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FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008
NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
--- -- ------ -----------------
-------------------X
DEUTSCHE BANK NATIONAL TRUST COMPANY Index No. 33154/2008
AS INDENTURE TRUSTEE FOR THE REGISTERED
HOLDERS OF ARGENT MORTGAGE LOAN TRUST AFFIRMATION IN
2005-W1 ASSET-BACKED NOTES, SERIES 2005-W1, OPPOSITION OF MOTION
OR SUMMARY JUDGMENT
Plaintiff,
-against-
DULARIE MUNNA, et al.
Defendants.
-------- --------------------------------------------X
STATE OF NEW YORK .)
COUNTY OF KINGS ) ss.:
. Hershy Itzkowitz, an attorney and counselor at law duly admitted to practice in the
Courts of this State, affirms:
1. I am the attorney for Dularie Munna, the Defendant in this action (hereinafter referred
to as."Defendant", and as such, I am fully familiar with the facts and circumstances of
this action and the proceedings heretofore.
2. 258 Melrose St. Corp., deeded the property located at 258 Melrose Street, Brooklyn,
New York, which is the subject of this foreclosure action, to the Defendant, Dularie
Munna, by deed dated January 20, 2005, recorded on October 9, 2008, in the Kings
County Register's Office as CRFN 2008000400838. (Exhibit "A")
3. On January 20, 2005, defendant, Dularie Munna, mortgaged the premises herein, by
way of a mortgage in the amount of $600,000.00 to Argent Mortgage Company, LLC,
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which inortgage was recorded on. May 6, 2005, in the Kings County Register's Office
as CRFN 20005000264968. (Exhibit "B")
4. Argent Mortgage Company, LLC, allegedly assigned said mortgage to Deutsch Bank
National Trust Company, As Indenture Trustee, in Trust for the Registered Holders of
Argent Mortgage Loan, Asset-Backed Notes, Series 2005-W1 under the Pooling and
Servicing Agreement dated as of April 1, 2005, without recourse, by assignment dated
. April 4, 2007, and recorded on December 18, 2007, in said Register's Office as CRFN
2007000616561. (Exhibit "C")
5. Deutsch Bank National Trust company, as Indenture Trustee, in Trust for the Registered
Holders of Argent Mortgage Loan, Asset-Backed Notes, Series 2005-W1 under the
Pooling and Servicing Agreement dated as of April 1, 2005, without recourse, allegedly
assigned said mortgage to Deutsche Bank National Trust Company as Indenture Trustee,
in Trust for the registered Holders of Argent Mortgage Loan Trust Asset-
2005-W1,
Backed. Notes, Series 2005-W1, by assignment dated April 24, 2008, and recorded on
Register'
July 8, 2008, in said Office as CRFN 2008000269205. (Exhibit "D")
6. That said Assignment of Mortgage (Exhibit "D") , was allegedly executed by the
assignor, Deutsch Bank National Trust Company, as Indenture Trustee, in Trust for the
Registered Holders of Argent Mortgage Loan, Asset-Backed Notes, Series 2005 -W1
under the and Agreement dated as of April 1, 2005, without recourse,
Pooling Servicing
to the Plaintiff herein pursuant to a certain Power of Attorney made by said assignor to
Citi residential Lending, Inc., and recorded on April 17, 2008 in CRFN 2008000153993,
as indicated in on the original recorded assignment..
handwriting
7. hi fact, the Power of Attorney recorded in CRFN 2008000153993 (EXHIBIT "E"),
was not from the assignor, but from another entity, Ameriquest Mortgage company.
8. Therefore, the assignment to the Plaintiff herein was invalid.
9. That a foreclosure action was commenced by the Plaintiff on December 11, 2008, by
. the Summons, Complaint, and Notice of Pendency, under Index No. 33154/2008.
filing
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10. That the Plaintiff did not own the mortgage on December 11, 2008, and therefore had
no legal right to commence a foreclosure action.
11. That the Plaintiff herein is still not the record holder of the mortgage foreclosed
being
since the Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY AS
INDENTURE TRUSTEE, IN TROST FOR THE REGISTERED . HOLDERS OF
Argent mortgage loan trust 2005-wl, asset-backed notes, series 2005-W1, and this entity
has never had ownership of the mortgage being foreclosed.
Plaintiff has not filed conect certificates of nor corrected of the errors
conformity any
in these documents to date. Therefore, all the alleged assignments of mortgage are still
incorrect, and are still not admissible. There are still no certificates of conformity for
any assignments nor any powers of attorney from the Plaintiff's herein.
12. On March 10, 2015, at a Status Conference ordered by the Court, with both sides
appearing, a 90 Day Conditional Dismissal of this action was issued by Justice Knipel.
(Exhibit "F")
13. On December 23, 2015, Judge Knipel formally dismissed the action effective May 10,
2015. (Exhibit G) whichorder was duly served on Plaintiff's counsel.
14. Plaintiff has previously alleged that its counsel was changed in January 2016 and that
the consent to change attomey was filed in April, 2016, and that the two Dismissal
Orders were missing from the transfer file from the previous attorneys, and that they
didn't get copies of the two Orders until June 16, 2016.
15. Perhaps Counsel should have checked the Kings County Clerk's Minutes which clearly
show the Order Dismissing the Action signed by Justice Knipel filed on January 7, 2016,
clearly 6 months earlier.
16. Plaintiff also is citilig incorrect interpretation of the law for certain Orders issued by the
Court. If that were the case, then Plaintiff should have appealed those Orders.
17. Plaintiff on August 24, 2018, filed a Motion for Summary Judgment, and to Restore the
action to the Court's active calendar, (Exhibit "H") seeking to reverse Judge Knipel's
Order of Conditional Dismissal issued on January 10, 2018, (Exhibit "I "), including
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Plaintiff's Affirmation, (Exhibit"J"), Defendant's Affirmation in Opposition (Exhibit
"K "), and Plaintiff's Affirination in Further Support (Exhibit wherein Plaintiff
"L"),
argued the same as in this instant motion, and Defendant resubmits the same
arguments contained therein.
This motion was DENIED in its entirety by Order of Justice Joseph on May 13,
2019. (Exhibit t'M"). A copy of this Order with Notice. of Entry, and an Affidavit of
Service was filed on July 29, 2019. (Exhibit "N").
18. Plaintiff subsequently filed another motion, (Exhibit "O"), on 2020 to
February 13,
vacate the same May 13, 2019 Order of Justice Joseph, , which denied Plaintiff's motion
to reverse Judge Knipel's conditional dismissal and denial of and
Summary Judgment,
the 7, 2013 Order (Exhibit "P"), and the 2013 Order of Justice Solomon
January May 2,
(Exhibit "Q") which to date Plaintiff has stillnot complied with. Defendant resubmits
the same arguments contained therein.
19. This Plaintiff withdrew this niotion one day before it was to be heard.
. 20. Plaintiff does not cite what section of the law it isrelying in this motion.
21. The instant motion is technically the third motion for the same relief if you include the
withdrawn motion. Plaintiff knows it is too late to appeal or reargue/renew the Order
of Judge Joseph on May 13, 2019 In al1 these recent motions Plaintiff acknowledges in
. their affirmations have received the Orders of January 7, 2013 and May 2, 2013.
they
22. That is the reason that why the Plaintiff is.trying to resurrect and reargue the Order of
lanuary 7, 2013 and the May 2, 2013 Order of Justice Solomon. This should not be
granted because the Plaintiff has already moved for Summary Judgment and Restoration
to the Calendar which has been denied. In all of Plaintiff's subsequent affirmations they
acknowledge that they have received both 2013 Orders. Their argument is totally based
on the Pro Se Defendant in 2013 not filing a Notice of Entry,
23. Plaintiff's remedy in this action to Judge Joseph's Order denying Plaintiff's motion to
Restore the Dismissal and Summary Judgment, instead of basically making the same
motion, should have been to either:
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a. appeal the order (Clarke v. United Parcels 300
Service, Inc.,
AD2d 614 (2d Dept. 2002)
b. move for leave to renew or reargue the motion. (Champion v.
150 AD2d 833 (34 Dept.
Wilsey, 1989)
24. Permitting a party to seek vacatur of an appealable judgment or order pursuant to CPLR
5015(a)(1) would impermissibly grant the party an extension of time in which to appeal.
25. Defendant acted Pro Se when she filed the Motion to Dismiss (Exhibit on
"R")
January 9, 2013 and the Order was issued on May 2, 2013 (Exhibit "S")
26. Plaintiff's entire reasoning for reargument of this Order rests on the failure of the Pro
. Se Defendant to file a notice of entry of the Order, even though Plaintiff has made
several subsequent motions for Summary Judgment.
27. There is no doubt thatPlaintiffhad actual knowledge of the May 2, 2013 Order of Justice
Solomon.
28. Plaintiff has preceeded with this motion even though Plaintiff has already made a
motion as noted above to Restore the Action and for Summary Judg:nent which
was Denied.
29. Motion to Reargue
A motion for leave to reargue must be made within thirty (30) days after service of a
copy of the order determining the prior motion and written notice of its entry. CPLR
2221(d)(3) A motion to reargue is based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior motion (but shall
not include any matters of fact not offered on the prior motion), CPLR 2221(d)(2);
Everready Ins. Co. v. Farrell, 304 A.D. 2d 830, 757 N.Y.S. 2d 852 (2d Dep't 2003);
66th (1st
Spinale v. 10 West St. Cérp., 193 A.D.2d 431, 597 N. Y. S. 2d 345 Dep°t 1993).
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A motion for leave to reargue is not designed to provide an unsuccessful party with
successive opportunities to present arguments different from those originally presented.
Amato v. Lord & Taylor, 10 A.D. 2d 374. 781 N. Y. S. 2d 125 (2d Dep't 2004h
If new facts are being brought to the Courts attention, be ready with a good reason
for the lack of those facts the first time you made the motion. With a motion to
renew, the movant must set forth a reasonable justification as to why the new facts
were not submitted on the prior motion. Where no reasonable justification is given
for the failure of a party to present the new facts, the Supreme Court is without
discretion to grant a motion to renew. Greene v. New York City Hous. Auth., 183
A.D.2d 458, 724 N.Y.S.2d 631 (2d Dep't 2001).
In.the instant case, Plaintiff is just rehashing the same facts that they used in their
prior motions.
"A motion to reargue is addressed to the. discretion of the court and is designed to
afford a party an opportunity to establish that the court overlooked or
misapprehended the relevant facts, or misapplied a controlling principle of law
(CPLR 2221(d)(2). It is not designed as a vehicle to afford the unsuccessful party
an opportunity to argue once again and the very questions previously decided
(2nd
(Geller & Rodner v. Gem Community Mgt., 20AD3d 388 Dept. 2005). Nor is
. itdesigned to provide an opportunity for a party to advance arguments different
from those originally tendered (Amato v. Lord & Taylor, Inc.; 10 AD3d 374, 375
[2nd
. Dept. 2004]) or argue a new theory of law or raise new questions not previously
advanced (Levi v. Utica First Ins. Co., 12 AD3d 256, 258 [19 Dept. 2004]; Frisenda
[2nd
v. X Large Enterprises, Inc. 280 AD2d 514, 515 2001]). Instead, the
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movant must demonstrate the matters of fact or law that he or she believes the court
has misapprehended or overlooked (Hoffinann v. Debello-Teheny, 27 AD3d 743
[2nd
2006]. Absent a showing of misapprehension or the overlooking of a
[2nd
fact, the court must deny the motion (Barrett v. Jeannot, 18 AD3d 679
2005]). Further, a motion to reargue is based solely upon the papers submitted in
connection with the prior motion. New facts may not be subrnitted or considered
[1st
by the court (James v. Nestor, 120 AD2d 442 Dept. 1986]; Philips v. Village or
[4th 1997)."
Oriskany, 57 AD2d 110 Dept.
30. CPLR 5015(a)(1) also permits a court to vacate a judgment or order on the ground of
excusable default where the defaulting party dei1ionsttâB oth a reasonable excuse for
the default and a meritorious cause of action ense. A motion pursuant to CPLR
5015(a)(1) should be made within one year after service of a copy of the judgment or
order with written notice of its entry upon the moving party.
Relief pursuant to this provision should only be available to a party who was not
heard before the court acted. A party who contests a motion by submitting
opposition papers or participating in oral argument may not move to vacate
the resulting order. In the instant action the Plaintiff participated in oral argument
when itmoved to restore the action to the calendar after the action was dismissed
sua sponte pursuant to the court order of Judge Knipel dated January 10, 2018.
(EXHIBIT "I").
Rather, the party's remedy is to appeal the order, or move for leave to renew or
reargue the motion. Permitting a party to seek vacatur of an appealable judgment
or order pursuant to CPLR 5015(a)(1) would impermissibly grant the party an
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extension of time in which to appeal. The Court has the inherent power to vacate
their judgments and orders in the interest of justice. This power, however, is not
plenary, and should be exercised only to relieve a party from a judgment or order
taken through mistake, inadvertence, surprise or excusable neglect.
31. CPLR 5015(a) also provides that an action commenced under this section of the law
should be commenced "with such notice as the court may direct", and therefore
should have been commenced by an Order to Show Cause, and should be dismissed on
those grounds alone.
32. On August 17, 2015, Justice Whelan of the Suffolk County Comn ercial Division issued
a decision in Vin-Mike Enterprises v. Grigg, 2015 NY Slip Op. 31625(U), addressing
the procedure for making a motion for relief from judgment under CPLR 5015.
"The court which rendered a judgment or order may relieve a party from it upon
such terms as may be just, on motion of any interested person with such notice
as the court may direct, upon the ground of: 1. excusable default, if such motion
is made within one year after service of a copy of the judgment or order with written
notice of its entry upon the moving party, or, if the moving party has entered the
judgment or order, within one year after such entry; or 2. newly-discovered
evidence which, if introduced at the trial, would probably have produced a different
result and which could not have been discovered in time to move for a new trial
under section 4404‡ or 3. fraud, misrepresentation, or other misconduct of an
adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5.
reversal, modification or vacatur of a prior judgment or order upon which it is
"
based (Emphasis added).
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In Vin-Mike Enterprises, the court began its analysis of the defendant's motion for
relief from judgment bÿ looking at how that motion had been brought:
Subparagraph (a) of Rule 5015 mandates that a person seeking relief from a
judgment or order entered in an action move for such relief "with such notice as the
direct"
court may Motions pursuant to CPLR 5015(a) are thus required to be
interposed by the presentation of an order to show cause providing in blank for
court directives regarding the method and manner of service. At least one appellate
court has determined that the failure to move for relief pursuant to CPLR 5015(a)
order to show cause is a jurisdictional defect warranting the vacatur of any order
by
issued on an application not compliant with these requirements.
33. In Sholes v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522 (2003) wherein the Court of
Appeals has determined that there is no right of appeal from an ex parte order, including
an order entered sua sponte. The correct procedure to be followed by a party seeking
appellate review of a sua sponte or ex parte order is to move, on notice, to vacate the
order and appealing as of right from the order denying the motion to vacate. Plaintiff
did not do this. They made subsequent motions for Summary Judgrñêñt which voids
their right to reargue/renew.
34. Plaintiff did just that. It moved to vacate the Order of Dismissal which veas denied by
Judge Joseph, but instead of filing a timely appeal of the decision (with Notice of Entry
filed), it decided to make the same motion again with the same basic arguments.
35. As a matter of fact, Plaintiff recites basically the same arguments in the instant Motion,
and in the prior Motion to Restore the action to the active calendar and for Summary
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Judgment (Exhibit "F"), which motion was Denied by Judge Joseph on May 18, 2019,
. (Exhibit "G"), which meabithe action has been dismissed.
36. A dismissal pursuant to CPLR 3216, is typically rendered on the motion of the party
who served the 90 day demand, or in this case the sua sponte order of Justice Knipel
(EXHIBIT "G") received by Plaintiff's counsel in Court on the date of issuance.
37 The motion provides the Plaintiff with an to demonstrate that it has a
opportunity
reasonable excuse for its failure to comply with the demand and a meritorious cause.of
action, or to argue that dismissal is an inappropriate penalty. Therefore, a plaintiff
aggrieved by an order dismissing its complaint pursuant to CPLR 3216 should not be
able to seek relief under CPLR 5015(a)(1); its remedy is to take a timely appeal form
the order, move for relief pursuant to CPLR 2221, or both. However, CPLR
5015(a)(1) may be utilized by a party whose action was dismissed pursuant to CPLR
3216 where the party defaulted in opposing the motion to dismiss, which is not the case
in this action. (See Parker v. State Farm Mutual, 26 AD3d 719 (3d Dept. 2006);
Farhadi-jou v. Key Bank of New York, 2AD3d 1041 (3d dept. 2003).
38. Plaintiff in this case moves to Reargue/Renew an Order from 2013 subsequent to
Plaintiff making other motions to Restore a conditionally dismissed action to the
calendar and Summary Judgment, which were Denied. Their remedy should have been
to either appeal the Order, or move to renew or reargue the 2013 Order in a timely
fashion and prior to making motions to Restore and Summary Judgment.
39. WHEREFORE, Your Affirmant prays for an Order of this Court:
a. Denying Plaintiff's Motion in its entirety;
b. Dismissing the Foreclosure Action;
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FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --- -- ------ ----------------- -------------------X DEUTSCHE BANK NATIONAL TRUST COMPANY Index No. 33154/2008 AS INDENTURE TRUSTEE FOR THE REGISTERED HOLDERS OF ARGENT MORTGAGE LOAN TRUST AFFIRMATION IN 2005-W1 ASSET-BACKED NOTES, SERIES 2005-W1, OPPOSITION OF MOTION OR SUMMARY JUDGMENT Plaintiff, -against- DULARIE MUNNA, et al. Defendants. -------- --------------------------------------------X STATE OF NEW YORK .) COUNTY OF KINGS ) ss.: . Hershy Itzkowitz, an attorney and counselor at law duly admitted to practice in the Courts of this State, affirms: 1. I am the attorney for Dularie Munna, the Defendant in this action (hereinafter referred to as."Defendant", and as such, I am fully familiar with the facts and circumstances of this action and the proceedings heretofore. 2. 258 Melrose St. Corp., deeded the property located at 258 Melrose Street, Brooklyn, New York, which is the subject of this foreclosure action, to the Defendant, Dularie Munna, by deed dated January 20, 2005, recorded on October 9, 2008, in the Kings County Register's Office as CRFN 2008000400838. (Exhibit "A") 3. On January 20, 2005, defendant, Dularie Munna, mortgaged the premises herein, by way of a mortgage in the amount of $600,000.00 to Argent Mortgage Company, LLC, 1 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 which inortgage was recorded on. May 6, 2005, in the Kings County Register's Office as CRFN 20005000264968. (Exhibit "B") 4. Argent Mortgage Company, LLC, allegedly assigned said mortgage to Deutsch Bank National Trust Company, As Indenture Trustee, in Trust for the Registered Holders of Argent Mortgage Loan, Asset-Backed Notes, Series 2005-W1 under the Pooling and Servicing Agreement dated as of April 1, 2005, without recourse, by assignment dated . April 4, 2007, and recorded on December 18, 2007, in said Register's Office as CRFN 2007000616561. (Exhibit "C") 5. Deutsch Bank National Trust company, as Indenture Trustee, in Trust for the Registered Holders of Argent Mortgage Loan, Asset-Backed Notes, Series 2005-W1 under the Pooling and Servicing Agreement dated as of April 1, 2005, without recourse, allegedly assigned said mortgage to Deutsche Bank National Trust Company as Indenture Trustee, in Trust for the registered Holders of Argent Mortgage Loan Trust Asset- 2005-W1, Backed. Notes, Series 2005-W1, by assignment dated April 24, 2008, and recorded on Register' July 8, 2008, in said Office as CRFN 2008000269205. (Exhibit "D") 6. That said Assignment of Mortgage (Exhibit "D") , was allegedly executed by the assignor, Deutsch Bank National Trust Company, as Indenture Trustee, in Trust for the Registered Holders of Argent Mortgage Loan, Asset-Backed Notes, Series 2005 -W1 under the and Agreement dated as of April 1, 2005, without recourse, Pooling Servicing to the Plaintiff herein pursuant to a certain Power of Attorney made by said assignor to Citi residential Lending, Inc., and recorded on April 17, 2008 in CRFN 2008000153993, as indicated in on the original recorded assignment.. handwriting 7. hi fact, the Power of Attorney recorded in CRFN 2008000153993 (EXHIBIT "E"), was not from the assignor, but from another entity, Ameriquest Mortgage company. 8. Therefore, the assignment to the Plaintiff herein was invalid. 9. That a foreclosure action was commenced by the Plaintiff on December 11, 2008, by . the Summons, Complaint, and Notice of Pendency, under Index No. 33154/2008. filing 2 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 10. That the Plaintiff did not own the mortgage on December 11, 2008, and therefore had no legal right to commence a foreclosure action. 11. That the Plaintiff herein is still not the record holder of the mortgage foreclosed being since the Plaintiff is DEUTSCHE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE, IN TROST FOR THE REGISTERED . HOLDERS OF Argent mortgage loan trust 2005-wl, asset-backed notes, series 2005-W1, and this entity has never had ownership of the mortgage being foreclosed. Plaintiff has not filed conect certificates of nor corrected of the errors conformity any in these documents to date. Therefore, all the alleged assignments of mortgage are still incorrect, and are still not admissible. There are still no certificates of conformity for any assignments nor any powers of attorney from the Plaintiff's herein. 12. On March 10, 2015, at a Status Conference ordered by the Court, with both sides appearing, a 90 Day Conditional Dismissal of this action was issued by Justice Knipel. (Exhibit "F") 13. On December 23, 2015, Judge Knipel formally dismissed the action effective May 10, 2015. (Exhibit G) whichorder was duly served on Plaintiff's counsel. 14. Plaintiff has previously alleged that its counsel was changed in January 2016 and that the consent to change attomey was filed in April, 2016, and that the two Dismissal Orders were missing from the transfer file from the previous attorneys, and that they didn't get copies of the two Orders until June 16, 2016. 15. Perhaps Counsel should have checked the Kings County Clerk's Minutes which clearly show the Order Dismissing the Action signed by Justice Knipel filed on January 7, 2016, clearly 6 months earlier. 16. Plaintiff also is citilig incorrect interpretation of the law for certain Orders issued by the Court. If that were the case, then Plaintiff should have appealed those Orders. 17. Plaintiff on August 24, 2018, filed a Motion for Summary Judgment, and to Restore the action to the Court's active calendar, (Exhibit "H") seeking to reverse Judge Knipel's Order of Conditional Dismissal issued on January 10, 2018, (Exhibit "I "), including 3 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 Plaintiff's Affirmation, (Exhibit"J"), Defendant's Affirmation in Opposition (Exhibit "K "), and Plaintiff's Affirination in Further Support (Exhibit wherein Plaintiff "L"), argued the same as in this instant motion, and Defendant resubmits the same arguments contained therein. This motion was DENIED in its entirety by Order of Justice Joseph on May 13, 2019. (Exhibit t'M"). A copy of this Order with Notice. of Entry, and an Affidavit of Service was filed on July 29, 2019. (Exhibit "N"). 18. Plaintiff subsequently filed another motion, (Exhibit "O"), on 2020 to February 13, vacate the same May 13, 2019 Order of Justice Joseph, , which denied Plaintiff's motion to reverse Judge Knipel's conditional dismissal and denial of and Summary Judgment, the 7, 2013 Order (Exhibit "P"), and the 2013 Order of Justice Solomon January May 2, (Exhibit "Q") which to date Plaintiff has stillnot complied with. Defendant resubmits the same arguments contained therein. 19. This Plaintiff withdrew this niotion one day before it was to be heard. . 20. Plaintiff does not cite what section of the law it isrelying in this motion. 21. The instant motion is technically the third motion for the same relief if you include the withdrawn motion. Plaintiff knows it is too late to appeal or reargue/renew the Order of Judge Joseph on May 13, 2019 In al1 these recent motions Plaintiff acknowledges in . their affirmations have received the Orders of January 7, 2013 and May 2, 2013. they 22. That is the reason that why the Plaintiff is.trying to resurrect and reargue the Order of lanuary 7, 2013 and the May 2, 2013 Order of Justice Solomon. This should not be granted because the Plaintiff has already moved for Summary Judgment and Restoration to the Calendar which has been denied. In all of Plaintiff's subsequent affirmations they acknowledge that they have received both 2013 Orders. Their argument is totally based on the Pro Se Defendant in 2013 not filing a Notice of Entry, 23. Plaintiff's remedy in this action to Judge Joseph's Order denying Plaintiff's motion to Restore the Dismissal and Summary Judgment, instead of basically making the same motion, should have been to either: 4 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 a. appeal the order (Clarke v. United Parcels 300 Service, Inc., AD2d 614 (2d Dept. 2002) b. move for leave to renew or reargue the motion. (Champion v. 150 AD2d 833 (34 Dept. Wilsey, 1989) 24. Permitting a party to seek vacatur of an appealable judgment or order pursuant to CPLR 5015(a)(1) would impermissibly grant the party an extension of time in which to appeal. 25. Defendant acted Pro Se when she filed the Motion to Dismiss (Exhibit on "R") January 9, 2013 and the Order was issued on May 2, 2013 (Exhibit "S") 26. Plaintiff's entire reasoning for reargument of this Order rests on the failure of the Pro . Se Defendant to file a notice of entry of the Order, even though Plaintiff has made several subsequent motions for Summary Judgment. 27. There is no doubt thatPlaintiffhad actual knowledge of the May 2, 2013 Order of Justice Solomon. 28. Plaintiff has preceeded with this motion even though Plaintiff has already made a motion as noted above to Restore the Action and for Summary Judg:nent which was Denied. 29. Motion to Reargue A motion for leave to reargue must be made within thirty (30) days after service of a copy of the order determining the prior motion and written notice of its entry. CPLR 2221(d)(3) A motion to reargue is based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (but shall not include any matters of fact not offered on the prior motion), CPLR 2221(d)(2); Everready Ins. Co. v. Farrell, 304 A.D. 2d 830, 757 N.Y.S. 2d 852 (2d Dep't 2003); 66th (1st Spinale v. 10 West St. Cérp., 193 A.D.2d 431, 597 N. Y. S. 2d 345 Dep°t 1993). 5 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those originally presented. Amato v. Lord & Taylor, 10 A.D. 2d 374. 781 N. Y. S. 2d 125 (2d Dep't 2004h If new facts are being brought to the Courts attention, be ready with a good reason for the lack of those facts the first time you made the motion. With a motion to renew, the movant must set forth a reasonable justification as to why the new facts were not submitted on the prior motion. Where no reasonable justification is given for the failure of a party to present the new facts, the Supreme Court is without discretion to grant a motion to renew. Greene v. New York City Hous. Auth., 183 A.D.2d 458, 724 N.Y.S.2d 631 (2d Dep't 2001). In.the instant case, Plaintiff is just rehashing the same facts that they used in their prior motions. "A motion to reargue is addressed to the. discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law (CPLR 2221(d)(2). It is not designed as a vehicle to afford the unsuccessful party an opportunity to argue once again and the very questions previously decided (2nd (Geller & Rodner v. Gem Community Mgt., 20AD3d 388 Dept. 2005). Nor is . itdesigned to provide an opportunity for a party to advance arguments different from those originally tendered (Amato v. Lord & Taylor, Inc.; 10 AD3d 374, 375 [2nd . Dept. 2004]) or argue a new theory of law or raise new questions not previously advanced (Levi v. Utica First Ins. Co., 12 AD3d 256, 258 [19 Dept. 2004]; Frisenda [2nd v. X Large Enterprises, Inc. 280 AD2d 514, 515 2001]). Instead, the 6 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 movant must demonstrate the matters of fact or law that he or she believes the court has misapprehended or overlooked (Hoffinann v. Debello-Teheny, 27 AD3d 743 [2nd 2006]. Absent a showing of misapprehension or the overlooking of a [2nd fact, the court must deny the motion (Barrett v. Jeannot, 18 AD3d 679 2005]). Further, a motion to reargue is based solely upon the papers submitted in connection with the prior motion. New facts may not be subrnitted or considered [1st by the court (James v. Nestor, 120 AD2d 442 Dept. 1986]; Philips v. Village or [4th 1997)." Oriskany, 57 AD2d 110 Dept. 30. CPLR 5015(a)(1) also permits a court to vacate a judgment or order on the ground of excusable default where the defaulting party dei1ionsttâB oth a reasonable excuse for the default and a meritorious cause of action ense. A motion pursuant to CPLR 5015(a)(1) should be made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party. Relief pursuant to this provision should only be available to a party who was not heard before the court acted. A party who contests a motion by submitting opposition papers or participating in oral argument may not move to vacate the resulting order. In the instant action the Plaintiff participated in oral argument when itmoved to restore the action to the calendar after the action was dismissed sua sponte pursuant to the court order of Judge Knipel dated January 10, 2018. (EXHIBIT "I"). Rather, the party's remedy is to appeal the order, or move for leave to renew or reargue the motion. Permitting a party to seek vacatur of an appealable judgment or order pursuant to CPLR 5015(a)(1) would impermissibly grant the party an 7 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 extension of time in which to appeal. The Court has the inherent power to vacate their judgments and orders in the interest of justice. This power, however, is not plenary, and should be exercised only to relieve a party from a judgment or order taken through mistake, inadvertence, surprise or excusable neglect. 31. CPLR 5015(a) also provides that an action commenced under this section of the law should be commenced "with such notice as the court may direct", and therefore should have been commenced by an Order to Show Cause, and should be dismissed on those grounds alone. 32. On August 17, 2015, Justice Whelan of the Suffolk County Comn ercial Division issued a decision in Vin-Mike Enterprises v. Grigg, 2015 NY Slip Op. 31625(U), addressing the procedure for making a motion for relief from judgment under CPLR 5015. "The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404‡ or 3. fraud, misrepresentation, or other misconduct of an adverse party; or 4. lack of jurisdiction to render the judgment or order; or 5. reversal, modification or vacatur of a prior judgment or order upon which it is " based (Emphasis added). 8 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 In Vin-Mike Enterprises, the court began its analysis of the defendant's motion for relief from judgment bÿ looking at how that motion had been brought: Subparagraph (a) of Rule 5015 mandates that a person seeking relief from a judgment or order entered in an action move for such relief "with such notice as the direct" court may Motions pursuant to CPLR 5015(a) are thus required to be interposed by the presentation of an order to show cause providing in blank for court directives regarding the method and manner of service. At least one appellate court has determined that the failure to move for relief pursuant to CPLR 5015(a) order to show cause is a jurisdictional defect warranting the vacatur of any order by issued on an application not compliant with these requirements. 33. In Sholes v. Meagher, 100 N.Y.2d 333, 763 N.Y.S.2d 522 (2003) wherein the Court of Appeals has determined that there is no right of appeal from an ex parte order, including an order entered sua sponte. The correct procedure to be followed by a party seeking appellate review of a sua sponte or ex parte order is to move, on notice, to vacate the order and appealing as of right from the order denying the motion to vacate. Plaintiff did not do this. They made subsequent motions for Summary Judgrñêñt which voids their right to reargue/renew. 34. Plaintiff did just that. It moved to vacate the Order of Dismissal which veas denied by Judge Joseph, but instead of filing a timely appeal of the decision (with Notice of Entry filed), it decided to make the same motion again with the same basic arguments. 35. As a matter of fact, Plaintiff recites basically the same arguments in the instant Motion, and in the prior Motion to Restore the action to the active calendar and for Summary 9 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18 PM INDEX NO. 33154/2008 NYSCEF DOC. NO. 35 RECEIVED NYSCEF: 03/02/2021 Judgment (Exhibit "F"), which motion was Denied by Judge Joseph on May 18, 2019, . (Exhibit "G"), which meabithe action has been dismissed. 36. A dismissal pursuant to CPLR 3216, is typically rendered on the motion of the party who served the 90 day demand, or in this case the sua sponte order of Justice Knipel (EXHIBIT "G") received by Plaintiff's counsel in Court on the date of issuance. 37 The motion provides the Plaintiff with an to demonstrate that it has a opportunity reasonable excuse for its failure to comply with the demand and a meritorious cause.of action, or to argue that dismissal is an inappropriate penalty. Therefore, a plaintiff aggrieved by an order dismissing its complaint pursuant to CPLR 3216 should not be able to seek relief under CPLR 5015(a)(1); its remedy is to take a timely appeal form the order, move for relief pursuant to CPLR 2221, or both. However, CPLR 5015(a)(1) may be utilized by a party whose action was dismissed pursuant to CPLR 3216 where the party defaulted in opposing the motion to dismiss, which is not the case in this action. (See Parker v. State Farm Mutual, 26 AD3d 719 (3d Dept. 2006); Farhadi-jou v. Key Bank of New York, 2AD3d 1041 (3d dept. 2003). 38. Plaintiff in this case moves to Reargue/Renew an Order from 2013 subsequent to Plaintiff making other motions to Restore a conditionally dismissed action to the calendar and Summary Judgment, which were Denied. Their remedy should have been to either appeal the Order, or move to renew or reargue the 2013 Order in a timely fashion and prior to making motions to Restore and Summary Judgment. 39. WHEREFORE, Your Affirmant prays for an Order of this Court: a. Denying Plaintiff's Motion in its entirety; b. Dismissing the Foreclosure Action; 10 of 11 FILED: KINGS COUNTY CLERK 03/02/2021 02:18