Motion-Secondary: Deutsche Bank National Trust Company As Trustee For American Home Mortgage Asset Trust 2006-5 v. Bruce H Kaplan, Roland Conde, Mary Conde, Melyssa Conde, Roland Conde Jr

On July 13, 2009 a Motion-Secondary was filed involving a dispute between American Home Mortgage, Deutsche Bank National Trust Company As Trustee For American Home Mortgage Asset Trust 2006-5, and Bruce H Kaplan, Mary Conde, Melyssa Conde, Roland Conde, Roland Conde Jr, for Real Property - Mortgage Foreclosure - Residential in the District Court of Suffolk County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
-----------------------------------------------------------------------X
:
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR AMERICAN HOME MORTGAGE
ASSET TRUST 2006-5, :
: Index No. 11319/2008
Plaintiff, :
:
- against – :
:
BRUCE H. KAPLAN, et al. :
:
:
Defendant :
:
-----------------------------------------------------------------------X

REPLY BRIEF OF DEFENDANT IN SUPPORT OF ORDER TO SHOW CAUSE
SEEKING STAY PENDING APPEALS

BRUCE H. KAPLAN, ESQ.
Defendant Pro Se
434 Hoffman Lane
Hauppauge, New York 11788
(212) 639-9000
brucehkaplan@gmail.com

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TABLE OF CONTENTS

INTRODUCTION..........................................................................................................................1

STATEMENT OF FACTS ............................................................................................................2

ARGUMENT ....................................................................................................................................

I. PLAINTIFF’S FAILURE TO ADDRESS ARGUMENTS PROFFERED BY
DEFENDANT IS EQUIVALENT TO A CONCESSION OF THE ISSUES …………..1

A. The Entry of Judgment Dismissing the Complaint Deprived the Court of Jurisdiction
of This Abandoned Action…………………………………………………………..2

B. A Determination of A Court From Which No Appeal Has Been Taken Remains
Inviolate ………………………………………………………………..…..……......3

C. Justice Asher Lacked Authority to Sua Sponte Vacate His Own Order …………….3

D. Plaintiff Failed To Address Point IV of Defendant’s Memo………………………...4

E. Plaintiff Failed To Address Point V of Defendant’s Memo…………………………4

F. Plaintiff Failed To Address Point VI of Defendant’s Memo………………………..5

G. Plaintiff Failed To Address Point VII of Defendant’s Memo ……………………….5

II. THE FINAL ORDER OF DISMISSAL DATED JANUARY 6, 2015 IS “THE LAW OF
THE CASE” AND IS NOT TO BE RECONSIDERED ……………………………......5

III. DEFENDANT HAS NEVER CONTENDED THAT AHMSI WAS REQUIRED TO
SEEK A DEFAULT JUDGMENT AFTER SUMMARY JUDGMENT WAS
AWARDED HEREIN. HOWEVER, AHMSI WAS REQUIRED TO PROCEED TO
CAUSE THE TIMELY ENTRY OF A FORECLOSURE JUDGMENT, WHICH IT DID
NOT DO, RESULTING IN THE PROPER DISMISSAL OF THIS CASE)……………6

IV. DEFENDANT DID NOT RAISE DEFENSES, SET-OFFS, OR COUNTER-CLAIMS
.........................................................................................................................................10

A. The Court Must Disregard Plaintiff’s Inapplicable Boilerplate Arguments………..10

B. Each Parcel of Real Property is Unique and its Loss Cannot Be Compensated by
Money Damages Alone…………………………………………………………..11

CONCLUSION…..………………………………………...………………..……………….....12

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TABLE OF AUTHORITIES

CASES

Alba v Kaufmann, 27 AD3d 816, 818 (3d Dept 2006) ..................................................................... 12
Da Silva v Musso, 76 NY2d 436, 443, n 4 (1990). ........................................................................... 12
EdCia Corp. v. McCormack, 44 A.D.3d 991, 994 (2d Dept 2007) .................................................. 11
Fonfa v Fonfa, 54 AD2d 569 (2d Dept 1976), ................................................................................... 2
Herpe v Herpe, 225 N.Y. 323, 122 N.E. 204) .................................................................................... 4
In re Huie, 20 NY2d 568, 570 (1967) ........................................................................................... 3, 12
James v. Powell, 19 N.Y.2d 249, 255, 225 N.E.2d 741, 744, 279 N.Y.S.2d 10, 14 (1967) ............... 8
Jones v. Corley, 35 AD3d 381, 825 N.Y.S.2d 534 (2d Dept 2006).................................................... 8
Maqueda v Town of Islip, 2018 NY Slip Op 30749[U], *4 [Sup Ct, Suffolk County 2018] ............. 1
McNamee Constr. Corp. v City of New Rochelle, 29 AD3d 544, 545 (2d Dept 2006) .................. 1, 3
Merola v. Bell, 47 N.Y.2d 985, 393 N.E.2d 1038, 419 N.Y.S.2d 965 (1979) .................................. 13
Neos v. Lacey, 291 A.D.2d 434, 435 (2d Dept 2002) ....................................................................... 11
Osamwonyi v. Grigorian, 220 AD2d 400, 401 (2d Dept 1995) ......................................................... 4
Pisciotta v. Lifestyle Designs, Inc., 62 AD3d 850, 852 (2d Dept 2009) ............................................. 8
Polizotti v Polizotti, 305 NY 176 (1953) .................................................................................. 2, 3, 12
US Bank N.A. v Konstantinovic, 147 AD3d 1002, 1003-1004 (2d Dept 2017) .................................. 8
White v Farrell, 20 NY3d 487, 503-504 (2013) ............................................................................... 11

STATUTES

CPLR §2201.................................................................................................................................. 1, 12
CPLR §3213...................................................................................................................................... 10
CPLR §3215........................................................................................................................................ 7
CPLR §3216........................................................................................................................................ 7
CPLR §3404........................................................................................................................................ 7
CPLR §5519........................................................................................................................................ 1
CPLR §6313........................................................................................................................................ 1

OTHER AUTHORITIES

Weinstein-Korn-Miller, NY Civ Prac, par 3215.02 ............................................................................ 7

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INTRODUCTION

This reply memorandum of law is filed in further support of Defendant’s motion

which requests an injunction pending determination of this motion pursuant to CPLR §6313 and a

stay pursuant to CPLR §5519(c) and/or CPLR §2201 staying this action pending the determination

of Defendants’ sub judice appeals, and in reply to Plaintiff, American Home Mortgage Servicing,

Inc. (“AHMSI”)’s Affirmation in Opposition [Doc. 185] (“Plaintiff’s Aff.”).

As detailed in Defendant’s memorandum in support [Doc. 182] and below, it is

clear that Defendant’s appeals have merit and are not frivolous. Accordingly, a stay of this action

would ensure that further judicial resources would not be wasted. Furthermore, Plaintiff is not

prejudiced by a stay of the action, under which its right to prosecute same was terminated some

eight years ago. Thus, the balancing of the equities requires the grant of a TRO pending

determination of this motion and a stay of this action without an undertaking, and to ensure that

further judicial resources would not be wasted.

ARGUMENT

POINT I PLAINTIFF’S FAILURE TO ADDRESS ARGUMENTS
PROFFERED BY DEFENDANT IS EQUIVALENT TO A
CONCESSION OF THE ISSUES.

The Second Department has held that the failure to address arguments proffered by

an appellant is the equivalent to a concession. McNamee Constr. Corp. v City of New Rochelle,

29 AD3d 544, 545 (2d Dept 2006). Similarly, Justice Pitts of this Court, in Maqueda v Town of

Islip, 2018 NY Slip Op 30749[U], *4 [Sup Ct, Suffolk County 2018] stated:

New York Courts have held that the failure to address arguments
proffered by a movant or Defendant is equivalent to a concession of
the issue (see McNamee Constr. Corp. v City of New Rochelle, 29
AD3d 544, 817 NYS2d 295 [2d Dept 2006]; Weldon v Rivera, 301
AD2d 934, 754 NYS2d 698 (3d Dept 2003]; Hajderlli v Wiljohn 59

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LLC, 24 Misc 3d 1242[A], 901 N.Y.S.2d 899, 2009 NY Slip Op
51849[U] [Sup Ct, Bronx County 2009]).

Thus, Plaintiff has conceded the following points:

A. The Entry of Judgment Dismissing the Complaint Deprived the Court
of Jurisdiction of This Abandoned Action.

Significantly, Plaintiff failed to respond to Defendant’s reference to Polizotti v

Polizotti, 305 NY 176 (1953), wherein the Court of Appeals held that the entry of a judgment

dismissing the complaint deprived the lower court of jurisdiction of the subsequent motion made

by the plaintiff to punish the defendant for civil contempt. Similarly, in Fonfa v Fonfa, 54 AD2d

569 (2d Dept 1976), the Second Department stated:

Once having been abandoned, the action could not be revived to
support the entry of judgment. (Carbulon v Carbulon, 293 NY 375;
Polizotti v Polizotti, 305 NY 176; Ariel v Ariel, 6 AD2d 774;
Wheelock v Wheelock, 3 AD2d 25, affd 4 NY2d 706).

This foreclosure action, was dismissed as abandoned over eight years ago by Justice

Asher’s final Order of Dismissal dated January 6, 2015, entered January 8, 2015 (“1st Dismissal

Order”) (Kaplan Aff. Ex. B)[, which granted Defendant’s unopposed Motion to Dismiss submitted

July 15, 2014 [Doc. 6, Ex. 3, pdf pp. 11-26]. The 1st Dismissal Order unambiguously provides as

follows:

By order granted July 19, 2010 the Court order, inter alia, that the
defendant's answer be stricken and this action be referred to Kenneth
C. Butterfield, Esq. As referee to compute the amount due plaintiff,
and that he report whether the mortgaged premises could be sold in
one parcel, and, "that the referee make his/her report to the Court
with all convenient speed . . . "

Thereafter[following grant of July 19, 2010 Order of Reference],
plaintiff failed to take proceedings for the drafting and filing of the
Referee’s Report within one year after the entry of the order of
reference, proof of entry of which has been provided. Accordingly,
pursuant to CPLR 3215 (b)(c), the complaint is dismissed as
abandoned.

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(Emphasis added).

Moreover, here, the 2010 Order of Reference was not served until June 25, 2019

[Doc. 29] some nine years after its entry. Plaintiff’s failure to timely file the required Notice of

Entry is further evidence of its intent to abandon the case.

Thus, once having been abandoned, this action could not be revived to support the

entry of any subsequent orders, including, but not limited to, the November 22, 2021 Order and

the Judgment of Foreclosure. Plaintiff’s failure to address the issue of the court’s lack of

jurisdiction to enter further orders subsequent to dismissal as set forth in Polizotti is an

acknowledgment of said ruling’s correctness. McNamee Constr., 29 AD3d 544. Plaintiff’s failure

to seek to clarify, distinguish or limit the relevance of Polizotti from the case at bar was not an

oversight, but rather a testament to counsel’s awareness that it is effectively stare decisis.

B. A Determination of A Court From Which No Appeal Has Been Taken
Remains Inviolate.

Notice of Entry of the 1st Dismissal Order was served [Doc. 6, Ex. 4, pdf pp. 27-

32; Doc. 1 Seq. #36-37]. No appeal of said 1st Dismissal Order was taken, timely or otherwise.

“Absent the sort of circumstances set forth in CPLR §5015, such as newly discovered evidence,

fraud, lack of jurisdiction, etc., none of which were or are present, a determination of a court from

which no appeal has been taken remains inviolate.” In re Huie, 20 NY2d 568, 570 (1967)(citations

omitted). Plaintiff’s failure to address In re Huie is yet another concession.

C. Justice Asher Lacked Authority to Sua Sponte Vacate His Own Order.

Plaintiff failed to address Point III of Defendant’s Memo, Justice Asher Lacked

Authority to Sua Sponte Vacate His Own Order.”

The Second Department has repeatedly held that a lower court lacks the authority

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to vacate its own order sua sponte. Osamwonyi v. Grigorian, 220 AD2d 400, 401 (2d Dept

1995)(“It is well settled that a trial court has no revisory or appellate jurisdiction to vacate, sua

sponte, its own judgment (see, CPLR 5019 [a]; Herpe v Herpe, 225 N.Y. 323, 122 N.E. 204)”. To

avoid duplication, the Court is respectfully referred to Defendant’s Brief, Point III - and the cases

cited therein.

Here, the 1st Dismissal Order, granted without opposition, was purportedly

superseded by the 2nd Dismissal Order, issued without a motion, hearing or new evidence, and

which failed to reference the 1st Dismissal Order, and was purportedly vacated by the sua sponte

3rd Dismissal Order without explanation and in excess of the Court’s authority. Justice Asher’s

silence regarding ambiguity, mistake, and/or inadvertence which he was supposedly correcting in

the latter orders speaks volumes.

D. Plaintiff Failed to Address Point IV of Defendant’s Memo.

Plaintiff failed to address Point IV of Defendant’s Memo, which is :

AS ACKNOWLEDGED BY THE 2nd APRIL 19, 2019 ORDER,
CPLR §5019 LIMITS A COURT’S AUTHORITY TO CORRECT
MISTAKES, DEFECTS AND IRREGULARITIES TO
CIRCUMSTANCES THAT DO NOT ENCROACH UPON OR
ALTER SUBSTANTIAL RIGHTS OF THE PARTIES.
BECAUSE THE 2nd AND 3rd DISMISSAL ORDERS CLEARLY
AFFECTED A SUBSTANTIAL RIGHT OF DEFENDANT, THEY
ARE INVALID.

To avoid duplication, the Court is respectfully referred to Defendant’s Brief, Point

IV and the cases cited therein.

E. Plaintiff Failed to Address Point V of Defendant’s Memo.

Plaintiff failed to address Point V of Defendant’s Memo, which is :

DEFENDANT’S RIGHT TO BE FREE OF A STALE CLAIM AS
AFFORDED UNDER THE STATUTE OF LIMITATIONS OF
CPLR §213 AS INCORPORATED IN RPAPL §1501(4) IS

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SUBSTANTIAL.

To avoid duplication, the Court is respectfully referred to Defendant’s Brief, Point

V and the cases cited therein.

F. Plaintiff Failed to Address Point VI of Defendant’s Memo.

Plaintiff failed to address Point VI of Defendant’s Memo, which is :

THE 1ST DISMISSAL ORDER WAS ISSUED IN CONNECTION
WITH DEFENDANT’S 2014 MOTION TO DISMISS. IN THAT
THERE WERE NO FURTHER PROCEEDINGS PRIOR TO THE
REVERSAL OF THE 1ST DISMISSAL ORDER BY THE
ISSUANCE OF THE 2ND DISMISSAL ORDER, DEFENDANT
WAS NOT AFFORDED DUE PROCESS.

To avoid duplication, the Court is respectfully referred to Defendant’s Brief, Point

VI - and the cases cited therein.

G. Plaintiff Failed to Address Point VII of Defendant’s Memo.

Plaintiff failed to address Point VIi of Defendant’s Memo, which is :

JUSTICE ASHER ERRED IN OVERLOOKING THE FACT OF
PLAINTIFF’S NOT LESS THAN FOUR YEARS OF
INACTIVITY COMPELLED DISMISSAL UNDER CPLR
§3215(c).

To avoid duplication, the Court is respectfully referred to Defendant’s Brief, Point

VII - and the cases cited therein.

POINT II THE FINAL ORDER OF DISMISSAL DATED JANUARY 6, 2015 IS
“THE LAW OF THE CASE” AND IS NOT TO BE RECONSIDERED.

Plaintiff’s Affirmation provides at Point I that, “I. Any Challenge to the Court’s

Vacatur of the Dismissal of This Action is Barred by the Law of the Case.” Plaintiff cannot ignore

the 1st Dismissal Order and claim that the “Law of the Case” only starts with the 3rd Dismissal

Order. Indeed, Plaintiff’ Affirmation paragraph 17 provides as follows:

17. By Short Form Order dated January 6, 2015, the Court

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dismissed the instant action for Plaintiff’s failure to proceed. See
NYSCEF Doc. No. 20.

Thus, the “law of the case” is that the final 1st Dismissal Order dated January 6,

2015, entered January 8, 2015 [Doc. 20] unambiguously dismissed this case. Once the issue of

Plaintiff’s failure to take proceedings for the drafting and filing of the Referee’s Report within one

year after the entry of the 2010 Order of Reference was judicially determined by the 1st Dismissal

Order, it was not to be reconsidered. Moreover, Plaintiff did not oppose Defendant’s motion to

dismiss.

The 1st Dismissal order was issued on January 6, 2015 and it was filed in the Suffolk

County Clerk’s Office on January 8, 2015 [Doc. 1, Seq. #26; Doc. 6, Ex. 3, pdf pp. 30], along with

the Defendant’s unopposed motion papers as follows:

26 1/8/2015 SHORT FORM ORDER OF DISMISSAL
27 1/8/2015 ORDER UNSIGNED [Defendant’s Proposed Order]
28 1/8/2015 NOTICE OF MOTION
29 1/8/2015 SUPPORTING PAPERS

Thus, to paraphrase Plaintiff’s Affirmation ¶39:

39. Here, the law of the case doctrine applies because [Plaintiff]
seeks to again re-litigate whether the action is dismissed after
[Plaintiff] was provided a full and fair opportunity to address these
issues.

Accordingly, the Law of the Case is that it was dismissed by the 1st Dismissal

Order.

POINT III DEFENDANT HAS NEVER CONTENDED THAT AHMSI WAS
REQUIRED TO SEEK A DEFAULT JUDGMENT AFTER
SUMMARY JUDGMENT WAS AWARDED HEREIN. HOWEVER,
AHMSI WAS REQUIRED TO PROCEED TO CAUSE THE TIMELY
ENTRY OF A FORECLOSURE JUDGMENT, WHICH IT DID NOT
DO, RESULTING IN THE PROPER DISMISSAL OF THIS CASE.

Point (II) of Plaintiff’s Affirmation is that “CPLR §§3215(c) is Inapplicable to the

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Instant Action”, as “Defendant cannot and does not cite any case law suggesting that a plaintiff

who obtains summary judgment against a party must also seek a default judgment against that

same party.” (Plaintiff Aff. ¶49).

Nowhere within Defendant’s submissions has it ever been argued that Plaintiff was

required to “move for a default judgment after the plaintiff has successfully moved for summary

judgment.” That facetious argument is entirely made-up and then knocked-down by Plaintiff, who

apparently could pound neither the facts nor the law, nor the table, and thus created a supposed

contention out of whole cloth to seemingly win a never-made [non]argument, and to very

purposefully obfuscate the real argument.

The Motion to Dismiss herein [Doc. 3, Ex. 3, pdf pp.11-26] was brought pursuant

to CPLR §3215 under which a motion to dismiss for failure to proceed may be brought, “if the

plaintiff has failed to proceed to trial of an action . . . the defendant may make application”. CPLR

3215(a)(emphasis added). Weinstein-Korn-Miller, NY Civ Prac, par 3215.02 states in relevant

part as follows:

Indeed, “[t]he language in the first sentence of subdivision [3215](a)
is intended to extend its scope to other failures to proceed for which
the court may order a default. . . .” (Emphasis added).

Thus, the relevance of CPLR §3215 is that it is the applicable statute to seek

dismissal when issue has not been joined1, which, in effect was the circumstance after Defendant’s

answer was stricken by the order awarding summary judgment and striking the answer dated July

1
Other than CPLR 3404, which was included in the Motion to Dismiss, the only other
provision applicable to dismissal for failure to prosecute is CPLR 3216, which only addresses
cases in which issue has been joined, a circumstance which no longer existed after Defendant’s
Answer was stricken. Thus, under Plaintiff’s’ view, no provision of the CPLR was available to
Defendant (or any defendant) to move to dismiss after AHMSI’s four-year failure to proceed to
judgment, and such nonactive prejudgment case may endure, pun intended, until Judgment Day.

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19, 2010. [Doc. 19].

In James v. Powell, 19 N.Y.2d 249, 255, 225 N.E.2d 741, 744, 279 N.Y.S.2d 10,

14 (1967) the defendants failed to appear for court-ordered depositions which resulted in the

striking of their answers pursuant to CPLR 3126, and subsequently the trial court awarded damages

and entered judgment against them by inquest. The Court stated in relevant part that judgment had

been entered after “in effect, a default by the defendants.” 19 N.Y.2d at 256; fn 3.

In Jones v. Corley, 35 AD3d 381, 825 N.Y.S.2d 534 (2d Dept 2006), defendant’

answer had been stricken, and defendant subsequently move to dismiss pursuant to CPLR 3215.

The Second Department stated:

Entry of an order pursuant to CPLR 3126 striking an answer is the
equivalent of a default in answering, and a plaintiff's right to
recover upon a defendant's default in answering is governed by
CPLR 3215 (see Rokina Opt. Co. v Camera King, 63 NY2d 728,
730, 469 NE2d 518, 480 NYS2d 197 [1984]; Reynolds Sec. v
Underwriters Bank & Trust Co., 44 NY2d 568, 378 NE2d 106, 406
NYS2d 743 [1978]; Fappiano v City of New York, 5 AD3d 627, 774
NYS2d 773 [2004]). We agree with the defendants that this
encompasses the concomitant obligation under CPLR 3215 to
take proceedings for the entry of judgment within one year after
the default. The plaintiffs failed to do so. Further, the plaintiffs did
not argue or demonstrate that sufficient cause existed to deny
dismissal of the complaint (see Iorizzo v Mattikow, 25 AD3d 762,
807 NYS2d 663 [2006]), or that the defendants otherwise waived
the right to seek such relief (see Myers v Slutsky, 139 AD2d 709,
527 NYS2d 464 [1988]). Contrary to the plaintiffs' contention,
service of a 90-day notice pursuant to CPLR 3216 is not a
prerequisite to relief pursuant to CPLR 3215. Thus, the defendants'
motion should have been granted.

Jones v. Corley, 35 AD3d 381, 381-382 (Emphasis added). See also, US Bank N.A.

v Konstantinovic, 147 AD3d 1002, 1003-1004 (2d Dept 2017); Pisciotta v. Lifestyle Designs, Inc.,

62 AD3d 850, 852 (2d Dept 2009)(The entry of an order striking an answer is the functional

equivalent to defendant having defaulted in appearing or answering).

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Thus, both the Court of Appeals and the Second Department have ruled that the

striking of an answer is the equivalent of a default, making CPLR §3125 the applicable statute

here. Hence, the 1st Dismissal Order was correctly granted under CPLR §3215(c), finding that

Respondent failed to take proceedings for the drafting and filing of the Referee’s Report within

one year after the entry of the order of reference, here by August 26, 2011 [Doc 19].

Nowhere in said cases, nor anywhere within Defendant’s papers herein is it argued

that a plaintiff granted summary judgment, here AHMSI, was subsequently required to again move

for a default judgment. CPLR 3215(c) provides that the Court “shall dismiss the complaint as

abandoned” “if the plaintiff fails to take proceedings for the entry of judgment within one year

after default.” (Emphasis added).

What AHMSI was required to do was to take proceedings for the filing of the

Referee’s Report and resulting foreclosure judgment within one year after the entry of the

Summary Judgment Order dated July 19, 2010; here, by August 26, 2011. It did not do so, and it

is that failure to proceed so as cause the entry of a foreclosure judgment (mention of which is

noticeably absent from Plaintiff’s Affirmation), not the failure to move for a default judgment, that

caused §3215(c) to be applicable. Indeed, as the 1st Dismissal Order dated January 6, 2015 [Doc.

20] makes clear:

Thereafter, plaintiff failed to take proceedings for the drafting and
filing of the Referee’s Report within one year after the entry of the
order of reference, proof of entry of which has been provided.
Accordingly, pursuant to CPLR 3215 (b)(c) the complaint is
dismissed as abandoned. (Emphasis added).

In any event, Defendant has never argued that Plaintiff was required to “move for

a default judgment after the plaintiff has successfully moved for summary judgment.”

Accordingly, since such argument has never been advocated, and the final 1st Dismissal Order

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dated January 6, 2015, entered January 8, 2015 [Doc. 20] was properly made based upon Plaintiff’s

failure to proceed therein, this Court should consider that said order properly dismissed the

complaint pursuant to CPLR § 3215(c) as abandoned, and thus the subsequent 2nd Dismissal Order

dated August 5, 2015 [Doc. 21] and 3rd Dismissal Order dated August 27, 2015 [Doc. 22] are

nullities which should be disregarded by this Court.

POINT IV DEFENDANT DID NOT RAISE DEFENSES, SET-OFFS, OR
COUNTER-CLAIMS.

A. The Court Must Disregard Plaintiff’s Inapplicable Boilerplate Arguments.

Plaintiff’s third point is that “Defendant is Precluded From Raising Defenses, Set-

Offs, or Counter-Claims Pursuant to the Terms of the CEMA.”) Plaintiff’s Aff., pp. 9-10. A review

of Defendant’s Answer [Doc. 17] demonstrates that Defendant did not assert affirmative defenses,

set-offs or counterclaims, and just asserted denials and DKI’s. Moreover, counsel’s belief in the

broadness of the CEMA language is unreasonable, as if he is right, lenders would only need to

move for summary judgment in lieu of complaint under CPLR §3213, which they would then be

granted 100% of the time. As in the “requirement for a default judgment after summary judgment”

point discussed above, this facetious argument is entirely made-up and then knocked-down by

Plaintiff to seemingly win a never-made [non]argument, and to very purposefully obfuscate the

real argument.

Further, within Point III, Plaintiff’s argument continues with sub-point B, without

a sub-point A, and counsel appears to be litigating a different case by including the following

paragraphs from another action:

57. Here, Defendant’s argument is couched by hypothetical
statements, such as “the following events will most likely occur”
and “should the Plaintiff succeed in selling”. However, pursuant to
the standard of this Court, speculating that certain events might
happen in the remote future does not equal imminent harm.

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58 Defendant does not know for certain that there will be a
successful sale at all, let alone a third-party purchaser, or transfers
of interest, or eviction proceedings. This is entirely speculation and
the same cannot be a basis for irreparable harm.

Defendant did not make the foregoing claims in either his affidavit or memo. See

also: ¶64 “Defendant benefitted from the receipt of a large sum of money with which she purchased

her home.” (Emphasis added). The Court should disregard such inapplicable boilerplate

arguments from another case.

B. Each Parcel of Real Property is Unique and its Loss Cannot Be
Compensated by Money Damages Alone.

At ¶59 Plaintiff cites EdCia Corp. v. McCormack, 44 A.D.3d 991, 994 (2d Dept

2007) (Economic loss, which is compensable by money damages, does not constitute irreparable

harm.”) EdCia involved a motion for a preliminary injunction enjoining the defendants from

interfering with the operation of its business of removing waste materials and other construction

debris from governmental projects. Also cited is Neos v. Lacey, 291 A.D.2d 434, 435 (2d Dept

2002) which concerned defendant’s appeal of a motion for a preliminary injunction enjoining them

from competing with the plaintiff's business within New York City. Neither case dealt with real

property.

In White v Farrell, 20 NY3d 487, 503-504 (2013), the Court of Appeals discussed

the unique character of real estate transactions as follows:

But real property, unlike window panels, is not fungible. While there
are usually extensive and active markets for fungible goods, thereby
making it relatively less difficult for the seller to mitigate or cover
in the event of a breach, the sale of real estate is clearly different
because each parcel is unique (see Alba v Kaufmann, 27 AD3d 816,
818, 810 NYS2d 539 [3d Dept 2006]; EMF Gen. Contr. Corp. v
Bisbee, 6 AD3d 45, 774 NYS2d 39 [1st Dept 2004], lv denied 3
NY3d 607, 818 NE2d 667, 785 NYS2d 25 [2004])

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In Alba v Kaufmann, 27 AD3d 816, 818 (3d Dept 2006), the Third Department

stated:

As to the remedy plaintiffs seek, the case law reveals that "the
equitable remedy of specific performance is routinely awarded in
contract actions involving real property, on the premise that each
parcel of real property is unique" (EMF Gen. Contr. Corp. v Bisbee,
supra at 52).

Similarly here. the parcel of real property here is unique, and money damages alone

would not compensate Defendant for the loss of this unique parcel. Accordingly, irreparable harm

would result from its foreclosure sale (likely at a below market price).

CONCLUSION

". . .[T]he court considering the stay application [under CPLR 5519(c)] may

consider the merits of the appeal"; Da Silva v Musso, 76 NY2d 436, 443, n 4 (1990). In that the 1st

Dismissal Order unambiguously dismissed this case, respectfully, this Court, in its consideration

of the merits of the appeal, should uphold the validity of the 1st Dismissal Order and stay this action

pursuant to CPLR §5519(c) and/or §2201 pending the appeals.

Because the unambiguous, non-appealed, 1st Dismissal Order dismissed the

complaint, all subsequent orders are nullities. Polizotti v Polizotti, 305 NY 176 (1953)(Entry of

judgment dismissing complaint deprived court of jurisdiction for subsequent contempt motion.)

“Absent the sort of circumstances set forth in CPLR §5015, such as newly discovered evidence,

fraud, lack of jurisdiction, etc., none of which were or are present, a determination of a court from

which no appeal has been taken remains inviolate.” In re Huie, 20 NY2d 568, 570 (1967)(citations

omitted). Plaintiff reasonably anticipates that the Appellate Division’s ultimate decision will be its

adherence to the rule of law.

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Further, as a general matter, the party seeking a stay must establish that it is

necessary to prevent some serious harm, injustice, prejudice, loss, etc. Merola v. Bell, 47 N.Y.2d

985, 393 N.E.2d 1038, 419 N.Y.S.2d 965 (1979). Allowing a foreclosure sale to proceed based

upon invalid orders granted without due process and in violation of Court of Appeals’ precedents

would only further compound injustice and prejudice.

The foregoing arguments and circumstances demonstrate that the balancing of the

equities requires the grant of a TRO pending determination of this motion and a stay of this action

without an undertaking, and to ensure that further judicial resources would not be wasted.

Moreover, Plaintiff is not prejudiced by a stay of the action, under which its right to prosecute

same was terminated some eight years ago.

Lastly, the First and Second Appeals were perfected three and a half years ago on

August 6, 2019, and such attenuation is not due to Defendant’s delay. Accordingly, a pause of this

action to accommodate the Second Department’s overcrowded docket is not prejudicial to

Plaintiff, whereas a sale of Defendant’s property in violation of due process during the elongated

wait to be put on the calendar would be highly prejudicial to Defendant, and thus a stay is

warranted, together with such other and further relief as the court deems proper.

Dated: February 25, 2023
Yours, etc.

By:
Bruce H. Kaplan, Esq.
Defendant Pro Se
434 Hoffman Lane
Hauppauge, New York 11788
(212) 639-9000
brucehkaplan@gmail.com

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NYSCEF DOC. NO. 187 RECEIVED NYSCEF: 02/25/2023

CERTIFICATION OF WORD COUNT PURSUANT TO THE
UNIFORM CIVIL RULES FOR THE SUPREME COURT RULE 202.8-b

The foregoing affidavit in support of motion was prepared on a computer using Microsoft Word.
The total number of words in this memorandum of law, inclusive of point headings and footnotes,
and exclusive of the caption, table of contents, table of authorities, signature block and this
certification of word count is 3917.

Dated: February 25, 2023

Bruce H. Kaplan, Esq.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
----------------------------------------------------------------------------X
Index No.: 11319/2008
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR AMERICAN HOME MORTGAGE
ASSET TRUST 2006-5,

Plaintiff,
-against-

BRUCE H. KAPLAN; ROLAND CONDE; MARY CONDE;
MELYSSA CONDE; ROLAND CONDE, JR.,

Defendants.
----------------------------------------------------------------------------X

BRUCE H. KAPLAN, ESQ.
Defendant Pro Se
434 Hoffman Lane
Hauppauge, New York 11788
(212) 639-9000
(877) 700-0323 (fax)
brucehkaplan@gmail.com

REPLY MEMORANDUM OF LAW

This certification, pursuant to 22 N.Y.C.RR. Part 130-1.1a, applies to the following papers
contained within this back:

1. Reply Memorandum of Law in Support
2.

Dated: February 25, 2023 Signature:

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Bruce H. Kaplan, Esq.

19 of 19

Case Info

Judge

Robert F Quinlan Track Judge’s New Case

Case No.

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Document Filed Date

February 25, 2023

Case Filing Date

July 13, 2009

County

Parties

AMERICAN HOME MORTGAGE Plaintiff
BORISKIN, SARA Z. Attorney for the Plaintiff
Bruce H Kaplan Defendant
DEUTSCHE BANK NATIONAL TRUST COMPANY AS TRUSTEE FOR AMERICAN HOME MORTGAGE ASSET TRUST 2006-5 Plaintiff
KAPLAN, BRUCE H Attorney for the Defendant
KAPLAN, BRUCE H Attorney for the Defendants
KAPLAN, BRUCE HOWARD Attorney for the Defendant
Mary Conde Defendant
Melyssa Conde Defendant
Roland Conde Defendant
Roland Conde JR Defendant
JAMES PASCARELLA Attorney
HILA KAPLAN Attorney
BRANDON WRAZEN Attorney
SAMANTHA SANDLER Attorney
WARREN CLARK Attorney
BRUCE HEST Attorney
KENNETH CHAN Attorney
CYNTHIA MALONE Attorney
HYMAN KAPLAN Attorney
ROBERT KAHAN Attorney
KENNETH BUTTERFIELD Attorney
HARRY KAPLAN Attorney
HANS AUGUSTIN Attorneys for Plaintiffs
KENNETH CHOI Attorney
RICHARD KOMOSINSKI Attorneys for Plaintiffs

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Motion-Secondary: Deutsche Bank National Trust Company As Trustee For American Home Mortgage Asset Trust 2006-5 v. Bruce H Kaplan, Roland Conde, Mary Conde, Melyssa Conde, Roland Conde Jr

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