Clerk Notice: Midfirst Bank v. Any Unknown Heirs To The Estate Of Joseph M Dicecco, Next Of Kin, Devisees, Legatees, Distributees, Grantees, Assignees, Creditors, Lienors, Trustees, Executors, Administrators Or Successors In Interest Of The Aforesaid Classes Of Persons, if they or any of them be dead. all of whom and whose names and places of residence are unknown to the plaintiff;

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                                FILED: SUFFOLK COUNTY CLERK 10/24/2023 12:49 PM                                                     INDEX NO. 621102/2018
NYSCEF DOC. NO. 88                                                                          RECEIVED NYSCEF: 10/24/2023




           STATE OF NEW YORK SUPREME COURT
           COUNTY OF SUFFOLK
           ________________________________________________
                                                                                    Index No.:
                                                                                    621102/2018
           MIDFIRST BANK,
                                                   Plaintiff,
                           -vs-
           Any unknown heirs to the estate of Joseph M. Dicecco,
           next of kin, devisees, legatees, distributees, grantees,
           assignees, creditors, lienors trustees, executors,
           administrators or successors in interest of aforesaid classes
           of persons, if they or any of them be dead, all of whom and
           whose names and places of residence are unknown to
           Plaintiff,

                                            Defendants.
           _______________________________________________

                                    NOTICE TO COUNTY CLERK – CPLR § 8019(c)

                  By order dated September 11, 2023, and entered on September 15, 2023, the Court directed the
          County Clerk to make an entry on the docket of this matter. As required by CPLR § 8019 (c), notice of
          the order is hereby given to the County Clerk with the request that the County Clerk make such entry.

          Dated: October 24, 2023



                                                          _________________________________
                                                          Molly L. Chapman, Esq.
                                                          Davidson Fink LLP
                                                          Attorney for Plaintiff
                                                          400 Meridian Centre Blvd., Suite 200
                                                          Rochester, New York 14618




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                                                                                     MOT SEQ 004 - Mot I)
                                                                                      MOT SEQ 005 - MG

                             STATE OF NEW YORK - SUPREME COURT
                                  SUFFOLK COUNTY - PART 81
          MIDFIRST BANK,                                          Index Number   :       62110212018

                                        Plaintiff(s).                Hon. Aletha V. Fietds. AJSC

          -against-                                           Short Form Order on Motions and Requiring
                                                                  Marking a Prior Mortgage Satisfied
          Any unknown heirs to the estate of        Joseph
          Dicecco, et al.,                                                 District : 0200
                                                                           Section: 160.00
                                        Defendant(s)                        Block : 07.00
                                                                            Lot:012.000

                                                                            Realty address:
                                                                           45 Gaymore Road
                                                               Port Jefferson Station, New York 1 1776

          Davidson Fink. LLP, Rochester, New York (Sean P. Williams, Esq., of counsel), for plaintiff;

          Biolsi Law Group PC. New York, New York (Kyra Mercadier. Esq.. of counsel). for defendants.
          Joseph Dicecco and Crystal Dicecco.

                 Upon e-filed documents 54-81 and any e-filed document cited herein, read and
          considered on plaintifls motion for a default judgment (004) and the motion of defendants
          Joseph Dicecco and Crystal Dicecco (together, opposing defendants) to dismiss (005), it is
          hereby

                   ORDERED that the motion of opposing defendants (005) to dismiss the complaint
          against them be. and it hereby is GRANTED; and
                                                     it is further

                   ORDERED that the complaint be, and it hereby is, DISMISSED without costs as
          abandoned in respect of each of the opposing defendants, Joseph Dicecco and crystal Dicecco;
          and it is further

                 ORDERED that plaintiffs morion (004) for a default judgment be, and it hereby is,
          GRANTED as to each of (A) the unknown heirs to the estate of Joseph M. Dicecco, next of kin,
          devisees, legatees, distributees. grantees, assignees, creditors, lienors, trustees, executors,
          administrators or successors in interest of the aforesaid classes of persons. if they or any of them
          be dead. all of whom and whose names and places ofresidence ari unlnown to ihe plaintiff; and
          (B) Oxford Credit Corp; and it is further




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                 ORDERED that so much of plaintills motion (004) that seeks judgment extinguishing
          the prior mortgage of record in favor of Oxford Credit Corp. recorded at liber 16515 of
          mortgages, page 509, be, and it hereby is, GRANTED; and it is further

                ORDERED that so much of plainti{Fs motion that seeks a default judgment against
          Vincent Dicecco, Regina Dicecco, Douglas Dicecco, John Dicecco, USAIRS, and the New
          York State Department of Taxation and Finance be. and it hereby is, DENIED; and it is lurther

                 ORDERED that on this Court's own initiative (CPLR 3215 [c]), the complaint be, and it
          hereby is. DISMISSED without costs as abandoned in respect of each ol the following
          defendants: Vincent Dicecco, Regina Dicecco, Douglas Dicecco. USA/IRS, and the New York
          State Department of Taxation and Finance; and it is further

                  ORDERED that because the only defendant remaining against whom plaintiff may seek
          foreclosure are the unknown heirs, the caption of this action be. and hereafter is to, read as
          follows (with the addition of the decedent's middle initial to provide some differentiation
          between the decedent and the opposing defendant, Joseph Dicecco):

          STATE OF NEW YORK
          SUPREME COURT SUFFOLK COTINTY
          MIDFIRST BANK,                                              Index Number   :     62110212018

                                        Plaintiff(s).                 District : 0200
                                                                      Section: 160.00
          -against-                                                   Block : 07.00
                                                                      Lot: 012.000
          Any unknown heirs to the estate of Joseph M.
          Dicecco, next of kin, devisees, legatees. distributees,     Realty address:
          grantees, assignees, creditors, lienors, trustees,          45 Gaymore Road
          executors. administrators or successors in interest of Port Jefferson Station. New York
          the aforesaid classes of persons, if they or any of them 117'76
          be dead. all ofwhom and whose names and places of
          residence are unknown to the plaintiff;

                                        Defendan        S



          And it is further

                  ORDERED that except as specifically granted in this order, plainti{fs motion (004) be,
          and it hereby is. DENIED; and it is further

                 ORDERED that plaintiffbe, and hereby is. directed to serve this order with CPLR 8019
          (c) notice with all required fees, including those applicabte to recording a satisfaction of
          mortgages on the suffolk county clerk whereupon the Suffolk county Clerk be, and thereby is,
          directed to (A) mark the mortgage recorded at liber 16515 of mortgages, page 509 as satisfied
          and to make all entries in all indexes that the Suffolk County Clerk would make if it were to




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          receive a standard satisfaction of mortgage from the original lender on a mortgage, and (B)
          amend the caption as set forth above;

                  This is a residential mortgage foreclosure action (Request for Judicial Intervention [Dkt.
          251) where the original borrower, Joseph M. Dicecco, died before plaintiff commenced this
          action (compare, Complaint [Dkt. 1] [filed on October 30, 2018] t)ith Death Certificate [Dkt. 23]
          [showing a 2015 date of death]). Plaintiff initially named "any unknown heirs to the Estate of
          JOSEPH DICECCO. . . Joseph Diceccor, Vincent Dicecco, Regina Dicecco. Douglas Dicecco,
          Oxford Credit Corp., USA/IRS, New York State Department of Taxation and Finance, and
          [John/Mary Doe]) (Complaint [Dkt. I ]). Plaintiff sets forth two principal causes of action.
          Plaintiff s first cause of action is to extinguish a prior mortgage or lien that encumbers the
          premises. Plaintiff s second cause ofaction is for foreclosure.

                   This Court's reading of the complaint reveals no specific allegation of the date of default.
          The so-called "affidavit of merit" (CPLR 3215 [f'] [requiring, among other things, a default
          judgment motion to include proof of the facts constituting the defaultl) sets forth, "[b]onower ...
           has delaulted under [the] note for $2,358.68 owing to the Ptaintiff[.] and no payment has been
           made to [p]laintiff from [b]orrower . . ., despite demand, by having failed to make monthly
           payments on January 1, 2018 to date" (Affidavit olMerit [Dkt. 68] at fl 6). The affidavit of merit
           refers to the contractual notice of default (Dkt. 62) that also sets forth plaintilfls position that the
          default occuned on January I , 201 8. Obviously, the default occurred post-mortem.

                  The complaint's ad damnum clause sets forth, "That if the proceeds of sale of the
          mortgaged premises aforesaid be insufficient to pay the ermount found due to the plaintilf with
          interest and costs, the officer making the sale be required to specifu the amount of such
          deficiency in [the] report of sale so that plaintiff may thereafter be able to make application to
          this Cou(, pursuant to [s]ection 1371 of the [RPAPL], for a judgment against the defendan(s)
          referred to in paragraph TWELFTH of this [c]omplaint for any deficiency which may remain
          after applying all of such moneys so applicable thereto" unless the debt was discharged in
          bantruptcy (Complaint [Dkt. l] at ad damnum clause fl 7). The defendant referred to in
          paragraph twelfth is Joseph Dicecco. This is a demand for a deficiency judgment seemingly
          against the decedent given that paragraph twelfth describes Joseph Dicecco as having "made a
          certain bond, note, loan agreement, extension agreement, consolidation agreement, or recasting
          agreement, as the case may be. wherein they bound themselves" (Complaint [Dkt. l] at u l2th).

                 The original payee of the February 5, 2008 note was Lend America (Note [Dkt. 59]). The
          note bears an undated special indorsement from Lend America to JPMorgan Chase Bank, NA
          (chase) and an undated special indorsement from chase to Midfirst Bank. The original
          mortgagee was "Mortgage Electronic Registration Systems. Inc. solely as nominee for .. . Lend
          America" (Mortgage [Dkt. 60]). Attached to the complaint are two purported assignments ol
          mortgage filed with the Suffolk county clerk. The earlier purported assignment of mortgage is


          I The decedent's middle initial is M for
                                                   Michael as set forth in the death certificate- Schedule A to the complaint
          lists Joseph Dicecco as a possible heir. However, paragrdph rwelfth of the complaint makes allegations about
          "defendant Joseph Dicecco," indicating but not fully establishing that plaintiffsued ; deceased party. Given that
                                                                                                                            one
          ofthe opposing defendants is Joseph Dicecco. this Court concludes that two similarly named person exist.




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          dated March 29,2018 and purports to assign the mortgage from MERS as nominee for Lend
          America to Chase. It is recorded ar 22919 of mortgages, page '72. The later purported assignment
          of mortgage is dated May 15,2018, is recorded at liber 22930 of mortgages, page 514, and
          purports to assign the mortgage from Chase to plaintiff.

                 Before Chase purported to assign the mortgage to Midfirst Bank, Chase and the decedent
          modified the loan effective as of June l. 2010. This loan modification occurred before the
          assignment ofthe mortgage, so without the dates on which Chase possessed the original note, the
          mortgage modification might not be enforceable. The modification increased the principal
          balance owed on the note and secured by the mortgage. Plaintiff admits that no one paid the
          mortgage tax on the modification agreement.

                  Plaintiffdelayed this action from commencement (October 30,2018). Plaintiff proceeded
          against unknown heirs from the outset but did not move for the appointment of a guardian ad
          litem until February 5, 2019 (Dkt. 20). Moreover, plaintiff elected not to seek the reliefofhaving
          one of the known heirs appointed as the agent for unlnown heirs or as the guardian thereof.
          Plaintiff elected not to conduct pre-action discovery (CPLR 3102 [c]) of one of the known
          "possible" heirs to leam a family tree for the decedent. Instead, plaintiff sought appointment ofa
          guardian ad litem. For reasons not at all apparent. in respect of the initial application for
          appointment ofa guardian ad litem, more than one year passed before the supreme court entered
          an order granting such relief on February 20,2020, with the spark for action perhaps being
          plaintifls counsel's letters requesting an understanding ofthe delay (Dkts. 30,31).

                 Then, on May 19, 2022, wtrh the COVID-related consolidation of court operations
          having intervened, plaintiff sought appointment of a successor guardian for reasons set forth in
          motion sequence 002 (Dkts. 39-44).

                 Then. on February 17.2023, plaintill sought appointment of another successor guardian,
          and the supreme court granted that application in fewer than two weeks (Dkts. 45-50).

                  Despite plaintiffs delays, plaintiff was consistently taking action to try to prosecute this
          action and demonstrated an intent to litigate rather than an intent to abandon as to the unknown
          heirs.

          I.     Opposing Defendants' Motion to Dismiss

                 Now come opposing defendants who argue that this action should be dismissed against
          them because plaintiff did not take proceedings for the entry ofjudgment within one year after
          the default. "lf plaintiff fails to take proceedings for the entry ofjudgment within one year after
          the default. the court shall not enter judgment but shall dismiss the complaint as abandoned.
          without costs, upon its own initiative or on motion. unless sufficient cause is shown why the
          complaint should not be dismissed" (CPLR 3215 [c]).




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                   A.   The One-Year Period2

                  Plaintiff served Joseph Dicecco by the method set lorth in CPLR 308 (2) by serving a
          person of suitable age and discretion at the address plaintiff lists in the complaint as Joseph
          Dicecco's home address. Within twenty days of such service, plaintiff made the required
          mailing. On November 15,2018, plaintiff filed the proof of service (Proofs of Service [Dkt. 67]).
          Therefore, service was complete on Joseph Dicecco ten days later. November 25, 2018 (CPLR
          308 [2]). Thereafter, Joseph Dicecco had 30 days to answer or appeiu (CPLR 320) with day one
          being November 26,2018 because the day from which the reckoning is made is excluded from
          the calculation (Gen. Constr. Law $ 20). Thereflore, Joseph Dicecco was required to answer or
          appear or move on or before Wednesday, December 26,2018 (see, Rejection of Answer [Dkt.
          281).

                 Plaintiff served Crystal Dicecco as a JohnMary Doe on November 6, 201 8 by the
          method set forth in CPLR 308 (1) (Proofs of Service [Dkt. 67]). Therefore, Crystal Dicecco had
          twenty days to answer, appear, or move (CPLR 320). Therefore, Crystal Dicecco was required to
          answer or appear or move on or before Monday, November 26,2018 (see, Rejection of Alswer
          lDkt.28l).

                 Neither of opposing defendants timely answered. However. within the 3215 (c) period,
          on June 6,2019, both opposing defendants filed a single, joint answer and a single. joint
          discovery demand (Dkts. 26-27). On June 11, 2023, plaintiff rejected the answer as untimely
          (Dkt.28). Thereafter. opposing defendants did nothing to obtain leave to file the late answer or
          to compel acceptance of it. Opposing defendants did not pursue the discovery demand. The
          CPLR 3215 (c) period for Crystal Dicecco ended on Tuesday, November 26,2019. The CPLR
          3215 (c) period for Joseph Dicecco ended on Thursday, December 26, 2019.

                   B.   Take Proceedings

                        l.   Guardian Ad Litem Motions

                  Plaintiff did not move for a default judgment against anyone before the CPLR 3215 (c)
          period ended, nor did plaintiff, contrary to its contention (Attomey Affirmation in Suppo( of
          Motion for Default Judgment and Order of Reference [Dkt. 57] fl 22; Attomey Affirmation in
          Further Support of Motion for Default Judgment and order of Reference and opposition to
          cross Motion [Dkt. 77]), take proceedings for the entry of judgment against either of the
          opposing defendants by seeking the appointment of a guardian ad litem while this action was
          assigned to justices other than the undersigned. Joseph Dicecco is a named defendant whom
          ptaintifl had served as CPLR 308 (2) altows. crystal Dicecco is an occupant of the mortgaged
          premises who *'as served as CPLR 308 (1) allows. Neither ofthe opposing defendants required a
          guardian' and plaintiffs motions for guardian-based relief sought no relief in respect of either ol


          I Often other doctrines and authorities
                                                  extend the one-year p eriod (Cilibanh, N.A. v Kenz*o.203 AD3d 42
                                                                                                                    [2d Dept
          20221). ln this action, however, where plaintiff claims that cpLR j40g does not apply, no extension applie;.
          Nevertheless, at times in this order, the term "3215 (c) period" may be used to avoid the misapprehension
                                                                                                                     that this
          order applies only when the relevant period is one year.




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          them. Therefore, those motions-which could have sought relief against all other defendants to
          extend the time under CPLR 3215 (c) (CPLR 2004F-{o not constitute taking proceedings for
          the entry ofjudgment against either opposing defendant. The 3215 (c) analysis is undertaken on
          a defendant-by-defendant basis, meaning that taking proceedings against one defendant or set ol
          defendants is not necessarily taking proceedings for the entry of judgment against another
          defendant or set of defendanls (cf. lYells Fargo Bank, N.A. v lackson, 208 AD3d 6l 3 [2d Dept
          2022] [hotding that the reasonable cause for delay branch of the sufficient cause analysis under
          CPLR 321 5 (c) is a defendant-by-defendant analysisl).

                     2.   Rejection of the Untimely Ans*er

                Plaintifls reply on its motion for a default judgment is also plaintifls opposition to
         opposing defendants' motion. There, plaintiff argues that it took proceedings for the entry of
         judgment against opposing defendants when plaintiff rejected the late answer (Attomey
         Affirmation in Further Support of Motion for Default Judgment and Order of Reference and
          Opposing Cross-Motion [Dkt. 77] fl 28). Plaintiffdid not reject the discovery demand despite its
          contrary contention (compare id. u,itft Rejection of Answer [Dkt. 28). Because plaintifl-s legal
          argument is a reply but also is the opposition to opposing defendants' motion, the rule about
          raising matter for the first time in reply does not apply. Further support for not applying that rule
          is that opposing defendants had ample time to reply in respect oftheir motion and did reply.

                  The narrow question plaintiff presents is "when, during the CPLR 3215 (c) period, a
          plaintiff rejects an untimely answer. has the plaintifftaken proceedings for the entry ofjudgment
          against the defendant or defendants whose answer plaintiff rejected?"

                 ln U.S. Bank, N.A. v Onuoha (162 AD3d 1094 [2d Dept 2018]), the defendant's time to
          answer or appear expired on September 10. 2008. Defendant mailed (served) an answer on
          September 15, 2008, just five days late, but plaintiff rejected the untimely answer. In opposition
          to plaintifls motion lor leave to enter a default judgment, defendant argued untimeliness under
          CPLR 3215 (c). The Onuoha court did not expressly rule on the issue of whether the plaintiff
          rejecting the untimely answer constituted "manifest[ing] an intent not to abandon the case. but to
          take steps to seek a judgment" (Citibank, N.A. v Kerszko,203 AD3d 42,50-51 [2d,Dept2022]).
          The Onuoha defendant opposed the motion, so the Second Department might not have ruled on
          a non-jurisdictional argument that parties did not brief (Yelder v lil/alters,64 AD3d 762 [2d Dept
          20091). Thus, the Second Department may have affirmed the Onuoha result because defendants
          successfully argued that the rejection of the untimely answer did not constitute taking
          proceedings for the entry ofjudgment. Also possible is that the issue was not brought before the
          Second Department, so its decision and order is silent on the question. What is srire is that the
          Second Department did not rule that timely rejection of an untimely answer constitutes taking
          proceedings for entry ofjudgment.

                The First Department has squarely addressed the issue facing this cou(. In Nycrl
         2017-A Trust v Heirs-at-Law of John Ghisetti (215 AD3d 427 U't Dept 20231), defendant
         "served answers to the original and amended complaint, but plaintiffs
                                                                               counsel formally rejected
         them as untimely because, as [defendant] does not dispute, [the] answers were served more than
         20 days after [defendant] was served with the amended complaint', (id. at 42g). The First




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          Department affrrmed the trial court that acted on its own initiative to dismiss the complaint as
          abandoned under CPLR 3215 (c). Because the trial court acted on its own initiative, the trial
          court necessarily determined that rejection of the untimely answer was not taking proceedings
          for the entry of judgment. Had it lound otherwise, dismissal would not have occurred. When it
          aifirmed, the First Department equally necessarily determined that plaintifls timely rejection of
          the untimely answer did not constitute taking proceedings for entry ofjudgment.

                  The Third Department has also addressed the issue. ln Fallsburgh Lumber Co. v De
          Graw (239 AD2d 846 [3d Dept 1997]) plaintiff rejected the defendant's answer as untimely.
          Plaintiff timely moved for a default judgment on some of its causes of action within the 3215 (c)
          period; as to the other causes of action, plaintiff moved for the default judgment after the 3215
          (c) period. The trial court dismissed the causes of action for which plaintiff moved for default
         judgment after the 3215 (c) period expired. The Fallsburgh Lumber Ca. court was not as
          explicit as the Heirs-at-Law of John Ghiselli court was about whether the trial court acted on its
          own initiative. However. the Third Department was explicit that the filing and service of a
          rejected untimely answer was not an appearance.

                  The First Department precedent (NYCTL 2017-A Trust v Heirs-at-Law of John Ghiselli,
          215 AD3d 427 ll't Dept 20231) controls because it is appellate authority where neither the
          Second Department nor the Court ofAppeals has a contrary rule (Mountain View Coach Lines v
          Storms, 102 AD2d 663 [2d Dept 1984]). This Court finds support for the determination that the
          rejection of the untimely answer did not constitute taking proceedings for the entry ofjudgment
          in both Onuoho and Fallsburgh Lumber Co.

                  2l Mtge. Corp, v Raghu (l97AD3d 1212 l2d Dept 20211) does not lead to a contrary
          result. In Raglrz. Justice Dillon, writing for the court. held that CPLR 320 (a) means what it
          says, that there are three ways to appear in an action: serving a notice of appearance, filing a
          motion with the effect of extending the time to answer, and serving an answer. However, when
          an untimely answer is timely rejected, service of that answer is deemed incomplete (Fallsburgh
          Lumber Co., supra). Thus, when opposing delendants served the untimely answer, they took the
          risk that plaintiff would accept it, thereby eliminating opposing defendants' ability right to move
          under 321 5 (c) if plaintiff waited too long to seek a default judgment, while retaining opposing
          defendants' right to move to overcome their default in appearing. Similarly, the choice to reject
          belonged to plaintiff. Had it not timely rejected the untimely answer, plaintiff would have waived
          the untimeliness, and surely opposing defendants would have defended the default judgment
          motion on the grounds that they were not in default (Lyles v County of Nassau, 213 AD3d 921
          [retaining an untimely answer without rejection waives untimeliness]). By rejecting, plaintiff
          bore the risk ofthe 3215 (c) period ending belore it took proceedings for the entry ofjudgment
          against opposing defendants.

                 u.s. Bank v Hunte (215 AD3d 887 [2d Dept 20231) is not on point because plaintiff,
          who had rejected defendant's untimely answer. moved for default judgment within the CpLR
          3215 (c) period unlike this plaintiff. Thus, whether rejection constituted taking proceedings was
          irrelevant.




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                   Finally. Meyers v Slutsky (139 AD2d 709 [2d Dept 1988]) does not compel a contrary
          result. In Meyers, defendants filed a late answer with discovery demands, just as in this action.
          However, in Meyers, plaintiff did not reject the untimely answer; had plaintiff not rejected the
          late answer, then unquestionably, opposing defendants would not be entitled to CPLR 3215 (c)
          relief. Meyers speaks of the untimely answer having constituted a waiver of defendant's CPLR
          3215 (c) rights. The Meyers cottrr did not hold that the filing of an untimely answer that plaintiff
          did not reject precluded plaintifffrom seeking a default judgment. Instead, it held that defendants
          waived their CPLR 3215 (c) rights. By implication, by not rejecting the untimely answer, the
          Meyers plaintiff waived its right to a default judgment. To read Meyers any other way would, in
          effect, neutralize the Appellate Division's chosen language of waiver. The Meyers result also
          makes sense from an equitable perspective. Just as statutes of limitations and CPLR 3215 (c)
          prevent plaintiffs' inactions from luring potential or actual defendants into a false sense of
          complacency, a defendant should not be permitted to similarly lead a plaintiff astray by
          defendant filing an untimely answer and discovery demands that are not timely rejected. Thus,
          Meyers is distinguishable because plaintiff in this action chose to preserve its default judgment
          rights by timely rejecting the opposing defendants' untimely answer.

                  Therefore, this Court holds that when, during the CPLR 3215 (c) period, plaintifftimely
          rejected the untimely answer, plaintitT did not take steps for the entry ofjudgment against either
          of the opposing defendants. "Upon a showing of the requisite one year of delay, dismissal is
          mandatory in the first instance" (Aurora Loan Servs., LLC v Hiyo. 130 AD3d 763.764 [2d Dept
          2015]). Therefore, at this stage of the analysis, opposing defendants are entitled to have this
          Cou( dismiss the complaint as abandoned as against each of two opposing defendants, subject to
          plaintiff showing sufficient cause not to dismiss.

                 C.   Sufficient Cause

                   To excuse the failure to take proceedings for the entry of judgment within the CPLR
           3215 (c) period. a plaintiff must prove "a reasonable excuse for the delay in moving for a default
          judgment [or taking proceedings for the entry of it] and ... that the cause of action is potentially
           meritorious" (Onuoha, 162 AD3d at 1095). Here, plaintiffcan show neither.

                      l.   Reasonable Excuse

                  Plaintiff explains that it did not take proceedings for the entry of judgment against
          opposing defendants within the CPLR 3215 (c) period because it devoted its efforts to having a
          guardian ad litem appointed for other defendants. Plaintiff is correct that it invested considerable
          effort and endured considerable judicial delay white the action was assigned elsewhere. The
          efforts, however, were not reasonable. A party may not sue a deceased person and must pursue
          the estate (US Bank N.A. v Cadeumag, 147 AD3d,88l [2d Dept 2017]). A narrow exception
          applies when. in a foreclosure action, the ptaintifl does not seek a deficiency judgment and the
          decedent died without a will (e.g, ll/ells Fargo Bank, N.A. v Miglio, 197 AD3d 776, ISO
          NYS3d 592 [2d Dept 2021); Countrywide Home Loans, Inc,, LLC v Keys,27 AD3d 247, gl I
          NYS2d 362 lst Dept 20061; see, SC Bromley I, LLC v Sherman,20l AD3d g32, 157 NyS3d
          390 [2d Dept 2022)). Here, plaintiff seeks a deficiency judgment, so it must sue the personal
          representative. The effort spent on having a guardian ad litem appointed is wasted energy




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          because the estate   is a necessary and, on these fact where the deficiency judgment is sought
          against it, an indispensable party. Whether plaintifls litigation strategy requires dismissal or an
          order compelling joinder is not specifically before this Court on these motions, but may need to
          be resolved before a judgment of loreclosure and sale issues. Certain strategic decisions exist, so
          this Court has no need right now to address plaintifls failure to join the estate.

                 Moreover, as opposing defendants argue, plaintiffoffers no explanation lor why the work
          on the guardian ad litem prevented taking steps for entry of judgment against opposing
          defendants. Without that link, plaintiffs misplace reliance on the guardian motion practice
          (ll/ells Fargo Bank, N.A. v lackson,208 AD3d 613 [2d Dept 2022] [holding that the reasonable
          cause for delay branch of the sufficient cause analysis under CPLR 3215 (c) is a defendant-by-
          defendant anatysisl).

                 Therefore, for the foregoing two reasons, this Court finds that plaintiff has not established
          a reasonable excuse for the delay in taking proceedings for the entry   ofjudgment.

                     2.   Meritorious Cause of Action

                   Even if plaintiff had established a reasonable excuse for the delay, plaintiff does not have
          a meritorious claim at this stage. Plaintiff has relied on an exception to the general rule that the
          estate has to be a named party when a foreclosing plaintiff seeks a deficiency judgment. The
          estate is not a party here. That alone defeat's plaintiff s position that it has a meritorious cause of
          action.

                  In addition, neither plaintiff nor a predecessor in interest paid mortgage tax on the loan
          modification. 'No mortgage ol real property which is subject to the taxes imposed by this article
          shall be. . . received in evidence in any action or proceeding. nor shall any assignment ofor
          agreement extending any such mortgage be recorded unless the taxes imposed thereon by this
          article shall have been paid as provided in this article" (Tax Law $ 258 [1]). Because this Court
          interprets tax law section 258 not as a rule of evidence that a party may waive. but as an
          enactment restricting the authority and power of the Court to act. this Court may and must act on
          its own motion (Matter of Fry v Village of Tarrytopz, 89 NY2d 714,658 NYS2d 205 [997]).

                  We begin any statutory interpretation question with the statute's plain lang:uage (Matter
          of Avella v City of Neb, York,29 NY3d 425, 58 NYS3d 236 [2017]). The plain words are rhat
          the mortgage "shall not be received in evidence in any action or proceeding." Despite the passive
          voice construction, at a minimum, this language enacts the other two branches of govemment,s
          check and balances power over the judiciary by denying the courts the authority to accept a
          mortgage into evidence unless the required recording tax was paid. "Lest the inducement to
          record offered by the Real Property Law should in some cases be nullified by reluctance to pay a
          recording tax, the Legislature, in section 258 of the Tax Law, has provided an effective form of
          economic compulsion to supplement the inducement by restricting, if not, indeed, prohibiting,
          the use ofan unrecorded mortgage for any practical purposes" (Franktin soc.for Home Btdg. &
          sav. v- Bennett,282 NY 79, 83,24 NE 854, 856 tl939l). Section 258 speaks in evidentiary
          terms, but it is a restriction on the power and authority of the Court to act. The reason lor the




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                    is revenue based, a matter within the purview of the other two branches
          restriction                                                                                                        of
          government. Thejudiciary has respected must continue to respect their authority on this point.

                  Ifthe parties themselves  can waive. even by silence or default in answering a complaint.
          the prohibition on receiving a mortgage into evidence, then the "compulsion" of section 258 is
          absent, and the legislative intent of rendering an unrecorded mortgage of no practical use is
          eliminated. Therefore, the parties' litigation positions are irrelevant. Allowing the tax law 258
          issue to be waived cheats the state out ofta\ revenue to which it is entitled.

                  Further support for finding tax law section 258 to be a check and balance on the
          judiciary's power and authority comes from the judiciary itself. The law of evidence (i.e.,
          waivable matters) is first framed in terms of what is admissible into evidence (Guide to NY Evid
          rule 4.01 [2]. Relevant Evidence [''All relevant evidence is admissible except as otherwise
          provided or required3 by the Constitution of the United States of the Constitution, statutes, or
          common law of New York State"]). When the Legislature enacts a rule that does not speak in
          terms of something being "inadmissible" or "not admissible" but, instead speaks in terms of a
          court not receiving it into evidence, the statute's plain language and intent are to bar the evidence
          no matter \\that (contrast, e.g, Guide to NY Evid rule 8.01 [ ] [a] Admissibility of Hearsay
           ["Hearsay is not admissible unless ...] and Guide to NY Evid rule 4.07.1 [] Character Evidence
           ["Evidence of a person's character is not admissible ..."] with Tax Law g 258 ["shatl not be
          received in evidence"l).

                 The implementing executive branch agency is the Department of Ta,tation and Finance.
          Executive branch regulations track the statutory, "shall not be received in evidence in any action
          or proceeding in any court of this State" Ianguage (22 NYCRR g 652.1 [a] [4]). Whether the
          Department of Taxation and Finance has unilateral authority to control the judiciary's behavior
          needs no discussion because its implementing regulation is identical to the statute and
          underscores the compulsion to collect the tax purpose oftax law section 258.

                   This Court relies on Frqnklin Soc. for Home Bldg. & Sav. v. Bennett, supra, utd
           Glenville & I I0 Corp. v Tortora, 122 N)2d 107, 504 NYS2d 504 [2d Dept 1986] [describing
           the "effect of nonpayment of taxes" as limiting the enforceability of a mortgage]). This Order
           accords with those precedents by limiting the enforceability of the mortgage at the default
          judgment stage to the principal amount associated with any proven payment of mortgage
           recording tax-here, zero, because the loan modification is not properly before this Court.

                 Finally, unexplained in this record is how Chase purported to modifu the loan in 2010
          when the assignment of the mortgage was not recorded until eight years later and the special
          indorsement on the note to Chase as payee is undated.




          IThe distinction between "provided" and "required" is that where a rule of inadmissibility is waivable, ,,provided,,
          applies. but where a rule of inadmissibility is not waiyable, ..required" applies.




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                   D. Waiver

                  Plaintiff argues in the altemative that even if CPLR 3215 (c) would otherwise compel
          dismissal