Preview
FILED: RICHMOND COUNTY CLERK 09/11/2023 09:01 PM INDEX NO. 135020/2021
NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 09/11/2023
Exhibit 4
FILED: RICHMOND COUNTY CLERK 09/11/2023
02/03/2023 09:01
07:07 PM INDEX NO. 135020/2021
NYSCEF DOC. NO. 61
45 RECEIVED NYSCEF: 09/11/2023
02/03/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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Gulf Harbour Investments Corporation,
Index No. 135020/2021
Plaintiff,
-against-
NOTICE OF ENTRY
Avi Foox, RAB Performance Recoveries LLC,
American Express Centurion Bank, Unifund CCR
Partners, John Doe #1 through #6, and Jane Doe #1
through #6, the last twelve names being fictitious, it
being the intention of Plaintiff to designate any and all
occupants, tenants, persons or corporations, if any,
having or claiming an interest in or lien upon the
premises being foreclosed herein,
Defendants.
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PLEASE TAKE NOTICE that the attached is a true copy of an Order in this action that is
dated February 1, 2023, and was filed and entered in the Office of the Clerk of the Supreme
Court, Richmond County, on February 3, 2023.
Dated: Staten Island, New York
February 3, 2023
Staten Island Legal Services
Attorneys for Defendant Avi Foox
By: Sara Manaugh, Esq.
36 Richmond Terrace, Suite 205
Staten Island, New York 10301
(718) 233-6480
To: McCalla Raymer Leibert Pierce, LLC
(via NYSCEF)
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SUPREME COURT OF THE STATE OF NEW YORK
COIJNTY OT'RICHMOND
X RFP
Gulf Harbour Investments Corporation,
Present:
PIaintffi Hon. Desmond A. Green
-ogainst-
DECISION AND ORDER
Avi Foox; RAB Perfornance Recoveries LLC; American
Express Centurion Bank; Unifund CCR Partners; John Doe
# 1 through #6, and Jane Doe #l through #6,the last twelve Index No. 13502012021
names being fictitious, it being the intention of Plaintiffto Motion No. 001
designate any and all occupants, tenants, persons or
corporations, if any, having or claiming an interest in or lien
upon the premises being foreclosed herein,
Defendants.
-----x
The Court considered the following e-filed documents associated with.motion sequence # 001:
E-Filed
Document #
Notice of Motion for Leave to Serve and File an Amended Answer
By Defendant Avi Foox, with Supporting Papers
(dated September 25, 2022) 29-34
Affirmation in Opposition
By Plaintifl with Supporting Papers and Exhibits
(dated November 2, 2022) 35-42
Reply Memorandum
By Defendant Avi Foox
(dated November 8, 2022) 43
Upon the foregoing papers,r the motion by Defendant Avi Foox (hereinafter o'Defendant")
for leave to serve and file an amended answer and to compel Plaintiffto accept the amended answer
is granted.
I Defendant
Avi Foox's references in an affrdavit Gpg NYSCEF Document # 30) to NYSCEF
Document #21 and in an aflirmation of counsel (seq NYSCEF Document # 3l) io NYSCEF
Documents # 7,22,25, and 26 put those papers also before this Court on this motion (see CPLR
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This is an action to foreclose a mortgage. Defendant executed a note in the sum of $8 I ,000
on Septembet 21,2005 (Eee NYSCEF Document # 36). As security for repayment of tho debt,
Defendant executed a mortgage in favor of non-party Mortgage Electronic Registration Systems,
Inc. (hereinafter "MERS"), * nominee for non-party E-Loan, Inc. (hereinafter "E-Loan,'),
encumbering the premises at 58 Darcey Avenue, Staten Island, New York (See NYSCEF
Document # 37). MERS assigned the mortgage and note to Plaintiff on July 20, 20Il (see
NYSCEF Document # 38).
Plaintiff commenced this action on May 25, 2021, via the filing of a summons and
complaint, with the note, alleging that,.inter alia, Defendant defaulted in making required payments
on the note since May 31, 2015 (see NYSCEF Document # 3g). Defendant appeared by prior
counsel and interposed an answer with affirmative defenses on June 15, 2021 (see NySCEF
Document # 4l). Defendant's affrrmative defenses consisted of (1) failure to state a cause of
action; (2) improper service of the summons and comptaint; (3) failure 'to satisff the State and
Federal statutory requirements necessary to commence and maintain" the action; (4) lack of
standing; (5) failure to join necessary parties; (6) unclean hands; (7) violation of the Fair Credit
Act; and (8) Defendant had paid all claimed unpaid sums (see id.).
The Court conducted four foreclosure settlement conferences between February 1,2022,
and July 7,2022 (see NYSCEF Document # 35). Meanwhile, Defendant notified the Court on
April 14, 2022, that he no longer wished to be represented by prior counsel (see NySCEF
Document # 22), Defendant e-filed a Consent to Change Attorney form on May 24,2022 (see
NYSCEF Document # 25). Cunent counsel appeared on behalf of Defendant at a settlement
2-214[c]; Reardon v Macy's. Inc., l9l AD3_d 712,714
[2d Dept Z}Z|];Nationstar Mtge.. LLC v
BaileJ, 175 AD3d 697 , 699 [2d Dept 2019]).
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conference on June 9,2022, where it sought Plaintiff s consent to amend the answer (see NYSCEF
Document # 26). The Court gave Plaintiff until June 21, 2022, to respond to Defendant's request
(s NYSCEF Documents # 26,30). The Court released the action from the foreclosure settlement
conference part on July 7, 2022 (see NYSCEF Document # 35).
Defendant rnade this motion for leave to amend the answer and to compel Plaintiff to accept
the amended answer via current counsel on September 26,2022 (waNySCEF Document # 2g).
In support, Defendant submits, inter alia, an affidavit dated September 12, 2022 (.see NYSCEF
Document # 30) and a copy of the proposed answer (see id.). In his affidavit, Defendant attests
that, inter alia, he was surprised to be served with the summons and complaint because he had had
no cornmunication with any lender or servicer for at least l2 years and had "assumed that the loan
had been written ofP' (see id.). Defendant also attests that upon receipt of service he immediately
contacted prior counsel, which, although it did not practice in the area of residential mortgage
foreclosure law, prepared, served, and filed an answer (see id.),
Defendant further attests that in January 2022, when he received notice of the initial
settlement conference scheduled for February 1,2022,he contacted current counsel, which advised
him of additional affirmative defenses and counterclaims which could have been raised in his
answer but were not (s-eq id.). Defendant attests that prior counsel agreed to seek leave to amend
Defendant's answer at the initial settlement conference to assert the additional affirmative defenses
and counterclaims (see id.). Defendant also attests that he sought to change counsel after prior
counsel failed to raise the issue of amending the answer at the settlement conference (see
id.).
Defendant further attests that upon Plaintiff s failure to respond to current.counsel's request
for consent, current counsel made this motion Gge id.). .Defendant attests that he did not intend to
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omit any affirmative defenses or counterclaims that may have merit, and that, upon realizing that
his answer had omitted those defenses and counterclaims, he took steps to assert them (see id.).
In the proposed amended answer, Defendant asserts numerous affirmative defenses and
counterclaims, including, inter alia, lack of standing, failure to provide proper notice of default,
and failure to provide proper notice pursuant to RPAPL 1304 and RPAPL 1306 (see id.).
In opposition, Plaintiff contends that it would be prejudiced by amendment of the answer
(seg NYSCEF Document # 35). However, Plaintiff fails to identify any manner in which it might
be so prejudiced. Plaintiff also contends that Defendant's motion should be denied because
Defendant was represented by counsel when he served and filed the original answer, and that
Defendant's claim that prior counsel lacked experience in mortgage foreclosure cases is based on
hearsay and is in any event irrelevant. Plaintiff further contends that Defendant fails to provide a
reasonable excuse for waiting "1.5 years" after commencement of this action to make this motion.
In reply, Defendant generally reiterates his earlier contentions.
*A party may amend his
or her pleading, or supplement it by setting forth additional or
,
subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties.
Such leave shall be freely given upon such terms as may be just including the granting of costs
and continuances" (CPLR 3025[b]). "Thus, leave to amend a pleading should be granted where
the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in
seeking amendment does not prejudice or surprise the opposing party" tvttg.. CapitAl fn
@U
Devid, 147 AD3d 1024, 1025 [2d Dept 2017J; see U.S. Bank N.A. v Cuesta, 208 AD3d t?.l, g}z
[2d Dept 2022D. Whether to grant such leave is within a trial court's broad discretion (see Cuesta,
208 AD3d at822; Qitlin v chirinkin. 60 AD3d g0r,g02 [2d Dept 2009]).
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Here, Defendant's proposed amended answer, in which Defendant seeks to assert
affirmative defenses such as, inter alia, lack of standing, failure to'provide proper notice of default,
and failnre to provide proper notice pursuant to RPAPL 1304 and RPAPL 1306, is neither palpably
insufficient nor patently devoid of merit, Moreover, notwithstanding Plaintiffs claim that it
somehow would be prejudiced by any delay, Plaintifffails to identiS any such prejudice.
Further, the record does not indicate that by seeking to change counsel Defendant caused
any significant delay, as Defendant sought to and did change counset within weeks of ascertaining
that his original answer did not include customary and reievant defenses to this action. plaintiff s
claim that Defendant waited "1.5 years" before making this motion is contradicted by the record,
which shows that the issue of amendment was before this Court and Plaintiff as early as June
9,
2022,bately one year since commencement of the action, that any delay thereafter was attributable
to Plaintiffls own failure to respond to Defendant's request for consent on the issue, and that, in
any event, Defendant made this motion only 16 months after commencement and after giving
Plaintiffthree months in which to respond.
Accordingly, as a matter of discretion, it is hereby:
ORDERED that the motion by Defendant Avi Foox for leave to serve and file an amended
answer and to compel Plaintiff to accept such answer is granted; and it is
further,
ORDERED that the Clerk enter judgment and mark his records accordingly.
ENTER,
Hon. Desmond A, Green J.S.C.
DATED: February 1,2023 HON. DESMOND GREEN
JSC
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Preview
FILED: RICHMOND COUNTY CLERK 09/11/2023 09:01 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 09/11/2023 Exhibit 4 FILED: RICHMOND COUNTY CLERK 09/11/2023 02/03/2023 09:01 07:07 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 45 RECEIVED NYSCEF: 09/11/2023 02/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ---------------------------------------------------------------------x Gulf Harbour Investments Corporation, Index No. 135020/2021 Plaintiff, -against- NOTICE OF ENTRY Avi Foox, RAB Performance Recoveries LLC, American Express Centurion Bank, Unifund CCR Partners, John Doe #1 through #6, and Jane Doe #1 through #6, the last twelve names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. --------------------------------------------------------------------x PLEASE TAKE NOTICE that the attached is a true copy of an Order in this action that is dated February 1, 2023, and was filed and entered in the Office of the Clerk of the Supreme Court, Richmond County, on February 3, 2023. Dated: Staten Island, New York February 3, 2023 Staten Island Legal Services Attorneys for Defendant Avi Foox By: Sara Manaugh, Esq. 36 Richmond Terrace, Suite 205 Staten Island, New York 10301 (718) 233-6480 To: McCalla Raymer Leibert Pierce, LLC (via NYSCEF) 1 of 6 FILED: RICHMOND COUNTY CLERK 09/11/2023 02/03/2023 09:01 07:07 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 44 45 RECEIVED NYSCEF: 09/11/2023 02/03/2023 SUPREME COURT OF THE STATE OF NEW YORK COIJNTY OT'RICHMOND X RFP Gulf Harbour Investments Corporation, Present: PIaintffi Hon. Desmond A. Green -ogainst- DECISION AND ORDER Avi Foox; RAB Perfornance Recoveries LLC; American Express Centurion Bank; Unifund CCR Partners; John Doe # 1 through #6, and Jane Doe #l through #6,the last twelve Index No. 13502012021 names being fictitious, it being the intention of Plaintiffto Motion No. 001 designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants. -----x The Court considered the following e-filed documents associated with.motion sequence # 001: E-Filed Document # Notice of Motion for Leave to Serve and File an Amended Answer By Defendant Avi Foox, with Supporting Papers (dated September 25, 2022) 29-34 Affirmation in Opposition By Plaintifl with Supporting Papers and Exhibits (dated November 2, 2022) 35-42 Reply Memorandum By Defendant Avi Foox (dated November 8, 2022) 43 Upon the foregoing papers,r the motion by Defendant Avi Foox (hereinafter o'Defendant") for leave to serve and file an amended answer and to compel Plaintiffto accept the amended answer is granted. I Defendant Avi Foox's references in an affrdavit Gpg NYSCEF Document # 30) to NYSCEF Document #21 and in an aflirmation of counsel (seq NYSCEF Document # 3l) io NYSCEF Documents # 7,22,25, and 26 put those papers also before this Court on this motion (see CPLR Page I ofS 1 of 6 2 5 FILED: RICHMOND COUNTY CLERK 09/11/2023 02/03/2023 09:01 07:07 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 44 45 RECEIVED NYSCEF: 09/11/2023 02/03/2023 This is an action to foreclose a mortgage. Defendant executed a note in the sum of $8 I ,000 on Septembet 21,2005 (Eee NYSCEF Document # 36). As security for repayment of tho debt, Defendant executed a mortgage in favor of non-party Mortgage Electronic Registration Systems, Inc. (hereinafter "MERS"), * nominee for non-party E-Loan, Inc. (hereinafter "E-Loan,'), encumbering the premises at 58 Darcey Avenue, Staten Island, New York (See NYSCEF Document # 37). MERS assigned the mortgage and note to Plaintiff on July 20, 20Il (see NYSCEF Document # 38). Plaintiff commenced this action on May 25, 2021, via the filing of a summons and complaint, with the note, alleging that,.inter alia, Defendant defaulted in making required payments on the note since May 31, 2015 (see NYSCEF Document # 3g). Defendant appeared by prior counsel and interposed an answer with affirmative defenses on June 15, 2021 (see NySCEF Document # 4l). Defendant's affrrmative defenses consisted of (1) failure to state a cause of action; (2) improper service of the summons and comptaint; (3) failure 'to satisff the State and Federal statutory requirements necessary to commence and maintain" the action; (4) lack of standing; (5) failure to join necessary parties; (6) unclean hands; (7) violation of the Fair Credit Act; and (8) Defendant had paid all claimed unpaid sums (see id.). The Court conducted four foreclosure settlement conferences between February 1,2022, and July 7,2022 (see NYSCEF Document # 35). Meanwhile, Defendant notified the Court on April 14, 2022, that he no longer wished to be represented by prior counsel (see NySCEF Document # 22), Defendant e-filed a Consent to Change Attorney form on May 24,2022 (see NYSCEF Document # 25). Cunent counsel appeared on behalf of Defendant at a settlement 2-214[c]; Reardon v Macy's. Inc., l9l AD3_d 712,714 [2d Dept Z}Z|];Nationstar Mtge.. LLC v BaileJ, 175 AD3d 697 , 699 [2d Dept 2019]). Page2 of 5 2 of 6 3 5 FILED: RICHMOND COUNTY CLERK 09/11/2023 02/03/2023 09:01 07:07 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 44 45 RECEIVED NYSCEF: 09/11/2023 02/03/2023 conference on June 9,2022, where it sought Plaintiff s consent to amend the answer (see NYSCEF Document # 26). The Court gave Plaintiff until June 21, 2022, to respond to Defendant's request (s NYSCEF Documents # 26,30). The Court released the action from the foreclosure settlement conference part on July 7, 2022 (see NYSCEF Document # 35). Defendant rnade this motion for leave to amend the answer and to compel Plaintiff to accept the amended answer via current counsel on September 26,2022 (waNySCEF Document # 2g). In support, Defendant submits, inter alia, an affidavit dated September 12, 2022 (.see NYSCEF Document # 30) and a copy of the proposed answer (see id.). In his affidavit, Defendant attests that, inter alia, he was surprised to be served with the summons and complaint because he had had no cornmunication with any lender or servicer for at least l2 years and had "assumed that the loan had been written ofP' (see id.). Defendant also attests that upon receipt of service he immediately contacted prior counsel, which, although it did not practice in the area of residential mortgage foreclosure law, prepared, served, and filed an answer (see id.), Defendant further attests that in January 2022, when he received notice of the initial settlement conference scheduled for February 1,2022,he contacted current counsel, which advised him of additional affirmative defenses and counterclaims which could have been raised in his answer but were not (s-eq id.). Defendant attests that prior counsel agreed to seek leave to amend Defendant's answer at the initial settlement conference to assert the additional affirmative defenses and counterclaims (see id.). Defendant also attests that he sought to change counsel after prior counsel failed to raise the issue of amending the answer at the settlement conference (see id.). Defendant further attests that upon Plaintiff s failure to respond to current.counsel's request for consent, current counsel made this motion Gge id.). .Defendant attests that he did not intend to Page 3 of5 3 of 6 4 5 FILED: RICHMOND COUNTY CLERK 09/11/2023 02/03/2023 09:01 07:07 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 44 45 RECEIVED NYSCEF: 09/11/2023 02/03/2023 omit any affirmative defenses or counterclaims that may have merit, and that, upon realizing that his answer had omitted those defenses and counterclaims, he took steps to assert them (see id.). In the proposed amended answer, Defendant asserts numerous affirmative defenses and counterclaims, including, inter alia, lack of standing, failure to provide proper notice of default, and failure to provide proper notice pursuant to RPAPL 1304 and RPAPL 1306 (see id.). In opposition, Plaintiff contends that it would be prejudiced by amendment of the answer (seg NYSCEF Document # 35). However, Plaintiff fails to identify any manner in which it might be so prejudiced. Plaintiff also contends that Defendant's motion should be denied because Defendant was represented by counsel when he served and filed the original answer, and that Defendant's claim that prior counsel lacked experience in mortgage foreclosure cases is based on hearsay and is in any event irrelevant. Plaintiff further contends that Defendant fails to provide a reasonable excuse for waiting "1.5 years" after commencement of this action to make this motion. In reply, Defendant generally reiterates his earlier contentions. *A party may amend his or her pleading, or supplement it by setting forth additional or , subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Such leave shall be freely given upon such terms as may be just including the granting of costs and continuances" (CPLR 3025[b]). "Thus, leave to amend a pleading should be granted where the amendment is neither palpably insufficient nor patently devoid of merit, and the delay in seeking amendment does not prejudice or surprise the opposing party" tvttg.. CapitAl fn @U Devid, 147 AD3d 1024, 1025 [2d Dept 2017J; see U.S. Bank N.A. v Cuesta, 208 AD3d t?.l, g}z [2d Dept 2022D. Whether to grant such leave is within a trial court's broad discretion (see Cuesta, 208 AD3d at822; Qitlin v chirinkin. 60 AD3d g0r,g02 [2d Dept 2009]). Page 4 of5 4 of 6 5 5 FILED: RICHMOND COUNTY CLERK 09/11/2023 02/03/2023 09:01 07:07 PM INDEX NO. 135020/2021 NYSCEF DOC. NO. 61 44 45 RECEIVED NYSCEF: 09/11/2023 02/03/2023 Here, Defendant's proposed amended answer, in which Defendant seeks to assert affirmative defenses such as, inter alia, lack of standing, failure to'provide proper notice of default, and failnre to provide proper notice pursuant to RPAPL 1304 and RPAPL 1306, is neither palpably insufficient nor patently devoid of merit, Moreover, notwithstanding Plaintiffs claim that it somehow would be prejudiced by any delay, Plaintifffails to identiS any such prejudice. Further, the record does not indicate that by seeking to change counsel Defendant caused any significant delay, as Defendant sought to and did change counset within weeks of ascertaining that his original answer did not include customary and reievant defenses to this action. plaintiff s claim that Defendant waited "1.5 years" before making this motion is contradicted by the record, which shows that the issue of amendment was before this Court and Plaintiff as early as June 9, 2022,bately one year since commencement of the action, that any delay thereafter was attributable to Plaintiffls own failure to respond to Defendant's request for consent on the issue, and that, in any event, Defendant made this motion only 16 months after commencement and after giving Plaintiffthree months in which to respond. Accordingly, as a matter of discretion, it is hereby: ORDERED that the motion by Defendant Avi Foox for leave to serve and file an amended answer and to compel Plaintiff to accept such answer is granted; and it is further, ORDERED that the Clerk enter judgment and mark his records accordingly. ENTER, Hon. Desmond A, Green J.S.C. DATED: February 1,2023 HON. DESMOND GREEN JSC Page 5 of5 5 of 6 6 5