Preview
FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE
FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007- INDEX NO.: 42776/2007
FF2, MORTGAGE LOAN ASSET-BACKED
CERTIFICATES, SERIES 2007-FF2,
Plaintiff, AFFIRMATION IN SUPPORT OF
PLAINTIFF’S MOTION TO
-against- EXTEND TIME TO CONDUCT
FORECLOSURE SALE
MERS, AS NOMINEE FOR FIRST FRANKLIN, A
DIVISION OF NATIONAL CITY BANK; CRIMINAL
COURT OF THE CITY OF NY; EMPIRE PORTFOLIO,
INC.; THE CITY OF NEW YORK PARKING VIOLATIONS
BUREAU; THE CITY OF NEW YORK ENVIRONMENTAL
CONTROL BOARD; THE CITY OF NEW YORK TRANSIT
ADJUDICATION BUREAU; LYNN WILLIAMS;
GWENDOLYN WILLIAMS; AND JESSE WILLIAMS,
Defendants.
I, Geraldine A. Cheverko, an attorney duly admitted to practice law in the State of New
York, affirm the following to be true under the penalties of perjury:
1. I am a member at the law firm of Eckert Seamans Cherin & Mellott, LLC, attorneys
for plaintiff U.S. Bank, National Association, as Trustee for First Franklin Mortgage Loan Trust
2007-FF2, Mortgage Loan Asset-Backed Certificates, Series 2007-FF2 (“Plaintiff”), and as such,
I am fully familiar with the facts and circumstances of this action.
2. I respectfully submit this affirmation in support of Plaintiff’s motion for an Order
pursuant to CPLR § 2004 extending Plaintiff’s time to conduct the sale of the subject property
pursuant to RPAPL 1351 and the Judgment of Foreclosure and Sale issued in this action, and
granting such other and further relief that the Court deems just and proper.
3. This is Plaintiff’s second request for the relief requested herein.
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RELEVANT PROCEDURAL HISTORY
4. This is a mortgage foreclosure action involving the subject property located at 256
Herzl Street, Brooklyn, New York 11212. In this action, the Court has granted the Judgment of
Foreclosure and Sale and has since granted a first extension of time for Plaintiff to conduct the
foreclosure sale.
5. Plaintiff respectfully requests a further 180-day extension of time or additional
time as practicable to conduct the foreclosure sale pursuant to the Judgment of Foreclosure and
Sale.
6. This action was commenced on November 20, 2007, a true and correct copy of
the Summons and Complaint are annexed hereto as Exhibit 1.
7. On September 7, 2010, Judgment of Foreclosure and Sale was issued, a true and
correct copy is annexed hereto as Exhibit 2.
8. On September 17, 2019, the Court granted an Amended Judgment of Foreclosure
and Sale in Plaintiff’s favor, a true and correct copy of which, with notice of entry, is annexed
hereto as Exhibit 3.
9. Pursuant to RPAPL § 1351, a judgment of foreclosure shall direct that the
mortgaged premises be sold within 90 days from the date of judgment.
10. After the Judgment of Foreclosure and Sale was granted, Plaintiff scheduled a
foreclosure auction for March 26, 2020 but, due to the COVID-19 pandemic the sale was not
held. See Exhibit 4. The ongoing COVID-19 pandemic continued to restrict Plaintiff from
rescheduling the foreclosure auction.
11. The post-judgment foreclosure settlement/status conference required by the
COVID-19 Emergency Eviction and Foreclosure Prevention Act and the applicable
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Administrative Orders of the Chief Judge was held in this action on May 18, 2021 and June 28,
2021.
12. On January 26, 2022, Plaintiff moved to extend its time to conduct the foreclosure
sale and such motion was granted on July 6, 2022. A copy of the Notice of Entry of the July 6,
2022 order is annexed hereto as Exhibit 5.
13. Plaintiff scheduled the auction for January 12, 2023, See Exhibit 4.
14. On December 27, 2022, proposed intervenor filed an Order to Show Cause to
intervene and stay the foreclosure sale which was subsequently denied by the Court. See Exhibit
6.
15. Proposed intervenor then made a CPLR 5704 Application to the Appellate
Division, Second Department, seeking review of this Court’s refusal to sign its order to show
cause seeking a stay of the foreclosure auction. See Exhibit 7.
16. Upon notification that the January 12, 2022 sale date was cancelled by the
Plaintiff, Proposed intervenor withdrew its 5704 Application.
17. This loan has now been taken off its hold status and Plaintiff wishes to proceed
with the sale.
18. Plaintiff still wishes to proceed with the foreclosure sale. However, the sale could
not be completed within the time allotted pursuant to the July 6, 2022 order, making the within
application necessary.
ARGUMENT
19. CPLR § 2004 provides that:
Except where otherwise expressly prescribed by law, the court may
extend the time fixed by any statute, rule or order for doing any
act, upon such terms as may be just and upon good cause shown,
whether the application for extension is made before or after the
expiration of the time fixed.
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20. The Court, pursuant to CPLR § 2004, may exercise its discretion to extend the
time for a party conduct a foreclosure sale pursuant to the Judgment of Foreclosure and Sale.
See U.S. Bank National Association v. Nava, No. 706535/2014, 2018 WL 521485 at *2 (Sup. Ct.
Queens County Jan. 9, 2018) (good cause existed for delay in proceeding with auction sale;
additionally, defendants did not demonstrate prejudiced by delay); and see Gerard v. Clermont
York Associates LLC, 143 A.D.3d 478, 38 N.Y.S.3d 194, 195 (2d Dep’t 2016) (lower court
properly exercised discretion in deeming motion for class certification, filed 17 days after
stipulated deadline, as timely; plaintiffs’ counsel had been involved with other urgent matters,
very brief delay was minimal, defendant could not claim time was of essence given history of
seeking and granting extensions, and there were no other pending deadlines); Deluca v.
Tonawanda Coke Corporation, 134 A.D.3d 1534, 1535, 22 N.Y.S.3d 768, 769 (3d Dep’t 2015)
(trial court has discretion to extend the deadline upon good cause shown); Argento v. Wal-Mart
Stores, Inc., 66 A.D.3d 930, 932, 888 N.Y.S.2d 117, 118 (2d Dep’t 2009) (court has discretion,
pursuant to CPLR § 2004, to extend deadline either prospectively or retroactively upon good
cause shown); Ianello v. O’Connor, 58 A.D.3d 684, 685, 871 N.Y.S.2d 667, 668 (2d Dep’t 2009)
(upon showing of good cause, Court is authorized to extend a court-ordered deadline for making
a summary judgment motion).
21. In addition to the statutory authority of CPLR § 2004, the Court has the authority
under common law, in its discretion, to grant relief from a judgment or order, i.e., extend a
deadline, in the interest of justice, taking into account the equities of the case and the grounds for
the requested relief. Mochkin v. Mochkin, 120 A.D.3d 776, 778, 992 N.Y.S.2d 90, 93 (2d Dep’t
2014).
22. In considering a motion for an extension of time pursuant to CPLR § 2004, the
Court may consider such factors as the length of the delay, the reason or excuse for the delay,
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and any prejudice to the party opposing the motion. See U.S. Bank National Association v.
Adler, 148 A.D.3d 858, 49 N.Y.S.3d 148, 149 (2d Dep’t 2017), citing Siracusa v. Fitterman, 110
A.D.3d 1055, 1056, 974 N.Y.S.2d 498, 500 (2d Dep’t 2013), and Tewari v. Tsoutsouras, 75
N.Y.2d 1, 12, 550 N.Y.S.2d 572, 577 (1989).
23. These requests are not to delay these proceedings, which are post-judgment, but
are necessary as a result of restrictions brought about by the pandemic, including the required
post-judgment conferences and restrictions on foreclosure actions and foreclosure sales.
24. Due to the continued effects of the COVID-19 pandemic, and resultant
restrictions, Plaintiff requests an additional extension of 180 days to conduct the foreclosure sale.
25. Plaintiff further submits that no other parties to this action will suffer any
prejudice by granting the extension requested. This is an action for foreclosure, and upon
granting the Judgment of Foreclosure and Sale in Plaintiff’s favor, the Court resolved all relevant
issues in this action. See Exhibit 2. At this point, only the sale of the subject property must be
completed.
26. There are no other pending deadlines.
27. Based upon the reasons set forth herein, Plaintiff respectfully submits that good
cause exists for an additional 180-day extension of time, pursuant to CPLR § 2004, to conduct
the foreclosure sale.
28. This is Plaintiff’s second request for an extension of time to conduct the
foreclosure sale.
WHEREFORE, for the reasons set forth herein, as well as upon all prior pleadings and
proceedings heretofore had herein, Plaintiff respectfully requests that the Court grant this motion
in its entirety and issue an Order pursuant to CPLR § 2004 extending Plaintiff’s time to conduct
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the foreclosure sale, and granting such other and further relief that the Court deems just and
proper.
Dated: White Plains, New York
January 17, 2023
/s/ Geraldine A. Cheverko_
Geraldine A. Cheverko
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Preview
FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS U.S. BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR FIRST FRANKLIN MORTGAGE LOAN TRUST 2007- INDEX NO.: 42776/2007 FF2, MORTGAGE LOAN ASSET-BACKED CERTIFICATES, SERIES 2007-FF2, Plaintiff, AFFIRMATION IN SUPPORT OF PLAINTIFF’S MOTION TO -against- EXTEND TIME TO CONDUCT FORECLOSURE SALE MERS, AS NOMINEE FOR FIRST FRANKLIN, A DIVISION OF NATIONAL CITY BANK; CRIMINAL COURT OF THE CITY OF NY; EMPIRE PORTFOLIO, INC.; THE CITY OF NEW YORK PARKING VIOLATIONS BUREAU; THE CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; THE CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU; LYNN WILLIAMS; GWENDOLYN WILLIAMS; AND JESSE WILLIAMS, Defendants. I, Geraldine A. Cheverko, an attorney duly admitted to practice law in the State of New York, affirm the following to be true under the penalties of perjury: 1. I am a member at the law firm of Eckert Seamans Cherin & Mellott, LLC, attorneys for plaintiff U.S. Bank, National Association, as Trustee for First Franklin Mortgage Loan Trust 2007-FF2, Mortgage Loan Asset-Backed Certificates, Series 2007-FF2 (“Plaintiff”), and as such, I am fully familiar with the facts and circumstances of this action. 2. I respectfully submit this affirmation in support of Plaintiff’s motion for an Order pursuant to CPLR § 2004 extending Plaintiff’s time to conduct the sale of the subject property pursuant to RPAPL 1351 and the Judgment of Foreclosure and Sale issued in this action, and granting such other and further relief that the Court deems just and proper. 3. This is Plaintiff’s second request for the relief requested herein. 1 of 6 FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023 RELEVANT PROCEDURAL HISTORY 4. This is a mortgage foreclosure action involving the subject property located at 256 Herzl Street, Brooklyn, New York 11212. In this action, the Court has granted the Judgment of Foreclosure and Sale and has since granted a first extension of time for Plaintiff to conduct the foreclosure sale. 5. Plaintiff respectfully requests a further 180-day extension of time or additional time as practicable to conduct the foreclosure sale pursuant to the Judgment of Foreclosure and Sale. 6. This action was commenced on November 20, 2007, a true and correct copy of the Summons and Complaint are annexed hereto as Exhibit 1. 7. On September 7, 2010, Judgment of Foreclosure and Sale was issued, a true and correct copy is annexed hereto as Exhibit 2. 8. On September 17, 2019, the Court granted an Amended Judgment of Foreclosure and Sale in Plaintiff’s favor, a true and correct copy of which, with notice of entry, is annexed hereto as Exhibit 3. 9. Pursuant to RPAPL § 1351, a judgment of foreclosure shall direct that the mortgaged premises be sold within 90 days from the date of judgment. 10. After the Judgment of Foreclosure and Sale was granted, Plaintiff scheduled a foreclosure auction for March 26, 2020 but, due to the COVID-19 pandemic the sale was not held. See Exhibit 4. The ongoing COVID-19 pandemic continued to restrict Plaintiff from rescheduling the foreclosure auction. 11. The post-judgment foreclosure settlement/status conference required by the COVID-19 Emergency Eviction and Foreclosure Prevention Act and the applicable 2 of 6 FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023 Administrative Orders of the Chief Judge was held in this action on May 18, 2021 and June 28, 2021. 12. On January 26, 2022, Plaintiff moved to extend its time to conduct the foreclosure sale and such motion was granted on July 6, 2022. A copy of the Notice of Entry of the July 6, 2022 order is annexed hereto as Exhibit 5. 13. Plaintiff scheduled the auction for January 12, 2023, See Exhibit 4. 14. On December 27, 2022, proposed intervenor filed an Order to Show Cause to intervene and stay the foreclosure sale which was subsequently denied by the Court. See Exhibit 6. 15. Proposed intervenor then made a CPLR 5704 Application to the Appellate Division, Second Department, seeking review of this Court’s refusal to sign its order to show cause seeking a stay of the foreclosure auction. See Exhibit 7. 16. Upon notification that the January 12, 2022 sale date was cancelled by the Plaintiff, Proposed intervenor withdrew its 5704 Application. 17. This loan has now been taken off its hold status and Plaintiff wishes to proceed with the sale. 18. Plaintiff still wishes to proceed with the foreclosure sale. However, the sale could not be completed within the time allotted pursuant to the July 6, 2022 order, making the within application necessary. ARGUMENT 19. CPLR § 2004 provides that: Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed. 3 of 6 FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023 20. The Court, pursuant to CPLR § 2004, may exercise its discretion to extend the time for a party conduct a foreclosure sale pursuant to the Judgment of Foreclosure and Sale. See U.S. Bank National Association v. Nava, No. 706535/2014, 2018 WL 521485 at *2 (Sup. Ct. Queens County Jan. 9, 2018) (good cause existed for delay in proceeding with auction sale; additionally, defendants did not demonstrate prejudiced by delay); and see Gerard v. Clermont York Associates LLC, 143 A.D.3d 478, 38 N.Y.S.3d 194, 195 (2d Dep’t 2016) (lower court properly exercised discretion in deeming motion for class certification, filed 17 days after stipulated deadline, as timely; plaintiffs’ counsel had been involved with other urgent matters, very brief delay was minimal, defendant could not claim time was of essence given history of seeking and granting extensions, and there were no other pending deadlines); Deluca v. Tonawanda Coke Corporation, 134 A.D.3d 1534, 1535, 22 N.Y.S.3d 768, 769 (3d Dep’t 2015) (trial court has discretion to extend the deadline upon good cause shown); Argento v. Wal-Mart Stores, Inc., 66 A.D.3d 930, 932, 888 N.Y.S.2d 117, 118 (2d Dep’t 2009) (court has discretion, pursuant to CPLR § 2004, to extend deadline either prospectively or retroactively upon good cause shown); Ianello v. O’Connor, 58 A.D.3d 684, 685, 871 N.Y.S.2d 667, 668 (2d Dep’t 2009) (upon showing of good cause, Court is authorized to extend a court-ordered deadline for making a summary judgment motion). 21. In addition to the statutory authority of CPLR § 2004, the Court has the authority under common law, in its discretion, to grant relief from a judgment or order, i.e., extend a deadline, in the interest of justice, taking into account the equities of the case and the grounds for the requested relief. Mochkin v. Mochkin, 120 A.D.3d 776, 778, 992 N.Y.S.2d 90, 93 (2d Dep’t 2014). 22. In considering a motion for an extension of time pursuant to CPLR § 2004, the Court may consider such factors as the length of the delay, the reason or excuse for the delay, 4 of 6 FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023 and any prejudice to the party opposing the motion. See U.S. Bank National Association v. Adler, 148 A.D.3d 858, 49 N.Y.S.3d 148, 149 (2d Dep’t 2017), citing Siracusa v. Fitterman, 110 A.D.3d 1055, 1056, 974 N.Y.S.2d 498, 500 (2d Dep’t 2013), and Tewari v. Tsoutsouras, 75 N.Y.2d 1, 12, 550 N.Y.S.2d 572, 577 (1989). 23. These requests are not to delay these proceedings, which are post-judgment, but are necessary as a result of restrictions brought about by the pandemic, including the required post-judgment conferences and restrictions on foreclosure actions and foreclosure sales. 24. Due to the continued effects of the COVID-19 pandemic, and resultant restrictions, Plaintiff requests an additional extension of 180 days to conduct the foreclosure sale. 25. Plaintiff further submits that no other parties to this action will suffer any prejudice by granting the extension requested. This is an action for foreclosure, and upon granting the Judgment of Foreclosure and Sale in Plaintiff’s favor, the Court resolved all relevant issues in this action. See Exhibit 2. At this point, only the sale of the subject property must be completed. 26. There are no other pending deadlines. 27. Based upon the reasons set forth herein, Plaintiff respectfully submits that good cause exists for an additional 180-day extension of time, pursuant to CPLR § 2004, to conduct the foreclosure sale. 28. This is Plaintiff’s second request for an extension of time to conduct the foreclosure sale. WHEREFORE, for the reasons set forth herein, as well as upon all prior pleadings and proceedings heretofore had herein, Plaintiff respectfully requests that the Court grant this motion in its entirety and issue an Order pursuant to CPLR § 2004 extending Plaintiff’s time to conduct 5 of 6 FILED: KINGS COUNTY CLERK 01/17/2023 09:09 AM INDEX NO. 42776/2007 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 01/17/2023 the foreclosure sale, and granting such other and further relief that the Court deems just and proper. Dated: White Plains, New York January 17, 2023 /s/ Geraldine A. Cheverko_ Geraldine A. Cheverko 6 of 6