Preview
FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688
NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021
SUPREME COURT - STATE OF NEW YORK
COUNTY OF MONTGOMERY
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR NOVASTAR MORTGAGE
FUNDING TRUST, SERIES 2006-6 NOVASTAR
HOME EQUITY LOAN ASSET-BACKED
CERTIFICATES, SERIES 2006-6,
Plaintiffs, DECISION
-against- AND ORDER
BARBARA A. CLEMENTS, CURTISS A. CLEMENTS
A/K/A CURTISS A. CLEMEÑTS, SR. CACH LLC, .
FORD MOTOR CREDIT COMPANY LLC, CAPITAL X
ONE BANK USA NA, ST. PETERS HEALTHCARE
SERVICES,.CALVARY PORTFOLIO SERVICES LLC
AS ASSIGNEE OF CALVARY SPVI, LLC, AS ASSIGNEE
#1"
OF HSBC BANK NEVADA, NA, "JOHN DOE through us i
JOHN DOE #12,"
the last twelve names being fictitious and . m
unknown to plaintiff, the persons or parties intended being .
the tenants, occupants, persons or corporations, if any, a 5
having or claiming an interest in or lien upon the premises,
described in the ce=plaint,
Defendants.
. Montgomery County Special Term
January 22, 2016
Motion Nos. 1, 7 & 8
RJI No. 28-1-2015-0345
Index No. 2015-0688
Appearances:
. .
Greenberg Traurig, LLP (Leah N. Jacob, Esq. of counsel) for plaintiff.
Barbara A. Clements and Curtiss A. Clements, defendantsp.m g.
SISE, J.
1
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Motion by plaintiff for summary judgment (CPLR Rule 3212), default judgment
caption;l cross-
(CPLR §3215) to app:Lnt referee (RPAPL Article 13) and to amend
defcadañts2
motion by for plaintiff to post security for costs or dismissal of the action
3
(CPLR Article 85); motion by plaintiff to strike amended answer (CPLR Rule 3025).
Papers considered: .
From plaintiff: Notice of renewed s -ry judgment me±n, attorney affirmation and
exhibits; notice of motion to strike amended answer, affirmation in support and exhibits; reply
memorandum of law in further support and opposition.
From defend ants: affidavit in opposition to renewed motion and exhibits; affidavit in
support of ex parte motion to post security and exhibit; affidavit in opposition to motion to
strike answer; affidavit in epposition to plaintiff reply memorander. of law and in further
support of ex parte motion for security.
Upon these motions in this residential foreclosure action, the Court first refers to its prior
Decision and Order (signed January 10, 2018) herein and foregoes a full recitation of the lengthy
case history and underlyitig facts, which are well known to the parties and counsel and addressed
by their respective subn-w, m the interests of brevity and judicial economy, and addresses only
those facts relevant to the Court's determinations herein below.
defendants'
Considering first plaintiff's motion to strike ameñded answer pursuant to CPLR
Rule 3025, so the Court may determine which answer pertains herein, defeñdacts assert and it is
clear to the Court based on memory, that defendant Barbara Clemeñts appeared before this Court at
a prior date, not recorded by the Court's notes or stated now by the defendants, and indicated her
. .
intention to move to amend her complaint, which leave to so move the Court granted. Thereafter,
1
A reñcwed motion after the Court's prior Decision and Order dated January 10, 2018 denied
plaintiff's prior motion for summary judgment default judgment and amendment of caption without
prejudice.
2
Ex parte.
3 defendants'
Although supporting affidavit makes no address of dismissal/costs thereof therein.
2
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Ms. Clements had further telephone contacts with this Court's law clerk regarding the procedure to
defendants'
amend the answer, and was advised same should be done pursuant to CPLR Rule
3025(b), by a motion on notice. During such contacts Ms. Clements asserted to the Court's law clerk
that such motion had already been made and granted by the Court verbally on the floor of the
courtroom on such prior date, which the Court's law clerk noted was inconsistent ivith the
requirements of CPLR Rule 3025(b), particularly not being in writing, on prior notice or providing
a copy of the proposed amended answer (see, CPLR Rule 3025[b]). Nonetheless, Ms. Clements
insisted fo the Court's law clerk that such motion had already been made and granted.
clerk,4
Thereafter, by letter dated July 5, 2018 to the Court's law Ms. Clements stated further:
If you recall, the court on several occasions has granted us the right
to amend our answer in the 2015 case. We are in the process of so
amending our answer, and would have done so earlier but we were
. waiting for the court's decision and order in the 2013 case.
We intend to serve and file our amended answer and believe that the
plaintiff will need some time to address the amended answer and
. refile its motion for judgment based upon our amended
summary
answer, This being the case, we respectfully request that the court
grant us until July 31, 2018 to serve and file our amended answer, and
then grant whatever time the plaintiff needs to file-and serve its
renewed motion for summary judgment based upon our amended
answer. (The amended answer will not include the racketeering
counterclaim.)
Please advise further at your earliest possible convenience.
ordered"
Such letter was "so by the Court and a copy e-mailed to Ms. Clements on July 16, 2018 and
2018.5
the original thereof filed by the Court at the Montgomery County Clerk's Office on July 18,
.
4
Notably, also copied to plaintiff's counsel.
5
Based thereon, it is now clear to the Court how, at that point, the defendants perceived such
amendment had, in fact, been granted by the Court and they only needed to file and serve their
amended answer herein.
3
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Counterclaim6
Thereafter, a Stipulation to Discontinue dated July 23, 2018was executed by .
counterclaim7
the parties (copy received by the Court on July 25, 2018) , disenntinuing the subject
defendants'
which constituted the asserted basis for the desire to amend their answer.
Believing such discontinuance had obviated the purpose of and asserted need for defendants
to amend their answer, the Court heard nothing further thereon until further inquiry and contact with
Ms. Clements on October 29, 2018 disclosed to the Court that the defendants had subsequently
executed a Verified Amended Answer with Counterclaim dated July 29, 2018 and served same on
plaintiff's counsel by mail, and the plaintiff had responded thereto by a Verified Reply to
Counterclaim dated August 10, 2018, duly served on the defendants. Thus, it is clear that the
defendants'
plaintiff, by its counsel, not only did not reject or object timely to amended answer or
with· reply.8
reject same timely but, also, upon acceptance thereof simply responded thereto a
Furthermore, the Court notes that such amended answer and reply thereto occurred well after the
(May 16, 2018) initial filing of plaintiff's present renewed motion for summary judgment herein
defendants'
which addresses original answer, and that plaintiff's present motion to strike such
2018.9
amended answer was not filed until December 7,
. Therefore, despite argument in such motion by plaintiff's counsel that CPLR Rule 3025(b)
6 defendants'
Regarding the second/RICO counterclaim in the original answer.
7
That is, the racketeering/RICO counterclaim cited by Ms. Clements in her letter.
8
Moreover, the Court discerns nothing in such reply of the plaintiff which addresses any
defendants'
insufficiency of answer or the counterclaim contained therein.
9
Nearly four (4) months after the plaintiff's reply.
4
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violatedl°
was thereby and the plaintiff did not consent to tlie filing and service of such amended
answer, this Court finds in its discretion that, under such facts and by its reply thereto, the plaintiff
accepted such amended answer of the defendants, waived its right to object to or reject same, and
based thereon, its present motion to strike same thereafter is, therefore, untimely and misplaced (see,
e.g., Dime Say. Bank of N.Y.. FSB v. Halo, 210 AD2d 572, 573 [3d Dept 1994]; Nassau County V.
Incorporated Vil. of Roslyn, 182 AD2d 678, 679 [2d Dept 1992]). Moreover, under the underlying
express premises of CPLR Rule 3025(b), that a motion for leave to amend a pleading may be made
time" given"
"at any and"shall be freely (see, CPLR Rule 3025[b]), plaintiff counsel's argument that
the plaintiff would be severely prejudiced by allowing the amended answer is also misplaced (citing
Pagan v. Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]). First, such case is distingnishable as, under
Pagan, the issue was unexcused lateness causing prejudice due to new and expanded medical
malpractice allegations and diminished recollections over time; here, however, plaintiff counsel only
argues an unspecified effect of such amended answer on its present/prior renewed motion for
defendants' answer.11
summary judgment, which is based on initial Second, such peñdiñg motion
filed'2
to dismiss was more than two (2) months before such amended answer was executed;
moreover, receipt thereof and decision to accept and respond, rather than reject or object, thereto by
its reply thereafter was all done while plaintiff and its counsel were aware ofits prior pending motion
--
.
10
In that CPLR Rule 3025(a) does not apply thereto and the requirements of CPLR Rule 3025(b)
were not met.
11
By which the Court discerns that the plaintiff would need to amend and resubmit such motion
to address the amended answer - absent asserted effect on plaintiff's proof
notably, any herein;
moreover, the resulting need for the plaintiff to amend its summary judgment motion was noted
expressly, prior to such amendment and plaintiff's reply thereto, by Ms. Clements's letter dated July
5, 2019 . .
12
And later adjourned on consent for consolidation of issues, proof and appearances.
5
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thereon.13 incon nt with
and the legal affect Finally, plaintiff's present motion to strike, its prior
conduct culminating in filing and serving a reply, was not filed until almost four (4) months after its
prior acceptance of and reply to the subject amended answer.
Therefore, although it appears clear that the requisites of CPLR Rule 3025(b) were not
followed by the defêñdãñts prior to and upon filing and serving their amended answer herein, it is
equally clear that, despite plaintiff's prior pending renewed motion for summary judgment, its
counsel accepted such amended answer and replied thereto, thereby waiving objection or rejection
thereof under CPLR Rule 3025(b)- which conduct inconsistent with its
is, furthermore, entirely
present argument in its later motion to strike such amended answer, which deñ1cilstrates no actual
prejudice to plaintiff's proof herein..
Therefore, based on the foregoing, and in the discretion of this Court, plaintiff's motion to
defendants'
strike the amended answer is denied.
Turning next to plaintiff's rêñewed inotion for summary judgment, default judgmerit,
appointment of a referee in foreclosure and amendment of caption, inasmuch as summary judgmeñt -
defendants' defendants'
therein is addressed to origiñal answer herein and not later amended answer
above,14
now before the Court, as set forth herein the Court is unable to proceed with review thereof
as presented. Accordingly, and without further analysis thereof, such motion of the plaintiff is
denied based on plaintiff's failure to sustain its initial burden of proof (see, CPLR Rule 3212[b];
GTF Mktg. v. Coloñial Aluminum Sales, 66 NY2d 968, 967 [1985]), albeit without prejudice, as
13
Moreover, by its reply, the plaintiffhas opposed and preserved its rights in relation to all of the
defendants'
allegations in the counterclaims, be they the same as previously or new/different, and
restated its affirmative defenses.
14
And as plaintiff counsel acknowledges further in her argument to strike such amended answer,
as well as the Attorney Affirmation Seeking Summary Judgment.
6
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such denial is not based on review of the merits of such motion.
defendants' costsI5
Turning, lastly, to motion for the plaintiff to post security for pursuant to
CPLR Article 85, the opposition to which is presented in plaintiff counsel's memorandum of law,
the Court first addresses the argument of defendants set forth in their reply thereto that, in sum, such
unsworn memorandum of law of plaintiff's counsel is without probative value, and fails to present
sworn allegations in opposition to (unspecified) defense allegations of fact. However, it is clear
therefrom that such directed arguments are directed largely, if not entirely, at plaintiff's motion for
summaryjudgmeñt and the factual nierits thereof versus the applications of CPLR Article 85 herein.
Further, it is unclear therein, in relation to their CPLR Article 85 application seeking to require
plaintiff to post a security bond for costs what, if any, facts asserted by the defendants are claimed
to be not denied or controverted by plaintiff counsel thereby, in that the defendants fail to identify
any such facts or evidence which they assert to be unrefuted or to constitute abnissions by the
plaintiff.
defendants'
Although the Court does not disagree with argument that an unsworn
memorandum of law by an attorney, as herein, is without probative evidentiary and factual value in
[4th
opposition (citing, e.g., Byrd v. Roneker., 90 AD3d 1648, 1649 Dept]) the Court finds
nonetheless that the legal arguments presented by plaintiff's counsel therein regarding the
facts,16
applicability of CPLR Article 85 herein, arguing prior established merits consideration by
this Court as a memorandum of law.
15
Dismissal costs not being addressed therein, as aforementioned; see footnote 3, supra.
16 defendants'
That is, addressing assertions and the affidavit of prior plaintiff counsel (Massand),
absent any other or further factual assertions therein; thus, the Court decliñës to discard and disregard
plaintiff counsel's memorandum of law as defendants desire, and consider it for its intended legal
versus factual content and purpose.
. .
7
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Turning thus, to the arguments of the parties, they acknowledge that CPLR §8501(a)
provides:17
As of right. Except where the plaintiff has been granted permission
to proceed as a poor person or is the petitioner in a habeas corpus
proceeding, upon motion by the defendant without notice, the court
or a judge thereof shall order security for costs to be given by the
plaintiffs where none of them is a doniestic corporation, a foreign
corporation licensed to do business in the state or a resident of the
state when the motion is made.
(CPLR §8501[a])
lawi8
In her memorandum of plaintiff's counsel states "Deutsche Bank Natioñal Trust Company's
main office is located in Orange County, California".
Preview
FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 SUPREME COURT - STATE OF NEW YORK COUNTY OF MONTGOMERY DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-6 NOVASTAR HOME EQUITY LOAN ASSET-BACKED CERTIFICATES, SERIES 2006-6, Plaintiffs, DECISION -against- AND ORDER BARBARA A. CLEMENTS, CURTISS A. CLEMENTS A/K/A CURTISS A. CLEMEÑTS, SR. CACH LLC, . FORD MOTOR CREDIT COMPANY LLC, CAPITAL X ONE BANK USA NA, ST. PETERS HEALTHCARE SERVICES,.CALVARY PORTFOLIO SERVICES LLC AS ASSIGNEE OF CALVARY SPVI, LLC, AS ASSIGNEE #1" OF HSBC BANK NEVADA, NA, "JOHN DOE through us i JOHN DOE #12," the last twelve names being fictitious and . m unknown to plaintiff, the persons or parties intended being . the tenants, occupants, persons or corporations, if any, a 5 having or claiming an interest in or lien upon the premises, described in the ce=plaint, Defendants. . Montgomery County Special Term January 22, 2016 Motion Nos. 1, 7 & 8 RJI No. 28-1-2015-0345 Index No. 2015-0688 Appearances: . . Greenberg Traurig, LLP (Leah N. Jacob, Esq. of counsel) for plaintiff. Barbara A. Clements and Curtiss A. Clements, defendantsp.m g. SISE, J. 1 1 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 Motion by plaintiff for summary judgment (CPLR Rule 3212), default judgment caption;l cross- (CPLR §3215) to app:Lnt referee (RPAPL Article 13) and to amend defcadañts2 motion by for plaintiff to post security for costs or dismissal of the action 3 (CPLR Article 85); motion by plaintiff to strike amended answer (CPLR Rule 3025). Papers considered: . From plaintiff: Notice of renewed s -ry judgment me±n, attorney affirmation and exhibits; notice of motion to strike amended answer, affirmation in support and exhibits; reply memorandum of law in further support and opposition. From defend ants: affidavit in opposition to renewed motion and exhibits; affidavit in support of ex parte motion to post security and exhibit; affidavit in opposition to motion to strike answer; affidavit in epposition to plaintiff reply memorander. of law and in further support of ex parte motion for security. Upon these motions in this residential foreclosure action, the Court first refers to its prior Decision and Order (signed January 10, 2018) herein and foregoes a full recitation of the lengthy case history and underlyitig facts, which are well known to the parties and counsel and addressed by their respective subn-w, m the interests of brevity and judicial economy, and addresses only those facts relevant to the Court's determinations herein below. defendants' Considering first plaintiff's motion to strike ameñded answer pursuant to CPLR Rule 3025, so the Court may determine which answer pertains herein, defeñdacts assert and it is clear to the Court based on memory, that defendant Barbara Clemeñts appeared before this Court at a prior date, not recorded by the Court's notes or stated now by the defendants, and indicated her . . intention to move to amend her complaint, which leave to so move the Court granted. Thereafter, 1 A reñcwed motion after the Court's prior Decision and Order dated January 10, 2018 denied plaintiff's prior motion for summary judgment default judgment and amendment of caption without prejudice. 2 Ex parte. 3 defendants' Although supporting affidavit makes no address of dismissal/costs thereof therein. 2 2 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 Ms. Clements had further telephone contacts with this Court's law clerk regarding the procedure to defendants' amend the answer, and was advised same should be done pursuant to CPLR Rule 3025(b), by a motion on notice. During such contacts Ms. Clements asserted to the Court's law clerk that such motion had already been made and granted by the Court verbally on the floor of the courtroom on such prior date, which the Court's law clerk noted was inconsistent ivith the requirements of CPLR Rule 3025(b), particularly not being in writing, on prior notice or providing a copy of the proposed amended answer (see, CPLR Rule 3025[b]). Nonetheless, Ms. Clements insisted fo the Court's law clerk that such motion had already been made and granted. clerk,4 Thereafter, by letter dated July 5, 2018 to the Court's law Ms. Clements stated further: If you recall, the court on several occasions has granted us the right to amend our answer in the 2015 case. We are in the process of so amending our answer, and would have done so earlier but we were . waiting for the court's decision and order in the 2013 case. We intend to serve and file our amended answer and believe that the plaintiff will need some time to address the amended answer and . refile its motion for judgment based upon our amended summary answer, This being the case, we respectfully request that the court grant us until July 31, 2018 to serve and file our amended answer, and then grant whatever time the plaintiff needs to file-and serve its renewed motion for summary judgment based upon our amended answer. (The amended answer will not include the racketeering counterclaim.) Please advise further at your earliest possible convenience. ordered" Such letter was "so by the Court and a copy e-mailed to Ms. Clements on July 16, 2018 and 2018.5 the original thereof filed by the Court at the Montgomery County Clerk's Office on July 18, . 4 Notably, also copied to plaintiff's counsel. 5 Based thereon, it is now clear to the Court how, at that point, the defendants perceived such amendment had, in fact, been granted by the Court and they only needed to file and serve their amended answer herein. 3 3 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 Counterclaim6 Thereafter, a Stipulation to Discontinue dated July 23, 2018was executed by . counterclaim7 the parties (copy received by the Court on July 25, 2018) , disenntinuing the subject defendants' which constituted the asserted basis for the desire to amend their answer. Believing such discontinuance had obviated the purpose of and asserted need for defendants to amend their answer, the Court heard nothing further thereon until further inquiry and contact with Ms. Clements on October 29, 2018 disclosed to the Court that the defendants had subsequently executed a Verified Amended Answer with Counterclaim dated July 29, 2018 and served same on plaintiff's counsel by mail, and the plaintiff had responded thereto by a Verified Reply to Counterclaim dated August 10, 2018, duly served on the defendants. Thus, it is clear that the defendants' plaintiff, by its counsel, not only did not reject or object timely to amended answer or with· reply.8 reject same timely but, also, upon acceptance thereof simply responded thereto a Furthermore, the Court notes that such amended answer and reply thereto occurred well after the (May 16, 2018) initial filing of plaintiff's present renewed motion for summary judgment herein defendants' which addresses original answer, and that plaintiff's present motion to strike such 2018.9 amended answer was not filed until December 7, . Therefore, despite argument in such motion by plaintiff's counsel that CPLR Rule 3025(b) 6 defendants' Regarding the second/RICO counterclaim in the original answer. 7 That is, the racketeering/RICO counterclaim cited by Ms. Clements in her letter. 8 Moreover, the Court discerns nothing in such reply of the plaintiff which addresses any defendants' insufficiency of answer or the counterclaim contained therein. 9 Nearly four (4) months after the plaintiff's reply. 4 4 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 violatedl° was thereby and the plaintiff did not consent to tlie filing and service of such amended answer, this Court finds in its discretion that, under such facts and by its reply thereto, the plaintiff accepted such amended answer of the defendants, waived its right to object to or reject same, and based thereon, its present motion to strike same thereafter is, therefore, untimely and misplaced (see, e.g., Dime Say. Bank of N.Y.. FSB v. Halo, 210 AD2d 572, 573 [3d Dept 1994]; Nassau County V. Incorporated Vil. of Roslyn, 182 AD2d 678, 679 [2d Dept 1992]). Moreover, under the underlying express premises of CPLR Rule 3025(b), that a motion for leave to amend a pleading may be made time" given" "at any and"shall be freely (see, CPLR Rule 3025[b]), plaintiff counsel's argument that the plaintiff would be severely prejudiced by allowing the amended answer is also misplaced (citing Pagan v. Quinn, 51 AD3d 1299, 1301 [3d Dept 2008]). First, such case is distingnishable as, under Pagan, the issue was unexcused lateness causing prejudice due to new and expanded medical malpractice allegations and diminished recollections over time; here, however, plaintiff counsel only argues an unspecified effect of such amended answer on its present/prior renewed motion for defendants' answer.11 summary judgment, which is based on initial Second, such peñdiñg motion filed'2 to dismiss was more than two (2) months before such amended answer was executed; moreover, receipt thereof and decision to accept and respond, rather than reject or object, thereto by its reply thereafter was all done while plaintiff and its counsel were aware ofits prior pending motion -- . 10 In that CPLR Rule 3025(a) does not apply thereto and the requirements of CPLR Rule 3025(b) were not met. 11 By which the Court discerns that the plaintiff would need to amend and resubmit such motion to address the amended answer - absent asserted effect on plaintiff's proof notably, any herein; moreover, the resulting need for the plaintiff to amend its summary judgment motion was noted expressly, prior to such amendment and plaintiff's reply thereto, by Ms. Clements's letter dated July 5, 2019 . . 12 And later adjourned on consent for consolidation of issues, proof and appearances. 5 5 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 thereon.13 incon nt with and the legal affect Finally, plaintiff's present motion to strike, its prior conduct culminating in filing and serving a reply, was not filed until almost four (4) months after its prior acceptance of and reply to the subject amended answer. Therefore, although it appears clear that the requisites of CPLR Rule 3025(b) were not followed by the defêñdãñts prior to and upon filing and serving their amended answer herein, it is equally clear that, despite plaintiff's prior pending renewed motion for summary judgment, its counsel accepted such amended answer and replied thereto, thereby waiving objection or rejection thereof under CPLR Rule 3025(b)- which conduct inconsistent with its is, furthermore, entirely present argument in its later motion to strike such amended answer, which deñ1cilstrates no actual prejudice to plaintiff's proof herein.. Therefore, based on the foregoing, and in the discretion of this Court, plaintiff's motion to defendants' strike the amended answer is denied. Turning next to plaintiff's rêñewed inotion for summary judgment, default judgmerit, appointment of a referee in foreclosure and amendment of caption, inasmuch as summary judgmeñt - defendants' defendants' therein is addressed to origiñal answer herein and not later amended answer above,14 now before the Court, as set forth herein the Court is unable to proceed with review thereof as presented. Accordingly, and without further analysis thereof, such motion of the plaintiff is denied based on plaintiff's failure to sustain its initial burden of proof (see, CPLR Rule 3212[b]; GTF Mktg. v. Coloñial Aluminum Sales, 66 NY2d 968, 967 [1985]), albeit without prejudice, as 13 Moreover, by its reply, the plaintiffhas opposed and preserved its rights in relation to all of the defendants' allegations in the counterclaims, be they the same as previously or new/different, and restated its affirmative defenses. 14 And as plaintiff counsel acknowledges further in her argument to strike such amended answer, as well as the Attorney Affirmation Seeking Summary Judgment. 6 6 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 such denial is not based on review of the merits of such motion. defendants' costsI5 Turning, lastly, to motion for the plaintiff to post security for pursuant to CPLR Article 85, the opposition to which is presented in plaintiff counsel's memorandum of law, the Court first addresses the argument of defendants set forth in their reply thereto that, in sum, such unsworn memorandum of law of plaintiff's counsel is without probative value, and fails to present sworn allegations in opposition to (unspecified) defense allegations of fact. However, it is clear therefrom that such directed arguments are directed largely, if not entirely, at plaintiff's motion for summaryjudgmeñt and the factual nierits thereof versus the applications of CPLR Article 85 herein. Further, it is unclear therein, in relation to their CPLR Article 85 application seeking to require plaintiff to post a security bond for costs what, if any, facts asserted by the defendants are claimed to be not denied or controverted by plaintiff counsel thereby, in that the defendants fail to identify any such facts or evidence which they assert to be unrefuted or to constitute abnissions by the plaintiff. defendants' Although the Court does not disagree with argument that an unsworn memorandum of law by an attorney, as herein, is without probative evidentiary and factual value in [4th opposition (citing, e.g., Byrd v. Roneker., 90 AD3d 1648, 1649 Dept]) the Court finds nonetheless that the legal arguments presented by plaintiff's counsel therein regarding the facts,16 applicability of CPLR Article 85 herein, arguing prior established merits consideration by this Court as a memorandum of law. 15 Dismissal costs not being addressed therein, as aforementioned; see footnote 3, supra. 16 defendants' That is, addressing assertions and the affidavit of prior plaintiff counsel (Massand), absent any other or further factual assertions therein; thus, the Court decliñës to discard and disregard plaintiff counsel's memorandum of law as defendants desire, and consider it for its intended legal versus factual content and purpose. . . 7 7 of 10 FILED: MONTGOMERY COUNTY CLERK 04/19/2019 10:13 AM INDEX NO. E2015-688 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 09/14/2021 Turning thus, to the arguments of the parties, they acknowledge that CPLR §8501(a) provides:17 As of right. Except where the plaintiff has been granted permission to proceed as a poor person or is the petitioner in a habeas corpus proceeding, upon motion by the defendant without notice, the court or a judge thereof shall order security for costs to be given by the plaintiffs where none of them is a doniestic corporation, a foreign corporation licensed to do business in the state or a resident of the state when the motion is made. (CPLR §8501[a]) lawi8 In her memorandum of plaintiff's counsel states "Deutsche Bank Natioñal Trust Company's main office is located in Orange County, California".