Preview
FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007
NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/07/2023
"E"
EXHIBIT
FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007
NYSCEF
FILED
DOC.: NO.
SUF
32 RECEIVED NYSCEF:
INDEX NO.
06/07/2023
FOLK COUNTY CLERK 2 202 : 028574/2007
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021
MEMO DECISION& ORDER
INDEX No. 028574/07
SUPREME COURT - STATE OF NEW YORK
IAS PART 33 - SUFFOLK COUNTY
PRESENT :
Hon. THOMAS F. WHELAN MOTION DATE 8/14/17
Justice of the Supreme Court SUBMIT DATE 8/27/21
-
Mot. Seq. # 003 MOT D
CDISP Y x N ____
___________________---_______________..----Ç
GREENPOINT MORTGAGE FUNDING, : McCABE WEISBERG & CONWAY
: Attys for Plaintiff
: 1 Huntington Quadrangle, #2509
: Melville NY 11747
Plaintiff, :
-against- :
JOSEPH M. FISCHETTI aka JOSEPH FISCHETTI,: RONALD D. WEISS, PC
LINDA M. FISCHETTI, JPMORGAN CHASE : Attys for Defendants Fischetti
BANK NA C/O CHASE HOME FINANCE LLC, : 734 Walt Whitman Road, Suite 203
CONTRACTORS MARKET, INC., : Melville NY 11747
MR. FISCHETTI, :
Defendants. :
__________________------..__---------_____,....--------__X
Upon the following papers numbered 1 to _5_ read on this motion to stay a foreclosure sale
; Notice of Motion/Order to Show Cause and supporting papers 1- 4 : Notice of
Cross Motion and supporting papers: ; Opposing papers: 5 ; Reply papers Other
_____; ( ) it is,
ORDERED that this Order to Show Cause (#003) by defendants Joseph Fischetti and Linda
Fischetti dated August 14, 2017 (Luft, A.J.S.C.) seeking an indefinite stay of a foreclosure sale,
vacatur of the judgment of foreclosure and sale and order appointing a referee to compute, and an
order rejecting the referee's report, is granted in part and denied in part; and it is further
ORDERED that the Judgment of Foreclosure and Sale entered on September 10, 2008 is
vacated; and it is further
defendants'
ORDERED that the remaining branches of motion is denied; and it is further
1 of 4
FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007
NYSCEF DOC. NO. 32 RECEIVED NYSCEF:028574/2007
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FILED : SUFFOLK COUNTY CLERK 10/25/2021 04:0 4 NO.
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Greenpoint v Fischetti
Index No. 28574/2007
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ORDERED that plaintiff is to submit a new motion for Judgment of Foreclosure and Sale
with all supporting records to support the amount due and owing, no later than December 10, 2021;
anditis further
ORDERED that plaintiff is directed to file a notice of entry within fivedays of receipt of this
Order pursuant to 22 NYCRR § 202.5-b(h)(2).
Familiarity with the Judgment of Foreclosure and Sale executed on September 3, 2008
(Molia, A.J.S.C.) is presumed, wherein the Court granted plaintiff's unopposed motion (#002) for
confirmation of referee Paul DeChance, Esq.'s report and leave to enter a judgment of foreclosure
and sale of the subject property incorporating the referee's findings. A foreclosure sale was
scheduled in accordance therewith to take place on August 16, 2017. On August 14, 2017, however,
defendants Joseph Fischetti and Linda Fischetti presented the instant order to show cause to the
Court seeking a stay of the enforcement of the judgment and the pending sale, vacatur of the
judgment of foreclosure and sale and default judgment and order of reference, and leave to file a late
answer. Defendants also seek to be reviewed for a loan modification. The Court signed the order to
show cause (#003) (Luft, J.S.C.) and plaintiff cancelled the sale. Plaintiff opposed the motion.
A review of the Court's records indicates that the motion was adjourned several times over
the next two years for reasons unknown, and the matter was then reassigned to this Part on June 3,
2021. By short form order dated July 15, 2021, the Court scheduled a conference pursuant to the
COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020-Chapter 381 of the Laws
of 2020 to take place on August 25, 2021. The instant motion (#003) was therefore rescheduled to
be returnable on August 27, 2021, this Part's next motion return date. Counsel for both sides
defendants'
appeared for the conference and counsel requested that the motion be submitted without
any settlement discussion taking place. The conference was therefore markedheld, and the motion,
submitted.
At the outset, the Court notes that the Judgment of Foreclosure and Sale must be vacated. As
the defendants note, they filed a Chapter 13 Bankruptcy petition on jJuly 11, 2008 imposing an
automatic stay on the foreclosure action. Although it is unclear whether the plaintiff or Comt were
advised of this filing, such is of no moment. The Judgment of Foreclosure and Sale was executed
on September 3, 2008 while the bankruptcy stay was in place and, therefore, the Judgment of
Foreclosure and Sale must be vacated (see 11 U.S.C.A. § 362).
defendants'
The fourt turns then to the branch of motion in whigh they seek to vacate the
Order hf Reference in Mortgage Foreclosure dated April 10, ,2008 (Molia, A.J.S.C.). In order to
vacate a default in opposing a motion pursuant to CPLR 5015(a)(ll a party must demonstrate both
a reasonable excuse for the default and a potentially meritorious opposition to the motion (see
Hudson City Sav. Bank v Bomba, 14 AD3d 704, 51 NYS3d 570 [2d Dept 2017]; Bank of New
York v Young, 123 AD3d 1068, 2 NYS3d 127 [2d Dept 2014]; Citibank [South Dakota), N.A. v
Baron, 115 AD3d 90, 982 NYS2d 396 [2d Dept 2014]). Likewise, to successfully vacate the default
in answering the complaint and to compel plaintiff to accept service of an untimely answer pursuant
to CPLR 3012(d), defendant must establish both a reasonable excuse for his/her failure to answer
2 of 4
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|FILED : SUFFOLK COUNTY CLERK 10/25/2021 04:04 Pl INDEX NO. 028574/2007
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021
Greenpoint v Fischetti
Index No. 28574/2007
Page 3
and the existence of a potentially meritorious defense to the action (see CPLR 3012[d], 5015[a][1];
US Bank N.A. v Samuel, 138 AD3d 1105, 30 NYS3d 305 [2d Dept 2016] ; SDF8 CBK, LLC v 689
St. Marks Ave., Inc., 131 AD3d 1037, 16 NYS3d 463 [2d Dept 2015]; Chase Home Fin., LLC v
Minott, 115 AD3d 634, 981 NYS2d 757 [2d Dept 2014]). The determination of what constitutes a
reasonable excuse lies within the sound discretion of the Court (see Hudson City Sav. Bank v
Bomba, 14 AD3'd at 705, supra; Aurora Loan Servs. LLC v Ahmed, 122 AD3d 557, 996 NYS2d
92 [2d Dept 2014]).
Here, the defendants deny service of process and opine, therefore, that they have alleged a
reasonable excuse for their respective defaults. It is well settled that a "process server's affidavit of
service"
service constitutes prima facie evidence of proper (Duran v Milord, 126 AD3d 932, 7
NYS3d 176 [2d Dept 2015], citing Youngstown Tube Co. v Russo, 120 AD3d 1409, 1409, 993
NYS2d 146 [2d Dept 2014]; see Deutsche Bank Natl. Trust Co. v Jagroop, 104 AD3d 723, 960
NYS2d 488 [2d Dept 2013]; U.S. Bank N.A. v Hossain, 94 AD3d 979, 979, 943 NYS2d 140 [2d
Dept 2012]). "Although a defendant's sworn denial of receipt of service
generally rebuts the
presumption of proper service established by the process server's affidavit and necessitates an
evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to
rebut the statements in the process server's affidavits"(Deutsche Bank Natl. Trust Co. v Quinones,
1 14 AD3d 719, 719, 981 NYS2d 107 [2d Dept 2014] ; see City of New York v Miller, 72 AD3d 726,
727, 898 NYS2d 643 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897,
964 NYS2d 543 [2d Dept 2013] ; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 NYS2d
352 [2d Dept201 l]). A defendant's bare and unsubstantiated denial of receipt is insufficient to rebut
the presumption of proper service (see US Bank Natt. Assn. v Tate, 102 AD3d 859, 859-40, 958
NY S2d 722 [2d Dept 2013], citing Bank of NY v Espejo, 92 AD3d 707, 708, 939 NYS2d 105 [2d
Dept 2012] ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103, 923 NYS2d 609 [2d Dept
2011]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 989, 912 NYS2d 595 [2d Dept
2010] ; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2d Dept 2009]).
defendants'
Here, the general contentions that they did not receive a copy of the summons
and complaint from the party served or in the mail or by any other means is conclusory. Notably,
they do not deny living at the premises where, and at the time, service took place. Indeed, defendant
has failed to allege any specific facts to rebut the statements in the affidavit of the plaintiff s process
server. Thus, the defendants have not rebutted the plaintiffs prima facie showing that they were each
validly served with process pursuant to CPLR 308(2) (see HSBC Bank USA, N.A. v Miller, 121
AD3d 1044, 1045, 995 NYS2d 198 [2d Dept 2014]). "The mere denial of receipt of the summons
317"
and complaint is insufficient to establish a lack of actual notice for the purpose of CPLR
( Citimortgage, Inc. v Kowalski, 130 AD3d 558, 558, li NYS3d 468 [2d Dept
2015], citing Bank
of NY v Samuels, AD3d 653, 654, 968 NYS2d
107 93'[2'd Dept 2013] ; Wassertheil v Elburg, LLC,
94 AD3d 753, 753, NYS2d 941
679 [2d Dept 2012]; Matter of Rockland Bakery, Inc. v B.M. . .
Baking Co., Inc., 83 AD3d 1080, 1081-82, 923 NYS2d 572 [2d Dept 2011]). The absence of a
reasonable excuse for the default renders it unnecessary to determine whether defendant
demonstrated the existence of a potentially meritorious defense (see LaSalle Bank N.A. v Calle, 153
AD3d 801, 61 NYS3d 104 [2d Dept 2017]; Citimortgage, Inc. v Bustamante, 107 AD3d 752, 968
NYS2d 513 [2d Dept 2013] ; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 921 NYS2d 643 [2d
Dept 201 l]).
3 of 4
FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007
NYSCEF DOC. NO. 32 RECEIVED
INDEX
NYSCEF:
NO.
06/07/2023
028574/2007
FILED: SUFFOLK COUNTY CLERK 10/25/2021 04:04 PM|
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021
Greenpoint v Fischetti
Index No. 28574/2007
Page 4
defendants'
Therefore, the branches of motion seeking relief pursuant to CPLR 5015(a)(1)
and CPLR 3012(d) are denied.
In light of the plaintiff is directed to submit a new motion for Judgment of
forgoing,
Foréclosure and with applicable records the amount due and owing, no later than
Sale, supporting
December 10, 2021.
This constitutes the Decision and Order of this Court.
DATED:
THO S . WHE N, J.S.C.
4 of 4
Preview
FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/07/2023 "E" EXHIBIT FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007 NYSCEF FILED DOC.: NO. SUF 32 RECEIVED NYSCEF: INDEX NO. 06/07/2023 FOLK COUNTY CLERK 2 202 : 028574/2007 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021 MEMO DECISION& ORDER INDEX No. 028574/07 SUPREME COURT - STATE OF NEW YORK IAS PART 33 - SUFFOLK COUNTY PRESENT : Hon. THOMAS F. WHELAN MOTION DATE 8/14/17 Justice of the Supreme Court SUBMIT DATE 8/27/21 - Mot. Seq. # 003 MOT D CDISP Y x N ____ ___________________---_______________..----Ç GREENPOINT MORTGAGE FUNDING, : McCABE WEISBERG & CONWAY : Attys for Plaintiff : 1 Huntington Quadrangle, #2509 : Melville NY 11747 Plaintiff, : -against- : JOSEPH M. FISCHETTI aka JOSEPH FISCHETTI,: RONALD D. WEISS, PC LINDA M. FISCHETTI, JPMORGAN CHASE : Attys for Defendants Fischetti BANK NA C/O CHASE HOME FINANCE LLC, : 734 Walt Whitman Road, Suite 203 CONTRACTORS MARKET, INC., : Melville NY 11747 MR. FISCHETTI, : Defendants. : __________________------..__---------_____,....--------__X Upon the following papers numbered 1 to _5_ read on this motion to stay a foreclosure sale ; Notice of Motion/Order to Show Cause and supporting papers 1- 4 : Notice of Cross Motion and supporting papers: ; Opposing papers: 5 ; Reply papers Other _____; ( ) it is, ORDERED that this Order to Show Cause (#003) by defendants Joseph Fischetti and Linda Fischetti dated August 14, 2017 (Luft, A.J.S.C.) seeking an indefinite stay of a foreclosure sale, vacatur of the judgment of foreclosure and sale and order appointing a referee to compute, and an order rejecting the referee's report, is granted in part and denied in part; and it is further ORDERED that the Judgment of Foreclosure and Sale entered on September 10, 2008 is vacated; and it is further defendants' ORDERED that the remaining branches of motion is denied; and it is further 1 of 4 FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007 NYSCEF DOC. NO. 32 RECEIVED NYSCEF:028574/2007 INDEX 06/07/2023 FILED : SUFFOLK COUNTY CLERK 10/25/2021 04:0 4 NO. PM| NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021 Greenpoint v Fischetti Index No. 28574/2007 Page 2 ORDERED that plaintiff is to submit a new motion for Judgment of Foreclosure and Sale with all supporting records to support the amount due and owing, no later than December 10, 2021; anditis further ORDERED that plaintiff is directed to file a notice of entry within fivedays of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2). Familiarity with the Judgment of Foreclosure and Sale executed on September 3, 2008 (Molia, A.J.S.C.) is presumed, wherein the Court granted plaintiff's unopposed motion (#002) for confirmation of referee Paul DeChance, Esq.'s report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. A foreclosure sale was scheduled in accordance therewith to take place on August 16, 2017. On August 14, 2017, however, defendants Joseph Fischetti and Linda Fischetti presented the instant order to show cause to the Court seeking a stay of the enforcement of the judgment and the pending sale, vacatur of the judgment of foreclosure and sale and default judgment and order of reference, and leave to file a late answer. Defendants also seek to be reviewed for a loan modification. The Court signed the order to show cause (#003) (Luft, J.S.C.) and plaintiff cancelled the sale. Plaintiff opposed the motion. A review of the Court's records indicates that the motion was adjourned several times over the next two years for reasons unknown, and the matter was then reassigned to this Part on June 3, 2021. By short form order dated July 15, 2021, the Court scheduled a conference pursuant to the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020-Chapter 381 of the Laws of 2020 to take place on August 25, 2021. The instant motion (#003) was therefore rescheduled to be returnable on August 27, 2021, this Part's next motion return date. Counsel for both sides defendants' appeared for the conference and counsel requested that the motion be submitted without any settlement discussion taking place. The conference was therefore markedheld, and the motion, submitted. At the outset, the Court notes that the Judgment of Foreclosure and Sale must be vacated. As the defendants note, they filed a Chapter 13 Bankruptcy petition on jJuly 11, 2008 imposing an automatic stay on the foreclosure action. Although it is unclear whether the plaintiff or Comt were advised of this filing, such is of no moment. The Judgment of Foreclosure and Sale was executed on September 3, 2008 while the bankruptcy stay was in place and, therefore, the Judgment of Foreclosure and Sale must be vacated (see 11 U.S.C.A. § 362). defendants' The fourt turns then to the branch of motion in whigh they seek to vacate the Order hf Reference in Mortgage Foreclosure dated April 10, ,2008 (Molia, A.J.S.C.). In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(ll a party must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see Hudson City Sav. Bank v Bomba, 14 AD3d 704, 51 NYS3d 570 [2d Dept 2017]; Bank of New York v Young, 123 AD3d 1068, 2 NYS3d 127 [2d Dept 2014]; Citibank [South Dakota), N.A. v Baron, 115 AD3d 90, 982 NYS2d 396 [2d Dept 2014]). Likewise, to successfully vacate the default in answering the complaint and to compel plaintiff to accept service of an untimely answer pursuant to CPLR 3012(d), defendant must establish both a reasonable excuse for his/her failure to answer 2 of 4 FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 06/07/2023 |FILED : SUFFOLK COUNTY CLERK 10/25/2021 04:04 Pl INDEX NO. 028574/2007 NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021 Greenpoint v Fischetti Index No. 28574/2007 Page 3 and the existence of a potentially meritorious defense to the action (see CPLR 3012[d], 5015[a][1]; US Bank N.A. v Samuel, 138 AD3d 1105, 30 NYS3d 305 [2d Dept 2016] ; SDF8 CBK, LLC v 689 St. Marks Ave., Inc., 131 AD3d 1037, 16 NYS3d 463 [2d Dept 2015]; Chase Home Fin., LLC v Minott, 115 AD3d 634, 981 NYS2d 757 [2d Dept 2014]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Court (see Hudson City Sav. Bank v Bomba, 14 AD3'd at 705, supra; Aurora Loan Servs. LLC v Ahmed, 122 AD3d 557, 996 NYS2d 92 [2d Dept 2014]). Here, the defendants deny service of process and opine, therefore, that they have alleged a reasonable excuse for their respective defaults. It is well settled that a "process server's affidavit of service" service constitutes prima facie evidence of proper (Duran v Milord, 126 AD3d 932, 7 NYS3d 176 [2d Dept 2015], citing Youngstown Tube Co. v Russo, 120 AD3d 1409, 1409, 993 NYS2d 146 [2d Dept 2014]; see Deutsche Bank Natl. Trust Co. v Jagroop, 104 AD3d 723, 960 NYS2d 488 [2d Dept 2013]; U.S. Bank N.A. v Hossain, 94 AD3d 979, 979, 943 NYS2d 140 [2d Dept 2012]). "Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by the process server's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendant fails to swear to specific facts to rebut the statements in the process server's affidavits"(Deutsche Bank Natl. Trust Co. v Quinones, 1 14 AD3d 719, 719, 981 NYS2d 107 [2d Dept 2014] ; see City of New York v Miller, 72 AD3d 726, 727, 898 NYS2d 643 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897, 964 NYS2d 543 [2d Dept 2013] ; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 NYS2d 352 [2d Dept201 l]). A defendant's bare and unsubstantiated denial of receipt is insufficient to rebut the presumption of proper service (see US Bank Natt. Assn. v Tate, 102 AD3d 859, 859-40, 958 NY S2d 722 [2d Dept 2013], citing Bank of NY v Espejo, 92 AD3d 707, 708, 939 NYS2d 105 [2d Dept 2012] ; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103, 923 NYS2d 609 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989, 989, 912 NYS2d 595 [2d Dept 2010] ; Beneficial Homeowner Serv. Corp. v Girault, 60 AD3d 984 [2d Dept 2009]). defendants' Here, the general contentions that they did not receive a copy of the summons and complaint from the party served or in the mail or by any other means is conclusory. Notably, they do not deny living at the premises where, and at the time, service took place. Indeed, defendant has failed to allege any specific facts to rebut the statements in the affidavit of the plaintiff s process server. Thus, the defendants have not rebutted the plaintiffs prima facie showing that they were each validly served with process pursuant to CPLR 308(2) (see HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045, 995 NYS2d 198 [2d Dept 2014]). "The mere denial of receipt of the summons 317" and complaint is insufficient to establish a lack of actual notice for the purpose of CPLR ( Citimortgage, Inc. v Kowalski, 130 AD3d 558, 558, li NYS3d 468 [2d Dept 2015], citing Bank of NY v Samuels, AD3d 653, 654, 968 NYS2d 107 93'[2'd Dept 2013] ; Wassertheil v Elburg, LLC, 94 AD3d 753, 753, NYS2d 941 679 [2d Dept 2012]; Matter of Rockland Bakery, Inc. v B.M. . . Baking Co., Inc., 83 AD3d 1080, 1081-82, 923 NYS2d 572 [2d Dept 2011]). The absence of a reasonable excuse for the default renders it unnecessary to determine whether defendant demonstrated the existence of a potentially meritorious defense (see LaSalle Bank N.A. v Calle, 153 AD3d 801, 61 NYS3d 104 [2d Dept 2017]; Citimortgage, Inc. v Bustamante, 107 AD3d 752, 968 NYS2d 513 [2d Dept 2013] ; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 921 NYS2d 643 [2d Dept 201 l]). 3 of 4 FILED: SUFFOLK COUNTY CLERK 06/07/2023 01:49 PM INDEX NO. 028574/2007 NYSCEF DOC. NO. 32 RECEIVED INDEX NYSCEF: NO. 06/07/2023 028574/2007 FILED: SUFFOLK COUNTY CLERK 10/25/2021 04:04 PM| NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 10/25/2021 Greenpoint v Fischetti Index No. 28574/2007 Page 4 defendants' Therefore, the branches of motion seeking relief pursuant to CPLR 5015(a)(1) and CPLR 3012(d) are denied. In light of the plaintiff is directed to submit a new motion for Judgment of forgoing, Foréclosure and with applicable records the amount due and owing, no later than Sale, supporting December 10, 2021. This constitutes the Decision and Order of this Court. DATED: THO S . WHE N, J.S.C. 4 of 4