Preview
FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010
NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ONÈWEST BANK, FSB,
Index No. 8354/2010
Plaintiff,
-against- NOTICE OF MOTION
TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK
DOE"
CITY ENVIRONMENT CONTROL BOARD; "JOHN
DOE"
.AND "JANE said names being fictitious, it being the
intention of Plaintiff to designate any and all occupants of
premises being foreclosed herein,
Defendants.
PLEASE TAKE NOTICE, that, upon the Affirmation of Timothy W. Salter, Esq. and
the exhibits annexed thereto, the Affidavit of Alan Blunt and the exhibits annexed thereto, and
the accompanying Memorandum of Law, Plaintiff, OneWest Bank, FSB, a corporation organized
and existing under the law of the United States of America, by its attorneys, McCaiter &
English, LLP, will rnove before the Supreme Court of the State of New York, County of Kings,
360 Adams Street, Brooklyn, New York 11201, before an IAS Part to be assigned, on June 8,
2023, at 9:30 am or as soon thereafter as counsel can be heard, for an order: (1) vacating the
December 19, 2013, conditional order of dismissal; (2) restoring this action to the Court's active
calendar; (3) substituting Federal National Iviortgage Association ("Fannie Mae") into this action
in place of Plaintiff and amending the caption; (4) entering a default judgment against all
defendants; (5) appointing a referee to compute the amounts due and owing to Fannie Mae under
its note and mortgage; and (6) granting such other and further relief as the Court deems just and
proper.
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PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR § 2214(b), answering
affidavits, if any, are required to be served upon the undersigned at least seven days before the
return date of this motion.
Dated: New York, New York
May 19, 2023 McCarter & English, LLP
BY:
Timothy W alter, Esq.
McCarter & English LLP
Worldwide Plaza
313
825 Eighth Avenue, Floor
New York, NY 10019
(212) 609-6886
tsalter@mccarter.com
TO: Mark S. Anderson, Esq.
Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP
Attorney for Defendant Trenia Johnson
80-02 Kew Gardens Road, Suite 600
Kew Gardens, New York 11415
2
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------------------------X Index No. 8354/2010
ONEWEST BANK, FSB,
Plaintiff,
AFFIRMATION OF
SERVICE
-against-
TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK
DOE"
CITY ENVIRONMENT CONTROL BOARD; "JOHN
DOE"
AND "JANE said names being fictitious, it being the
intention of Plaintiff to designate any and all occupants of
premises being foreclosed herein,
Defendants.
___ _.-----------..._ _ _--------------______Ç
I, Timothy W. Salter, an attorney duly admitted to practice law in the State of New York
and not a party to the above-captioned action, affirm under penalty of perjury that on May 19,
2023, I served a true and correct copy of the within NOTICE OF MOTION AND
SUPPORTING DOCUMENTS by mail using a postage-paid envelope for that purpose and
depositing same with the United States Postal Service upon the following persons:
Mark S. Anderson, Esq.
Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP
Attorney for Defendant Trenia Johnson
80-02 Kew Gardens Road, Suite 600
Kew Gardens, New York 11415
Dated: May 19, 2023 .
Timothy W. Halter, Esq.
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SUPREME COUKf OF THE STATE OF NEW YORK
COUNTY OF KINGS
ONEWEST BANK, FSB, Index No. 8354/2010
Plaintiff
-against-
TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK
DOE"
CrTY ENVIRONMENT CONTROL BOARD; "JOHN
DOE"
AND "JANE said names being fictitious, it being the
intention of Plaintiff to designate any and all occupants of
premises being foreclosed herein,
De fendants.
NOTICE OF MOTION
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the
courts of New York State, certifies that, upon information and belie f and reasonable inquiry, the
contentions contained in the annexed document are not fi-ivolous.
Dated: May 19, 2023 Signature: ÂAÃ dV
Timothy Salter, Esq.
McCARTER & ENGLISH, LLP
Counsel for Plaintiff
Worldwide Plaza
825 Eighth Avenue, 31st Floor
New York, New York 10019
212.609.6800
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
ONEWEST BANK, FSB,
Index No. 8354/2010
Plaintiff,
-against-
TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK
CITY ENVIRONMENT CONTROL BOARD; "JOHN
DOE" DOE"
AND "JANE said names being fictitious, it
being the intention of Plaintiff to designate any and all
occupants of premises being foreclosed herein,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S
MOTION TO VACATE AND RESTORE
McCARTER & ENOLISH, LLP
Adam M. Swanson, Esq,
Timothy W. Salter, Esq.
Worldwide Plaza
825 Eighth Avenue, 31st Floor
New York, New York 10019
212-609-6800
Counsel for Plaintiff
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Plaintiff, OneWest Bank, FSB ("Plaintiff"), respectfully submits the memorandum of law
in support of its motion (the "Motion") for an order: (1) pursuant to CPLR 5015(a)(4) vacating
this Court's December 19, 2013, conditional order of dismissal (the "Conditional Order") and
restoring this action to the Court's active calendar; (2) pursuant to CPLR § 1021 substituting
Federal National Mortgage Association ("Fannie Mae") into this action in place of Plaintiff and
amending the caption; (4) pursuant to CPLR 3215 entering a default judgment against all
defendants; (5) pursuant RPAPL § 1321 appointing a referee to compute the amounts due and
owing to Fannie Mae under its note and mortgage; and (6) granting such other and further relief
as the Court deems just and proper.
PRELIMINARY STATEMENT
The Court lacked jurisdiction to dismiss this foreclosure action under CPLR 3216
because: (1) issue was never joined; and (2) its Conditional Order of dismissal did not strictly
comply with that statute's substamive requirements. For either, or both, of these reasons, the
Conditional Order must be vacated pursuant to CPLR 5015(a)(4) and this action must be restored
to the Court's active calendar.
Upon restoration, Fannie Mae must be substituted into this action in place of Plaintiff and
the caption must be amended to reflect the substitution because the subject mortgage was
assigned to Fannie Mae after this action was commenced. The Court must then grant Fannie
Mae a default judgment and enter an order of reference because it submitted proof of the facts
constituting its foreclosure claim by producing the note and mortgage, evidence of the
borrower's default thereunder, and proof that none of the defendants answered the complaint. In
other words, the Motion must be granted in its entirety.
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STATEMENT OF FACTS
A. The Mortgage Loan
On December 14, 2007, Steven Jones, as the Borrower's Attorney-in-Fact, executed and
delivered a consolidated note (the "Consolidated Note") in the initial principal amount of
$656,000.00 to IndyMac Bank, FSB ("IndyMac") and a consolidated mortgage (the
Mortgage"
"Consolidated and together with the Consolidated Note the "Mortgage Loan") against
the property located at 346 Marcus Garvey Blvd., Brooklyn, New York (the "Property") to
Mortgage Electronic Registration Systems, Inc. as nominee for IndyMac. Affidavit of Alan
Blunt (the "Blunt Aff.") at ¶ 10; Ex. A; Ex. B; Ex. C.
B. Borrower's Default under the Mortgage Loan
Borrower defaulted on the Mortgage Loan by failing to make the monthly payment due
on November 1, 2009, and has failed to make any monthly payments since. Id. at ¶ 12; Ex. D.
PROCEDURAL HISTORY
Plaintiff commenced this action on April 2, 2010. See Attorney Affirmation of Timothy
W. Salter (the "Salter Aff.") at ¶ 3; Ex. 1. All defendants were served with the summons and
complaint. Id. at ¶ 4; Ex. 2. None filed answers. Id at ¶ 5; Ex. 3.
On May 24, 2010, Plaintiff filed an ex parte motion for an order of reference. Id at ¶ 6,
Ex. 3. On December 14, 2012, the Court denied Plaintiff's motion without prejudice and with
leave to renew because a copy of the Power of Attorney from Borrower to Steven Jones had been
omitted from the moving papers. Salter Aff. at ¶ 7; Ex. 4.
On December 19, 2013, the Court entered the Conditional Order fmding that "more than
one year had elapsed since the joinder of issue and plaintiff has unreasonably neglected to
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action"
prosecute this and providing that the "action is dismissed pursuant to CPLR 3216...
unless plaintiff files a note of issue or otherwise proceeds by motion for entry ofjudgment within
hereof."
90 days from the date Id at ¶ 8; Ex. 5.
On January 15, 2015, Plaintiff moved to restore this action and for a default judgment
and the appointment of a referee. Id at ¶ 9; Ex. 3. That motion was denied on April 15, 2015,
because Plaintiff's then-counsel did not appear at the hearing. Id at ¶ 10; Ex. 6.
Borrower served notice of entry of the Conditional Order on April 11, 2019. Id at ¶ 11;
Ex. 7. Plaintiff now moves to vacate the Conditional Order and restore this action to the Court's
active calendar, and for a default judgment and order of reference.
ARGUMENT
L THIS CONDITIONAL ORDER MUST BE VACATED AND THE ACTION
MUST BE RESTORED BECAUSE THE COURT IMPROPERLY APPLIED
CPLR 3216 TO THIS PROCEEDING
The Conditional Order must be vacated and this action must be restored to the Court's
active calendar because: (1) issue was never joined; and (2) the Conditional Order did not satisfy
the substantive requirements prescribed by CPLR 3216.
CPLR 5015(a)(4) provides that "the court which rendered a judgment or order may
relieve a party from it... upon the grounds... lack of jurisdiction to render the judgment or
order."
A motion to vacate pursuant to CPLR 5015(a)(4) based on lack of subject matter
jurisdiction may be made at any time. HSBC Bank USA, N.A. v Ashley, 104 A.D.3d 975, 976 (3d
Dep't 2013).
CPLR 3216 provides, in relevant part, that:
(b) no dismissal shall be directed under any portion of subdivision (a) of
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this rule.and no court initiative shall be taken or motion made thereunder
unless the following conditions precedent have been complied with:
(1) Issue must have been joined in the action;
(2) One year must have elapsed since the joinder of issue or six months
must have elapsed since the issuance of the preliminary court conference
order where such an order has been issued, whichever is later;
(3) The court or a party seeking such relief, as the case may be, shall have
served a written demand by registered or certified mail requiring the party
against whom such relief is sought to resume prosecution of the action and
to serve and file a note of issue within ninety days after receipt of such
demand, and further stating that the default by the party upon whom such
notice is served in complying with such demand within said ninety day
period will serve as a basis for a motion by the party servicing said
demand as against him or her for unreasonably neglecting to proceed.
Where the written demand is served by the court, the demand shall set
forth the specific conduct constituting the neglect, which conduct shall
demonstrate a general pattern of delay in proceeding with the litigation.
"A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216
met."
statutory preconditions to dismissal are U.S. Bank N.A. v. Sanchez, 210 A.D.3d 723, 724
(2d Dep't 2022); Schwartz v. Nathanson, 261 A.D.2d 527, 528 (2d Dep't 1999) ("Courts are
neglect'
prohibited form dismissing an action based on to prosecute unless the CPLR 3216
statutory preconditions to dismissal have been met."). Strict compliance is required because
courts do not possess the power to dismiss an action for general delay. U.S. Bank Nat'l Ass I v.
Vardales, 39 Misc. 39 1211(A), at *l (Sup. Ct. Suffolk Cnty. 2013) (citing Chase v. Scavuzzo,
87 N.Y.2d 228 (1995) ("courts do not possess the power to dismiss an action for general delay
where plaintiff has not been served with a 90-day demand to serve and file a note of issue
pursuant to CPLR 3216(b)")); see Airmont Homes, Inc. v. Town of Ramapo, 69 N.Y.2d 901, 902
(1987) (citing Cohn v. Borchard Afflliations, 25 N.Y.2d 237, 248 (1969)) ("[t]he procedural
device of dismissing a petition for failure to prosecute is a legislative creation, not a part of a
court's inherent power").
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Here, this action was erroneously dismissed because the CPLR 3216 statutory conditions
precedents were never satisfied. First, issue was never joined as none of the defendants filed an
answer to the complaint. See Salter Aff., Ex. 3; U.S. Bank Nat'l. Ass I. v. Spence, 175 A.D.3d
1346 (2d Dep't 2019) (holding that dismissal under CPLR 3216 was improper where "issue was
never joined inasmuch as none of the defendants served an answer to the complaint"); U.S. Bank
Nat'l Ass I v. Ricketts, 153 A.D.3d 1298 (2d Dep't 2017) (vacating a CPLR 3216 dismissal
because issue was never joined). Thus, the statutory condition precedent prescribed by CPLR
3216(b)(1) was never satisfied, and the Court lacked the power to dismiss this action. See Bank
of New York v. Harper, 176 A.D.3d 907 (2d Dep't 2019) (holding that the lower court was
without power to dismiss the action because none of the defendants submitted an answer so issue
was never joined); Ricketts, 153 A.D.3d at 1299 ("Since at least one precondition set forth
in CPLR 3216 was not met here, the Supreme Court was without power to dismiss the action
pursuant to that statute."); see also US Bank, Nat'l AssI v. Picone, 170 A.D.3d 1070, 1072 (2d
Dep't 2019) ("[T]he Supreme Court was without power to direct dismissal of the complaint
pursuant to CPLR 3216 on the ground of lack of prosecution. While CPLR 3216 authorizes the
dismissal of a complaint for neglect to prosecute, joinder of issue and service of a 90-day notice
are conditions precedent to a dismissal under that statute. Here, dismissal was improper, as issue
was never joined in the action."). The Conditional Order must be vacated for this reason, alone.
Second, the Cotut did not comply with the statutory preconditions to dismissal prescribed
by CPLR 3216(b)(3). A demand to prosecute under this statute must state that non-compliance
motion"
"will serve as a basis for a to dismiss and, further, must "set forth the specific conduct
constituting the neglect, which conduct shall demonstrate a general pattern of delay in
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litigation."
proceeding with the The Conditional Order did not contain any of this required
language. See Salter Aff., Ex. 6. Thus, the Conditional Order did not strictly comply with the
statute. See Deutsche Bank Trust Co. Ams, v. Gonzales, 2023 NY Slip Op 01778, *2 (2d Dep't
April 5, 2023) ("stating that "[al court may not dismiss an action based on neglect to prosecute
met"
unless the CPLR 3216 statutory preconditions to dismissal are and holding that because
"the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of
the action and serve and file a note of issue within 90 days of receipt of the demand... at least
one precondition set forth in CPLR 3216 was not met here [and] the court was without power to
direct dismissal of the complaint pursuant to that statute"); Waterfall Victoria Master Fund, Ltd.
v. Gurley, 172 A.D.3d 783 (2d Dep't 2019) (holding that the court's order did not serve as a 90-
day notice under CPLR 3216 "in that it failed to state that the plaintiff's failure to comply with
Preview
FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ONÈWEST BANK, FSB, Index No. 8354/2010 Plaintiff, -against- NOTICE OF MOTION TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK DOE" CITY ENVIRONMENT CONTROL BOARD; "JOHN DOE" .AND "JANE said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants. PLEASE TAKE NOTICE, that, upon the Affirmation of Timothy W. Salter, Esq. and the exhibits annexed thereto, the Affidavit of Alan Blunt and the exhibits annexed thereto, and the accompanying Memorandum of Law, Plaintiff, OneWest Bank, FSB, a corporation organized and existing under the law of the United States of America, by its attorneys, McCaiter & English, LLP, will rnove before the Supreme Court of the State of New York, County of Kings, 360 Adams Street, Brooklyn, New York 11201, before an IAS Part to be assigned, on June 8, 2023, at 9:30 am or as soon thereafter as counsel can be heard, for an order: (1) vacating the December 19, 2013, conditional order of dismissal; (2) restoring this action to the Court's active calendar; (3) substituting Federal National Iviortgage Association ("Fannie Mae") into this action in place of Plaintiff and amending the caption; (4) entering a default judgment against all defendants; (5) appointing a referee to compute the amounts due and owing to Fannie Mae under its note and mortgage; and (6) granting such other and further relief as the Court deems just and proper. MEl 44934520v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 PLEASE TAKE FURTHER NOTICE that, pursuant to CPLR § 2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion. Dated: New York, New York May 19, 2023 McCarter & English, LLP BY: Timothy W alter, Esq. McCarter & English LLP Worldwide Plaza 313 825 Eighth Avenue, Floor New York, NY 10019 (212) 609-6886 tsalter@mccarter.com TO: Mark S. Anderson, Esq. Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP Attorney for Defendant Trenia Johnson 80-02 Kew Gardens Road, Suite 600 Kew Gardens, New York 11415 2 ME1 44934520v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------------------------X Index No. 8354/2010 ONEWEST BANK, FSB, Plaintiff, AFFIRMATION OF SERVICE -against- TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK DOE" CITY ENVIRONMENT CONTROL BOARD; "JOHN DOE" AND "JANE said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants. ___ _.-----------..._ _ _--------------______Ç I, Timothy W. Salter, an attorney duly admitted to practice law in the State of New York and not a party to the above-captioned action, affirm under penalty of perjury that on May 19, 2023, I served a true and correct copy of the within NOTICE OF MOTION AND SUPPORTING DOCUMENTS by mail using a postage-paid envelope for that purpose and depositing same with the United States Postal Service upon the following persons: Mark S. Anderson, Esq. Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP Attorney for Defendant Trenia Johnson 80-02 Kew Gardens Road, Suite 600 Kew Gardens, New York 11415 Dated: May 19, 2023 . Timothy W. Halter, Esq. MEl 45013136v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 SUPREME COUKf OF THE STATE OF NEW YORK COUNTY OF KINGS ONEWEST BANK, FSB, Index No. 8354/2010 Plaintiff -against- TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK DOE" CrTY ENVIRONMENT CONTROL BOARD; "JOHN DOE" AND "JANE said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, De fendants. NOTICE OF MOTION Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of New York State, certifies that, upon information and belie f and reasonable inquiry, the contentions contained in the annexed document are not fi-ivolous. Dated: May 19, 2023 Signature: ÂAÃ dV Timothy Salter, Esq. McCARTER & ENGLISH, LLP Counsel for Plaintiff Worldwide Plaza 825 Eighth Avenue, 31st Floor New York, New York 10019 212.609.6800 ME1 45015984v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ONEWEST BANK, FSB, Index No. 8354/2010 Plaintiff, -against- TRENIA JOHNSON; CITY OF NEW YORK; NEW YORK CITY ENVIRONMENT CONTROL BOARD; "JOHN DOE" DOE" AND "JANE said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO VACATE AND RESTORE McCARTER & ENOLISH, LLP Adam M. Swanson, Esq, Timothy W. Salter, Esq. Worldwide Plaza 825 Eighth Avenue, 31st Floor New York, New York 10019 212-609-6800 Counsel for Plaintiff ME1 44602242v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 Plaintiff, OneWest Bank, FSB ("Plaintiff"), respectfully submits the memorandum of law in support of its motion (the "Motion") for an order: (1) pursuant to CPLR 5015(a)(4) vacating this Court's December 19, 2013, conditional order of dismissal (the "Conditional Order") and restoring this action to the Court's active calendar; (2) pursuant to CPLR § 1021 substituting Federal National Mortgage Association ("Fannie Mae") into this action in place of Plaintiff and amending the caption; (4) pursuant to CPLR 3215 entering a default judgment against all defendants; (5) pursuant RPAPL § 1321 appointing a referee to compute the amounts due and owing to Fannie Mae under its note and mortgage; and (6) granting such other and further relief as the Court deems just and proper. PRELIMINARY STATEMENT The Court lacked jurisdiction to dismiss this foreclosure action under CPLR 3216 because: (1) issue was never joined; and (2) its Conditional Order of dismissal did not strictly comply with that statute's substamive requirements. For either, or both, of these reasons, the Conditional Order must be vacated pursuant to CPLR 5015(a)(4) and this action must be restored to the Court's active calendar. Upon restoration, Fannie Mae must be substituted into this action in place of Plaintiff and the caption must be amended to reflect the substitution because the subject mortgage was assigned to Fannie Mae after this action was commenced. The Court must then grant Fannie Mae a default judgment and enter an order of reference because it submitted proof of the facts constituting its foreclosure claim by producing the note and mortgage, evidence of the borrower's default thereunder, and proof that none of the defendants answered the complaint. In other words, the Motion must be granted in its entirety. ME1 44602242v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 STATEMENT OF FACTS A. The Mortgage Loan On December 14, 2007, Steven Jones, as the Borrower's Attorney-in-Fact, executed and delivered a consolidated note (the "Consolidated Note") in the initial principal amount of $656,000.00 to IndyMac Bank, FSB ("IndyMac") and a consolidated mortgage (the Mortgage" "Consolidated and together with the Consolidated Note the "Mortgage Loan") against the property located at 346 Marcus Garvey Blvd., Brooklyn, New York (the "Property") to Mortgage Electronic Registration Systems, Inc. as nominee for IndyMac. Affidavit of Alan Blunt (the "Blunt Aff.") at ¶ 10; Ex. A; Ex. B; Ex. C. B. Borrower's Default under the Mortgage Loan Borrower defaulted on the Mortgage Loan by failing to make the monthly payment due on November 1, 2009, and has failed to make any monthly payments since. Id. at ¶ 12; Ex. D. PROCEDURAL HISTORY Plaintiff commenced this action on April 2, 2010. See Attorney Affirmation of Timothy W. Salter (the "Salter Aff.") at ¶ 3; Ex. 1. All defendants were served with the summons and complaint. Id. at ¶ 4; Ex. 2. None filed answers. Id at ¶ 5; Ex. 3. On May 24, 2010, Plaintiff filed an ex parte motion for an order of reference. Id at ¶ 6, Ex. 3. On December 14, 2012, the Court denied Plaintiff's motion without prejudice and with leave to renew because a copy of the Power of Attorney from Borrower to Steven Jones had been omitted from the moving papers. Salter Aff. at ¶ 7; Ex. 4. On December 19, 2013, the Court entered the Conditional Order fmding that "more than one year had elapsed since the joinder of issue and plaintiff has unreasonably neglected to -2- MEl 44602242v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 action" prosecute this and providing that the "action is dismissed pursuant to CPLR 3216... unless plaintiff files a note of issue or otherwise proceeds by motion for entry ofjudgment within hereof." 90 days from the date Id at ¶ 8; Ex. 5. On January 15, 2015, Plaintiff moved to restore this action and for a default judgment and the appointment of a referee. Id at ¶ 9; Ex. 3. That motion was denied on April 15, 2015, because Plaintiff's then-counsel did not appear at the hearing. Id at ¶ 10; Ex. 6. Borrower served notice of entry of the Conditional Order on April 11, 2019. Id at ¶ 11; Ex. 7. Plaintiff now moves to vacate the Conditional Order and restore this action to the Court's active calendar, and for a default judgment and order of reference. ARGUMENT L THIS CONDITIONAL ORDER MUST BE VACATED AND THE ACTION MUST BE RESTORED BECAUSE THE COURT IMPROPERLY APPLIED CPLR 3216 TO THIS PROCEEDING The Conditional Order must be vacated and this action must be restored to the Court's active calendar because: (1) issue was never joined; and (2) the Conditional Order did not satisfy the substantive requirements prescribed by CPLR 3216. CPLR 5015(a)(4) provides that "the court which rendered a judgment or order may relieve a party from it... upon the grounds... lack of jurisdiction to render the judgment or order." A motion to vacate pursuant to CPLR 5015(a)(4) based on lack of subject matter jurisdiction may be made at any time. HSBC Bank USA, N.A. v Ashley, 104 A.D.3d 975, 976 (3d Dep't 2013). CPLR 3216 provides, in relevant part, that: (b) no dismissal shall be directed under any portion of subdivision (a) of -3- MEl 44602242v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 this rule.and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: (1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later; (3) The court or a party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party servicing said demand as against him or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. "A court may not dismiss an action based on neglect to prosecute unless the CPLR 3216 met." statutory preconditions to dismissal are U.S. Bank N.A. v. Sanchez, 210 A.D.3d 723, 724 (2d Dep't 2022); Schwartz v. Nathanson, 261 A.D.2d 527, 528 (2d Dep't 1999) ("Courts are neglect' prohibited form dismissing an action based on to prosecute unless the CPLR 3216 statutory preconditions to dismissal have been met."). Strict compliance is required because courts do not possess the power to dismiss an action for general delay. U.S. Bank Nat'l Ass I v. Vardales, 39 Misc. 39 1211(A), at *l (Sup. Ct. Suffolk Cnty. 2013) (citing Chase v. Scavuzzo, 87 N.Y.2d 228 (1995) ("courts do not possess the power to dismiss an action for general delay where plaintiff has not been served with a 90-day demand to serve and file a note of issue pursuant to CPLR 3216(b)")); see Airmont Homes, Inc. v. Town of Ramapo, 69 N.Y.2d 901, 902 (1987) (citing Cohn v. Borchard Afflliations, 25 N.Y.2d 237, 248 (1969)) ("[t]he procedural device of dismissing a petition for failure to prosecute is a legislative creation, not a part of a court's inherent power"). -4- MEl 44602242v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 Here, this action was erroneously dismissed because the CPLR 3216 statutory conditions precedents were never satisfied. First, issue was never joined as none of the defendants filed an answer to the complaint. See Salter Aff., Ex. 3; U.S. Bank Nat'l. Ass I. v. Spence, 175 A.D.3d 1346 (2d Dep't 2019) (holding that dismissal under CPLR 3216 was improper where "issue was never joined inasmuch as none of the defendants served an answer to the complaint"); U.S. Bank Nat'l Ass I v. Ricketts, 153 A.D.3d 1298 (2d Dep't 2017) (vacating a CPLR 3216 dismissal because issue was never joined). Thus, the statutory condition precedent prescribed by CPLR 3216(b)(1) was never satisfied, and the Court lacked the power to dismiss this action. See Bank of New York v. Harper, 176 A.D.3d 907 (2d Dep't 2019) (holding that the lower court was without power to dismiss the action because none of the defendants submitted an answer so issue was never joined); Ricketts, 153 A.D.3d at 1299 ("Since at least one precondition set forth in CPLR 3216 was not met here, the Supreme Court was without power to dismiss the action pursuant to that statute."); see also US Bank, Nat'l AssI v. Picone, 170 A.D.3d 1070, 1072 (2d Dep't 2019) ("[T]he Supreme Court was without power to direct dismissal of the complaint pursuant to CPLR 3216 on the ground of lack of prosecution. While CPLR 3216 authorizes the dismissal of a complaint for neglect to prosecute, joinder of issue and service of a 90-day notice are conditions precedent to a dismissal under that statute. Here, dismissal was improper, as issue was never joined in the action."). The Conditional Order must be vacated for this reason, alone. Second, the Cotut did not comply with the statutory preconditions to dismissal prescribed by CPLR 3216(b)(3). A demand to prosecute under this statute must state that non-compliance motion" "will serve as a basis for a to dismiss and, further, must "set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in -5- MEl 44602242v.1 FILED: KINGS COUNTY CLERK 07/05/2023 02:15 PM INDEX NO. 8354/2010 NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 07/05/2023 litigation." proceeding with the The Conditional Order did not contain any of this required language. See Salter Aff., Ex. 6. Thus, the Conditional Order did not strictly comply with the statute. See Deutsche Bank Trust Co. Ams, v. Gonzales, 2023 NY Slip Op 01778, *2 (2d Dep't April 5, 2023) ("stating that "[al court may not dismiss an action based on neglect to prosecute met" unless the CPLR 3216 statutory preconditions to dismissal are and holding that because "the Supreme Court failed to serve a written demand upon the plaintiff to resume prosecution of the action and serve and file a note of issue within 90 days of receipt of the demand... at least one precondition set forth in CPLR 3216 was not met here [and] the court was without power to direct dismissal of the complaint pursuant to that statute"); Waterfall Victoria Master Fund, Ltd. v. Gurley, 172 A.D.3d 783 (2d Dep't 2019) (holding that the court's order did not serve as a 90- day notice under CPLR 3216 "in that it failed to state that the plaintiff's failure to comply with