Preview
= QU OUN NK 04 04:09 DM INDEX NO. 708477/2024
WYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 .
ty
ert Nin
Exhibit One
OU EN 04 [9/2024 09 PI mM INDEX NO. 708477/2024
NYSEEF, DOE. NO. 381 RECEIVED NYSCEF: 64/35/3034
Memorandum
NEW YORK SUPREME COURT - QUEENS COUNTY
Present: HONORABLE DENISE N. JOHNSON TAS Part 11
Justice
eaten cence ence neem eee cen eee e ene en ne nen nn nennnnnmnnnmnnmnnnneX,
CITIMORTGAGE, INC., SUCCESSOR BY Index No.: 704318/2019
MERGER TO ABN AMRO MORTGAGE
GROUP, INC.,
Plaintiff(s),
Motion Date: 1/29/24
- and - Motion Cal. No.: 4
MAURICE H. OPARAJI A/K/A MAURICE Motion Seq. No: 22
OPARAJI A/K/A MAURICE UD OPARAJI, ADA
PATIENCE OPARAJI A/K/A ADA P. OPARAJI
A/K/A ADA OPARAJI, THE UNITED STATES FILED
OF AMERICA INTERNAL REVENUE SERVICE 4115/2024
DEPARTMENT OF THE TREASURY, HARRIET COUNTY CLERK
QUEENS COUNTY,
BEIZER,
Defendant(s).
ne nene cence nee nee nee ee cece n ence nen nna nne meneame nnn)
The following papers numbered EF 649-669 read on this motion by Plaintiff for an Order
Confirming the Referee Report and Judgment of Foreclosure and Sale.
Papers
Numbered
Notice of Motion — Affirmations — Exhibits - Service EF 649-657
Affirmation in Opposition — Exhibits - Service . . . EF 658-665
Reply Affirmation EF 666-669
Upon the foregoing papers the motion is decided as follows:
This is an action to foreclose a mortgage of the premises located at 245-11 133 Road,
Rosedale, City and State of New York. Said mortgage was recorded on the Queens County Tax
Map as Block 13209, Lot 80. Plaintiff commenced this action on March 12, 2019, by the filing of
a Summons and Complaint. On February 2, 2023, a Default Judgment and Order of Reference was
entered in this action appointing Monica Moran, Esq. as the referee.
The referee’s report, dated December 26, 2023, indicates that the amount due to plaintiff
for principal and interest upon the Note and Mortgage as of November 17, 2023, is $428,081.71.
The report further indicates that the subject premises should be sold in one parcel. Plaintiff now
Taf 2
JUEENS
COUNTY CLERK 04/719 9/2024 i INDEX NO. 708477/2024
HYSCEE, NO. 881 RECEIVED NYSCEF: 64/15/2024
moves for an order confirming the referee’s report and granting a judgment of foreclosure and sale.
In support of the instant motion plaintiff submits and/or references the pleadings, Mortgage, Note
and corresponding documents, Certificate of Merit, military search results, affidavits, Order of
Reference, and the Referee’s Oath and Report. As the report’s findings are substantially supported
by the record, and the referee has defined the issues and resolved credibility matters, the report is
confirmed (Stone v. Stone, 229 AD2d 388 [2d Dept 1996]). Furthermore, Plaintiff submitted the
required proof and established the amount due by submitting the report, and therefore is entitled
to judgment of foreclosure and sale and confirmation of the referee’s report (Bank of New York
Mellon Trust Company v. Loodus, 160 AD3d 797 [2d Dept 2018)).
Defendant Maurice Oparaji (hereinafter “Defendant”) opposes this motion alleging lack of
jurisdiction for an order to disapprove award/report. Defendant alleges Plaintiff failed to give
Defendant notice of Plaintiffs motion for default judgment by failing to serve Defendant the
Amended Complaint. Defendant previously made this same argument, which was rejected by order
dated January 24, 2023, signed by the Honorable Justice Michele R. Titus. Plaintiff served
Defendant with the Amended Complaint on January 1, 2022, which was also stated in said order.
Notwithstanding the foregoing, Defendant’s opposition is nonresponsive to the motion.
In reply to Defendant’s opposition, Plaintiff affirms the notion that Defendant does not
oppose the specific relief requested. Therefore, this part of Plaintiff's motion seeking a judgment
of foreclosure and sale and confirmation of the referee’s report is hereby granted.
Plaintiff further moves for reimbursement of attorney’s fees in the amount of $43,005.20.
The portion of the instant motion requesting attorney’s fees is hereby denied with leave to renew
upon submission of a detailed affirmation stating the amount of attorneys’ fees and costs owed.
Said affirmation must include the date that each task was conducted, the name and position of the
ane?
FILED: | -ENS OUN LERK 4719/2024 04:09 3) INDEX NO. 708477/2024
NYSEEE DOE, NO. 801 RECEIVED NYSCEF: 04/15/2024
person who completed the task, the hourly rate charged for said person and the duration of the
a
task.
The foregoing shall constitute the decision and order of this court.
FILED
4115/2024-*
COUNTY CLERK
Dated: April 12, 2024 QUEENS COUNTY,
Denise N. Johnson
DENISE N. JOHNSON
JS.C.
Qnf 2
= QU OUN NK 04 04:09 DM INDEX NO. 708477/2024
NYSCEF BOC. NO. 3 RECEIVED NYSCEF: 04/19/2024
t 3‘
ARs ’
Exhibit Two
QUEEN OUN LERK D4 Dd Gs (jo INDEX NO. 708477/2024
NYSCEF DOC. NO. 822 RECEIVED NYSCEF: 04/19/2022
te
Short Form Order
NEW YORK SUPREME COURT ~- QUEENS COUNTY
Present: HONORABLE JANICE A. TAYLOR IAS Part _15
Justice
-----+----------------------------------
CITIMORTGAGE, INC., successor by merger
to ABN AMRO MORTGAGE GROUP, INC., Index No.: 704318/19
Motion Date:10/19/21
Plaintiff(s),
Motion Cal. No.: 9,
FILED 10, 11, 12
- against - 1/11/2022
COUNTY CLERK Motion Seq. No.: 5,
QUEENS COUNTY)
6, 7, 8
MAURICE H. OPARAJI, a/k/a MAURICE OPARAJI,
a/k/a MAURICE UD OPARAJI, ADA PATIENCE
OPARAJI, a/k/a ADA P. OPARAJI, a/k/a ADA
OPARAJI, THE UNITED STATES OF AMERICA
INTERNAL REVENUE SERVICE DEPARTMENT OF THE
TREASURY, HARRIET BEZIER, and “John Doe”
and/or “Jane Doe” #1-10 inclusive, the last
ten names
being fictitious and unknown to
plaintiff, the persons or parties intended
being the tenants, occupants, corporations
or heirs at law, if any, having or claiming
an interest in or lien upon the premises
described in the complaint,
Defendant
(s) .
--------------
+--+ + ---------- + ----- +--+
The following papers numbered 1 - 34 read on this motion by
plaintiff for leave to amend the complaint, and on these separate
motions by defendant Maurice H. Oparaji to, inter alia, sanction
plaintiff’s attorneys, compel disclosure, and strike the complaint.
PAPERS
NUMBERED
Motion Sequence #5
Notice of Motion-Affidavit-Exhibits-Service 4
Affirmation in Opposition-Service eee eee wee 6
Reply Affirmation-Service ee eee ee eee eee eee eee
Motion Sequence #6
Notice of Motion-Affidavit-Exhibits-Service 12
Affirmation in Opposition-Service 3 - 14
Reply Affirmation-Service 15 - 16
Memorandum of Law 17
Tonf 4
OU EN OUN Od [9/2024 [09 2 y INDEX NO. 708477/2024
NYSCEF _Poc. NO. 822 RECEIVED NYSCEF: 64/19/2024
' .
Motion Sequence #7
Notice of Motion-Affidavit-Exhibits-Service 18 21
Affirmation in Opposition-Exhibits-Service 22 24
Reply Affirmation-Service 25 26
Motion Sequence #8
Notice of Motion-Affidavit-Exhibits-Service 27 30
Affirmation in Opposition-Service 31 32
Reply Affirmation-Service 33 34
Upon the foregoing papers, it is ORDERED that the above-
referenced motions are decided as follows:
Plaintiff commenced this action against defendants Maurice and
Ada Oparaji to foreclose on a mortgage lien attached to residential
real property known as 245-11 133*¢ Road, Rosedale, located in the
County of Queens, City and State of New York, and recorded on the
Queens County Tax Map as Block 13209 Lot 80.
In motion plaintiff now moves
sequence for leave to
no. 5,
amend the complaint to assert an additional cause of action for
equitable subrogation. It is well-settled that leave to amend a
pleading should be freely given unless the proposed amendment is
palpably insufficient, is patently devoid of merit, or would
prejudice or surprise the defendant (see CPLR 3025[b]; Spodek v
Neiss, 104 AD3d 758, 759 [2d Dept 2013]). In the proposed amended
complaint, plaintiff alleges specific facts which may potentially
give rise to a claim for equitable subrogation. Hence, the record
does not indicate that the proposed cause of action is palpably
insufficient or patently devoid of merit. Nor is there any showing
that the amendment would unduly prejudice defendants, since this
case is still in the early stages of discovery.
Pro se defendant Maurice Oparaji opposes plaintiff’s motion,
contending that the law firm that made it is not the counsel of
record, because plaintiff failed to properly change attorneys
pursuant to CPLR 213 (b).* Mr. Oparaji had separately moved to,
inter alia, declare the filings by plaintiff’s attorneys null and
void, and enjoin them from filing additional documents on behalf of
plaintiff. That motion was predicated upon the exact same argument
raised in Mr. Oparaji’s papers in response to the instant motion by
plaintiff. On August 4, 2021, this court denied that motion by Mr.
Oparaji, finding that his presentation of the facts regarding
plaintiff's change of attorneys was erroneous. Since the sole
basis of Mr. Oparaji’s opposition to plaintiff’s motion for leave
to amend the complaint is foreclosed by this court’s August 4, 2021
order, the motion is granted to the extent indicated below.
‘Defendant Ada Patience Oparaji has not submitted papers in response to
plaintiff’s motion to amend the complaint
2
Dafa
JUEENS
COUNTY CLERK 04/19/2602 L:99PI mM INDEX NO. 708477/2024
NYSCEF Poe. NO. 822 RECEIVED NYSCEF: 64/19/2034
. '
In motion sequence no. 7, defendant Maurice Oparaji purports
to move to: 1) disregard or dismiss plaintiff’s motion to amend the
complaint; 2) sanction plaintiff’s attorney; and 3) bar plaintiff's
attorney from making further filings on plaintiff's behalf. The
first and third types of relief are based on Mr. Oparaji’s belief
that plaintiff’s attorney lacks authority due to the purportedly
defective substitution. As explained above, this’court has already
rejected this argument. As to the second type of relief, Mr.
Oparaji contends that plaintiff’s motion to amend is frivolous
because the proposed additional cause of action is based on
fraudulent loan documents. However, this argument should have been
presented in Mr. Oparaji’s papers in response to plaintiff’s motion
to amend the complaint, rather than in a separate motion. In any
event, that Mr. Oparaji disputes factual allegations underlying
the
the proposed cause of action is not, in and of itself a valid
basis to deny leave to amend a pleading. The court, thus, denies
this motion by Mr. Oparaji in its entirety.
In motion sequence no. 6, defendant Maurice seeks
Oparaji
certain types of relief related to disclosure, and
striketo
plaintiff’s complaint and responses to his counterclaims. In
motion sequence no. 8, Mr. Oparaji seeks additional disclosure
remedies regarding his attempt to depose certain witnesses. It is
well-settled that “an amended pleading supersedes the original
pleading” (Felder v Wank, 227 AD2d 442, 442 [2d Dept 1996], lv
denied 89 NY2d 806 (1997}). Since this court will grant plaintiff
leave to amend the complaint, the portion of Mr. Oparaji’s motion
seeking to strike the complaint and plaintiff’s responses to his
counterclaims is premature, as he has not been served with what
will become the operative pleading, nor has he served an answer
containing counterclaims. Moreover, since the amended complaint
will contain a new cause of action, premised upon additional
factual allegations, it would be imprudent to rule on the
disclosure disputes at this juncture. For the foregoing reasons,
the court denies these motions by Mr. Oparaji in their respective
entireties.
Accordingly, the above-referenced motions are decided to the
extent that it is
ORDERED that the motion by plaintiff for leave to interpose an
amended complaint (motion sequence no. 5) is GRANTED to the extent
that, within 30 days of the service of this order with notice of
entry, plaintiff shall serve a supplemental summons and amended
complaint, the latter being in substantia lly the same form as the
proposed amended complaint contained within Exhibit “A” to the
instant motion; and it is further
ORDERED that service of the amended complaint and any
responsive pleadings shall be made in accordance with the
provisions of Article 3 of the CPLR, and within 30 days after issue
AaF A
LED: QUEEN OUN LERK 04/19/2024 04:09 PY INDEX NO. 708477/2024
NYSCEF DOC. NO. B22 RECEIVER NYSCEF: 04/18/3038 .
.
is joined, plaintiff shall contact the Preliminary Conference part
to schedule a discovery conference; and it is further
ORDERED that the motions by defendant Maurice H. Oparaji
(motion sequence nos. 6, 7, and 8), are, each, DENIED in their
respective entireties.
The foregoing shall constitute the decision and order of this
court.
Dated: January 5, 2022
FILED
2 Sy
4/44/2022
JANICE A. (TAYLOR, J.S.C.
COUNTY CLERK
QUEENS COUNTY,
\\Supqns-vmfsl\jamf1\VOLI\DEPT\TAYLOR\Decisions - Part
15\Deci sions-2022\Amendments\704318-19_Citimortgage_Oparaji_amendcomplaint_newcavseofaction_grant
ed_amendpleadings_decisions2022_SFO.wpd
anf a
= QU OUN NK 04 04:09 DM INDEX NO. 708477/2024
NYSCEF ‘DOC . NO. 3 RECEIVED NYSCEF: 04/19/2024
4
we
—.
Exhibit Three
(FILED QUEENS COUNTY CLERI DA L719,/-2024 D409 PB INDEX NO. 708477/2024
EGER, BOE. NW. edo RREEEYPEDNNGSEEF : 16471979834
d
t SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS index No.: 7043 18/2019
CITIMORTGAGE, INC., successor by merger
to ABN AMRO MORTGAGE GROUP, INC.,
Plaintiff, NOTICE OF MOTION
-against-
MAURICE H. OPARAIJI, a/k/a MAURICE OPARAJI, (Motion #021)
a/k/a MAURICE UD OPARAJI, ADA PATIENCE RETURN DATE: 12/18/2023
OPARAIJI, a/k/a ADA P. OPARAIJI, a/k/a ADA OPARAJI,
THE UNITED STATES OF AMERICA
INTERNAL REVENUE SERVICE DEPARTMENT OF
THE TREASURY, HARRIET BEZIER,
Defendants.
PLEASE TAKE NOTICE, that upon the affidavit of Maurice Oparaji sworn to on
16" day of October, 2023, defendant will move this Court on December 18, 2023, before
the Honorable Denise N. Johnson, Justice of Supreme Court of State of New York, at
9:30 A.M at the County Courthouse, located at 88-11 Sutphin Boulevard, Jamaica, New
York 11435, or as soon thereafter as parties may be heard, for an Order Vacating and
Dismissing:
(i) Because Plaintiff failed to properly serve Defendant Maurice Oparaji pursuant
to CPLR §308(4), the default judgment must be vacated pursuant to CPLR
§5015(a)(4) for lack of personal jurisdiction;
(ii) The Amended Complaint against Defendant Maurice Oparaji must be dismissed
in its entirety pursuant to CPLR 321 !(a)(8);
(ili) For failure to file and serve a supplemental summons and amended complaint
Toof 3
(FILED: QUEENS COUNTY CLERK 04/19/207404 [-: 9 INDEX NO. 708477/2024
NYSCEF DOC. NO.. GOO RRECEVVEDY HYSEEF :1 0471670024
d
.
as ordered by the Supreme Court (Honorable Justice Janice Taylor) January 11,
2022, Order;
(iv) For failure to file and serve notice of the plaintiff's motions for an order of
reference and for a judgment of foreclosure and sale pursuant to CPLR 3215.(g)
(1); and,
(vy) Granting such further relief as the court may deem just and equitable.
PLEASE TAKE FURTHER NOTICE, that pursuant to Civil Practice Law
and Rules §2214(b), you are hereby required to serve copies of your answering
affidavits on the undersigned no later than the seventh day prior to the date set
forth above for the submission of this motion.
Dated: Queens, New York
October 16, 2023
Respectfully submitted,
GME
MAURICE OPARAJ
245-11 133 Road
Rosedale, New York 11422
Phone: 347.283.6009
mroparaji@yahoo.com
TO: JORDAN MICHAEL SMITH
AKERMAN LLP
Attorneys for Plaintiff
1251 Avenue of the Americas FL 37
New York, NY 10020
2 af 2
QUEEN OUNTY CLERK 94/19/207404 9 -P INDEX NO. 708477/2024
(FILED:
NYSCEF 2QOC. NO. 809 RRECETHEDNKSGEEF :1 04V1679034
Robert W. Frommer
Borchert & LaSpina, P.C.
Attorneys for Plaintiff
19-02 Whitestone Expwy, Suite 302
Whitestone, NY 11357
DAVID A. GALLO & ASSOCIATES LLP,
Attorneys for Plaintiff
99 Powerhouse Road — First Floor
Roslyn Heights, NY 11577
ADA OPARAJI
Defendant
12 BOYLAN STREET
NEWARK, NJ 07106
Aof 2
(EILED: QUEENS COUNTY CLERK 0471972024 04:09 PY INDEX NO. 708477/2024
NYSCER ROC. NO. 515 FRETEIWED NVESIEF : IOHATS PREZ
’ SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS Index No.: 704318/2019
CITIMORTGAGE, INC., successor by merger
to ABN AMRO MORTGAGE GROUP, INC., AFFIDAVIT IN
Plaintiff, SUPPORT OF MOTION
-against- TO VACATE AND DISMISS
MAURICE H. OPARAJI, a/k/a MAURICE OPARAJI,
a/k/a MAURICE UD OPARAJI, ADA PATIENCE (Motion #021)
OPARAJI, a/k/a ADA P. OPARAII, a/k/a ADA OPARAJI, RETURN DATE: 12/18/2023
THE UNITED STATES OF AMERICA
INTERNAL REVENUE SERVICE DEPARTMENT OF
THE TREASURY, HARRIET BEZIER,
Defendants.| | oe ae i
Maurice Oparaji, being duly sworn, deposes and says as follows:
1. Iam the defendant in the above titled action. As such, I have personal knowledge
with the facts of this action and the proceedings heretofore.
Defendant submits this affidavit in Support of his motion for an Order Vacating and
Dismissing:
(i) Because Plaintiff failed to properly serve Defendant Maurice Oparaji pursuant
to CPLR §308(4), the default judgment must be vacated pursuant to CPLR
§5015(a)(4) for lack of personal jurisdiction;
(ii) The Amended Complaint against Defendant Maurice Oparaji must be dismissed
in its entirety pursuant to CPLR 321 1(a)(8);
(iti) For failure to file and serve a supplemental summons and amended complaint
as ordered by the Supreme Court (Honorable Justice Janice Taylor) January | 1,
Vont 67
[LED QUEENS. COUN CLERI O47 19/2024. 04.09 PM INDEX NO. 708477/2024
WM SGEEFDBGC -N®O. 3615 REREGH
DIED WOFSCEF 1 0947
YF P2024
b
.
2022, Order;*
(iv) For failure to file and serve notice of the plaintiff's motions for an order of
reference and for a judgment of foreclosure and sale pursuant to CPLR 3215 (g)
(1); and,
(v) Granting such further relief as the court may deem just and equitable.
2. Defendant Maurice Oparaji files this formal request for the Court to issue an order
separate from the main judgment. Exhibits J and K.
The statutory basis for motions is found in CPLR 2214, which sets out how motions
are made; defendant Maurice Oparaji relies on CPLR 2214 in his notice of motion.
A motion does not exist outside of an underlying case, each motion must relate to the
case in which it is made. Put another way, a motion is a mini case within a main case
whose purpose is somehow necessary to the main case. Exhibits J and K.
CPLR 2214 authorizes a moving party to file two kinds of motions. The first is a
notice of motion, and the second is an order to show cause. Exhibits J and K.
A notice of motion is governed by CPLR 2214(a), (b) and (c). In a “notice of motion"
the moving party sets the date of the motion and serves a copy of the motion before it
is filed with the court. It is not possible to obtain a temporary restraining order or
interim order under a notice of motion, with one exception; that being the Appellate
Division, First Department, which has a special rule to treat a notice of motion like an
order to show cause. Exhibits J and K.
2 nf 67
(FILED:
. QUEENS.COUNTY. CLERK..04/19/72024- 04.; 09. PH INDEX NO. 708477/2024
NYSCHEDDOOC .NOIO.3 615 RERECEEVED YRUSEEF 106471992024
-
An order to show cause is governed by CPLR 2214(d). Unlike a notice of motion,
which is served first then filed, an order to show causes is filed first then served. It is
filed before serving because the court sets the motion date, the amount of time for
service of the motion, and how the order to show cause must be served. The method
of service in an order to show cause is jurisdictional, and serving by any other means
than specified deprives the court of jurisdiction to grant any relief, even if the means
of service is better than set forth in the motion. Exhibits J and K.
Because an order to show cause is filed first and signed by a judge before it is served,
it is also the method by which an emergency order is obtained. Exhibits J and K.
Because Defendant Maurice Oparaji is not asking for an emergency order such as a
temporary restraining order; hence, a notice of motion. Exhibits J and K.
10. This Court in this matter: CitiMortgage, Inc. v Oparaji, at least in two occasions, has
denied defendant Maurice Oparaji’s motion for default judgment against plainul?
CitiMortgage. (NYSCEF Doc. Nos.: 458; 486):
“In motion sequence no. 13, defendant Mr. Oparaji now
moves for a default judgment against plaintiff for
allegedly failing to respond to the counterclaims raised in
the answer he served on or about May 16, 2019, before
this action was remanded from the U.S. District Court for
the Eastern District of New York. However, a threshold
issue appears on the face of the record, which must be
addressed - whether this court has jurisdiction to
entertain this motion. It is axiomatic that the failure to
properly serve a motion deprives a court of jurisdiction to
\ear the motion (see MTGL.Q In vs., L.P. v White, 179
AD3d 790, 791-792 [2d Dept 2020]; Nationstar Mtge.,
3
QaF 67
ELLED: QUEENS ¢ JUNTY CLERK 04/19/2024 04:09 PY INDEX NO. 708477/2024
NNSICEEE
EE BOC. NO, $15 RRECEVWED NNGCEEF : 10471979024
LLC v Chase, 147 AD3d 964, 965 [2d Dept 2017])”.
(NYSCEF Doc. Nos.: 458; 486).
11. In CitiMortgage, Inc v Reese, an action to foreclose a mortgage, the defendant Karen
Reese appeals from an order of the Supreme Court, Nassau County (Thomas A.
Adams, J.), that denied defendant’s motion to vacate a default judgment, order of
reference, and a judgment of foreclosure and sale of the same Court. The Appellate
Division, Ordered:
“The order entered November 4, 2015, is reversed insofar
as appealed from, on the law, with costs, and those
branches of the motion of the defendant Karen Reese
which were to vacate the order of reference entered
January 6, 2014, and the judgment of foreclosure and sale
entered May 11, 2015, are granted.
In November 2009, the plaintiff commenced this action
against Karen Reese (hereinafter the defendant), among
others, to foreclose a mortgage on property located in
Nassau County. The defendant failed to appear or answer
the complaint. By order entered January 6, 2014, the
Supreme Court granted the plaintiff's motion for an order of
reference and referred the matter to a referee to ascertain
and compute the amount due on the mortgage loan. The
court subsequently, upon the plaintiff's motion, entered a
judgment of foreclosure and sale on May 11, 2015.
By order to show cause dated August 17, 2015, the
defendant moved, inter alia, to vacate the order of
reference and the judgment of foreclosure and sale. The
defendant alleged, among other things, that the plaintiff
failed to serve her with the papers in support of its motions
for an order of reference and for a judgment of foreclosure
and sale. The plaintiff opposed the defendant's motion. By
order entered November 4, 2015, the Supreme Court, inter
4
A nf 67
(FILED: QUEENS COUNTY CLERK 04/19/2024 04:09 PE INDEX NO. 708477/2024
MYSCEF DOC. NO. 315 RREEE IED NYBSEEF : 10427929624
alia, denied those branches of the defendant's motion
which were to vacate the order of reference and the
judgment of foreclosure and sale. The defendant appeals,
and we reverse the order insofar as appealed from.
The defendant was entitled to notice of the plaintiffs
motions for an order of reference and for a judgment of
foreclosure and sale pursuant to CPLR 3215 (g) (1),
which provides, [*2]in relevant part, that such notice to a
defendant who has not appeared is required "if more than
one year has elapsed since the default." Here, the
defendant defaulted in November 2009, and the plaintiff
moved for an order of reference in March 2013, more
than three years later. Contrary to the plaintiff's
contention, the issue of its failure to comply with CPLR
3215 (g) (1) may be raised for the first time on appeal
(see Editorial Photocolor Archives v Granger Collection,
61 NY2d 517, 523 [1984]; VNB N.Y., LLC v Y.M.
Intercontinental Gem Corp., 154 AD3d 903, 906 [2017])
The failure to give a party proper notice of a motion
deprives the court of jurisdiction to entertain the motion
and renders the resulting order void.
Accordingly, since the Supreme Court lacked jurisdiction
to entertain the plaintiff's motions, it should have granted
those branches of the defendant's motion which were to
vacate the order of reference and the judgment of
foreclosure and sale (CitiMortgage, Inc. v Reese, 162
AD3d 847, 848 [2d Dept 2018)).
12. In Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 117 [2015))., citing Crown
Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965 [2012]; Zaidi v New
York Bldg. Contrs., Ltd., 61 AD3d 747, the Court held that improper service of a
motion provides a complete excuse for default on a motion and deprives the court of
jurisdiction to entertain the motion, the Appellate Division, pertinently states:
5 af 87
(ELLED:. QUEENS COUNTY CLERK 0477972024 04:09 PM INDEX NO. 708477/2024
NYSE DWE.. NO. $15 RRECE WED NNSSEEF : 10471970024
“In later cases, the Fourth Department has held that the
failure to comply with the notice requirement of CPLR
3215 (g) (1) deprives the court of jurisdiction to entertain a
motion for leave to enter a default judgment, rendering the
ensuing judgment null (see Nowak v Oklahoma League for
Blind, 289 AD2d 995 (2001]), and that a motion for leave
to enter a default judgment made without providing the
required notice is defective, requiring vacatur of the
judgment (see Curto v Diehl, 87 AD3d 1374 [2011]).
While this Court has not addressed this precise issue, we
have held that improper service of a motion provides a
complete {**128 AD3d at 125} excuse for default on a
motion and deprives the court of jurisdiction to entertain
the motion (see Crown Waterproofing, Inc. v Tadco
Constr. Corp., 99 AD3d 964, 965 [2012]; Zaidi v New
York Bldg. Contrs., Ltd., 61 AD3d 747, 748 [2009]; Welch
v State of New York, 261 AD2d 537, 538 [1999]). This
Court has also held that the failure to provide a defendant
with proper notice of a motion renders the resulting order
and judgment entered upon that order nullities, warranting
vacatur pursuant to CPLR 5015 (a) (4) (see Financial
Servs. Veh. Trust v Law Offs.of Dustin J. Dente, 86 AD3d
532, 533 [2011]). The failure to provide proper notice of a
motion can readily be viewed as a fundamental defect
because it deprives the opposing party of a fair opportunity
to oppose the motion.
This rationale applies with equal force to a plaintiff's failure
to give a defendant who has previously appeared notice of
its motion for leave to enter a default judgment. Here, the
appellant has failed to demonstrate a basis to be relieved of
his underlying default in failing to answer the complaint.
Nevertheless, we conclude that vacatur of the judgment
itself is warranted because the plaintiffs’ failure to provide
the appellant with notice of the motion for leave to enter a
default judgment as required by CPLR 3215 (g) (1)
deprived him of both an opportunity to oppose entry of the
judgment by contesting the sufficiency of the facts filed in
support of the motion, and an opportunity to challenge the
amount of damages sought by the plaintiffs.
6
Goat 67
(ELLED:. QUEENS COUNTY CLERK 0471972024
04:09 PM
Preview
= QU OUN NK 04 04:09 DM INDEX NO. 708477/2024 WYSCEF DOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 . ty ert Nin Exhibit One OU EN 04 [9/2024 09 PI mM INDEX NO. 708477/2024 NYSEEF, DOE. NO. 381 RECEIVED NYSCEF: 64/35/3034 Memorandum NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE DENISE N. JOHNSON TAS Part 11 Justice eaten cence ence neem eee cen eee e ene en ne nen nn nennnnnmnnnmnnmnnnneX, CITIMORTGAGE, INC., SUCCESSOR BY Index No.: 704318/2019 MERGER TO ABN AMRO MORTGAGE GROUP, INC., Plaintiff(s), Motion Date: 1/29/24 - and - Motion Cal. No.: 4 MAURICE H. OPARAJI A/K/A MAURICE Motion Seq. No: 22 OPARAJI A/K/A MAURICE UD OPARAJI, ADA PATIENCE OPARAJI A/K/A ADA P. OPARAJI A/K/A ADA OPARAJI, THE UNITED STATES FILED OF AMERICA INTERNAL REVENUE SERVICE 4115/2024 DEPARTMENT OF THE TREASURY, HARRIET COUNTY CLERK QUEENS COUNTY, BEIZER, Defendant(s). ne nene cence nee nee nee ee cece n ence nen nna nne meneame nnn) The following papers numbered EF 649-669 read on this motion by Plaintiff for an Order Confirming the Referee Report and Judgment of Foreclosure and Sale. Papers Numbered Notice of Motion — Affirmations — Exhibits - Service EF 649-657 Affirmation in Opposition — Exhibits - Service . . . EF 658-665 Reply Affirmation EF 666-669 Upon the foregoing papers the motion is decided as follows: This is an action to foreclose a mortgage of the premises located at 245-11 133 Road, Rosedale, City and State of New York. Said mortgage was recorded on the Queens County Tax Map as Block 13209, Lot 80. Plaintiff commenced this action on March 12, 2019, by the filing of a Summons and Complaint. On February 2, 2023, a Default Judgment and Order of Reference was entered in this action appointing Monica Moran, Esq. as the referee. The referee’s report, dated December 26, 2023, indicates that the amount due to plaintiff for principal and interest upon the Note and Mortgage as of November 17, 2023, is $428,081.71. The report further indicates that the subject premises should be sold in one parcel. Plaintiff now Taf 2 JUEENS COUNTY CLERK 04/719 9/2024 i INDEX NO. 708477/2024 HYSCEE, NO. 881 RECEIVED NYSCEF: 64/15/2024 moves for an order confirming the referee’s report and granting a judgment of foreclosure and sale. In support of the instant motion plaintiff submits and/or references the pleadings, Mortgage, Note and corresponding documents, Certificate of Merit, military search results, affidavits, Order of Reference, and the Referee’s Oath and Report. As the report’s findings are substantially supported by the record, and the referee has defined the issues and resolved credibility matters, the report is confirmed (Stone v. Stone, 229 AD2d 388 [2d Dept 1996]). Furthermore, Plaintiff submitted the required proof and established the amount due by submitting the report, and therefore is entitled to judgment of foreclosure and sale and confirmation of the referee’s report (Bank of New York Mellon Trust Company v. Loodus, 160 AD3d 797 [2d Dept 2018)). Defendant Maurice Oparaji (hereinafter “Defendant”) opposes this motion alleging lack of jurisdiction for an order to disapprove award/report. Defendant alleges Plaintiff failed to give Defendant notice of Plaintiffs motion for default judgment by failing to serve Defendant the Amended Complaint. Defendant previously made this same argument, which was rejected by order dated January 24, 2023, signed by the Honorable Justice Michele R. Titus. Plaintiff served Defendant with the Amended Complaint on January 1, 2022, which was also stated in said order. Notwithstanding the foregoing, Defendant’s opposition is nonresponsive to the motion. In reply to Defendant’s opposition, Plaintiff affirms the notion that Defendant does not oppose the specific relief requested. Therefore, this part of Plaintiff's motion seeking a judgment of foreclosure and sale and confirmation of the referee’s report is hereby granted. Plaintiff further moves for reimbursement of attorney’s fees in the amount of $43,005.20. The portion of the instant motion requesting attorney’s fees is hereby denied with leave to renew upon submission of a detailed affirmation stating the amount of attorneys’ fees and costs owed. Said affirmation must include the date that each task was conducted, the name and position of the ane? FILED: | -ENS OUN LERK 4719/2024 04:09 3) INDEX NO. 708477/2024 NYSEEE DOE, NO. 801 RECEIVED NYSCEF: 04/15/2024 person who completed the task, the hourly rate charged for said person and the duration of the a task. The foregoing shall constitute the decision and order of this court. FILED 4115/2024-* COUNTY CLERK Dated: April 12, 2024 QUEENS COUNTY, Denise N. Johnson DENISE N. JOHNSON JS.C. Qnf 2 = QU OUN NK 04 04:09 DM INDEX NO. 708477/2024 NYSCEF BOC. NO. 3 RECEIVED NYSCEF: 04/19/2024 t 3‘ ARs ’ Exhibit Two QUEEN OUN LERK D4 Dd Gs (jo INDEX NO. 708477/2024 NYSCEF DOC. NO. 822 RECEIVED NYSCEF: 04/19/2022 te Short Form Order NEW YORK SUPREME COURT ~- QUEENS COUNTY Present: HONORABLE JANICE A. TAYLOR IAS Part _15 Justice -----+---------------------------------- CITIMORTGAGE, INC., successor by merger to ABN AMRO MORTGAGE GROUP, INC., Index No.: 704318/19 Motion Date:10/19/21 Plaintiff(s), Motion Cal. No.: 9, FILED 10, 11, 12 - against - 1/11/2022 COUNTY CLERK Motion Seq. No.: 5, QUEENS COUNTY) 6, 7, 8 MAURICE H. OPARAJI, a/k/a MAURICE OPARAJI, a/k/a MAURICE UD OPARAJI, ADA PATIENCE OPARAJI, a/k/a ADA P. OPARAJI, a/k/a ADA OPARAJI, THE UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY, HARRIET BEZIER, and “John Doe” and/or “Jane Doe” #1-10 inclusive, the last ten names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, corporations or heirs at law, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendant (s) . -------------- +--+ + ---------- + ----- +--+ The following papers numbered 1 - 34 read on this motion by plaintiff for leave to amend the complaint, and on these separate motions by defendant Maurice H. Oparaji to, inter alia, sanction plaintiff’s attorneys, compel disclosure, and strike the complaint. PAPERS NUMBERED Motion Sequence #5 Notice of Motion-Affidavit-Exhibits-Service 4 Affirmation in Opposition-Service eee eee wee 6 Reply Affirmation-Service ee eee ee eee eee eee eee Motion Sequence #6 Notice of Motion-Affidavit-Exhibits-Service 12 Affirmation in Opposition-Service 3 - 14 Reply Affirmation-Service 15 - 16 Memorandum of Law 17 Tonf 4 OU EN OUN Od [9/2024 [09 2 y INDEX NO. 708477/2024 NYSCEF _Poc. NO. 822 RECEIVED NYSCEF: 64/19/2024 ' . Motion Sequence #7 Notice of Motion-Affidavit-Exhibits-Service 18 21 Affirmation in Opposition-Exhibits-Service 22 24 Reply Affirmation-Service 25 26 Motion Sequence #8 Notice of Motion-Affidavit-Exhibits-Service 27 30 Affirmation in Opposition-Service 31 32 Reply Affirmation-Service 33 34 Upon the foregoing papers, it is ORDERED that the above- referenced motions are decided as follows: Plaintiff commenced this action against defendants Maurice and Ada Oparaji to foreclose on a mortgage lien attached to residential real property known as 245-11 133*¢ Road, Rosedale, located in the County of Queens, City and State of New York, and recorded on the Queens County Tax Map as Block 13209 Lot 80. In motion plaintiff now moves sequence for leave to no. 5, amend the complaint to assert an additional cause of action for equitable subrogation. It is well-settled that leave to amend a pleading should be freely given unless the proposed amendment is palpably insufficient, is patently devoid of merit, or would prejudice or surprise the defendant (see CPLR 3025[b]; Spodek v Neiss, 104 AD3d 758, 759 [2d Dept 2013]). In the proposed amended complaint, plaintiff alleges specific facts which may potentially give rise to a claim for equitable subrogation. Hence, the record does not indicate that the proposed cause of action is palpably insufficient or patently devoid of merit. Nor is there any showing that the amendment would unduly prejudice defendants, since this case is still in the early stages of discovery. Pro se defendant Maurice Oparaji opposes plaintiff’s motion, contending that the law firm that made it is not the counsel of record, because plaintiff failed to properly change attorneys pursuant to CPLR 213 (b).* Mr. Oparaji had separately moved to, inter alia, declare the filings by plaintiff’s attorneys null and void, and enjoin them from filing additional documents on behalf of plaintiff. That motion was predicated upon the exact same argument raised in Mr. Oparaji’s papers in response to the instant motion by plaintiff. On August 4, 2021, this court denied that motion by Mr. Oparaji, finding that his presentation of the facts regarding plaintiff's change of attorneys was erroneous. Since the sole basis of Mr. Oparaji’s opposition to plaintiff’s motion for leave to amend the complaint is foreclosed by this court’s August 4, 2021 order, the motion is granted to the extent indicated below. ‘Defendant Ada Patience Oparaji has not submitted papers in response to plaintiff’s motion to amend the complaint 2 Dafa JUEENS COUNTY CLERK 04/19/2602 L:99PI mM INDEX NO. 708477/2024 NYSCEF Poe. NO. 822 RECEIVED NYSCEF: 64/19/2034 . ' In motion sequence no. 7, defendant Maurice Oparaji purports to move to: 1) disregard or dismiss plaintiff’s motion to amend the complaint; 2) sanction plaintiff’s attorney; and 3) bar plaintiff's attorney from making further filings on plaintiff's behalf. The first and third types of relief are based on Mr. Oparaji’s belief that plaintiff’s attorney lacks authority due to the purportedly defective substitution. As explained above, this’court has already rejected this argument. As to the second type of relief, Mr. Oparaji contends that plaintiff’s motion to amend is frivolous because the proposed additional cause of action is based on fraudulent loan documents. However, this argument should have been presented in Mr. Oparaji’s papers in response to plaintiff’s motion to amend the complaint, rather than in a separate motion. In any event, that Mr. Oparaji disputes factual allegations underlying the the proposed cause of action is not, in and of itself a valid basis to deny leave to amend a pleading. The court, thus, denies this motion by Mr. Oparaji in its entirety. In motion sequence no. 6, defendant Maurice seeks Oparaji certain types of relief related to disclosure, and striketo plaintiff’s complaint and responses to his counterclaims. In motion sequence no. 8, Mr. Oparaji seeks additional disclosure remedies regarding his attempt to depose certain witnesses. It is well-settled that “an amended pleading supersedes the original pleading” (Felder v Wank, 227 AD2d 442, 442 [2d Dept 1996], lv denied 89 NY2d 806 (1997}). Since this court will grant plaintiff leave to amend the complaint, the portion of Mr. Oparaji’s motion seeking to strike the complaint and plaintiff’s responses to his counterclaims is premature, as he has not been served with what will become the operative pleading, nor has he served an answer containing counterclaims. Moreover, since the amended complaint will contain a new cause of action, premised upon additional factual allegations, it would be imprudent to rule on the disclosure disputes at this juncture. For the foregoing reasons, the court denies these motions by Mr. Oparaji in their respective entireties. Accordingly, the above-referenced motions are decided to the extent that it is ORDERED that the motion by plaintiff for leave to interpose an amended complaint (motion sequence no. 5) is GRANTED to the extent that, within 30 days of the service of this order with notice of entry, plaintiff shall serve a supplemental summons and amended complaint, the latter being in substantia lly the same form as the proposed amended complaint contained within Exhibit “A” to the instant motion; and it is further ORDERED that service of the amended complaint and any responsive pleadings shall be made in accordance with the provisions of Article 3 of the CPLR, and within 30 days after issue AaF A LED: QUEEN OUN LERK 04/19/2024 04:09 PY INDEX NO. 708477/2024 NYSCEF DOC. NO. B22 RECEIVER NYSCEF: 04/18/3038 . . is joined, plaintiff shall contact the Preliminary Conference part to schedule a discovery conference; and it is further ORDERED that the motions by defendant Maurice H. Oparaji (motion sequence nos. 6, 7, and 8), are, each, DENIED in their respective entireties. The foregoing shall constitute the decision and order of this court. Dated: January 5, 2022 FILED 2 Sy 4/44/2022 JANICE A. (TAYLOR, J.S.C. COUNTY CLERK QUEENS COUNTY, \\Supqns-vmfsl\jamf1\VOLI\DEPT\TAYLOR\Decisions - Part 15\Deci sions-2022\Amendments\704318-19_Citimortgage_Oparaji_amendcomplaint_newcavseofaction_grant ed_amendpleadings_decisions2022_SFO.wpd anf a = QU OUN NK 04 04:09 DM INDEX NO. 708477/2024 NYSCEF ‘DOC . NO. 3 RECEIVED NYSCEF: 04/19/2024 4 we —. Exhibit Three (FILED QUEENS COUNTY CLERI DA L719,/-2024 D409 PB INDEX NO. 708477/2024 EGER, BOE. NW. edo RREEEYPEDNNGSEEF : 16471979834 d t SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS index No.: 7043 18/2019 CITIMORTGAGE, INC., successor by merger to ABN AMRO MORTGAGE GROUP, INC., Plaintiff, NOTICE OF MOTION -against- MAURICE H. OPARAIJI, a/k/a MAURICE OPARAJI, (Motion #021) a/k/a MAURICE UD OPARAJI, ADA PATIENCE RETURN DATE: 12/18/2023 OPARAIJI, a/k/a ADA P. OPARAIJI, a/k/a ADA OPARAJI, THE UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY, HARRIET BEZIER, Defendants. PLEASE TAKE NOTICE, that upon the affidavit of Maurice Oparaji sworn to on 16" day of October, 2023, defendant will move this Court on December 18, 2023, before the Honorable Denise N. Johnson, Justice of Supreme Court of State of New York, at 9:30 A.M at the County Courthouse, located at 88-11 Sutphin Boulevard, Jamaica, New York 11435, or as soon thereafter as parties may be heard, for an Order Vacating and Dismissing: (i) Because Plaintiff failed to properly serve Defendant Maurice Oparaji pursuant to CPLR §308(4), the default judgment must be vacated pursuant to CPLR §5015(a)(4) for lack of personal jurisdiction; (ii) The Amended Complaint against Defendant Maurice Oparaji must be dismissed in its entirety pursuant to CPLR 321 !(a)(8); (ili) For failure to file and serve a supplemental summons and amended complaint Toof 3 (FILED: QUEENS COUNTY CLERK 04/19/207404 [-: 9 INDEX NO. 708477/2024 NYSCEF DOC. NO.. GOO RRECEVVEDY HYSEEF :1 0471670024 d . as ordered by the Supreme Court (Honorable Justice Janice Taylor) January 11, 2022, Order; (iv) For failure to file and serve notice of the plaintiff's motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215.(g) (1); and, (vy) Granting such further relief as the court may deem just and equitable. PLEASE TAKE FURTHER NOTICE, that pursuant to Civil Practice Law and Rules §2214(b), you are hereby required to serve copies of your answering affidavits on the undersigned no later than the seventh day prior to the date set forth above for the submission of this motion. Dated: Queens, New York October 16, 2023 Respectfully submitted, GME MAURICE OPARAJ 245-11 133 Road Rosedale, New York 11422 Phone: 347.283.6009 mroparaji@yahoo.com TO: JORDAN MICHAEL SMITH AKERMAN LLP Attorneys for Plaintiff 1251 Avenue of the Americas FL 37 New York, NY 10020 2 af 2 QUEEN OUNTY CLERK 94/19/207404 9 -P INDEX NO. 708477/2024 (FILED: NYSCEF 2QOC. NO. 809 RRECETHEDNKSGEEF :1 04V1679034 Robert W. Frommer Borchert & LaSpina, P.C. Attorneys for Plaintiff 19-02 Whitestone Expwy, Suite 302 Whitestone, NY 11357 DAVID A. GALLO & ASSOCIATES LLP, Attorneys for Plaintiff 99 Powerhouse Road — First Floor Roslyn Heights, NY 11577 ADA OPARAJI Defendant 12 BOYLAN STREET NEWARK, NJ 07106 Aof 2 (EILED: QUEENS COUNTY CLERK 0471972024 04:09 PY INDEX NO. 708477/2024 NYSCER ROC. NO. 515 FRETEIWED NVESIEF : IOHATS PREZ ’ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS Index No.: 704318/2019 CITIMORTGAGE, INC., successor by merger to ABN AMRO MORTGAGE GROUP, INC., AFFIDAVIT IN Plaintiff, SUPPORT OF MOTION -against- TO VACATE AND DISMISS MAURICE H. OPARAJI, a/k/a MAURICE OPARAJI, a/k/a MAURICE UD OPARAJI, ADA PATIENCE (Motion #021) OPARAJI, a/k/a ADA P. OPARAII, a/k/a ADA OPARAJI, RETURN DATE: 12/18/2023 THE UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY, HARRIET BEZIER, Defendants.| | oe ae i Maurice Oparaji, being duly sworn, deposes and says as follows: 1. Iam the defendant in the above titled action. As such, I have personal knowledge with the facts of this action and the proceedings heretofore. Defendant submits this affidavit in Support of his motion for an Order Vacating and Dismissing: (i) Because Plaintiff failed to properly serve Defendant Maurice Oparaji pursuant to CPLR §308(4), the default judgment must be vacated pursuant to CPLR §5015(a)(4) for lack of personal jurisdiction; (ii) The Amended Complaint against Defendant Maurice Oparaji must be dismissed in its entirety pursuant to CPLR 321 1(a)(8); (iti) For failure to file and serve a supplemental summons and amended complaint as ordered by the Supreme Court (Honorable Justice Janice Taylor) January | 1, Vont 67 [LED QUEENS. COUN CLERI O47 19/2024. 04.09 PM INDEX NO. 708477/2024 WM SGEEFDBGC -N®O. 3615 REREGH DIED WOFSCEF 1 0947 YF P2024 b . 2022, Order;* (iv) For failure to file and serve notice of the plaintiff's motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215 (g) (1); and, (v) Granting such further relief as the court may deem just and equitable. 2. Defendant Maurice Oparaji files this formal request for the Court to issue an order separate from the main judgment. Exhibits J and K. The statutory basis for motions is found in CPLR 2214, which sets out how motions are made; defendant Maurice Oparaji relies on CPLR 2214 in his notice of motion. A motion does not exist outside of an underlying case, each motion must relate to the case in which it is made. Put another way, a motion is a mini case within a main case whose purpose is somehow necessary to the main case. Exhibits J and K. CPLR 2214 authorizes a moving party to file two kinds of motions. The first is a notice of motion, and the second is an order to show cause. Exhibits J and K. A notice of motion is governed by CPLR 2214(a), (b) and (c). In a “notice of motion" the moving party sets the date of the motion and serves a copy of the motion before it is filed with the court. It is not possible to obtain a temporary restraining order or interim order under a notice of motion, with one exception; that being the Appellate Division, First Department, which has a special rule to treat a notice of motion like an order to show cause. Exhibits J and K. 2 nf 67 (FILED: . QUEENS.COUNTY. CLERK..04/19/72024- 04.; 09. PH INDEX NO. 708477/2024 NYSCHEDDOOC .NOIO.3 615 RERECEEVED YRUSEEF 106471992024 - An order to show cause is governed by CPLR 2214(d). Unlike a notice of motion, which is served first then filed, an order to show causes is filed first then served. It is filed before serving because the court sets the motion date, the amount of time for service of the motion, and how the order to show cause must be served. The method of service in an order to show cause is jurisdictional, and serving by any other means than specified deprives the court of jurisdiction to grant any relief, even if the means of service is better than set forth in the motion. Exhibits J and K. Because an order to show cause is filed first and signed by a judge before it is served, it is also the method by which an emergency order is obtained. Exhibits J and K. Because Defendant Maurice Oparaji is not asking for an emergency order such as a temporary restraining order; hence, a notice of motion. Exhibits J and K. 10. This Court in this matter: CitiMortgage, Inc. v Oparaji, at least in two occasions, has denied defendant Maurice Oparaji’s motion for default judgment against plainul? CitiMortgage. (NYSCEF Doc. Nos.: 458; 486): “In motion sequence no. 13, defendant Mr. Oparaji now moves for a default judgment against plaintiff for allegedly failing to respond to the counterclaims raised in the answer he served on or about May 16, 2019, before this action was remanded from the U.S. District Court for the Eastern District of New York. However, a threshold issue appears on the face of the record, which must be addressed - whether this court has jurisdiction to entertain this motion. It is axiomatic that the failure to properly serve a motion deprives a court of jurisdiction to \ear the motion (see MTGL.Q In vs., L.P. v White, 179 AD3d 790, 791-792 [2d Dept 2020]; Nationstar Mtge., 3 QaF 67 ELLED: QUEENS ¢ JUNTY CLERK 04/19/2024 04:09 PY INDEX NO. 708477/2024 NNSICEEE EE BOC. NO, $15 RRECEVWED NNGCEEF : 10471979024 LLC v Chase, 147 AD3d 964, 965 [2d Dept 2017])”. (NYSCEF Doc. Nos.: 458; 486). 11. In CitiMortgage, Inc v Reese, an action to foreclose a mortgage, the defendant Karen Reese appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), that denied defendant’s motion to vacate a default judgment, order of reference, and a judgment of foreclosure and sale of the same Court. The Appellate Division, Ordered: “The order entered November 4, 2015, is reversed insofar as appealed from, on the law, with costs, and those branches of the motion of the defendant Karen Reese which were to vacate the order of reference entered January 6, 2014, and the judgment of foreclosure and sale entered May 11, 2015, are granted. In November 2009, the plaintiff commenced this action against Karen Reese (hereinafter the defendant), among others, to foreclose a mortgage on property located in Nassau County. The defendant failed to appear or answer the complaint. By order entered January 6, 2014, the Supreme Court granted the plaintiff's motion for an order of reference and referred the matter to a referee to ascertain and compute the amount due on the mortgage loan. The court subsequently, upon the plaintiff's motion, entered a judgment of foreclosure and sale on May 11, 2015. By order to show cause dated August 17, 2015, the defendant moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale. The defendant alleged, among other things, that the plaintiff failed to serve her with the papers in support of its motions for an order of reference and for a judgment of foreclosure and sale. The plaintiff opposed the defendant's motion. By order entered November 4, 2015, the Supreme Court, inter 4 A nf 67 (FILED: QUEENS COUNTY CLERK 04/19/2024 04:09 PE INDEX NO. 708477/2024 MYSCEF DOC. NO. 315 RREEE IED NYBSEEF : 10427929624 alia, denied those branches of the defendant's motion which were to vacate the order of reference and the judgment of foreclosure and sale. The defendant appeals, and we reverse the order insofar as appealed from. The defendant was entitled to notice of the plaintiffs motions for an order of reference and for a judgment of foreclosure and sale pursuant to CPLR 3215 (g) (1), which provides, [*2]in relevant part, that such notice to a defendant who has not appeared is required "if more than one year has elapsed since the default." Here, the defendant defaulted in November 2009, and the plaintiff moved for an order of reference in March 2013, more than three years later. Contrary to the plaintiff's contention, the issue of its failure to comply with CPLR 3215 (g) (1) may be raised for the first time on appeal (see Editorial Photocolor Archives v Granger Collection, 61 NY2d 517, 523 [1984]; VNB N.Y., LLC v Y.M. Intercontinental Gem Corp., 154 AD3d 903, 906 [2017]) The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void. Accordingly, since the Supreme Court lacked jurisdiction to entertain the plaintiff's motions, it should have granted those branches of the defendant's motion which were to vacate the order of reference and the judgment of foreclosure and sale (CitiMortgage, Inc. v Reese, 162 AD3d 847, 848 [2d Dept 2018)). 12. In Paulus v Christopher Vacirca, Inc., 128 AD3d 116, 117 [2015))., citing Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965 [2012]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, the Court held that improper service of a motion provides a complete excuse for default on a motion and deprives the court of jurisdiction to entertain the motion, the Appellate Division, pertinently states: 5 af 87 (ELLED:. QUEENS COUNTY CLERK 0477972024 04:09 PM INDEX NO. 708477/2024 NYSE DWE.. NO. $15 RRECE WED NNSSEEF : 10471970024 “In later cases, the Fourth Department has held that the failure to comply with the notice requirement of CPLR 3215 (g) (1) deprives the court of jurisdiction to entertain a motion for leave to enter a default judgment, rendering the ensuing judgment null (see Nowak v Oklahoma League for Blind, 289 AD2d 995 (2001]), and that a motion for leave to enter a default judgment made without providing the required notice is defective, requiring vacatur of the judgment (see Curto v Diehl, 87 AD3d 1374 [2011]). While this Court has not addressed this precise issue, we have held that improper service of a motion provides a complete {**128 AD3d at 125} excuse for default on a motion and deprives the court of jurisdiction to entertain the motion (see Crown Waterproofing, Inc. v Tadco Constr. Corp., 99 AD3d 964, 965 [2012]; Zaidi v New York Bldg. Contrs., Ltd., 61 AD3d 747, 748 [2009]; Welch v State of New York, 261 AD2d 537, 538 [1999]). This Court has also held that the failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015 (a) (4) (see Financial Servs. Veh. Trust v Law Offs.of Dustin J. Dente, 86 AD3d 532, 533 [2011]). The failure to provide proper notice of a motion can readily be viewed as a fundamental defect because it deprives the opposing party of a fair opportunity to oppose the motion. This rationale applies with equal force to a plaintiff's failure to give a defendant who has previously appeared notice of its motion for leave to enter a default judgment. Here, the appellant has failed to demonstrate a basis to be relieved of his underlying default in failing to answer the complaint. Nevertheless, we conclude that vacatur of the judgment itself is warranted because the plaintiffs’ failure to provide the appellant with notice of the motion for leave to enter a default judgment as required by CPLR 3215 (g) (1) deprived him of both an opportunity to oppose entry of the judgment by contesting the sufficiency of the facts filed in support of the motion, and an opportunity to challenge the amount of damages sought by the plaintiffs. 6 Goat 67 (ELLED:. QUEENS COUNTY CLERK 0471972024 04:09 PM