 Merchants Concourse Suite 310 9 COMMODORE CIRCLE, LLC; EDWIN STINVIL; THE Westbury, NY 11590 BOARD OF MANAGERS OF STONINGTON AT PORT JEFFERSON COMDOMINIUM 1; BOARD OF STIM & WARMUTH, P.C, DIRECTORS OF STONINGTON AT PORT JEFFERSON Attys for Defendant HOME OWNERS ASSOCIATION; CLERK OF THE 9 Commodore Circle, LLC SUFFOLK COUNTY TRAFFIC & PARKING 2 Eighth Street VIOLATIONS AGENCY Farmingville, NY 11738 "JOHN DOE #1" through "JOHN DOE #12." the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest irt or lien upon the premises, described in the complaint, Defendants. wnee x Upon the following papers read.on this motions __for leave to file alate answer ; Notice of Motion/Order. to Show Cause and supporting papers NYSCEF Doc. 25 - 35 ; Notice of Cross Motion and supporting papers: aes papers: NYSCEF Doe. 39-40 ; Reply papers __NYSCEF Doc. 41 ; Other « fon) it is ORDERED that the motion (#001) by defendant 9 Commodore Circle, LLC for leave to file a late answer is denied; and it is further 9 oPAZ OUN IK INDEX NO. 600753/2023 NY C UFROLK COUNTY CLERK :58 PD RECEIVED NY Cer £°9172979833 NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023 Fifth Third Bank v 9 Commodore Index No, 600753/2023 Page 2 ORDERED that movant 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 Port Jefferson Station. In essence, on January 8, 2015, Edwin Stinvil borrowed $232,750.00 from the plaintiff's predecessor in interest and executed a promissory note and a mortgage. Since June 1, 2019, no payments: have been made on the monthly installments due and owing. This action was later commenced by filing on January 10,2023. On April 24, 2023, defendant 9 Commodore Circle, LLC (hereinafter “9 Commodore”), title owner of the property, filed an answer asserting seventeen affirmative defenses, The plaintiff rejected the answer as untimely by Notice of Rejection dated April 27,2023. The instant motion (#001) followed. 9 Commodore seeks to vacate its default in answering the complaint pursuant to CPLR 317, CPLR §5015(a)(1), CPLR §5015(a)(4), CPLR. §2001, and CPLR.§2005 and, upon such vacatur, granting the movant extension of time to. serve its answer or, alternatively, compelling the plaintiff to:accept the answer previously served. The plaintiff opposes the motion, and the defendant has filed.a reply. “A defendant who has failed to timely answer a complaint and seeks to-compel the plaintiff to accept an untimely answer must provide a reasonable excuse for the delay in answering and demonstrate a potentially meritorious defense to the action” (Moonachi, Inc. v U.S. Bank Tr., N.A. 213 AD3d 838, 838-39, 184 NYS3d 112 (2d Dept 2023] citing Nationstar Mtge., LLC v Farrell, 172:AD3d 1077, 98 NYS3d 479 [2d Dept 2019]. The determination of what constitutes.a reasonable excuse lies within the sound discretion of the Court (see Rosario v Naranjo, 165 AD3d 860, 861 84 NYS3d 556, 557 [2d Dept 2018], citing Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-77. 800 NYS2d 613, 614 [2d Dept 2005)). If the movant fails “to proffer a reasonable excuse for their delay in answering the complaint, it is not necessary to determine whether they demonstrated a potentially meritorious defense to the action” (Green Tree Servicing, LLC v Weiss, 180 AD3d 654, 655, 115 NYS3d 693 [2d Dept 2020], citing HSBC Bank USA, N.A. v. Smart, 155 AD3d 843, 63 NYS3d 700 [2d Dept 2017)). Pursuant to CPLR § 311(a)(1), a business corporation may be served pursuant to New York Business Corporation Law § 306, which dictates that service of process on a corporation is complete when duplicate copies of the summons and complaint are delivered to the Secretary of State and the propriate fee is paid (BCL § 306[b][1]; Perkins v. 686 Halsey Food Corp., 36 AD3d 881, 881 829 NYS2d 185, 186 [2d Dept 2007] [citations omitted]). “Service of process on a corporate defendant by serving the summons and complaint on the Secretary of State pursuant to Business Corporation Law § 306 is valid service” (Perkins v 686 Halsey Food Corp. , 36 AD3d at 881, supra, quoting Shimel v $ S. Fulton Ave. Corp., 11 AD3d 527, 527, 783 NYS2d 54, 55 [2d Dept. 2004) “Ordinarily, the affidavit of a process server constitutes a prima facie showing of ‘proper service” (JP Morgan Chase Bank, NA v Adventure Corp., 155 AD3d 1013, 1014, 65 NYS3d 531, 533 [2d Dept 2017], quoting FV-1, Inc. v Reid, 138 AD3d 922, 923, 31 NYS3d 119, 120 [2d Dept 2016]) 10206£13 (FILED: SUFFOLK COU CLERK I1/717/72023 06:29 P] ) INDEX NO. 600753/2023 NY. ELEC | UFROLK COUNTY CLERK I1713/ PM) RECEIVED WY SUEr £°P7 72475633 | NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 11/13/2023 Fifth Third Bank v 9 Commodore Index No. 600753/2023 Page 3 Here, the affidavit of service demonstrates that the plaintiff properly effected service of process upon 9 Commodore on January 17, 2023 by delivering two copies of the summons and complaint to the Secretary of State and paying the associated fee (see BCL § 306[b][1]; (Perkins v 686 Halsey Food Corp., 36 AD3d at 881, supra). As such, pursuant to Business Corporation Law §306.and CPLR §320(a), the defendant had 30 days from completion of service (i.e., until February 16, 2023) to answer the complaint or otherwise appear in the action. As the movant demonstrates, however, the summons and complaint were not mailed to 9 Commodore by the Secretary of State until over almost three months later, on April 7, 2023. As this was well after 9 Commodore’s deadline to answer or otherwise respond, the movant opines, there exists a reasonable excuse. Under the unique circumstances herein, the Court finds that 9 Commodore has set forth a reasonable excuse for delay in serving its answer. The Court further finds, however, that 9 Commodore has failed to set forth. meritorious defense. The movant is “a stranger to the transaction between the mortgagee and mortgagor” (NYSCEF Doc. No. 35, page 3), and, as such, lacks standing to bootstrap into any claim or defense which would be personal to the mortgagor. 9 Commodore is not subject to the rights and obligations of the promissory note and mortgage, yet here seeks to advance several claims and defenses which would be personal to the borrower. Nevertheless, the movant has set forth merely conclusory assertions, and such is insufficient to demonstrate a meritorious defense (Matter of Mongitore v Linz, 95 AD3d 1130, 1131, 943 NYS 2d 899 [2d Dept 2012], citing Matter of Atkin v Atkin, 55 AD34.905, 865 NYS2d 577 [2d Dept 2008)]. Finally, the Court notes that the movant’s reliance upon CPLR 317, 5015(a)(1) and 5015(a)(4) is in error, as no judgment or order has been entered in this case and therefore cannot be vacated. For these reasons, the defendant’s motion (#001) is denied. DATED: |} lq | 8 THO! LAI 113 off 13 FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 AFFIRMATION OF SERVICE BY MAIL: Glenn P. Warmuth GLENN P. WARMUTH does hereby affirm under the penalties of perjury: I am not a party to this action. I am over the age of 21 years. I reside at 83 Buffalo Avenue, Medford, New York. I am duly admitted to practice law in the State of New York. On November 17, 2023 I served the annexed notice of appeal informational statement, and order dated November 9, 2023 on: ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC Attorneys for Plaintiff 900 Merchants Concourse Suite 310 Westbury, NY 11590 516-280-7675 SBoriskin@RASLG.com EDWIN STINVIL Defendant in Default 9 Commodore Circle Unit 1310 Port Jefferson Station, NY 11776 CARYN LYNN MEYER, ESQ. COHEN, WARREN, MEYER & GITTER, P.C. Attorneys for Defendants The Board of Managers of Stonington at Port Jefferson Condominium 1 and Board Of Directors of Stonington At Port Jefferson Home Owners Association, Inc. 98 Maple Avenue, Suite 100 Smithtown, NY 11787 cmeyer@cohenandwarren.com blak-134 12 of 13 FILED: SUFFOLK COUNTY CLERK 11/17/2023 06:29 PM INDEX NO. 600753/2023 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 11/17/2023 CLERK OF THE SUFFOLK COUNTY TRAFFIC & PARKING VIOLATIONS AGENCY 100 Veterans Memorial Highway Hauppauge, NY 11788 JOHN DOE #1 9 Commodore Circle Unit 1310 Port Jefferson Station, NY 11776 JOHN DOE #2 9 Commodore Circle Unit 1310 Port Jefferson Station, NY 11776 which address was designated by said attorney (s) or person(s), by depositing it enclosed in a postpaid properly addressed wrapper by first class mail [if excess of weight limit for first class mail, by priority mail] in the post office or official depository at Farmingville, New York State under the exclusive care and custody of the United States Postal Service. Dated: November 17, 2023 GLENN P. WARMUTH 13 of 13