Preview
FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009
NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
_____________________________________________
FEDERAL NATIONAL MORTGAGE ASSOCIATION INDEX NO.: 015989/2009
("FANNIE MAE"), A CORPORATION ORGANIZED
AND EXISTING UNDER THE LAWS OF THE AFFIRMATION IN
UNITED STATES OF AMERICA, SUPPORT OF PLAINTIFF’S
CROSS-MOTION FOR
Plaintiff, EXTENSION OF TIME TO
vs. SET THE SALE, AND IN
OPPOSITION TO
FRANK AMATO; MATTHEW AMATO; CAPITAL DEFENDANT’S OTSC
ONE BANK; CITIBANK, N.A.; JOSEPH
TARANTELLO,
Defendants.
_____________________________________________
I, Margarita Gaitas, Esq., pursuant to CPLR § 2106 and under the penalties of perjury,
affirms as follows:
1. I am an attorney with the firm Robertson, Anschutz, Schneid, Crane & Partners,
PLLC (“RAS”), attorneys for Plaintiff, FEDERAL NATIONAL MORTGAGE ASSOCIATION
("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS
OF THE UNITED STATES (hereinafter referred to as “Plaintiff”).
2. I am fully familiar with the facts and circumstances of the case, the basis of my
knowledge being the files maintained by the office with respect to this matter.
3. The above-entitled already concluded action is for the foreclosure of a mortgage on
real property known as 84 HAYNES AVE, WEST ISLIP, NY 11795 (hereinafter referred to as
the “Subject Premises”).
4. This affirmation is submitted in support of Plaintiff’s Cross-Motion (“CMFE”)
seeking an order extending the time to conduct the foreclosure sale, and in opposition to the order
to show cause (“OTSC”) filed by Defendant, FRANK AMATO (“Defendant”), in which
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Defendant seeks to vacate pursuant to CPLR 2221 (d) and (e), and CPLR 5015(a)(1), the order
granting Plaintiff summary judgment (“MSJ Order”) and the order confirming the referee’s report
and for judgment of foreclosure and sale (“JFS”), and per CPLR 5001 seeking to strike interest.
5. Plaintiff’s Cross-Motion should be granted in the interest of justice because
Plaintiff was unable to set the foreclosure sale date due to various Covid-related delays, and
because the appointed referee indicated he had to withdraw due to health concerns (see NYSCEF
Doc. No. 7).
6. Defendant’s OTSC must be denied as Defendant attempts to argue matters which
are barred by the law of the case doctrine. The JFS was entered on October 18, 2019 (NYSCEF
Doc. No. 6). Defendant’s Answer and Affirmative Defenses were stricken when the Court granted
Plaintiff’s motion for summary judgment (see id.). The JFS was served upon the parties together
with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue
or appeal within the time allotted (see NYSCE Doc. No. 1), and has no legal basis for which to seek
to renew and vacate prior orders, nor to seek tolling.
7. Defendant’s OTSC to vacate the JFS pursuant to CPLR 2221(d) is untimely by
almost two years, is improperly based upon matters of purported fact not offered on the prior
motion, and fails to demonstrate that he Court overlooked matters of law.
8. Similarly, Defendant’s OTSC seeking to renew Plaintiff’s motion for summary
judgment and vacate the MSJ Order entered on November 2, 2017 (see NYSCEF Doc. No. 1), and
his to renew the JFS, pursuant to CPLR 2221 (e), should be denied because Defendant has failed
to set forth any new facts or case law, nor reasonable justification for the failure to present
such facts on the prior motion. Moreover, Defendant’s time to challenge the MSJ Order
terminated upon entry of the JFS which entered on October 18, 2019.
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9. Defendant has also failed to meet the requirements set forth in CPLR 5015 because
the OTSC is untimely by almost a year, and Defendant has failed to offer any new evidence that
was not available at the time of the motions, nor has Defendant set forth any fraud.
10. As to Defendant’s request in the alternative for tolling pursuant to CPLR 5001,
same must be denied as Defendant has no legal basis to seek same, as detailed below.
11. Plaintiff was previously unable to proceed with setting the foreclosure sale date due
to the Covid-19 Pandemic and the bevy of Court closures, stays, and moratoriums that followed.
Thereafter, Plaintiff was informed that due to health considerations, the previously appointed
referee indicated that he would be withdrawing from further service as a referee, and would
apprise the Court and request that a substitute be appointed (NYSCEF Doc. No. 7).
12. Throughout the above referenced time, Defendant failed to oppose Plaintiff’s
motion for entry of JFS, and has failed to file any other papers objecting to any purported delays
on this matter (see NYSCE Doc. No. 1).
13. As such, Plaintiff’s Cross-Motion for extension of time to set the foreclosure sale
should be granted, since Defendant has not brought forth a legal basis to support a denial, and
because Plaintiff has satisfied its entitlement to an extension of time.
PLAINTIFF’S MOTION FOR EXTENSION OF TIME
TO SET THE FORECLOSURE SALE
14. Upon a thorough review of the foreclosure pleadings and all proceedings heretofore
had herein, Plaintiff filed a Summons, Complaint, and initial Notice of Pendency on April 29,
2009; additional Notices of Pendency were filed on November 25, 2013 and April 21, 2017
(NYSCEF Doc. No. 1).
15. Plaintiff’s application for Order Confirming Referee Report and Judgment of
Foreclosure and Sale was granted by the Court on October 18, 2019 (“JFS”) (NYSCEF Doc. No.
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6), a date more than ninety (90) days prior to this application.
16. Plaintiff was unable to schedule the foreclosure sale in accordance with the JFS due to the
Covid-19 Pandemic and the bevy of Court closures, stays, and moratoriums that followed.
17. Thereafter, Plaintiff was informed that due to health considerations, the previously
appointed referee indicated that he would be withdrawing from further service as a referee, and
would apprise the Court and request that a substitute be appointed (NYSCEF Doc. No. 7).
18. In light of the foregoing, Plaintiff requests an order granting one (1) year from the
entry of an order on this motion to proceed to sale.
19. NY CPLR § 2004 allows the Court to extend the time to comply with “any statute,
rule or order for doing any act, upon such terms as may be just and upon good cause shown…”
See U.S. Bank National Association v Adler, 148 A.D.3d 858 (2nd Dept. 2017).
20. Plaintiff has demonstrated good cause for the delay in setting a foreclosure sale and
the Plaintiff and the Borrower had been seeking a non-foreclosure solution in the instant matter.
21. In addition to statutory authority, as foreclosure is an action in equity this Court’s
equitable powers are triggered, and the Court has discretion to extend Plaintiff’s time to comply
in the interests of justice. Hudson City Savings Bank v. Cohen, 120 A.D.3d 1304, 993, N.Y.S.2d
66 (2nd Dept. 2014); see Deutsche Bank National Trust Company, Respondent v Luden, 91 A.D.3d
701, 936 N.Y.S.2d 561 (Mem), 2012 N.Y. Slip Op. 00323 [2012]; see also Mortgage Electronic
Registration Systems, Inc. v Horkan, 68 A.D.3d 948, 890 N.Y.S.2d 326 (Mem), 2009 N.Y. Slip
Op. 09441.
22. It is respectfully submitted that the Court should exercise its discretion and allow
Plaintiff additional time to comply with the Court’s directive.
WHEREFORE, Plaintiff prays that the Court issue an order granting an extension of time
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to schedule a Foreclosure Sale together with such other and further relief the Court may deem just
and proper.
DEFENDANT’S MOTION TO REARGUE
23. Motions to Reargue are governed by CPLR 2221(d) which provides that:
(d) A motion for leave to reargue:
1.shall be identified specifically as such;
2.shall be based upon matters of fact or law allegedly overlooked or
misapprehended by the court in determining the prior motion, but shall
not include any matters of fact not offered on the prior motion; and
3.shall be made within thirty days after service of a copy of the order
determining the prior motion and written notice of its entry. This
rule shall not apply to motions to reargue a decision made by the
appellate division or the court of appeals.
(Emphasis added).
24. Defendant seeks to reargue the JFS which entered on October 18, 2019, and served
upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). However,
Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1).
25. As such, Defendant’s motion to reargue is untimely.
26. Moreover, Defendant’s Motion to Reargue is improperly based upon matters of
purported fact not offered on the prior motion. Defendant failed to oppose Plaintiff’s Motion for
JFS (see NYSCE Doc. No. 1).
27. Defendant failed to oppose Plaintiff’s Motion for JFS, and thus, is not permitted on
a motion to reargue.
28. Defendant fails to demonstrate that this Court overlooked or misapprehended a
matter of law or fact in reaching its determination on the prior motion.
29. Moreover, Defendant never moved to vacate the Default Judgment against him, and
his time to do so expired upon the entry of Judgment of Foreclosure and Sale.
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30. Therefore, Defendant’s OTSC to Reargue must be denied.
DEFENDANT’S MOTIONS TO RENEW
31. Motions to Renew are governed by CPLR 2221(e).
32. CPLR 2221(e) provides that
(e) A motion for leave to renew:
1. shall be identified specifically as such;
2. shall be based upon new facts not offered on the prior motion that
would change the prior determination or shall demonstrate that
there has been a change in the law that would change the prior
determination; and
3. shall contain reasonable justification for the failure to present such
facts on the prior motion.
(Emphasis added).
33. Here, Defendant has failed to demonstrate any new facts or change in law.
34. Defendant does not offer a reasonable justification for the failure to oppose
Plaintiff’s motion for summary judgment.
35. Moreover, Defendant does not offer any explanation as to why he did not move to
vacate the MSJ Order entered on November 2, 2017 (see NYSCEF Doc. No. 1).
36. To be sure, Defendant’s one (1) year time period to move to vacate the MSJ Order
expired long ago.
37. Defendant’s time to challenge the MSJ Order terminated upon entry of the JFS
which entered on October 18, 2019, and served upon the parties together with a Notice of Entry
on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the
time allotted (see NYSCE Doc. No. 1).
38. Similarly, Defendant’s to motion to vacate the JFS pursuant to CPLR 2221(e) fails
to demonstrate any new facts or change in law.
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39. Defendant does not offer a reasonable justification for the failure to oppose
Plaintiff’s JFS.
40. Moreover, Defendant does not offer any explanation as to why he did not move to
vacate the JFS entered on which entered on October 18, 2019, and served upon the parties together
with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue
or appeal within the time allotted (see NYSCE Doc. No. 1).
41. To be sure, Defendant’s one (1) year time period to move to vacate the JFS expired
long ago.
42. As demonstrated above, this case has already been litigated to its conclusion, and
Defendant is not entitled to renewal of the same.
THERE IS NO BASIS TO VACATE THE JFS.
43. Defendant has no basis for which to vacate the JFS.
44. CPLR § 5015, entitled Relief from Judgment or Order, states in pertinent part:
(a) On motion. The court which rendered a judgment or order may relieve
a party from it upon such terms as may be just, on motion of any interested
person with such notice as the court may direct, upon the ground of: 1.
Excusable default, if such motion is made within one year after service of
a copy of the judgment or order with written notice of its entry upon
moving party, or, if the moving party has entered the judgment or order,
within one year after such entry; or 2. newly-discovered evidence which,
if introduced at trial, would probably have produced a different result and
which could not have been discovered in time to move for a new trial under
section 4404; or 3. Fraud, misrepresentation, or other misconduct of an
adverse party; or 4. Lack of jurisdiction to render the judgment or order;
or 5. Reversal, modification or vacatur of a prior judgment or order upon
which it is based.
(emphasis added).
45. Here, a motion pursuant to CPLR § 5015(a)(1) is untimely as it was made more
than one year since the JFS was entered on October 18, 2019, and served upon the parties together
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with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue
or appeal within the time allotted (see NYSCE Doc. No. 1).
46. Moreover, Defendant has failed to provide a reasonable excuse for his default on
the prior motions. See Ditech Financial, LLC v. Rizzo, 108 N.Y.S.3d 156, 158-59, 2019 N.Y. Slip
Op. 06472, 2019 WL 4282033 (2nd Dept. 2019) (“[a] defendant seeking to vacate a judgment
or order entered on default must demonstrate a reasonable excuse for the default and a
potentially meritorious defense to the action or opposition to the relief sought in the motion”)
(emphasis added).
47. It is notable that Defendant took no steps in this Court throughout the period
Defendant claims there was a delay, until after JFS was entered and Plaintiff filed its Motion for a
substitute referee on April 13, 2023 (see NYSCE Doc. No. 1).
48. Further, Defendant has not provided any newly discovered evidence pursuant to
CPLR § 5015(a)(2), nor any fraud or misrepresentation pursuant to CPLR § 5015(a)(3), nor
demonstrated that the Court lacked jurisdiction to render the JFS pursuant to CPLR § 5015(a)(4).
49. Accordingly, Defendant has no legal basis to seek relief based upon CPLR § 5015.
JUDGMENT OF FORECLOSURE AND SALE IS FINAL
50. Defendant’s challenge to issues that have already been decided via prior
interlocutory orders must fail because the right to challenge the same terminated with the entry of
the final judgment of foreclosure and sale. Nivens v. NYC Housing Authority, 246 A.D.2d 52, 667
N.Y.S.2d 415 (2nd Dept. 1998); Gruen v. Village of Piermont, 131 A.D.3d 1007, 16 N.Y.S.3d 273
(2nd Dept. 2015). Upon entry of a final judgment, appellate review of the intermediate orders is
only available on appeal of the final judgment. In re Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285 (Ct.
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of Appeals 1976); Davon v. Downe Communications, 42 A.D.2d 889, 347 N.Y.S.2d 459 (1st Dept.
1973).
51. The judgment of foreclosure and sale entered against a defendant is final as to
all questions at issue between the parties, and all matters of defense that were or might have
been litigated in the foreclosure action are concluded. 83-17 Broadway Corp. v. Debcon
Financial Services, Inc., 39 A.D.3d 583, 835 N.Y.S.2d 602 (2nd Dept. 2007); NAB Asset Venture
IV, LLP v. Orangeburg Equities, 19 A.D.3d 565, 796 N.Y.S.2d 536 (2nd Dept. 2005) [“A judgment
of foreclosure and sale entered against a defendant is final as to all questions at issue between the
parties, and all matters of defense which were or might have been litigated in the foreclosure action
are concluded.”] See Green Point Sav. Bank v. Clarke, 220 A.D.2d 384, 385, 631 N.Y.S.2d 888;
Money Store of N.Y. v. Doner Holding Corp., 112 A.D.2d 284, 287, 491 N.Y.S.2d 730; Gray v.
Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3rd Dept. 1981), appeal
denied 58 N.Y.2d 604, 459 N.Y.S.2d 1026, 445 N.E.2d 564.
52. In the matter of Tromba v. Eastern Federal Savings Bank, FSB, 148 A.D.3d 753,
48 N.Y.S.3d 501 (2nd Dept. 2017), the Second Department found that a judgment of foreclosure
and sale is final as to all questions at issue between the parties, and concludes all matters of defense
which were or might have been litigated in the foreclosure action. A judgment of default which
has not been vacated is conclusive for res judicata purposes, and encompasses the issues which
were raised or could have been raised in the prior action.
53. The Second Department, in Glickman v. Bd. Of Educ., 278 A.D.2d 364, 366, 717
N.Y.S.2d 373, 374-75 (2nd Dept. 2000), recognized that in New York State there is a “rule
regarding the finality of judgments” and held that “because the plaintiffs’ motion was made after
judgment was entered and the time to appeal had expired, it should have been denied as untimely.”
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54. Here, JFS was entered on October 18, 2019, and served upon the parties together
with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue
or appeal within the time allotted (see NYSCE Doc. No. 1).
55. As such, Defendant had until October 9, 2021 to appeal or move to reargue the
Judgment.
56. Defendant failed to do so.
57. Similarly, Defendant had until September 9, 2022 to file a motion to vacate the
judgment of foreclosure and sale pursuant to CPLR 5015.
58. Again, the Defendant failed to do so.
59. As such, this matter has been litigated to a conclusion, and Defendant may not
attempt to re-litigate this action in any respect.
LAW OF THE CASE
60. Defendant’s OTSC seeks to re-litigate the merits of this Foreclosure Action from
scratch by arguing, while in a default position, numerous already stricken affirmative defenses that
were decided, or could have been decided, at the default judgment stage of this Foreclosure Action.
61. However, said purported affirmative defenses are untimely and improperly
interposed, as Plaintiff has already obtained JFS on October 18, 2019, and served upon the parties
together with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to
reargue or appeal within the time allotted (see NYSCE Doc. No. 1).
62. In the matter of Baron v. Baron, 128 A.D.2d 821, 821 (2nd Dept. 1987), the Second
Department found that “[t]he Supreme Court properly held that the doctrine of law of the case
precluded the defendant from relitigating an issue that was previously decided by order of the same
court dated July 12, 1983.
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63. An issue that was already decided via a prior order amounts to law of the case and
should not be relitigated. See Glynwill Investments, N.V. v. Shearson Lehman Hutton, Inc., 216
A.D.2d 78 (1st Dept. 1995).
64. Here, Defendant’s OTSC asserts numerous defenses as if Defendant were opposing
a motion for summary judgment.
65. However, Default Judgment was awarded to Plaintiff long ago JFS was entered
almost four years ago.
66. “Since the Court determined that these arguments are without merit, the doctrine of
law of the case barred (Defendant) from relitigating these issues.” Madison Acquisition Group,
LLC v. Fourth Real Estate Development, LLC, 134 A.D.3d 683, 685 (2nd Dept. 2015).
67. As such, each and every one of Defendant’s purported defenses are barred by the
doctrine of law of the case.
68. Therefore, Defendant’s OTSC must fail.
DEFENDANT MAY NOT VACATE HIS
DEFAULT: NO REASONABLE EXCUSE
69. Defendant seeks to vacate the JFS. However, Defendant cannot do so without first
vacating his default.
70. In order to do so, Defendant must demonstrate a (1) a reasonable excuse for his
default; (2) a meritorious defense to this Foreclosure Action; and (3) a lack of prejudice to Plaintiff.
71. Defendant has failed to set forth a valid reason or reasonable excuse for his failure
to timely oppose Plaintiff’s motion for summary judgment and JFS. Accordingly, Defendant is not
entitled to relief from his default. See, Leone v. Johnson, 471 N.Y.S.2d 393 (3rd Dept. 1984); County
Asphault, Inc. v. North Rockland Underground Corp., 465 N.Y.S.2d 257 (2nd Dept. 1983); Berlin v.
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New Hope Holiness Church of God, Inc., 460 N.Y.S.2d 961 (2nd Dept. 1983), appeal dismissed by 60
N.Y.2d 702 (1983); Migliaccio v. Phoenix Ins. Co., a Div. of the Travelers Ins. Co., 458 N.Y.S.2d
103 (4th Dept. 1982); Du-Art Film Laboratories, Inc. v. Wharton Intern. Films Inc., 457 N.Y.S.2d 60
(1st Dept. 1982).
72. Defendant states that his attorney passed away in June of 2020 (NYSCEF Doc. No.
270. Clearly, Defendant has a responsibility to check-in with his attorney from time to time, yet
Defendant has waited almost three years from the time when his attorney passed away in order
to seek relief in this case. In fact, Defendant neglected to take any action, until after Plaintiff filed
its instant Motion for a substitute referee.
73. Also, the Notice of Entry of JFS was served upon Defendant on September 9, 2021
at this home (see Exhibit “1”).
74. Defendant has not taken any meaningful action in this case throughout the past
almost 7 years, and clearly does so now in an attempt to delay this case.
75. Likewise, as a matter of law, attempts to evoke the Court’s sympathy and personal
hardship are not cognizable defenses to foreclosure. See Graf v. Hope Bldg. Corp., 251 N.Y.1
(1930).
76. Any sympathy that a borrower’s situation might arouse “cannot be permitted to
undermine the stability of contractual obligations.” First Nat’l Stores, Inc. v. Yellowstone
Shopping Ctr., Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968).
77. Therefore, Defendant’s OTSC must be denied in its entirety.
DEFENDANT FAILED TO ESTABLISH
A MERITORIOUS DEFENSE
78. It is well settled that in order to vacate a default, the moving party must establish a
meritorious defense to the action, a reasonable excuse and that the default was not willful. Brown
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v. Ryder Truck Rental, 172 AD2d 477, 567 NYS2d 831 (2nd Dept. 1991); Farrar v. Archer, 125
AD2d 953, 510 NYS2d 43 (4th Dept. 1986). Furthermore, even if a party has a potentially
meritorious defense, a default should not be vacated if that party stood by idly and willfully while
the action proceeded to judgment. Kent v. Fearless Realty, 174 AD2d 499, 571 NYS2d 276 (1st
Dept. 1991); Ciprano v. Hank, 197 AD2d 295, 610 NYS2d 523 (1st Dep’t 1994).
79. Defendant in this case has failed to establish a meritorious defense to the action.
As such, the OTSC should be denied on this ground alone. It should also be noted that defenses
waived by the failure to answer, such as standing, do not constitute a meritorious defense for
purposes of vacating a default. Wells Fargo Bank Minnesota v. Mastropaolo, 42 AD3d 239, 837
NYS2d 247 (2d Dep’t 2007), citing Fossella v. Dinkins, 66 N.Y.2d 162, 495 N.Y.S.2d 352 (1985)
[also standing for the proposition that a waived standing issue does not constitute meritorious
defense on application to vacate default]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d
624, 883 N.Y.S.2d 135 (2d Dep’t 2009); Citibank, N.A. v. Herrera, 64 A.D.3d 536, 881 N.Y.S.2d
334 (2d Dep’t 2009); HSBC Bank, USA, v Dammond, 59 A.D.3d 679, 875 N.Y.S.2d 490 (2d Dep’t
2009); Deutsche Bank Natl. Trust Co. v. Young, 66 AD3d 819, 886 NYS2d 619 (2nd Dep’t 2009)
[standing issue unavailing on application to vacate default judgment]; US Bank, NA v. Emmanuel,
83 AD3d 1047, 921 NYS2d 320 (2d Dep’t 2011); Deutsche Bank Natl. Trust Co. v. Hussain, 78
AD3d 989, 912 NYS2d 595 (2d Dep’t 2010); Countrywide Home Loans Serv., LP v. Albert, 78
AD3d 983, 912 NYS2d 96 (2d Dep’t 2010); Aames Funding Corp. v. Houston, 57 AD3d 808, 872
NYS2d 134 (2d Dep’t 2008).
PREJUDICE TO PLAINTIFF
80. Finally, Defendant failed to demonstrate a lack of prejudice to Plaintiff.
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81. Here, Defendant was served with process on September 24, 2016. See NYSCEF
Doc No. 7.
82. However, Defendant chose to wait until the action was litigated to a conclusion and
the applicable statute of limitations period expired before seeking to dismiss the Complaint.
83. If Defendant’s untimely application were to be granted, Plaintiff would be severely
prejudiced in that Plaintiff would essentially be forced to re-litigate the merits of the Foreclosure
Action from scratch.
84. Moreover, Plaintiff was be forced to incur the expense of re-engaging in motion
practice as well as in paying Defendant’s taxes and insurance in the months that will follow, all
while Defendant continues to enjoy the use and ownership of the Subject Premises rent-free.
85. Additionally, as Foreclosure Actions are subject to a statute of limitations,
significant delays are inevitably harmful to Plaintiff’s interests.
86. Defendant’s delay in moving to vacate undoubtedly prejudices Plaintiff.
87. Therefore, Defendant’s OTSC must be denied.
DEFENDANT IS NOT ENTITLED TO TOLLING
88. Defendant argues that Plaintiff should not be permitted to collect interest upon the
Note and Mortgage upon the grounds that Plaintiff has delayed this matter.
89. However, Defendant is barred from seeking tolling as the judgment of foreclosure
and sale entered against a defendant is final as to all questions at issue between the parties,
and all matters of defense that were or might have been litigated in the foreclosure action
are concluded. 83-17 Broadway Corp. v. Debcon Financial Services, Inc., 39 A.D.3d 583, 835
N.Y.S.2d 602 (2nd Dept. 2007); NAB Asset Venture IV, LLP v. Orangeburg Equities, 19 A.D.3d
565, 796 N.Y.S.2d 536 (2nd Dept. 2005) [“A judgment of foreclosure and sale entered against a
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defendant is final as to all questions at issue between the parties, and all matters of defense which
were or might have been litigated in the foreclosure action are concluded.”] See Green Point Sav.
Bank v. Clarke, 220 A.D.2d 384, 385, 631 N.Y.S.2d 888; Money Store of N.Y. v. Doner Holding
Corp., 112 A.D.2d 284, 287, 491 N.Y.S.2d 730; Gray v. Bankers Trust Co. of Albany, N.A., 82
A.D.2d 168, 442 N.Y.S.2d 610 (3rd Dept. 1981), appeal denied 58 N.Y.2d 604, 459 N.Y.S.2d 1026,
445 N.E.2d 564.
90. Throughout the relevant time, Defendant failed to oppose Plaintiff’s motions for
MSJ and for entry of JFS, and has failed to file any other papers objecting to any purported delays
on this matter (see NYSCE Doc. No. 1).
91. Moreover, after entry of JFS, Plaintiff was unable to proceed with setting the
foreclosure sale date due to the Covid-19 Pandemic and the bevy of Court closures, stays, and
moratoriums that followed.
92. Thereafter, Plaintiff was informed that due to health considerations, the previously
appointed referee indicated that he would be withdrawing from further service as a referee, and
would apprise the Court and request that a substitute be appointed (NYSCEF Doc. No. 7).
93. Defendant is estopped from arguing that Plaintiff delayed this action, as Plaintiff
has been actively litigating this matter since inception (see NYSCE Doc. No. 1).), and Defendant
has failed to serve Plaintiff with a 90 Day Notice to Resume Prosecution in accordance with CPLR
§3216. Moreover, Defendant has failed to demonstrate that Plaintiff has willfully caused any
significant delay in these proceedings.
94. The CPLR provides defendants with a very specific remedy for matters in which
they believe a plaintiff is not timely proceeding with the prosecution of an action.
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95. In the matter of Baxter v. Javier, 109 A.D.3d 493, 970 N.Y.S.2d 567 (2d Dep’t
2013), the Appellate Division – Second Department held that:
The defendants' “remedy was to serve a written demand [pursuant
to CPLR 3216] that the plaintiff resume prosecution of the action and
serve and file a note of issue within 90 days after receipt of the
demand” (Roth v. Black Star Publ. Co., 302 A.D.2d at 443, 753 N.Y.S.2d
743; see CPLR 3216; Arroyo v. Board of Educ. of City of New York, 110
A.D.3d at 21, 970 N.Y.S.2d 229, 2013 N.Y. Slip Op. 05507). The
defendants failed to do so. Accordingly, the Supreme Court should have
denied that branch of the defendants' cross motion which was to dismiss the
complaint based on the doctrine of laches (see Arroyo v. Board of Educ. of
City of New York, 110 A.D.3d at 18, 970 N.Y.S.2d 229, 2013 N.Y. Slip Op.
05507).
(emphasis added).
96. In the matter of Wells Fargo Bank, NA, as Trustee, etc., v. Archibald, et al., the
Hon. Elaine Slobod of the Supreme Court of the State of New York – Orange County held that
“[a]s for delay by the plaintiff generally, the Court notes that the defendant had a remedy
under CPLR §3216 if he felt that he was prejudiced” (emphasis added). (Annexed hereto as
Exhibit “2” is a copy of the Decision and Order from Wells Fargo Bank, NA, as Trustee, etc., v.
Archibald, et al., Orange County Index Number 9428/2008).
97. Pursuant to CPLR § 3216, if Defendant felt that he was being prejudiced by
purported delays in the prosecution of the action, it was incumbent upon Defendant to serve
Plaintiff with a 90 Day Notice to Resume Prosecution by certified mail.
98. Thereafter, Plaintiff would have been required to serve and file a Note of Issue
within ninety (90) days or face dismissal.
99. Defendant, elected not to do so. This is because delaying the conclusion of this
action only benefits the Defendant, who profits from its continued ownership of the Subject
Premises.
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100. As such, Defendant is estopped from arguing any prejudice as a result of purported
delays in the prosecution of this Foreclosure Action.
101. Defendant states that his attorney passed away in June of 2020 (NYSCEF Doc. No.
270. Clearly, Defendant has a responsibility to check-in with his attorney from time to time, yet
Defendant has waited almost three years from the time when his attorney passed away in order
to seek relief in this case. In fact, Defendant neglected to take any action, until after Plaintiff filed
its instant Motion for a substitute referee.
102. Also, the Notice of Entry of JFS was served upon Defendant on September 9, 2021
at this home (see Exhibit “1”).
103. Defendant has not taken any meaningful action in this case throughout the past
almost 7 years, and clearly does so now in an attempt to delay this case.
104. Likewise, as a matter of law, attempts to evoke the Court’s sympathy and personal
hardship are not cognizable defenses to foreclosure. See Graf v. Hope Bldg. Corp., 251 N.Y.1
(1930).
105. Any sympathy that a borrower’s situation might arouse “cannot be permitted to
undermine the stability of contractual obligations.” First Nat’l Stores, Inc. v. Yellowstone
Shopping Ctr., Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968).
106. Therefore, Defendant’s OTSC must be denied.
CONCLUSION
107. For all the foregoing reasons, this Court should deny Defendant’s OTSC in its
entirety, and grant Plaintiff’s Cross-Motion for extension of time to conduct the sale.
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WHEREFORE, it is respectfully requested that this Court grant Plaintiff’s Cross-Motion
in its entirety, and for such other and further relief which this court may deem just, proper and
equitable, and that he Court deny Defendant’s OTSC in its entirety.
Dated: June 19, 2023 Respectfully submitted,
Westbury, New York
Robertson, Anschutz, Schneid, Crane &
Partners, PLLC
______________________________
By: Margarita Gaitas, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
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Word Count Certification
The total number of words in the foregoing brief, memorandum, affirmation or affidavit
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is 5,573.
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.
Dated: June 19, 2023
Westbury, New York
Robertson, Anschutz, Schneid, Crane &
Partners, PLLC
______________________________
By: Margarita Gaitas, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
19 of 19
Preview
FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK _____________________________________________ FEDERAL NATIONAL MORTGAGE ASSOCIATION INDEX NO.: 015989/2009 ("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE AFFIRMATION IN UNITED STATES OF AMERICA, SUPPORT OF PLAINTIFF’S CROSS-MOTION FOR Plaintiff, EXTENSION OF TIME TO vs. SET THE SALE, AND IN OPPOSITION TO FRANK AMATO; MATTHEW AMATO; CAPITAL DEFENDANT’S OTSC ONE BANK; CITIBANK, N.A.; JOSEPH TARANTELLO, Defendants. _____________________________________________ I, Margarita Gaitas, Esq., pursuant to CPLR § 2106 and under the penalties of perjury, affirms as follows: 1. I am an attorney with the firm Robertson, Anschutz, Schneid, Crane & Partners, PLLC (“RAS”), attorneys for Plaintiff, FEDERAL NATIONAL MORTGAGE ASSOCIATION ("FANNIE MAE"), A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES (hereinafter referred to as “Plaintiff”). 2. I am fully familiar with the facts and circumstances of the case, the basis of my knowledge being the files maintained by the office with respect to this matter. 3. The above-entitled already concluded action is for the foreclosure of a mortgage on real property known as 84 HAYNES AVE, WEST ISLIP, NY 11795 (hereinafter referred to as the “Subject Premises”). 4. This affirmation is submitted in support of Plaintiff’s Cross-Motion (“CMFE”) seeking an order extending the time to conduct the foreclosure sale, and in opposition to the order to show cause (“OTSC”) filed by Defendant, FRANK AMATO (“Defendant”), in which 1 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 Defendant seeks to vacate pursuant to CPLR 2221 (d) and (e), and CPLR 5015(a)(1), the order granting Plaintiff summary judgment (“MSJ Order”) and the order confirming the referee’s report and for judgment of foreclosure and sale (“JFS”), and per CPLR 5001 seeking to strike interest. 5. Plaintiff’s Cross-Motion should be granted in the interest of justice because Plaintiff was unable to set the foreclosure sale date due to various Covid-related delays, and because the appointed referee indicated he had to withdraw due to health concerns (see NYSCEF Doc. No. 7). 6. Defendant’s OTSC must be denied as Defendant attempts to argue matters which are barred by the law of the case doctrine. The JFS was entered on October 18, 2019 (NYSCEF Doc. No. 6). Defendant’s Answer and Affirmative Defenses were stricken when the Court granted Plaintiff’s motion for summary judgment (see id.). The JFS was served upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1), and has no legal basis for which to seek to renew and vacate prior orders, nor to seek tolling. 7. Defendant’s OTSC to vacate the JFS pursuant to CPLR 2221(d) is untimely by almost two years, is improperly based upon matters of purported fact not offered on the prior motion, and fails to demonstrate that he Court overlooked matters of law. 8. Similarly, Defendant’s OTSC seeking to renew Plaintiff’s motion for summary judgment and vacate the MSJ Order entered on November 2, 2017 (see NYSCEF Doc. No. 1), and his to renew the JFS, pursuant to CPLR 2221 (e), should be denied because Defendant has failed to set forth any new facts or case law, nor reasonable justification for the failure to present such facts on the prior motion. Moreover, Defendant’s time to challenge the MSJ Order terminated upon entry of the JFS which entered on October 18, 2019. 2 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 9. Defendant has also failed to meet the requirements set forth in CPLR 5015 because the OTSC is untimely by almost a year, and Defendant has failed to offer any new evidence that was not available at the time of the motions, nor has Defendant set forth any fraud. 10. As to Defendant’s request in the alternative for tolling pursuant to CPLR 5001, same must be denied as Defendant has no legal basis to seek same, as detailed below. 11. Plaintiff was previously unable to proceed with setting the foreclosure sale date due to the Covid-19 Pandemic and the bevy of Court closures, stays, and moratoriums that followed. Thereafter, Plaintiff was informed that due to health considerations, the previously appointed referee indicated that he would be withdrawing from further service as a referee, and would apprise the Court and request that a substitute be appointed (NYSCEF Doc. No. 7). 12. Throughout the above referenced time, Defendant failed to oppose Plaintiff’s motion for entry of JFS, and has failed to file any other papers objecting to any purported delays on this matter (see NYSCE Doc. No. 1). 13. As such, Plaintiff’s Cross-Motion for extension of time to set the foreclosure sale should be granted, since Defendant has not brought forth a legal basis to support a denial, and because Plaintiff has satisfied its entitlement to an extension of time. PLAINTIFF’S MOTION FOR EXTENSION OF TIME TO SET THE FORECLOSURE SALE 14. Upon a thorough review of the foreclosure pleadings and all proceedings heretofore had herein, Plaintiff filed a Summons, Complaint, and initial Notice of Pendency on April 29, 2009; additional Notices of Pendency were filed on November 25, 2013 and April 21, 2017 (NYSCEF Doc. No. 1). 15. Plaintiff’s application for Order Confirming Referee Report and Judgment of Foreclosure and Sale was granted by the Court on October 18, 2019 (“JFS”) (NYSCEF Doc. No. 3 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 6), a date more than ninety (90) days prior to this application. 16. Plaintiff was unable to schedule the foreclosure sale in accordance with the JFS due to the Covid-19 Pandemic and the bevy of Court closures, stays, and moratoriums that followed. 17. Thereafter, Plaintiff was informed that due to health considerations, the previously appointed referee indicated that he would be withdrawing from further service as a referee, and would apprise the Court and request that a substitute be appointed (NYSCEF Doc. No. 7). 18. In light of the foregoing, Plaintiff requests an order granting one (1) year from the entry of an order on this motion to proceed to sale. 19. NY CPLR § 2004 allows the Court to extend the time to comply with “any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown…” See U.S. Bank National Association v Adler, 148 A.D.3d 858 (2nd Dept. 2017). 20. Plaintiff has demonstrated good cause for the delay in setting a foreclosure sale and the Plaintiff and the Borrower had been seeking a non-foreclosure solution in the instant matter. 21. In addition to statutory authority, as foreclosure is an action in equity this Court’s equitable powers are triggered, and the Court has discretion to extend Plaintiff’s time to comply in the interests of justice. Hudson City Savings Bank v. Cohen, 120 A.D.3d 1304, 993, N.Y.S.2d 66 (2nd Dept. 2014); see Deutsche Bank National Trust Company, Respondent v Luden, 91 A.D.3d 701, 936 N.Y.S.2d 561 (Mem), 2012 N.Y. Slip Op. 00323 [2012]; see also Mortgage Electronic Registration Systems, Inc. v Horkan, 68 A.D.3d 948, 890 N.Y.S.2d 326 (Mem), 2009 N.Y. Slip Op. 09441. 22. It is respectfully submitted that the Court should exercise its discretion and allow Plaintiff additional time to comply with the Court’s directive. WHEREFORE, Plaintiff prays that the Court issue an order granting an extension of time 4 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 to schedule a Foreclosure Sale together with such other and further relief the Court may deem just and proper. DEFENDANT’S MOTION TO REARGUE 23. Motions to Reargue are governed by CPLR 2221(d) which provides that: (d) A motion for leave to reargue: 1.shall be identified specifically as such; 2.shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3.shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (Emphasis added). 24. Defendant seeks to reargue the JFS which entered on October 18, 2019, and served upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). However, Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1). 25. As such, Defendant’s motion to reargue is untimely. 26. Moreover, Defendant’s Motion to Reargue is improperly based upon matters of purported fact not offered on the prior motion. Defendant failed to oppose Plaintiff’s Motion for JFS (see NYSCE Doc. No. 1). 27. Defendant failed to oppose Plaintiff’s Motion for JFS, and thus, is not permitted on a motion to reargue. 28. Defendant fails to demonstrate that this Court overlooked or misapprehended a matter of law or fact in reaching its determination on the prior motion. 29. Moreover, Defendant never moved to vacate the Default Judgment against him, and his time to do so expired upon the entry of Judgment of Foreclosure and Sale. 5 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 30. Therefore, Defendant’s OTSC to Reargue must be denied. DEFENDANT’S MOTIONS TO RENEW 31. Motions to Renew are governed by CPLR 2221(e). 32. CPLR 2221(e) provides that (e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion. (Emphasis added). 33. Here, Defendant has failed to demonstrate any new facts or change in law. 34. Defendant does not offer a reasonable justification for the failure to oppose Plaintiff’s motion for summary judgment. 35. Moreover, Defendant does not offer any explanation as to why he did not move to vacate the MSJ Order entered on November 2, 2017 (see NYSCEF Doc. No. 1). 36. To be sure, Defendant’s one (1) year time period to move to vacate the MSJ Order expired long ago. 37. Defendant’s time to challenge the MSJ Order terminated upon entry of the JFS which entered on October 18, 2019, and served upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1). 38. Similarly, Defendant’s to motion to vacate the JFS pursuant to CPLR 2221(e) fails to demonstrate any new facts or change in law. 6 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 39. Defendant does not offer a reasonable justification for the failure to oppose Plaintiff’s JFS. 40. Moreover, Defendant does not offer any explanation as to why he did not move to vacate the JFS entered on which entered on October 18, 2019, and served upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1). 41. To be sure, Defendant’s one (1) year time period to move to vacate the JFS expired long ago. 42. As demonstrated above, this case has already been litigated to its conclusion, and Defendant is not entitled to renewal of the same. THERE IS NO BASIS TO VACATE THE JFS. 43. Defendant has no basis for which to vacate the JFS. 44. CPLR § 5015, entitled Relief from Judgment or Order, states in pertinent part: (a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. Excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. Fraud, misrepresentation, or other misconduct of an adverse party; or 4. Lack of jurisdiction to render the judgment or order; or 5. Reversal, modification or vacatur of a prior judgment or order upon which it is based. (emphasis added). 45. Here, a motion pursuant to CPLR § 5015(a)(1) is untimely as it was made more than one year since the JFS was entered on October 18, 2019, and served upon the parties together 7 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1). 46. Moreover, Defendant has failed to provide a reasonable excuse for his default on the prior motions. See Ditech Financial, LLC v. Rizzo, 108 N.Y.S.3d 156, 158-59, 2019 N.Y. Slip Op. 06472, 2019 WL 4282033 (2nd Dept. 2019) (“[a] defendant seeking to vacate a judgment or order entered on default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action or opposition to the relief sought in the motion”) (emphasis added). 47. It is notable that Defendant took no steps in this Court throughout the period Defendant claims there was a delay, until after JFS was entered and Plaintiff filed its Motion for a substitute referee on April 13, 2023 (see NYSCE Doc. No. 1). 48. Further, Defendant has not provided any newly discovered evidence pursuant to CPLR § 5015(a)(2), nor any fraud or misrepresentation pursuant to CPLR § 5015(a)(3), nor demonstrated that the Court lacked jurisdiction to render the JFS pursuant to CPLR § 5015(a)(4). 49. Accordingly, Defendant has no legal basis to seek relief based upon CPLR § 5015. JUDGMENT OF FORECLOSURE AND SALE IS FINAL 50. Defendant’s challenge to issues that have already been decided via prior interlocutory orders must fail because the right to challenge the same terminated with the entry of the final judgment of foreclosure and sale. Nivens v. NYC Housing Authority, 246 A.D.2d 52, 667 N.Y.S.2d 415 (2nd Dept. 1998); Gruen v. Village of Piermont, 131 A.D.3d 1007, 16 N.Y.S.3d 273 (2nd Dept. 2015). Upon entry of a final judgment, appellate review of the intermediate orders is only available on appeal of the final judgment. In re Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285 (Ct. 8 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 of Appeals 1976); Davon v. Downe Communications, 42 A.D.2d 889, 347 N.Y.S.2d 459 (1st Dept. 1973). 51. The judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense that were or might have been litigated in the foreclosure action are concluded. 83-17 Broadway Corp. v. Debcon Financial Services, Inc., 39 A.D.3d 583, 835 N.Y.S.2d 602 (2nd Dept. 2007); NAB Asset Venture IV, LLP v. Orangeburg Equities, 19 A.D.3d 565, 796 N.Y.S.2d 536 (2nd Dept. 2005) [“A judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded.”] See Green Point Sav. Bank v. Clarke, 220 A.D.2d 384, 385, 631 N.Y.S.2d 888; Money Store of N.Y. v. Doner Holding Corp., 112 A.D.2d 284, 287, 491 N.Y.S.2d 730; Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3rd Dept. 1981), appeal denied 58 N.Y.2d 604, 459 N.Y.S.2d 1026, 445 N.E.2d 564. 52. In the matter of Tromba v. Eastern Federal Savings Bank, FSB, 148 A.D.3d 753, 48 N.Y.S.3d 501 (2nd Dept. 2017), the Second Department found that a judgment of foreclosure and sale is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action. A judgment of default which has not been vacated is conclusive for res judicata purposes, and encompasses the issues which were raised or could have been raised in the prior action. 53. The Second Department, in Glickman v. Bd. Of Educ., 278 A.D.2d 364, 366, 717 N.Y.S.2d 373, 374-75 (2nd Dept. 2000), recognized that in New York State there is a “rule regarding the finality of judgments” and held that “because the plaintiffs’ motion was made after judgment was entered and the time to appeal had expired, it should have been denied as untimely.” 9 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 54. Here, JFS was entered on October 18, 2019, and served upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1). 55. As such, Defendant had until October 9, 2021 to appeal or move to reargue the Judgment. 56. Defendant failed to do so. 57. Similarly, Defendant had until September 9, 2022 to file a motion to vacate the judgment of foreclosure and sale pursuant to CPLR 5015. 58. Again, the Defendant failed to do so. 59. As such, this matter has been litigated to a conclusion, and Defendant may not attempt to re-litigate this action in any respect. LAW OF THE CASE 60. Defendant’s OTSC seeks to re-litigate the merits of this Foreclosure Action from scratch by arguing, while in a default position, numerous already stricken affirmative defenses that were decided, or could have been decided, at the default judgment stage of this Foreclosure Action. 61. However, said purported affirmative defenses are untimely and improperly interposed, as Plaintiff has already obtained JFS on October 18, 2019, and served upon the parties together with a Notice of Entry on September 9, 2021 (Exhibit “1”). Defendant failed to move to reargue or appeal within the time allotted (see NYSCE Doc. No. 1). 62. In the matter of Baron v. Baron, 128 A.D.2d 821, 821 (2nd Dept. 1987), the Second Department found that “[t]he Supreme Court properly held that the doctrine of law of the case precluded the defendant from relitigating an issue that was previously decided by order of the same court dated July 12, 1983. 10 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 63. An issue that was already decided via a prior order amounts to law of the case and should not be relitigated. See Glynwill Investments, N.V. v. Shearson Lehman Hutton, Inc., 216 A.D.2d 78 (1st Dept. 1995). 64. Here, Defendant’s OTSC asserts numerous defenses as if Defendant were opposing a motion for summary judgment. 65. However, Default Judgment was awarded to Plaintiff long ago JFS was entered almost four years ago. 66. “Since the Court determined that these arguments are without merit, the doctrine of law of the case barred (Defendant) from relitigating these issues.” Madison Acquisition Group, LLC v. Fourth Real Estate Development, LLC, 134 A.D.3d 683, 685 (2nd Dept. 2015). 67. As such, each and every one of Defendant’s purported defenses are barred by the doctrine of law of the case. 68. Therefore, Defendant’s OTSC must fail. DEFENDANT MAY NOT VACATE HIS DEFAULT: NO REASONABLE EXCUSE 69. Defendant seeks to vacate the JFS. However, Defendant cannot do so without first vacating his default. 70. In order to do so, Defendant must demonstrate a (1) a reasonable excuse for his default; (2) a meritorious defense to this Foreclosure Action; and (3) a lack of prejudice to Plaintiff. 71. Defendant has failed to set forth a valid reason or reasonable excuse for his failure to timely oppose Plaintiff’s motion for summary judgment and JFS. Accordingly, Defendant is not entitled to relief from his default. See, Leone v. Johnson, 471 N.Y.S.2d 393 (3rd Dept. 1984); County Asphault, Inc. v. North Rockland Underground Corp., 465 N.Y.S.2d 257 (2nd Dept. 1983); Berlin v. 11 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 New Hope Holiness Church of God, Inc., 460 N.Y.S.2d 961 (2nd Dept. 1983), appeal dismissed by 60 N.Y.2d 702 (1983); Migliaccio v. Phoenix Ins. Co., a Div. of the Travelers Ins. Co., 458 N.Y.S.2d 103 (4th Dept. 1982); Du-Art Film Laboratories, Inc. v. Wharton Intern. Films Inc., 457 N.Y.S.2d 60 (1st Dept. 1982). 72. Defendant states that his attorney passed away in June of 2020 (NYSCEF Doc. No. 270. Clearly, Defendant has a responsibility to check-in with his attorney from time to time, yet Defendant has waited almost three years from the time when his attorney passed away in order to seek relief in this case. In fact, Defendant neglected to take any action, until after Plaintiff filed its instant Motion for a substitute referee. 73. Also, the Notice of Entry of JFS was served upon Defendant on September 9, 2021 at this home (see Exhibit “1”). 74. Defendant has not taken any meaningful action in this case throughout the past almost 7 years, and clearly does so now in an attempt to delay this case. 75. Likewise, as a matter of law, attempts to evoke the Court’s sympathy and personal hardship are not cognizable defenses to foreclosure. See Graf v. Hope Bldg. Corp., 251 N.Y.1 (1930). 76. Any sympathy that a borrower’s situation might arouse “cannot be permitted to undermine the stability of contractual obligations.” First Nat’l Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968). 77. Therefore, Defendant’s OTSC must be denied in its entirety. DEFENDANT FAILED TO ESTABLISH A MERITORIOUS DEFENSE 78. It is well settled that in order to vacate a default, the moving party must establish a meritorious defense to the action, a reasonable excuse and that the default was not willful. Brown 12 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 v. Ryder Truck Rental, 172 AD2d 477, 567 NYS2d 831 (2nd Dept. 1991); Farrar v. Archer, 125 AD2d 953, 510 NYS2d 43 (4th Dept. 1986). Furthermore, even if a party has a potentially meritorious defense, a default should not be vacated if that party stood by idly and willfully while the action proceeded to judgment. Kent v. Fearless Realty, 174 AD2d 499, 571 NYS2d 276 (1st Dept. 1991); Ciprano v. Hank, 197 AD2d 295, 610 NYS2d 523 (1st Dep’t 1994). 79. Defendant in this case has failed to establish a meritorious defense to the action. As such, the OTSC should be denied on this ground alone. It should also be noted that defenses waived by the failure to answer, such as standing, do not constitute a meritorious defense for purposes of vacating a default. Wells Fargo Bank Minnesota v. Mastropaolo, 42 AD3d 239, 837 NYS2d 247 (2d Dep’t 2007), citing Fossella v. Dinkins, 66 N.Y.2d 162, 495 N.Y.S.2d 352 (1985) [also standing for the proposition that a waived standing issue does not constitute meritorious defense on application to vacate default]; Countrywide Home Loans, Inc. v. Delphonse, 64 A.D.3d 624, 883 N.Y.S.2d 135 (2d Dep’t 2009); Citibank, N.A. v. Herrera, 64 A.D.3d 536, 881 N.Y.S.2d 334 (2d Dep’t 2009); HSBC Bank, USA, v Dammond, 59 A.D.3d 679, 875 N.Y.S.2d 490 (2d Dep’t 2009); Deutsche Bank Natl. Trust Co. v. Young, 66 AD3d 819, 886 NYS2d 619 (2nd Dep’t 2009) [standing issue unavailing on application to vacate default judgment]; US Bank, NA v. Emmanuel, 83 AD3d 1047, 921 NYS2d 320 (2d Dep’t 2011); Deutsche Bank Natl. Trust Co. v. Hussain, 78 AD3d 989, 912 NYS2d 595 (2d Dep’t 2010); Countrywide Home Loans Serv., LP v. Albert, 78 AD3d 983, 912 NYS2d 96 (2d Dep’t 2010); Aames Funding Corp. v. Houston, 57 AD3d 808, 872 NYS2d 134 (2d Dep’t 2008). PREJUDICE TO PLAINTIFF 80. Finally, Defendant failed to demonstrate a lack of prejudice to Plaintiff. 13 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 81. Here, Defendant was served with process on September 24, 2016. See NYSCEF Doc No. 7. 82. However, Defendant chose to wait until the action was litigated to a conclusion and the applicable statute of limitations period expired before seeking to dismiss the Complaint. 83. If Defendant’s untimely application were to be granted, Plaintiff would be severely prejudiced in that Plaintiff would essentially be forced to re-litigate the merits of the Foreclosure Action from scratch. 84. Moreover, Plaintiff was be forced to incur the expense of re-engaging in motion practice as well as in paying Defendant’s taxes and insurance in the months that will follow, all while Defendant continues to enjoy the use and ownership of the Subject Premises rent-free. 85. Additionally, as Foreclosure Actions are subject to a statute of limitations, significant delays are inevitably harmful to Plaintiff’s interests. 86. Defendant’s delay in moving to vacate undoubtedly prejudices Plaintiff. 87. Therefore, Defendant’s OTSC must be denied. DEFENDANT IS NOT ENTITLED TO TOLLING 88. Defendant argues that Plaintiff should not be permitted to collect interest upon the Note and Mortgage upon the grounds that Plaintiff has delayed this matter. 89. However, Defendant is barred from seeking tolling as the judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense that were or might have been litigated in the foreclosure action are concluded. 83-17 Broadway Corp. v. Debcon Financial Services, Inc., 39 A.D.3d 583, 835 N.Y.S.2d 602 (2nd Dept. 2007); NAB Asset Venture IV, LLP v. Orangeburg Equities, 19 A.D.3d 565, 796 N.Y.S.2d 536 (2nd Dept. 2005) [“A judgment of foreclosure and sale entered against a 14 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded.”] See Green Point Sav. Bank v. Clarke, 220 A.D.2d 384, 385, 631 N.Y.S.2d 888; Money Store of N.Y. v. Doner Holding Corp., 112 A.D.2d 284, 287, 491 N.Y.S.2d 730; Gray v. Bankers Trust Co. of Albany, N.A., 82 A.D.2d 168, 442 N.Y.S.2d 610 (3rd Dept. 1981), appeal denied 58 N.Y.2d 604, 459 N.Y.S.2d 1026, 445 N.E.2d 564. 90. Throughout the relevant time, Defendant failed to oppose Plaintiff’s motions for MSJ and for entry of JFS, and has failed to file any other papers objecting to any purported delays on this matter (see NYSCE Doc. No. 1). 91. Moreover, after entry of JFS, Plaintiff was unable to proceed with setting the foreclosure sale date due to the Covid-19 Pandemic and the bevy of Court closures, stays, and moratoriums that followed. 92. Thereafter, Plaintiff was informed that due to health considerations, the previously appointed referee indicated that he would be withdrawing from further service as a referee, and would apprise the Court and request that a substitute be appointed (NYSCEF Doc. No. 7). 93. Defendant is estopped from arguing that Plaintiff delayed this action, as Plaintiff has been actively litigating this matter since inception (see NYSCE Doc. No. 1).), and Defendant has failed to serve Plaintiff with a 90 Day Notice to Resume Prosecution in accordance with CPLR §3216. Moreover, Defendant has failed to demonstrate that Plaintiff has willfully caused any significant delay in these proceedings. 94. The CPLR provides defendants with a very specific remedy for matters in which they believe a plaintiff is not timely proceeding with the prosecution of an action. 15 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 95. In the matter of Baxter v. Javier, 109 A.D.3d 493, 970 N.Y.S.2d 567 (2d Dep’t 2013), the Appellate Division – Second Department held that: The defendants' “remedy was to serve a written demand [pursuant to CPLR 3216] that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand” (Roth v. Black Star Publ. Co., 302 A.D.2d at 443, 753 N.Y.S.2d 743; see CPLR 3216; Arroyo v. Board of Educ. of City of New York, 110 A.D.3d at 21, 970 N.Y.S.2d 229, 2013 N.Y. Slip Op. 05507). The defendants failed to do so. Accordingly, the Supreme Court should have denied that branch of the defendants' cross motion which was to dismiss the complaint based on the doctrine of laches (see Arroyo v. Board of Educ. of City of New York, 110 A.D.3d at 18, 970 N.Y.S.2d 229, 2013 N.Y. Slip Op. 05507). (emphasis added). 96. In the matter of Wells Fargo Bank, NA, as Trustee, etc., v. Archibald, et al., the Hon. Elaine Slobod of the Supreme Court of the State of New York – Orange County held that “[a]s for delay by the plaintiff generally, the Court notes that the defendant had a remedy under CPLR §3216 if he felt that he was prejudiced” (emphasis added). (Annexed hereto as Exhibit “2” is a copy of the Decision and Order from Wells Fargo Bank, NA, as Trustee, etc., v. Archibald, et al., Orange County Index Number 9428/2008). 97. Pursuant to CPLR § 3216, if Defendant felt that he was being prejudiced by purported delays in the prosecution of the action, it was incumbent upon Defendant to serve Plaintiff with a 90 Day Notice to Resume Prosecution by certified mail. 98. Thereafter, Plaintiff would have been required to serve and file a Note of Issue within ninety (90) days or face dismissal. 99. Defendant, elected not to do so. This is because delaying the conclusion of this action only benefits the Defendant, who profits from its continued ownership of the Subject Premises. 16 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 100. As such, Defendant is estopped from arguing any prejudice as a result of purported delays in the prosecution of this Foreclosure Action. 101. Defendant states that his attorney passed away in June of 2020 (NYSCEF Doc. No. 270. Clearly, Defendant has a responsibility to check-in with his attorney from time to time, yet Defendant has waited almost three years from the time when his attorney passed away in order to seek relief in this case. In fact, Defendant neglected to take any action, until after Plaintiff filed its instant Motion for a substitute referee. 102. Also, the Notice of Entry of JFS was served upon Defendant on September 9, 2021 at this home (see Exhibit “1”). 103. Defendant has not taken any meaningful action in this case throughout the past almost 7 years, and clearly does so now in an attempt to delay this case. 104. Likewise, as a matter of law, attempts to evoke the Court’s sympathy and personal hardship are not cognizable defenses to foreclosure. See Graf v. Hope Bldg. Corp., 251 N.Y.1 (1930). 105. Any sympathy that a borrower’s situation might arouse “cannot be permitted to undermine the stability of contractual obligations.” First Nat’l Stores, Inc. v. Yellowstone Shopping Ctr., Inc., 21 N.Y.2d 630, 290 N.Y.S.2d 721 (1968). 106. Therefore, Defendant’s OTSC must be denied. CONCLUSION 107. For all the foregoing reasons, this Court should deny Defendant’s OTSC in its entirety, and grant Plaintiff’s Cross-Motion for extension of time to conduct the sale. 17 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 WHEREFORE, it is respectfully requested that this Court grant Plaintiff’s Cross-Motion in its entirety, and for such other and further relief which this court may deem just, proper and equitable, and that he Court deny Defendant’s OTSC in its entirety. Dated: June 19, 2023 Respectfully submitted, Westbury, New York Robertson, Anschutz, Schneid, Crane & Partners, PLLC ______________________________ By: Margarita Gaitas, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, New York 11590 18 of 19 FILED: SUFFOLK COUNTY CLERK 06/19/2023 06:11 PM INDEX NO. 015989/2009 NYSCEF DOC. NO. 46 RECEIVED NYSCEF: 06/22/2023 Word Count Certification The total number of words in the foregoing brief, memorandum, affirmation or affidavit inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 5,573. The document complies with the applicable word count limit and is based on the word count of the word-processing system used to prepare the document. Dated: June 19, 2023 Westbury, New York Robertson, Anschutz, Schneid, Crane & Partners, PLLC ______________________________ By: Margarita Gaitas, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, New York 11590 19 of 19