Preview
FILED: WESTCHESTER COUNTY CLERK 02/13/2023
10/13/2022 01:56
03:57 PM INDEX NO. 58675/2021
61855/2015
NYSCEF DOC. NO. 52
502 RECEIVED NYSCEF: 02/13/2023
10/13/2022
To commence the. statutory time period for appeals
as of right (CPLR 55 13(a]), you are advised to serve
a copy of this order, with notice of entry, upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
. '
----------------~----------------------------------------------~---~------------)(
Wells Fargo Bank, National Association, As Trustee For
Citigroup Mortgage Loan Trust, Series 2004-0PTl, Asset
Backed Pass"-Through Certificates, Series 2004-0PTl,
Plaintiff,
-against-
DECISION & ORDER
Index No. 61855/2015
Sequence No. 10
Mark Barasch, Ellen Barasch, Banco Popular North America,
United States of America Internal Revenue Service, NYS Tax
Commission,
Defendant.
------------------------------------------~--------------------------------------)(
WOOD,J.
New York State Courts Electronic Filing ("NYSCEF") Document Numbers 454-497 were read
in connection with the motion by plaintiff, Wells Fargo Bank, National Association, As Trustee For
Citigroup Mortgage Loan Trust, Series 2004-0PTh Asset Backed Pass-Through Certificates, Series
2004-0PTl ("the Bank"), for an order pursuant to CPLR 306-b, to extend time to re-serve defendants
Mark Barasch and Ellen Barasch (lithe Barasches"), with the summons and complaint in this action!.
This action was commenced on July 7, 2015, to foreclose a mortgage held by the Bank on 39
Major Lockwood Lane in Pound Ridge. This was not the first action between these parties, in fact, the
Bank previously commenced an action against the Barasches for foreclosure on July 8,2009, under Index
No. 15327/2009. That action was dismissed by the court (Giacomo, J.) on September 25,2013, for failure
1This motion was re-assigned to the Honorable Charles D. Wood on October 3,2022. The court also took judicial
notice of various documents in the NYSCEF file under index no. 55567/2021.
1
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FILED: WESTCHESTER COUNTY CLERK 02/13/2023
10/13/2022 01:56
03:57 PM INDEX NO. 58675/2021
61855/2015
NYSCEF DOC. NO. 52
502 RECEIVED NYSCEF: 02/13/2023
10/13/2022
to prosecute. On April 16, 2015, the Bank's counsel gave notice that the notice of pendency filed in the
Westchester County Clerk's Office on July 8, 2009 was cancelled and dischargedofrecord.
In the instant action, this court ordered a traverse hearing to determine ifproper service had been
\
effectuated upon the Barasches. T,,:,o days before the traverse hearing was to take place, the Bank filed an
order to show cause on February 14,2017, seeking to extend the time to serve the summons and complaint
upon the Barasches pursuant to CPLR 306-b. The next day, J.H.O. Nicholas Colabella declined to sign
the order to show cause, as it was too close to the date for the traverse hearing (on April 10, 2017, the
transcript of the February 15,2022 appearance was so ordered).
At the traverse hearing conducted on February 16, 2017, Hon. Lawrence H. Ecker denied the
Bank's request to renew its application to extend time to serve under CPLR 306-b, stating that the denial
by Judge Colabella was the law of the case, despite Judge Colabella having stated to plaintiffs counsel
otherwise2• On April 3, 2017, Judge Ecker granted the Barasches' cross-motion to dismiss the complaint,
for lack of personal jurisdiction over defendants pursuant to CPLR 3211(a)(8), and the complaint was
dismissed (NYSCEF #362).
. On April 22, 2021, the Second Department upheld Judge Ecker's determination that service was
not properly effectuated upon the Barasches (NYSCEF #448). The Court also dismissed the appeal from
the J.H.O. Colabella order dated April 10, 2017, as no appeal lies from an order issued ex parte (NYSCEF
#448).
After the Second Department decision, the Barasches commenced a separate action to quiet title
to the subject property (Barasch vWelis Fargo, et. al. Index No. 5556712021). The court (Everett, J),
rendered a Decision and Order on November 8, 2021, granting Barasch's motion to the extent that the
Westchester County Clerk was directed to cancel and discharge the record of the Bank's mortgage and
2 The transcript of proceedings before Judge Colabella was not available to Judge Ecker at the time.
2
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FILED: WESTCHESTER COUNTY CLERK 02/13/2023
10/13/2022 01:56
03:57 PM INDEX NO. 58675/2021
61855/2015
NYSCEF DOC. NO. 52
502 RECEIVED NYSCEF: 02/13/2023
10/13/2022
associated note previously held by the Bank, removing all liens against the property; and to remove and
!. vacate the four Notices of Pendency, including the first Notice of Pendency 15327/2009; July 8,2009; the
additional Notice of Pendency 15327/2009; July 19,2013; the third Notice of Pendency 61855-2015; Ju'ly
7,2015; and the fourth Notice of Pendency 5867512021; June 25, 2021, that were filed by the Bank against
. the property and that relate to the subject Wells Fargo mortgage.
Based upon the foregoing, the motion is decided as follows:
Pursuantto CPLR 306-b, a court may, in the exercise of discretion, grant a motion fo~ an
extension of time within which to effect service for good cause shown or in the interest of justice
(Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2d Dept 2009]). To establish the requisite good
cause, reasonable diligence in attempting service must be shown, but the interest of justice is a broader
standard, which does not require a showing of good cause, and is the more flexible and accommodates
late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the
defendant (Butters v Payne, 176 AD3d 1028 [2d Dept 2019]). In determining whether to grant an
. extension of time to serve a summons and complaint in the interest of justice, "the court may consider
diligence, or lack thereof, along with any other relevant factor in making its determination, including
expiration of the Statute of Limitations, the [potentially] meritor.ious nature of the cause of action, the
length of delay in service, the promptness of the Bank's request for the extension oftiine, and prejudice
to defendant" (Mighty v Deshommes, .178 AD3d 912 [2d Dept 2019]).
Thus, an attempt at service that later proves defective cannot be the basis for a "good cause"
extension of time to serve process pursuant to CPLR 306-b, but it can for the more flexible "interest of .
justice" standard (Est. ojFernandez by Salsbury v Wyckoff Heights Med Ctr., 162 AD3d 742, 743-44
[2d Dept 2018]).
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FILED: WESTCHESTER COUNTY CLERK 02/13/2023
10/13/2022 01:56
03:57 PM INDEX NO. 58675/2021
61855/2015
NYSCEF DOC. NO. 52
502 RECEIVED NYSCEF: 02/13/2023
10/13/2022
The Bank argues that the Barasches cannot claim to be prejudiced by an extension of time to
serve them, since it is indisputable that they have not made a mortgage payment in years, had knowledge
of the Bank's action to foreclose, and have actively participated in the litigation against them.
As applicable here, the Bank demonstrated the interests of justice standard, where service is
timely made within the 120-day period but is subsequently found to have been defectIve (State of New
York Mortg. Agency v Braun, 182AD3d 63, 67 [2d Dept 2020]).
Additionally, no demonstrable prejudice to Barasches has been shown, and the complaint
demonstrated a potentially meritorious cause of action (Mighty v Deshommes, 178 AD3d 912 [2d Dept
2019]). Significantly, Barasches had actual notice of this action within 120 days after its
commencement, and as held by Justice Everett, the Bank will be barred by the s~atute of limitations
issues if it commences a new action (Est. of Fernandez by Salsbury v Wyckoff Heights Med. Ctr., 162
AD3d 742, 744 [2d Dept 2018]).
As for the timeliness of the Bank's application, the record shows that the Bank brought an order
to show cause to extend under CPLR 306-b prior to the traverse hearing, but the court (Colabella, J.)
declined to sign it because it sought a stay of the traverse hearing. The day of the traverse hearing, it
again sought a CPLR 306-b extension, which was denied without the merits being Gonsidered. Then, it
filed a motion to renew (seq. 9) on May 11,2017, which was denied together with their motion to
\ .
reargue the traverse hearing determination (seq. 8) without a single mention of the CPLR 306-b
application (NYSCEF #444). After the Second Department affirmed Judge Ecker's decision that proper
service had not been effectuated upon the Barasches, and declined to consider the CPLR 306-b issue, the
Bank submitted the instant motion in a timely fashion.3 In light of these factors, and the fact that the
3. The court notes that due to the Covid-19 pandem ic, all foreclosure action tilings were stayed and then subject to mandatory
conferences. .
4
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FILED: WESTCHESTER COUNTY CLERK 02/13/2023
10/13/2022 01:56
03:57 PM INDEX NO. 58675/2021
61855/2015
NYSCEF DOC. NO. 52
502 RECEIVED NYSCEF: 02/13/2023
10/13/2022
merits of the Bank's application have never been considered, the court concludes that an extension of
time to serve the Barasches with process is warranted in the interest of justice (State of New York
Mortg. Agency v Braun, 182 AD3d 63, 67 [2d Dept 2020]).
Lastly, the Barasches claim that the subject mortgage is no longer enforceable because they were
granted summary judgment in their quiet title action is of no bearing on the instant controversy. That
claim has no merit, because, as noted by Justice Everett in his decision and order filed August 2, 2022
under Index no. 55567/2021, this motion by the Bank (seq. 10), then assigned to Judge Anar R. Patel,
was pending. Justice Everett also noted that despite being raised at the traverse hearing, the Bank's
motion for an extension of time pursuant to CPLR 306-b was not heard by the court. Justice Everett's
cancelation of the Notice of Pendency and determination that the subject mortgage was expired and
unenforceable have no bearing upon this motion and this case, because he merely held that the
Barasches had met their burden under RP APL 1501(4) of proving that "the commencement of a new
foreclosure action" on the subject note would be time barred (NYSCEF #475).
For the stated reasons, it is hereby
ORDERED, that the Bank'smotion is granted to the extent that the time to serve defendants under
this index number, pursuant to CPLR 306-b is extended one hundred and twenty (120) days from the entry
date oft~.is Order. The Clerk shall mark his records accordingly.
All matters not specifically addressed are herewith denied. This constitutes the decision and order
of the court.
Dated: October 13,2022
White Plains, New York
To: All Parties' Counsel by NYSCEF
5
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Preview
FILED: WESTCHESTER COUNTY CLERK 02/13/2023 10/13/2022 01:56 03:57 PM INDEX NO. 58675/2021 61855/2015 NYSCEF DOC. NO. 52 502 RECEIVED NYSCEF: 02/13/2023 10/13/2022 To commence the. statutory time period for appeals as of right (CPLR 55 13(a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER . ' ----------------~----------------------------------------------~---~------------)( Wells Fargo Bank, National Association, As Trustee For Citigroup Mortgage Loan Trust, Series 2004-0PTl, Asset Backed Pass"-Through Certificates, Series 2004-0PTl, Plaintiff, -against- DECISION & ORDER Index No. 61855/2015 Sequence No. 10 Mark Barasch, Ellen Barasch, Banco Popular North America, United States of America Internal Revenue Service, NYS Tax Commission, Defendant. ------------------------------------------~--------------------------------------)( WOOD,J. New York State Courts Electronic Filing ("NYSCEF") Document Numbers 454-497 were read in connection with the motion by plaintiff, Wells Fargo Bank, National Association, As Trustee For Citigroup Mortgage Loan Trust, Series 2004-0PTh Asset Backed Pass-Through Certificates, Series 2004-0PTl ("the Bank"), for an order pursuant to CPLR 306-b, to extend time to re-serve defendants Mark Barasch and Ellen Barasch (lithe Barasches"), with the summons and complaint in this action!. This action was commenced on July 7, 2015, to foreclose a mortgage held by the Bank on 39 Major Lockwood Lane in Pound Ridge. This was not the first action between these parties, in fact, the Bank previously commenced an action against the Barasches for foreclosure on July 8,2009, under Index No. 15327/2009. That action was dismissed by the court (Giacomo, J.) on September 25,2013, for failure 1This motion was re-assigned to the Honorable Charles D. Wood on October 3,2022. The court also took judicial notice of various documents in the NYSCEF file under index no. 55567/2021. 1 1 of 5 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 10/13/2022 01:56 03:57 PM INDEX NO. 58675/2021 61855/2015 NYSCEF DOC. NO. 52 502 RECEIVED NYSCEF: 02/13/2023 10/13/2022 to prosecute. On April 16, 2015, the Bank's counsel gave notice that the notice of pendency filed in the Westchester County Clerk's Office on July 8, 2009 was cancelled and dischargedofrecord. In the instant action, this court ordered a traverse hearing to determine ifproper service had been \ effectuated upon the Barasches. T,,:,o days before the traverse hearing was to take place, the Bank filed an order to show cause on February 14,2017, seeking to extend the time to serve the summons and complaint upon the Barasches pursuant to CPLR 306-b. The next day, J.H.O. Nicholas Colabella declined to sign the order to show cause, as it was too close to the date for the traverse hearing (on April 10, 2017, the transcript of the February 15,2022 appearance was so ordered). At the traverse hearing conducted on February 16, 2017, Hon. Lawrence H. Ecker denied the Bank's request to renew its application to extend time to serve under CPLR 306-b, stating that the denial by Judge Colabella was the law of the case, despite Judge Colabella having stated to plaintiffs counsel otherwise2• On April 3, 2017, Judge Ecker granted the Barasches' cross-motion to dismiss the complaint, for lack of personal jurisdiction over defendants pursuant to CPLR 3211(a)(8), and the complaint was dismissed (NYSCEF #362). . On April 22, 2021, the Second Department upheld Judge Ecker's determination that service was not properly effectuated upon the Barasches (NYSCEF #448). The Court also dismissed the appeal from the J.H.O. Colabella order dated April 10, 2017, as no appeal lies from an order issued ex parte (NYSCEF #448). After the Second Department decision, the Barasches commenced a separate action to quiet title to the subject property (Barasch vWelis Fargo, et. al. Index No. 5556712021). The court (Everett, J), rendered a Decision and Order on November 8, 2021, granting Barasch's motion to the extent that the Westchester County Clerk was directed to cancel and discharge the record of the Bank's mortgage and 2 The transcript of proceedings before Judge Colabella was not available to Judge Ecker at the time. 2 2 of 5 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 10/13/2022 01:56 03:57 PM INDEX NO. 58675/2021 61855/2015 NYSCEF DOC. NO. 52 502 RECEIVED NYSCEF: 02/13/2023 10/13/2022 associated note previously held by the Bank, removing all liens against the property; and to remove and !. vacate the four Notices of Pendency, including the first Notice of Pendency 15327/2009; July 8,2009; the additional Notice of Pendency 15327/2009; July 19,2013; the third Notice of Pendency 61855-2015; Ju'ly 7,2015; and the fourth Notice of Pendency 5867512021; June 25, 2021, that were filed by the Bank against . the property and that relate to the subject Wells Fargo mortgage. Based upon the foregoing, the motion is decided as follows: Pursuantto CPLR 306-b, a court may, in the exercise of discretion, grant a motion fo~ an extension of time within which to effect service for good cause shown or in the interest of justice (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31 [2d Dept 2009]). To establish the requisite good cause, reasonable diligence in attempting service must be shown, but the interest of justice is a broader standard, which does not require a showing of good cause, and is the more flexible and accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant (Butters v Payne, 176 AD3d 1028 [2d Dept 2019]). In determining whether to grant an . extension of time to serve a summons and complaint in the interest of justice, "the court may consider diligence, or lack thereof, along with any other relevant factor in making its determination, including expiration of the Statute of Limitations, the [potentially] meritor.ious nature of the cause of action, the length of delay in service, the promptness of the Bank's request for the extension oftiine, and prejudice to defendant" (Mighty v Deshommes, .178 AD3d 912 [2d Dept 2019]). Thus, an attempt at service that later proves defective cannot be the basis for a "good cause" extension of time to serve process pursuant to CPLR 306-b, but it can for the more flexible "interest of . justice" standard (Est. ojFernandez by Salsbury v Wyckoff Heights Med Ctr., 162 AD3d 742, 743-44 [2d Dept 2018]). 3 of 5 3 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 10/13/2022 01:56 03:57 PM INDEX NO. 58675/2021 61855/2015 NYSCEF DOC. NO. 52 502 RECEIVED NYSCEF: 02/13/2023 10/13/2022 The Bank argues that the Barasches cannot claim to be prejudiced by an extension of time to serve them, since it is indisputable that they have not made a mortgage payment in years, had knowledge of the Bank's action to foreclose, and have actively participated in the litigation against them. As applicable here, the Bank demonstrated the interests of justice standard, where service is timely made within the 120-day period but is subsequently found to have been defectIve (State of New York Mortg. Agency v Braun, 182AD3d 63, 67 [2d Dept 2020]). Additionally, no demonstrable prejudice to Barasches has been shown, and the complaint demonstrated a potentially meritorious cause of action (Mighty v Deshommes, 178 AD3d 912 [2d Dept 2019]). Significantly, Barasches had actual notice of this action within 120 days after its commencement, and as held by Justice Everett, the Bank will be barred by the s~atute of limitations issues if it commences a new action (Est. of Fernandez by Salsbury v Wyckoff Heights Med. Ctr., 162 AD3d 742, 744 [2d Dept 2018]). As for the timeliness of the Bank's application, the record shows that the Bank brought an order to show cause to extend under CPLR 306-b prior to the traverse hearing, but the court (Colabella, J.) declined to sign it because it sought a stay of the traverse hearing. The day of the traverse hearing, it again sought a CPLR 306-b extension, which was denied without the merits being Gonsidered. Then, it filed a motion to renew (seq. 9) on May 11,2017, which was denied together with their motion to \ . reargue the traverse hearing determination (seq. 8) without a single mention of the CPLR 306-b application (NYSCEF #444). After the Second Department affirmed Judge Ecker's decision that proper service had not been effectuated upon the Barasches, and declined to consider the CPLR 306-b issue, the Bank submitted the instant motion in a timely fashion.3 In light of these factors, and the fact that the 3. The court notes that due to the Covid-19 pandem ic, all foreclosure action tilings were stayed and then subject to mandatory conferences. . 4 4 of 5 FILED: WESTCHESTER COUNTY CLERK 02/13/2023 10/13/2022 01:56 03:57 PM INDEX NO. 58675/2021 61855/2015 NYSCEF DOC. NO. 52 502 RECEIVED NYSCEF: 02/13/2023 10/13/2022 merits of the Bank's application have never been considered, the court concludes that an extension of time to serve the Barasches with process is warranted in the interest of justice (State of New York Mortg. Agency v Braun, 182 AD3d 63, 67 [2d Dept 2020]). Lastly, the Barasches claim that the subject mortgage is no longer enforceable because they were granted summary judgment in their quiet title action is of no bearing on the instant controversy. That claim has no merit, because, as noted by Justice Everett in his decision and order filed August 2, 2022 under Index no. 55567/2021, this motion by the Bank (seq. 10), then assigned to Judge Anar R. Patel, was pending. Justice Everett also noted that despite being raised at the traverse hearing, the Bank's motion for an extension of time pursuant to CPLR 306-b was not heard by the court. Justice Everett's cancelation of the Notice of Pendency and determination that the subject mortgage was expired and unenforceable have no bearing upon this motion and this case, because he merely held that the Barasches had met their burden under RP APL 1501(4) of proving that "the commencement of a new foreclosure action" on the subject note would be time barred (NYSCEF #475). For the stated reasons, it is hereby ORDERED, that the Bank'smotion is granted to the extent that the time to serve defendants under this index number, pursuant to CPLR 306-b is extended one hundred and twenty (120) days from the entry date oft~.is Order. The Clerk shall mark his records accordingly. All matters not specifically addressed are herewith denied. This constitutes the decision and order of the court. Dated: October 13,2022 White Plains, New York To: All Parties' Counsel by NYSCEF 5 5 of 5