Preview
FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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FEDERAL NATIONAL MORTGAGE ASSOCIATION ('FANNIE MAE'),
A CORPORATION ORGANZED AND EXISTING UNDER
THE LAWS OF THE UNITED STATES OF AMERICA Index No.: 15989/2009
AFFIRMATION IN SUPPORT
Plaintiff, OF ORDER TO SHOW CAUSE AND
IN OPPOSITION TO CROSS-MOTION
-against-
FRANK AMATO, ET AL
Defendants.
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Christopher Thompson, Esq., an attorney duly admitted to practice law in the courts of
New York, affirms the truth of the following under penalty of perjury pursuant to CPLR §
2106:
1. I am the attorney for Frank Amato
2. I submit this affirmation in opposition to Plaintiff’s motion for an extension of
time to conduct the sale.
3. First Plaintiff’s motion is not timely as it was filed June 19, 2023 with a return
date of June 20, 2023. See CPLR 2214. Moreover, it lacks merit in law or equity.
RPAPL § 1351 DOES NOT AUTHORIZE AN EXTENSION OF THE NINETY DAY
LIMITATION PERIOD
4. RPAPL § 1351 (1) provides that any judgment of foreclosure must direct that the property
be sold within ninety days of issuing that judgment. RPAPL § 1351 (1) also requires that the sale
of the property takes place within ninety days of issuing the Judgment of Foreclosure:
“The judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to
discharge the mortgage debt, the expenses of the sale and the costs of the action, and which may be
sold separately without material injury to the parties interested, be sold by or under the direction of
the sheriff of the county, or a referee within ninety days of the date of the judgment”
5. (RPAPL § 1351 [1] [emphasis added]).
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6. The precise language used in the statute – “[t]he judgment shall direct that the mortgaged
premises…be sold…within ninety days” – renders the directive a mandatory imperative, rather
than a discretionary option or precatory suggestion (see Matter of Natural Resources Defense
Council v. New York City Dept of Sanitation, 83 NY2d 215, 220 [1994] [“[T]he use of the verb
‘shall’ throughout the pertinent provisions illustrates the mandatory nature of the duties contained
therein”]).
7. Here, the Judgment of Foreclosure was issued on October 10, 2018 and included the ninety-
day limitations (Exhibit A). To comply with RPAPL § 1351 (1), a sale of the Premises would have
had to have taken place by January 10, 2019. But neither Plaintiff nor the Referee took any steps
to hold the sale within the statutorily permitted
8. Statutory requirements governing foreclosure sale procedures in the RPAPL are generally
deemed sacrosanct and must be strictly complied with. The Appellate Division has held that a
court lacks authority to override or supersede the directives in the RPAPL (see, e.g., St. Denis v.
Blakesley, 70 AD3d 1078, 1080 [3d Dept 2010] [“[W]hether or not the judgment of foreclosure
here required existing tax liens to be paid from the proceeds of sale is irrelevant, since the
requirements of RPAPL §1354(2) would trump any inconsistent provision in the judgment of
foreclosure regarding the payment of such liens”]; Morgan v. Ellenville Sav. Bank, 55 AD2d 178,
180 [3d Dept 1976] [rejecting “foreclosure proceedings at variance with the mechanics set forth”
in Article 13 of the RPAPL]). The absence of prejudice does not imbue a court with authority to
circumvent the requirements of RPAPL Art. 13; a plaintiff’s failure to comply is simply considered
a fatal defect (see, e.g., Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106-107 [2d Dept
2011] [dismissing a complaint for failure to comply with RPAPL § 1304 although “no
prejudice…had been identified”]).
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THE LEGISLATION WITH WHICH THE NINETY-DAY LIMITATION UNDER
RPAPL § 1351 WAS ENACTED REFLECTS THAT NO EXTENSION OF THE NINETY-
DAY LIMITATION IS AUTHORIZED UNDER RPAPL § 1351
9. RPAPL § 1351 was amended in the Laws of 2016, chapter 73 (Part Q) (“L 2016, ch 73”).
That law inserted the ninety-day requirement for foreclosure sales into the statute. The same L
2016, ch 73 also amended a sister statute in the same article -- RPAPL § 1353 -- to require that if
a plaintiff purchases the property at a foreclosure sale, the plaintiff must put the property on the
market for sale or other occupancy within ninety days after it completes renovation of the property.
RPAPL §1353 provides that notwithstanding the ninety-day time limitation set forth in that statute,
“a court of competent jurisdiction may grant an extension for good cause” (RPAPL § 1353 [1]).
That ninety-day time limitations added to RPAPL §§ 1351 and 1353 were created by the same bill,
wherein the Legislature authorized a court to grant an extension of time for ‘good cause,’ only for
§1353 and not for §1351, is clear indication that the Legislature clear and deliberately intended
strict compliance with RPAPL §1351’s ninety-day time limitation (see Rivers v. Birnbaum, 102
AD3d 26, 36 [2d Dept 2012] [“[W]here the Legislature includes particular language in one section
of a statute but omits it in another section of the same Act, it is generally presumed that the
Legislature acts intentionally and purposely in the disparate inclusion or exclusion”]). Omitting
any express grant in RPAPL § 1351 of a right to an extension must be deemed purposeful (see
generally Pultz v. Economakis, 40 AD3d 24, 31-32 [1st Dept 2007], aff’d 10 NY3d 542 [2008]
[holding the Legislature’s inclusion of language in one statute, but failure to include any limitation
in another “is powerful evidence that no such limit was intended”]).
10. RPAPL § 1351 must be read with RPAPL § 1371 and RPAPL § 1353. Statutes are not read
in isolation, but with others that collectively comprise a single body of law (see New York State
Psychiatric Assn., Inc. v New York State Dept of Health, 19 NY3d 17, 24 [2012]). Like RPAPL §
1351, RPAPL § 1371 also imposes a ninety-day time limitation (on post foreclosure motions for
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deficiency judgments) and contains no language authorizing an untimely motion beyond the ninety
days (see RPAPL §1371). RPAPL §1371 has consistently been understood to be a statute of
limitations which courts shall rigidly enforce (see Procco v. Kennedy, 88 AD2d 761, 761 [4th Dept
1982], aff’d on opinion of App. Div. 58 N.Y.2d 804 [1983]; [RPAPL §1371’s “90-day period has
been held to be a Statute of Limitations”]).
11. Courts lack the authority to disregard or extend statutes of limitations, regardless of the
surrounding circumstances (see Dorst v. Eggers Partnership, 265 AD2d 294, 295 [2d Dept 1999]
[“[A] court is without power to extend a Statute of Limitations”]). Failure to comply with RPAPL
§ 1371’s ninety-day time limit acts as a complete bar to obtaining relief under the statute (see
Arbor Natl. Commercial Mtge. LLC v. Carmans Plaza, 305 AD2d 622, 622-623 [2d Dept 2003]).
“The Legislature is presumed to be aware of the decisional and statute law in existence at the time
of an enactment” of a statutory amendment (Jensen v. General Elec. Co., 82 N.Y.2d 77, 86 [1993]).
“When the Legislature amends or considers afresh a statute it will be assumed to know of judicial
decisions interpreting the statute as then existing and if it deals with it in a manner which does not
rebut or overthrow the judicial interpretation it will be regarded as having legislated in the light of
and as having accepted such interpretation” (Orinoco Realty Co. v. Bandler, 233 NY 24, 30
[1922]).
12. Thus, when the Legislature enacted L 2016, Ch 73, it must be presumed to have known
decades of extant caselaw interpreting and applying the ninety-day deadline in RPAPL § 1371 as
an unextendible statute of limitations. Having omitted any language authorizing an untimely
motion in both statutes, the Legislature intended the same result in each instance—untimely
motions are prohibited. “When the Legislature has employed similar terms in statutes having a
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common purpose it is reasonable to assume that it intended a uniform meaning” (Matter of
Rochester Christian Church, Inc. v. State of N.Y. Pub. Serv. Comm., 55 NY2d 196, 202 [1982]).
13. Even before the December 2016 amendment to RPAPL § 1351, courts imposed their own
time limits on the sales of foreclosed property and rejected auction sales scheduled after the
prescribed period. The newly enacted portion of RPAPL § 1351 (1), adding a limitation of time to
the period in which a foreclosure sale may be conducted, is nothing more than a Legislative
codification of a concept period long embraced by the courts, now explicitly defined as ninety days
(see Bardi v. Morgan, 17 Misc. 3d 927, 928 [Sup. Ct. Kings Cty. 2007], aff’d 61 AD3d 625 [2d
Dept 2009] [holding notice of sale invalid where auction has been scheduled more than one year
after entry of judgment of foreclosure]). Thus, even before the 2016 legislative addition of a time-
limit to RPAPL §1351, caselaw had established a limit on the time in which a mortgaged property
could be sold under a judgment of foreclosure and sale, and where that period had elapsed, the sale
was rejected.
14. Through this package of laws, the Legislature has clarified its requirement that foreclosure
plaintiffs not drag out the process and ensure that foreclosed properties remain in a state of limbo
and litigation for as short a time as possible. “It is a condition precedent to a plaintiff’s obtaining
equitable relief that the plaintiff himself do equity” (423 S. Salina St. v. City of Syracuse, 68 NY2d
474, 483 [1986]). Diligence by a plaintiff is a condition precedent to calling a court of equity into
activity (see Hulbert v. Hulbert, 216 NY 430, 441 [1916]).
15. Here, Plaintiff comes before the Court, in an action of equity, with unclean hands. It slept
on its rights by ignoring the statutorily limited period for exercising its rights, and then asked the
Court to override the directive of the Legislature and the underlying purpose behind its new
package of statutes by affording Plaintiff even more time to act. The Supreme Court should not
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have countenanced Plaintiff’s dilatory conduct or allowed it to get away with its defiance of the
law with impunity. “[E]quitable relief should be invoked to aid the vigilant and not those who
slumber on their rights” (Altshuler Shaham Provident Funds, Ltd. v. GML Tower LLC, 129 AD3d
1439, 1443 [4th Dept 2015]). Where, as here, a time limit on an act is imposed,
“[e]xceptions…must be reluctantly drawn, lest they proliferate and render the rule meaningless”
(5303 Realty Corp. v. O & Y Equity Corp., 64 NY2d 313, 325 [1984]).
JUDICIAL CONDONATION OF FORECLOSURE SALES CONDUCTED BEYOND
THE NINETY-DAY LIMITATION PERIOD WOULD BE INEQUITABLE
16. Scheduling a foreclosure sale for a date over one year beyond the date that the Judgment
of Foreclosure and Sale was issued stands in direct contrast to RPAPL § 1351. It cannot be
countenanced. Judicial sales held in contravention of the statute constitute a trap for would-be
purchasers, because they are vulnerable to vacatur. The insurability and marketability of title
conveyed outside the time a referee is authorized by law to sell is suspect. A purchaser at a
foreclosure sale is entitled to “clear title” (Wesselman v. Engel Co., 309 NY 27, 30 [1955]) and
“good, marketable title” (Rose Dev. Corp. v. Einhorn, 65 AD3d 1115, 1116 [2d Dept 2009]). This
is defined as title conveyed by a person with the authority to convey it (see Rose Dev. Corp., 65
AD3d at 1116), and which is “free from probable claim by another, and…which, [if] he or she
wishes to sell, would be reasonably free from any doubt which would interfere with its market
value” (Bank of N.Y. v. Segui, 91 AD3d 689, 689 [2d Dept 2012]).
17. Thus, courts should not compel purchasers to close on property purchased at a judicial sale
from a court officer who no longer had a statutory right to sell the property due to the expiration
of the period to conduct the sale (see generally Mount Vernon v. Best Dev. Co., 268 NY 327, 334
[1935] [“A purchaser at a judicial sale will not be compelled to take a doubtful title”]; JP Morgan
Chase, N.A. v. Rajendran, 141 AD3d 631, 632 [2d Dept 2016] [“[A] court always retains the
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inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure is
not made the instrument of injustice”]). To avoid such problems, courts should scrupulously ensure
that the newly enacted statutory time limitation on foreclosure sales is strictly obeyed.
AN EXTENSION UNDER CPLR § 2004 IS INAPPLICABLE TO RPAPL § 1351
18. Although CPLR § 2004 generally authorizes a court to extend statutory deadlines upon
showing good cause, the Appellate Division has repeatedly and specifically held that, under CPLR
§ 101, CPLR rules authorizing extensions of time are not applicable to proprietary deadlines in
statutes outside of the CPLR– particularly where the Legislature has indicated that a separate
scheme for considering extensions of non-CPLR deadlines should apply (see Matter of County of
Wayne (Schenk), 169 AD3d 1501, 1503 [4th Dept 2019] [holding deadline imposed in RPTL may
not be extended under CPLR § 2004, as extension of RPTL deadline under CPLR § 2004 would
“undermine the statutory scheme established by the Legislature”]; Matter of Harris Bay Yacht
Club, Inc., v. Town of Queensbury, 46 AD3d 1304, 1305 [3d Dept 2007] [holding where deadline
and procedure for extensions thereof is in the RPTL, provisions for extensions of time under CPLR
not applicable]; see also CPLR § 101 [“The (CPLR) shall govern the procedure in civil judicial
proceedings in all courts of the state and before all judges, except where the procedure is regulated
by inconsistent statute”]; Matter of Westchester Joint Water Works v. Assessor of the City of Rye,
27 NY3d 566, 575 [2016] [extension of time provided by CPLR § 205 inapplicable where RPTL
imposes deadlines and “comprehensively addresses” when extensions may be granted]; Matter of
City of Utica (Martin), 175 AD3d 1047, 1048 [4th Dept 2019] [holding deadline for motions
imposed via “unambiguous…language” in RPTL may not be extended; “as there is no basis to
conclude that respondent was not required to bring the motion within the applicable time period”,
courts may consider only a “timely motion”]).
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19. Here, the RPAPL expressly establishes ninety-day limitations of time for acts related to
foreclosure sales in RPAPL §§ 1351, 1353, and 1371. The Legislature saw fit to provide for an
extension of the deadline upon showing ‘good cause’ for the deadline imposed in RPAPL § 1353,
but omitted any carve-outs for ‘good cause’ in RPAPL §§ 1351 and 1371. A court may not “reach
outside of the [RPAPL]” to the CPLR to fill in this legislative ‘gap’ (Matter of Westchester Joint
Water Works, 27 NY3d at 574; see Brusco v. Braun, 84 NY2d 674, 681 [1994] [“[T]he CPLR
provision does not apply because it has been abrogated by the more specific RPAPL…A special
statute which is in conflict with a general act covering the same subject matter controls the case
and repeals the general statute insofar as the special act applies”]; Elliot v. Green Bus Lines, Inc.,
58 NY2d 76, 78 [1983] [holding where specific statute imposed deadline and conditions under
which deadline could be extended, “the more specific provisions overrid[e] the more general”, and
the “general tolling provisions set forth in [the CPLR] have no application”]).
20. Indeed, it is well settled that the specific controls over the general (see Wager v. Pelham
Union Free School Dist., 108 AD3d 84, 85 [2d Dept. 2013]). CPLR § 2004 is a statute of general
application, whereas the language of RPAPL §§ 1351, 1353, and 1371 signifies an effort to have
specific timing rules apply to those statutes outside of the control or effect of CPLR § 2004. When
the Legislature inserted the time limits into RPAPL § 1353, it included language about the
extension in RPAPL § 1353 -- something that is not necessary, in light of CPLR § 2004. This
implies a rule that extensions of time in the RPAPL Article 13 context require special language
authorizing the same. This is bolstered by the interpretation of RPAPL § 1371, which is viewed as
a hard deadline (and, indeed, a statute of limitations) to which CPLR § 2004 has never been held
to apply (see Mortgagee Affiliates, Inc. v Jerder Realty Corp., 62 AD2d 591, 593 [2d Dept. 1978],
aff’d sub nom. Mortgagee Affiliates Corp. v Jerder Realty Services, Inc., 47 NY2d 796 [1979]
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[RPAPL § 1371 “sets forth a Statute of Limitations”]; Sengstacken v Zoning Bd. of Appeals of
Town of Ramapo, 87 AD2d 651, 652 [2d Dept 1982] [Court cannot invoke CPLR § 2004 to extend
statute of limitations]; see generally CPLR § 201).
21. In the same bill that the “availability-of-extension” language was added to RPAPL § 1353,
the Legislature did not include the same language for RPAPL § 1351, signifying not only the
distinction between RPAPL §§ 1351 and 1353, but bolstering the notion that RPAPL § 1351
should be treated in the same manner as RPAPL § 1371 (which also does not contain any language
authorizing an extension). The intent, then, of (i) the definitive statutory language (‘shall’), coupled
with (ii) the rigidity of the RPAPL § 1371 deadline, and (iii) the incorporation of a special
extension provision in RPAPL § 1353, and (iv) the absence of any such language in RPAPL §
1351, all suggest that the Legislature has a sense of how deadlines should apply to RPAPL Article
13, and which ones can and cannot be extended. The general rule in CPLR § 2004 is not applicable.
CPLR § 2004 DOES NOT APPLY TO MODIFY A JUDGMENT
22. The judgment of foreclosure and sale itself states that the sale shall be held within ninety
days, and for two reasons, Plaintiff cannot rely upon CPLR § 2004 to extend its time to conduct
the foreclosure sale beyond the ninety days required by the judgment of foreclosure.
23. First, CPLR § 2004 cannot extend a deadline imposed by a judgment. The plain language
of CPLR § 2004 only authorizes a court to extend the time fixed by “any statute, rule or order”
(see CPLR § 2004). The omission of any reference to a “judgment” in CPLR § 2004 is consistent
with the CPLR as whole. The limited circumstances under which a judgment may be amended is
governed by CPLR § 5019 (see CPLR 5019). CPLR § 5019 merely authorizes a change to a
judgment to correct a “mistake, defect or irregularity” by the court which does not affect “a
substantial right” of a party (see CPLR 5019; Sokoloff v Schor, 176 AD3d 120, 129-130 [2d Dept.
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2019]). The relief sought by Plaintiff here did not fall into any of the above categories. “The trial
court has no revisory or appellate jurisdiction . . . to change the judgment in matter of substance .
. . or limit the legal effect of it to meet some supposed equity subsequently called to its attention
or subsequently arising” (Shroid Constr. v. Dattoma, 250 AD2d 590, 593 [2d Dept 1998], quoting
Herpe v. Herpe, 225 NY 323, 327 [1919]). A trial court does not have plenary authority to revise
a judgment (see Chmelovksy v. Country Club Homes, Inc., 111 AD3d 874, 875 [2d Dept 2013]).
That relief must be sought either by a direct appeal from the judgment or by a motion to vacate the
judgment under CPLR 5015 (see id.).
24. Here, Plaintiff did not move under CPLR § 5019. Nor could it have, since Plaintiff did not
identify any clerical error of the court in the judgment which the court could amend under CPLR
§ 5019 (see Carter v. Johnson, 110 AD3d 656, 658-659 [2d Dept 2013] [relief in form of advancing
return date of motion not warranted under CPLR 5019[a]). The supposed unavailability of the
referee is a subsequent event and not a clerical error in the judgment subject to amendment under
CPLR § 5019 (see Shroid Constr., 250 AD2d at 593; see also Sokoloff, 176 AD3d at 130 [“CPLR
5019 (a) cannot be used by courts to sua sponte correct errors that involve new exercises of
discretion or fact-finding”]). An extension of the time to conduct a foreclosure sale affects a
substantial right of the property owner, since the Referee’s authority to sell the property is derived
from the judgment of foreclosure and the owner retains title to the Home until the Referee’s deed
is delivered (see Cicorelli v. Hickey's Carting, Inc., 66 AD3d 626, 627 [2d Dept 2009] [duty of the
referee is prescribed by the judgment, which is the referee's sole authority to sell]; Nutt v. Cuming,
155 NY 309 [1898] [under the ordinary judgment of foreclosure and the sale, the right and interest
of a defendant becomes barred and foreclosed by virtue of the sale of the premises and the
conveyance made thereunder, not upon the date of the entry of the judgment]).
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25. Second, even if it can be said that CPLR § 2004 permits a court to extend the time limit for
doing any act in an action or proceeding, since an action or proceeding terminates upon the entry
of a final judgment, CPLR § 2004 still would not apply to permit an extension of a post-judgment
deadline (see CPLR § 5011; State of New York Mortgage Agency v. Braun, 182 AD3d 63, 68 [2d
Dept 2020] [“An action is deemed pending until there is a final judgment”]). A judgment of
foreclosure and sale is final as to all questions at issue between the parties to the foreclosure action
(see Pusey v. Morales, 181 AD3d 621, 623 [2d Dept 2020]). Thus, CPLR § 2004 is inapplicable
(see Dorst v. Eggers, 265 AD2d 294, 295 [2d Dept 1999] [where action had been dismissed, court
properly denied motion pursuant to CPLR § 2004, since there was no pending action within which
the requested relief could be granted]).
PREJUDICE IS IRRELEVANT UNDER RPAPL § 1351
26. A party need never show prejudice would result in the absence of applying a statute of
limitations. Instead, such rules exist, both to afford certainty and predictability to litigants, but
also to serve the societal and policy needs of “giving repose to human affairs” (ACE Sec. Corp. v
DB Structured Prods., Inc., 25 NY3d 581, 593 [2015] [internal alterations, quotation marks and
citation omitted]; Freedom Mtge. Corp. v Engel, 37 NY3d 1, 19-20 [2021]).
PLAINTIFF FAILS TO SHOW GOOD CAUSE FOR ITS DELAY
27. Even if courts possessed the authority under CPLR § 2004 to extend the ninety-day time
limitation in RPAPL §1351, a plaintiff seeking such an extension would still be required to meet
the statute’s predicate for relief: showing “good cause” for its delay (see CPLR § 2004). Relief
sought in an untimely fashion is not simply available for the taking -- at a minimum, to even have
such an application considered, a movant must show good cause for the delay (see, e.g., McCoy v.
Feinman, 99 NY2d 295, 300 [2002] [“courts have discretion to waive [certain] time limits for good
cause”]; Tec-Crete Tr. Mix Corp. v. Great Am. Ins. Co. of N.Y., 167 AD3d 806, 807 [2d Dept 2018]
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[“[W]hile a court has the discretion to grant an extension of time to file opposition papers, it must
be upon a showing of good cause (see CPLR 2004). The delinquent party must offer a valid excuse
for the delay”]).
28. Statutory requirements to demonstrate good cause for delay require the Court to examine
the viability of the movant’s excuse for delay, without considering the merits of the overarching
relief sought (see Brill v City of New York, 2 NY3d 648, 653, n 4 [2004] [“Supreme Court should
not have considered the merits of the City’s motion…We conclude that "good cause" in [a statute]
requires a showing of good cause for the delay in making the motion -- a satisfactory explanation
for the untimeliness -- rather than simply permitting meritorious, nonprejudicial filings, however
tardy. …No excuse at all, or a perfunctory excuse, cannot be ‘good cause’”]). An unsubstantiated
or conclusory excuse for delay does not constitute “good cause” under CPLR § 2004 (see Abdul
v. Lopez, 111 AD3d 587, 588 [2d Dept 2013] [“[T]he plaintiff’s unsubstantiated assertion…was
insufficient to excuse the delay”]; Nablus Sweets Corp., 161 AD3d at 964 [“[T]he plaintiff’s
excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague,
conclusory, and unsubstantiated”]). An allegation that no prejudice will result to the adverse party
does not constitute ‘good cause’ for delay (see Bargil Assoc., LLC v. Crites, 173 AD3d 958, 958
[2d Dept 2019] [“[I]n the absence of a showing of good cause for the delay, the court has no
discretion to entertain even a meritorious, nonprejudicial” motion”]).
29. Here, Plaintiff’s attempt to show good cause for an extension under CPLR § 2004 included
several year-long periods of post-judgment unexplained.
30. Thus, the Court must not extend Plaintiff’s limitations period to enforce the judgment,
vacate the judgment as time-barred by RPAPL § 1351, and dismiss the case at bar.
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WHEREFORE based on the foregoing Defendants respectfully demands an denying
Plaintiff’s cross-motion in its entirety and for such other and further relief this Court deems
equitable and just. an
West Islip, NY /s/ Christopher Thompson, Esq.
June 20, 2023 _______________________
Christopher Thompson, Esq.
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CERTIFICATION OF COMPLIANCE WITH 22 NYCRR § 202.8-b
Christopher Thompson, Esq., an attorney duly admitted to practice law in the State of New York
hereby certifies pursuant to CPLR § 2106 and under the penalties of perjury that:
1. This Affirmation in Support of Order to Show Cause was generated on a computer.
2. The word count of the Affirmation in Support of Order to Show Cause, excluding the case
caption and signature block, is 4, 146 words.
3. I have relied on the word count of the word-processing system used to prepare this
document.
4. This document complies with the word count limit set forth in 22 NYCRR § 202.8-b
Dated: West Islip, NY
June 20, 2023
/s/ Christopher Thompson
Christopher Thompson, Esq.
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU INDEX NO.: 15989/2009
FEDERAL NATIONAL MORTGAGE ASSOCIATION C'FANNIE MAE'), A CORPORATION ORGANZED AND
EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA,
Plaintiff,
-against-
FRANK AMATO, ET AL
Defendant(s).
AFFIRMATION IN SUPPORT OF
ORDER TO SHOW CAUSE AND IN
OPPOSITION TO CROSS-MOTION
LAW OFFICES OF CHRISTOPHER THOMPSON
33 DAVISON LANE EAST
WEST ISLIP, NY 11795
Signature (Rule 130-1.1-a)
/S/ Christopher Thompson, Esq.
CHRISTOPHER THOMPSON, ESQ.
Service of a copy of the within is hereby admitted
Dated: June 20, 2023 Signature (Rule 130-1.1-a)
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FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU --------------------------------------------------------------------x FEDERAL NATIONAL MORTGAGE ASSOCIATION ('FANNIE MAE'), A CORPORATION ORGANZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA Index No.: 15989/2009 AFFIRMATION IN SUPPORT Plaintiff, OF ORDER TO SHOW CAUSE AND IN OPPOSITION TO CROSS-MOTION -against- FRANK AMATO, ET AL Defendants. ---------------------------------------------------------------------x Christopher Thompson, Esq., an attorney duly admitted to practice law in the courts of New York, affirms the truth of the following under penalty of perjury pursuant to CPLR § 2106: 1. I am the attorney for Frank Amato 2. I submit this affirmation in opposition to Plaintiff’s motion for an extension of time to conduct the sale. 3. First Plaintiff’s motion is not timely as it was filed June 19, 2023 with a return date of June 20, 2023. See CPLR 2214. Moreover, it lacks merit in law or equity. RPAPL § 1351 DOES NOT AUTHORIZE AN EXTENSION OF THE NINETY DAY LIMITATION PERIOD 4. RPAPL § 1351 (1) provides that any judgment of foreclosure must direct that the property be sold within ninety days of issuing that judgment. RPAPL § 1351 (1) also requires that the sale of the property takes place within ninety days of issuing the Judgment of Foreclosure: “The judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale and the costs of the action, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee within ninety days of the date of the judgment” 5. (RPAPL § 1351 [1] [emphasis added]). 1 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 6. The precise language used in the statute – “[t]he judgment shall direct that the mortgaged premises…be sold…within ninety days” – renders the directive a mandatory imperative, rather than a discretionary option or precatory suggestion (see Matter of Natural Resources Defense Council v. New York City Dept of Sanitation, 83 NY2d 215, 220 [1994] [“[T]he use of the verb ‘shall’ throughout the pertinent provisions illustrates the mandatory nature of the duties contained therein”]). 7. Here, the Judgment of Foreclosure was issued on October 10, 2018 and included the ninety- day limitations (Exhibit A). To comply with RPAPL § 1351 (1), a sale of the Premises would have had to have taken place by January 10, 2019. But neither Plaintiff nor the Referee took any steps to hold the sale within the statutorily permitted 8. Statutory requirements governing foreclosure sale procedures in the RPAPL are generally deemed sacrosanct and must be strictly complied with. The Appellate Division has held that a court lacks authority to override or supersede the directives in the RPAPL (see, e.g., St. Denis v. Blakesley, 70 AD3d 1078, 1080 [3d Dept 2010] [“[W]hether or not the judgment of foreclosure here required existing tax liens to be paid from the proceeds of sale is irrelevant, since the requirements of RPAPL §1354(2) would trump any inconsistent provision in the judgment of foreclosure regarding the payment of such liens”]; Morgan v. Ellenville Sav. Bank, 55 AD2d 178, 180 [3d Dept 1976] [rejecting “foreclosure proceedings at variance with the mechanics set forth” in Article 13 of the RPAPL]). The absence of prejudice does not imbue a court with authority to circumvent the requirements of RPAPL Art. 13; a plaintiff’s failure to comply is simply considered a fatal defect (see, e.g., Aurora Loan Servs., LLC v. Weisblum, 85 AD3d 95, 106-107 [2d Dept 2011] [dismissing a complaint for failure to comply with RPAPL § 1304 although “no prejudice…had been identified”]). 2 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 THE LEGISLATION WITH WHICH THE NINETY-DAY LIMITATION UNDER RPAPL § 1351 WAS ENACTED REFLECTS THAT NO EXTENSION OF THE NINETY- DAY LIMITATION IS AUTHORIZED UNDER RPAPL § 1351 9. RPAPL § 1351 was amended in the Laws of 2016, chapter 73 (Part Q) (“L 2016, ch 73”). That law inserted the ninety-day requirement for foreclosure sales into the statute. The same L 2016, ch 73 also amended a sister statute in the same article -- RPAPL § 1353 -- to require that if a plaintiff purchases the property at a foreclosure sale, the plaintiff must put the property on the market for sale or other occupancy within ninety days after it completes renovation of the property. RPAPL §1353 provides that notwithstanding the ninety-day time limitation set forth in that statute, “a court of competent jurisdiction may grant an extension for good cause” (RPAPL § 1353 [1]). That ninety-day time limitations added to RPAPL §§ 1351 and 1353 were created by the same bill, wherein the Legislature authorized a court to grant an extension of time for ‘good cause,’ only for §1353 and not for §1351, is clear indication that the Legislature clear and deliberately intended strict compliance with RPAPL §1351’s ninety-day time limitation (see Rivers v. Birnbaum, 102 AD3d 26, 36 [2d Dept 2012] [“[W]here the Legislature includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that the Legislature acts intentionally and purposely in the disparate inclusion or exclusion”]). Omitting any express grant in RPAPL § 1351 of a right to an extension must be deemed purposeful (see generally Pultz v. Economakis, 40 AD3d 24, 31-32 [1st Dept 2007], aff’d 10 NY3d 542 [2008] [holding the Legislature’s inclusion of language in one statute, but failure to include any limitation in another “is powerful evidence that no such limit was intended”]). 10. RPAPL § 1351 must be read with RPAPL § 1371 and RPAPL § 1353. Statutes are not read in isolation, but with others that collectively comprise a single body of law (see New York State Psychiatric Assn., Inc. v New York State Dept of Health, 19 NY3d 17, 24 [2012]). Like RPAPL § 1351, RPAPL § 1371 also imposes a ninety-day time limitation (on post foreclosure motions for 3 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 deficiency judgments) and contains no language authorizing an untimely motion beyond the ninety days (see RPAPL §1371). RPAPL §1371 has consistently been understood to be a statute of limitations which courts shall rigidly enforce (see Procco v. Kennedy, 88 AD2d 761, 761 [4th Dept 1982], aff’d on opinion of App. Div. 58 N.Y.2d 804 [1983]; [RPAPL §1371’s “90-day period has been held to be a Statute of Limitations”]). 11. Courts lack the authority to disregard or extend statutes of limitations, regardless of the surrounding circumstances (see Dorst v. Eggers Partnership, 265 AD2d 294, 295 [2d Dept 1999] [“[A] court is without power to extend a Statute of Limitations”]). Failure to comply with RPAPL § 1371’s ninety-day time limit acts as a complete bar to obtaining relief under the statute (see Arbor Natl. Commercial Mtge. LLC v. Carmans Plaza, 305 AD2d 622, 622-623 [2d Dept 2003]). “The Legislature is presumed to be aware of the decisional and statute law in existence at the time of an enactment” of a statutory amendment (Jensen v. General Elec. Co., 82 N.Y.2d 77, 86 [1993]). “When the Legislature amends or considers afresh a statute it will be assumed to know of judicial decisions interpreting the statute as then existing and if it deals with it in a manner which does not rebut or overthrow the judicial interpretation it will be regarded as having legislated in the light of and as having accepted such interpretation” (Orinoco Realty Co. v. Bandler, 233 NY 24, 30 [1922]). 12. Thus, when the Legislature enacted L 2016, Ch 73, it must be presumed to have known decades of extant caselaw interpreting and applying the ninety-day deadline in RPAPL § 1371 as an unextendible statute of limitations. Having omitted any language authorizing an untimely motion in both statutes, the Legislature intended the same result in each instance—untimely motions are prohibited. “When the Legislature has employed similar terms in statutes having a 4 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 common purpose it is reasonable to assume that it intended a uniform meaning” (Matter of Rochester Christian Church, Inc. v. State of N.Y. Pub. Serv. Comm., 55 NY2d 196, 202 [1982]). 13. Even before the December 2016 amendment to RPAPL § 1351, courts imposed their own time limits on the sales of foreclosed property and rejected auction sales scheduled after the prescribed period. The newly enacted portion of RPAPL § 1351 (1), adding a limitation of time to the period in which a foreclosure sale may be conducted, is nothing more than a Legislative codification of a concept period long embraced by the courts, now explicitly defined as ninety days (see Bardi v. Morgan, 17 Misc. 3d 927, 928 [Sup. Ct. Kings Cty. 2007], aff’d 61 AD3d 625 [2d Dept 2009] [holding notice of sale invalid where auction has been scheduled more than one year after entry of judgment of foreclosure]). Thus, even before the 2016 legislative addition of a time- limit to RPAPL §1351, caselaw had established a limit on the time in which a mortgaged property could be sold under a judgment of foreclosure and sale, and where that period had elapsed, the sale was rejected. 14. Through this package of laws, the Legislature has clarified its requirement that foreclosure plaintiffs not drag out the process and ensure that foreclosed properties remain in a state of limbo and litigation for as short a time as possible. “It is a condition precedent to a plaintiff’s obtaining equitable relief that the plaintiff himself do equity” (423 S. Salina St. v. City of Syracuse, 68 NY2d 474, 483 [1986]). Diligence by a plaintiff is a condition precedent to calling a court of equity into activity (see Hulbert v. Hulbert, 216 NY 430, 441 [1916]). 15. Here, Plaintiff comes before the Court, in an action of equity, with unclean hands. It slept on its rights by ignoring the statutorily limited period for exercising its rights, and then asked the Court to override the directive of the Legislature and the underlying purpose behind its new package of statutes by affording Plaintiff even more time to act. The Supreme Court should not 5 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 have countenanced Plaintiff’s dilatory conduct or allowed it to get away with its defiance of the law with impunity. “[E]quitable relief should be invoked to aid the vigilant and not those who slumber on their rights” (Altshuler Shaham Provident Funds, Ltd. v. GML Tower LLC, 129 AD3d 1439, 1443 [4th Dept 2015]). Where, as here, a time limit on an act is imposed, “[e]xceptions…must be reluctantly drawn, lest they proliferate and render the rule meaningless” (5303 Realty Corp. v. O & Y Equity Corp., 64 NY2d 313, 325 [1984]). JUDICIAL CONDONATION OF FORECLOSURE SALES CONDUCTED BEYOND THE NINETY-DAY LIMITATION PERIOD WOULD BE INEQUITABLE 16. Scheduling a foreclosure sale for a date over one year beyond the date that the Judgment of Foreclosure and Sale was issued stands in direct contrast to RPAPL § 1351. It cannot be countenanced. Judicial sales held in contravention of the statute constitute a trap for would-be purchasers, because they are vulnerable to vacatur. The insurability and marketability of title conveyed outside the time a referee is authorized by law to sell is suspect. A purchaser at a foreclosure sale is entitled to “clear title” (Wesselman v. Engel Co., 309 NY 27, 30 [1955]) and “good, marketable title” (Rose Dev. Corp. v. Einhorn, 65 AD3d 1115, 1116 [2d Dept 2009]). This is defined as title conveyed by a person with the authority to convey it (see Rose Dev. Corp., 65 AD3d at 1116), and which is “free from probable claim by another, and…which, [if] he or she wishes to sell, would be reasonably free from any doubt which would interfere with its market value” (Bank of N.Y. v. Segui, 91 AD3d 689, 689 [2d Dept 2012]). 17. Thus, courts should not compel purchasers to close on property purchased at a judicial sale from a court officer who no longer had a statutory right to sell the property due to the expiration of the period to conduct the sale (see generally Mount Vernon v. Best Dev. Co., 268 NY 327, 334 [1935] [“A purchaser at a judicial sale will not be compelled to take a doubtful title”]; JP Morgan Chase, N.A. v. Rajendran, 141 AD3d 631, 632 [2d Dept 2016] [“[A] court always retains the 6 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 inherent equitable power to ensure that a sale conducted pursuant to a judgment of foreclosure is not made the instrument of injustice”]). To avoid such problems, courts should scrupulously ensure that the newly enacted statutory time limitation on foreclosure sales is strictly obeyed. AN EXTENSION UNDER CPLR § 2004 IS INAPPLICABLE TO RPAPL § 1351 18. Although CPLR § 2004 generally authorizes a court to extend statutory deadlines upon showing good cause, the Appellate Division has repeatedly and specifically held that, under CPLR § 101, CPLR rules authorizing extensions of time are not applicable to proprietary deadlines in statutes outside of the CPLR– particularly where the Legislature has indicated that a separate scheme for considering extensions of non-CPLR deadlines should apply (see Matter of County of Wayne (Schenk), 169 AD3d 1501, 1503 [4th Dept 2019] [holding deadline imposed in RPTL may not be extended under CPLR § 2004, as extension of RPTL deadline under CPLR § 2004 would “undermine the statutory scheme established by the Legislature”]; Matter of Harris Bay Yacht Club, Inc., v. Town of Queensbury, 46 AD3d 1304, 1305 [3d Dept 2007] [holding where deadline and procedure for extensions thereof is in the RPTL, provisions for extensions of time under CPLR not applicable]; see also CPLR § 101 [“The (CPLR) shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute”]; Matter of Westchester Joint Water Works v. Assessor of the City of Rye, 27 NY3d 566, 575 [2016] [extension of time provided by CPLR § 205 inapplicable where RPTL imposes deadlines and “comprehensively addresses” when extensions may be granted]; Matter of City of Utica (Martin), 175 AD3d 1047, 1048 [4th Dept 2019] [holding deadline for motions imposed via “unambiguous…language” in RPTL may not be extended; “as there is no basis to conclude that respondent was not required to bring the motion within the applicable time period”, courts may consider only a “timely motion”]). 7 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 19. Here, the RPAPL expressly establishes ninety-day limitations of time for acts related to foreclosure sales in RPAPL §§ 1351, 1353, and 1371. The Legislature saw fit to provide for an extension of the deadline upon showing ‘good cause’ for the deadline imposed in RPAPL § 1353, but omitted any carve-outs for ‘good cause’ in RPAPL §§ 1351 and 1371. A court may not “reach outside of the [RPAPL]” to the CPLR to fill in this legislative ‘gap’ (Matter of Westchester Joint Water Works, 27 NY3d at 574; see Brusco v. Braun, 84 NY2d 674, 681 [1994] [“[T]he CPLR provision does not apply because it has been abrogated by the more specific RPAPL…A special statute which is in conflict with a general act covering the same subject matter controls the case and repeals the general statute insofar as the special act applies”]; Elliot v. Green Bus Lines, Inc., 58 NY2d 76, 78 [1983] [holding where specific statute imposed deadline and conditions under which deadline could be extended, “the more specific provisions overrid[e] the more general”, and the “general tolling provisions set forth in [the CPLR] have no application”]). 20. Indeed, it is well settled that the specific controls over the general (see Wager v. Pelham Union Free School Dist., 108 AD3d 84, 85 [2d Dept. 2013]). CPLR § 2004 is a statute of general application, whereas the language of RPAPL §§ 1351, 1353, and 1371 signifies an effort to have specific timing rules apply to those statutes outside of the control or effect of CPLR § 2004. When the Legislature inserted the time limits into RPAPL § 1353, it included language about the extension in RPAPL § 1353 -- something that is not necessary, in light of CPLR § 2004. This implies a rule that extensions of time in the RPAPL Article 13 context require special language authorizing the same. This is bolstered by the interpretation of RPAPL § 1371, which is viewed as a hard deadline (and, indeed, a statute of limitations) to which CPLR § 2004 has never been held to apply (see Mortgagee Affiliates, Inc. v Jerder Realty Corp., 62 AD2d 591, 593 [2d Dept. 1978], aff’d sub nom. Mortgagee Affiliates Corp. v Jerder Realty Services, Inc., 47 NY2d 796 [1979] 8 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 [RPAPL § 1371 “sets forth a Statute of Limitations”]; Sengstacken v Zoning Bd. of Appeals of Town of Ramapo, 87 AD2d 651, 652 [2d Dept 1982] [Court cannot invoke CPLR § 2004 to extend statute of limitations]; see generally CPLR § 201). 21. In the same bill that the “availability-of-extension” language was added to RPAPL § 1353, the Legislature did not include the same language for RPAPL § 1351, signifying not only the distinction between RPAPL §§ 1351 and 1353, but bolstering the notion that RPAPL § 1351 should be treated in the same manner as RPAPL § 1371 (which also does not contain any language authorizing an extension). The intent, then, of (i) the definitive statutory language (‘shall’), coupled with (ii) the rigidity of the RPAPL § 1371 deadline, and (iii) the incorporation of a special extension provision in RPAPL § 1353, and (iv) the absence of any such language in RPAPL § 1351, all suggest that the Legislature has a sense of how deadlines should apply to RPAPL Article 13, and which ones can and cannot be extended. The general rule in CPLR § 2004 is not applicable. CPLR § 2004 DOES NOT APPLY TO MODIFY A JUDGMENT 22. The judgment of foreclosure and sale itself states that the sale shall be held within ninety days, and for two reasons, Plaintiff cannot rely upon CPLR § 2004 to extend its time to conduct the foreclosure sale beyond the ninety days required by the judgment of foreclosure. 23. First, CPLR § 2004 cannot extend a deadline imposed by a judgment. The plain language of CPLR § 2004 only authorizes a court to extend the time fixed by “any statute, rule or order” (see CPLR § 2004). The omission of any reference to a “judgment” in CPLR § 2004 is consistent with the CPLR as whole. The limited circumstances under which a judgment may be amended is governed by CPLR § 5019 (see CPLR 5019). CPLR § 5019 merely authorizes a change to a judgment to correct a “mistake, defect or irregularity” by the court which does not affect “a substantial right” of a party (see CPLR 5019; Sokoloff v Schor, 176 AD3d 120, 129-130 [2d Dept. 9 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 2019]). The relief sought by Plaintiff here did not fall into any of the above categories. “The trial court has no revisory or appellate jurisdiction . . . to change the judgment in matter of substance . . . or limit the legal effect of it to meet some supposed equity subsequently called to its attention or subsequently arising” (Shroid Constr. v. Dattoma, 250 AD2d 590, 593 [2d Dept 1998], quoting Herpe v. Herpe, 225 NY 323, 327 [1919]). A trial court does not have plenary authority to revise a judgment (see Chmelovksy v. Country Club Homes, Inc., 111 AD3d 874, 875 [2d Dept 2013]). That relief must be sought either by a direct appeal from the judgment or by a motion to vacate the judgment under CPLR 5015 (see id.). 24. Here, Plaintiff did not move under CPLR § 5019. Nor could it have, since Plaintiff did not identify any clerical error of the court in the judgment which the court could amend under CPLR § 5019 (see Carter v. Johnson, 110 AD3d 656, 658-659 [2d Dept 2013] [relief in form of advancing return date of motion not warranted under CPLR 5019[a]). The supposed unavailability of the referee is a subsequent event and not a clerical error in the judgment subject to amendment under CPLR § 5019 (see Shroid Constr., 250 AD2d at 593; see also Sokoloff, 176 AD3d at 130 [“CPLR 5019 (a) cannot be used by courts to sua sponte correct errors that involve new exercises of discretion or fact-finding”]). An extension of the time to conduct a foreclosure sale affects a substantial right of the property owner, since the Referee’s authority to sell the property is derived from the judgment of foreclosure and the owner retains title to the Home until the Referee’s deed is delivered (see Cicorelli v. Hickey's Carting, Inc., 66 AD3d 626, 627 [2d Dept 2009] [duty of the referee is prescribed by the judgment, which is the referee's sole authority to sell]; Nutt v. Cuming, 155 NY 309 [1898] [under the ordinary judgment of foreclosure and the sale, the right and interest of a defendant becomes barred and foreclosed by virtue of the sale of the premises and the conveyance made thereunder, not upon the date of the entry of the judgment]). 10 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 25. Second, even if it can be said that CPLR § 2004 permits a court to extend the time limit for doing any act in an action or proceeding, since an action or proceeding terminates upon the entry of a final judgment, CPLR § 2004 still would not apply to permit an extension of a post-judgment deadline (see CPLR § 5011; State of New York Mortgage Agency v. Braun, 182 AD3d 63, 68 [2d Dept 2020] [“An action is deemed pending until there is a final judgment”]). A judgment of foreclosure and sale is final as to all questions at issue between the parties to the foreclosure action (see Pusey v. Morales, 181 AD3d 621, 623 [2d Dept 2020]). Thus, CPLR § 2004 is inapplicable (see Dorst v. Eggers, 265 AD2d 294, 295 [2d Dept 1999] [where action had been dismissed, court properly denied motion pursuant to CPLR § 2004, since there was no pending action within which the requested relief could be granted]). PREJUDICE IS IRRELEVANT UNDER RPAPL § 1351 26. A party need never show prejudice would result in the absence of applying a statute of limitations. Instead, such rules exist, both to afford certainty and predictability to litigants, but also to serve the societal and policy needs of “giving repose to human affairs” (ACE Sec. Corp. v DB Structured Prods., Inc., 25 NY3d 581, 593 [2015] [internal alterations, quotation marks and citation omitted]; Freedom Mtge. Corp. v Engel, 37 NY3d 1, 19-20 [2021]). PLAINTIFF FAILS TO SHOW GOOD CAUSE FOR ITS DELAY 27. Even if courts possessed the authority under CPLR § 2004 to extend the ninety-day time limitation in RPAPL §1351, a plaintiff seeking such an extension would still be required to meet the statute’s predicate for relief: showing “good cause” for its delay (see CPLR § 2004). Relief sought in an untimely fashion is not simply available for the taking -- at a minimum, to even have such an application considered, a movant must show good cause for the delay (see, e.g., McCoy v. Feinman, 99 NY2d 295, 300 [2002] [“courts have discretion to waive [certain] time limits for good cause”]; Tec-Crete Tr. Mix Corp. v. Great Am. Ins. Co. of N.Y., 167 AD3d 806, 807 [2d Dept 2018] 11 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 [“[W]hile a court has the discretion to grant an extension of time to file opposition papers, it must be upon a showing of good cause (see CPLR 2004). The delinquent party must offer a valid excuse for the delay”]). 28. Statutory requirements to demonstrate good cause for delay require the Court to examine the viability of the movant’s excuse for delay, without considering the merits of the overarching relief sought (see Brill v City of New York, 2 NY3d 648, 653, n 4 [2004] [“Supreme Court should not have considered the merits of the City’s motion…We conclude that "good cause" in [a statute] requires a showing of good cause for the delay in making the motion -- a satisfactory explanation for the untimeliness -- rather than simply permitting meritorious, nonprejudicial filings, however tardy. …No excuse at all, or a perfunctory excuse, cannot be ‘good cause’”]). An unsubstantiated or conclusory excuse for delay does not constitute “good cause” under CPLR § 2004 (see Abdul v. Lopez, 111 AD3d 587, 588 [2d Dept 2013] [“[T]he plaintiff’s unsubstantiated assertion…was insufficient to excuse the delay”]; Nablus Sweets Corp., 161 AD3d at 964 [“[T]he plaintiff’s excuse of law office failure did not rise to the level of a reasonable excuse, as it was vague, conclusory, and unsubstantiated”]). An allegation that no prejudice will result to the adverse party does not constitute ‘good cause’ for delay (see Bargil Assoc., LLC v. Crites, 173 AD3d 958, 958 [2d Dept 2019] [“[I]n the absence of a showing of good cause for the delay, the court has no discretion to entertain even a meritorious, nonprejudicial” motion”]). 29. Here, Plaintiff’s attempt to show good cause for an extension under CPLR § 2004 included several year-long periods of post-judgment unexplained. 30. Thus, the Court must not extend Plaintiff’s limitations period to enforce the judgment, vacate the judgment as time-barred by RPAPL § 1351, and dismiss the case at bar. 12 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 WHEREFORE based on the foregoing Defendants respectfully demands an denying Plaintiff’s cross-motion in its entirety and for such other and further relief this Court deems equitable and just. an West Islip, NY /s/ Christopher Thompson, Esq. June 20, 2023 _______________________ Christopher Thompson, Esq. 13 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 CERTIFICATION OF COMPLIANCE WITH 22 NYCRR § 202.8-b Christopher Thompson, Esq., an attorney duly admitted to practice law in the State of New York hereby certifies pursuant to CPLR § 2106 and under the penalties of perjury that: 1. This Affirmation in Support of Order to Show Cause was generated on a computer. 2. The word count of the Affirmation in Support of Order to Show Cause, excluding the case caption and signature block, is 4, 146 words. 3. I have relied on the word count of the word-processing system used to prepare this document. 4. This document complies with the word count limit set forth in 22 NYCRR § 202.8-b Dated: West Islip, NY June 20, 2023 /s/ Christopher Thompson Christopher Thompson, Esq. 14 of 15 FILED: SUFFOLK COUNTY CLERK 06/20/2023 09:37 AM INDEX NO. 015989/2009 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 06/20/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU INDEX NO.: 15989/2009 FEDERAL NATIONAL MORTGAGE ASSOCIATION C'FANNIE MAE'), A CORPORATION ORGANZED AND EXISTING UNDER THE LAWS OF THE UNITED STATES OF AMERICA, Plaintiff, -against- FRANK AMATO, ET AL Defendant(s). AFFIRMATION IN SUPPORT OF ORDER TO SHOW CAUSE AND IN OPPOSITION TO CROSS-MOTION LAW OFFICES OF CHRISTOPHER THOMPSON 33 DAVISON LANE EAST WEST ISLIP, NY 11795 Signature (Rule 130-1.1-a) /S/ Christopher Thompson, Esq. CHRISTOPHER THOMPSON, ESQ. Service of a copy of the within is hereby admitted Dated: June 20, 2023 Signature (Rule 130-1.1-a) 15 of 15