Preview
FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF GREENE
Plaza Home Mortgage, Inc.,
Plaintiff, AFFIRMATION IN
OPPOSITION
- against -
Index No. EF2018-1107
Rochel Stern; Joseph Stern,
Defendants.
Virginia Grapensteter, Esq., an attorney at law, duly admitted to practice before the
Courts of the State of New York, hereby affirms pursuant to CPLR § 2106 that:
1. I am an Associate of LOGS Legal Group LLP f/k/a Shapiro, DiCaro & Barak,
LLC the attorneys of record for Plaintiff in this action, and as such, I am fully familiar with the
facts and circumstances underlying this action.
2. Your deponent submits the instant affirmation in opposition to the order to show
cause interposed on behalf of Rochel Stern and Joseph Stern, hereinafter “Defendants”.
3. For the reasons set forth infra, Defendants’ order to show cause should be denied
as a matter of law and fact and in its entirety.
DEFENDANTS WAIVED ANY PERSONAL JURISDICTION DEFENSE WHEN THEY
APPEARED IN THIS ACTION
4. While Defendants argue that they were not served herein, the fact is that they
waived any such defense when they appeared herein through counsel and did not challenge
service.
5. On June 6, 2023 counsel for Defendants appeared in the action, by filing a letter
requesting that Plaintiff’s Motion for an Order to Amend Judgment be adjourned. See NYSCEF
Doc. No. 82.
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6. Thereafter, Defendants’ counsel filed opposition to Plaintiff’s Motion to Amend
Judgment on June 28, 2023. See NYSCEF Doc. No. 85.
7. In that opposition the Defendants made no argument that they were not properly
served herein or that the Court did not have the requisite jurisdiction.
8. Thus the Defendants waived any defense as to personal jurisdiction when they
failed to “move to dismiss the complaint insofar as asserted against them on the ground of lack of
personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading
(see U.S. Bank N.A. v Adolphe, 170 AD3d at 1236; Deutsche Bank Natl. Trust Co. v Vu, 167
AD3d at 846; JPMorgan Chase Bank, N.A. v Soussis, 165 AD3d at 1241; American Home Mtge.
Servicing, Inc. v Arklis, 150 AD3d at 1182).
9. “An appearance by a defendant in an action is deemed to be the equivalent of
personal service of a summons upon him [or her], and therefore confers personal jurisdiction over
him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in
his [or her] answer (Ohio Sav. Bank v Munsey, 34 AD3d 659, 659, 826 NYS2d 321 [2006], quoting
Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140, 502 NYS2d 479 [1986]; see CPLR 320;
National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538, 801 NYS2d 331 [2005]) [internal
quotation marks removed].” Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983
(2d Dept. 2010).
10. It is long-established law in New York that “[w]hen he is in court as a party, the
law gives jurisdiction of his person whether his appearance was voluntary or by compulsion.”
Daley v. Dennis, 137 Misc. 1, 242 N.Y.S. 408 (County Ct., Cayuga Cty. 1930).
THE DEFENDANTS WER PROPERLY SERVED WITH THE SUMMONS AND
COMPLAINT
11. It is well established that “[a] process server's affidavit of service constitutes prima
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facie evidence of proper service (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897,
964 N.Y.S.2d 543; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589, 884 N.Y.S.2d 254;
Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984, 912 N.Y.S.2d 96). ‘Although
a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service
established by a 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’ (City of New York v Miller, 72 AD3d 726, 727, 898 N.Y.S.2d 643; see Emigrant
Mtge. Co., Inc. v Westervelt, 105 AD3d at 897; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743,
934 N.Y.S.2d 352).” Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719 (2d Dept. 2014);
Nazarian v. Monaco Imports, Ltd., 255 A.D.2d 265, 266 (1st Dept. 1998); see Kihl v. Pfeffer, 94
N.Y.2d 118, 122 (1999); Wells Fargo Bank, NA v Edwards, 95 A.D.3d 692 (1st Dept. 2012); Bank
of N.Y. v Espejo, 92 A.D.3d 707, 708 (2d Dept. 2012); US Natl. Bank Assn. v Melton, 90 A.D.3d
742, 743 (2d Dept. 2011); Deutsche Bank Natl. Trust Co. v Hussain, 78 A.D.3d 989, 989-990 (2d
Dept. 2010); Slimani v. Citibank, N.A., 47 A.D.3d 489 (1st Dept. 2008); Zara Realty Holding
Corp. v E & J Deli & Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct., Queens Cty. 2012).
12. Said affidavit of service appears valid on its face, as it is signed by the affiant and
accompanied by a certificate thereon to show that same was sworn as true by the affiant in front
of a notary public (CPLR §2309[a]).
13. It is settled law in New York that an “affidavit of the process server constitute[s]
prima facie evidence of proper service” (Melton, supra) “sufficient to withstand a naked denial of
receipt of service.” Nazarian v. Monaco Imports, Ltd., 255 A.D.2d 265, 266 (1st Dept. 1998); see
Bank of N.Y. v Espejo, 92 A.D.3d 707, 708 (2d Dept. 2012); Deutsche Bank Natl. Trust Co. v
Hussain, 78 A.D.3d 989, 989-990 (2d Dept. 2010); Zara Realty Holding Corp. v E & J Deli &
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Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct., Queens Cty. 2012).
14. Again, Defendants makes no attempt to satisfy their burden in rebutting the valid
proof of service. Here, Defendants allege that they do not know who the individual served was and
that no other people reside at the premises besides the Defendants and their children. They then go
into detail as to how Joseph Stern does match the description of the person served and irrelevantly
that he was residing elsewhere in 2022 and 2023, well after service was effectuated herein.
15. In order to defeat the presumption of proper service upon them, Defendants must
show that that no one of suitable age and discretion was at the premises at the time of service to
accept the papers on their behalf. Roberts v. Anka, 45 A.D.3d 752, 846 N.Y.S.2d 280 (2d Dept.
2007); Public Administrator of the County of New York v. Markowitz, 163 A.D.2d 100, 557
N.Y.S.2d 348, 348 (1st Dept. 1990).
16. Further, CPLR 308(2) does not include any requirement that the person of suitable
age and discretion reside at the premises. See Deutsche Bank Natl. Trust Co. v Benitez, 179 A.D.3d
891, 118 N.Y.S.3d 173 (2d Dept. 2020).
17. Said self-serving assertions epitomize the categorically insufficient “naked denial
of receipt of service of process.” Nazarian, supra.
18. While Defendants may attempt to evade the natural consequences of their fatally
defective denial of service of process by proffering a relevant and detailed objection to personal
jurisdiction in reply, so as to assert allegations of fact and arguments he omitted from the original
motion papers, “new material may not be introduced in reply papers.” Merrill Lynch Mtge.
Capital, Inc. v Gbenga, 38 Misc. 3d 1209(A), 967 N.Y.S.2d 868, 2013 N.Y. Misc. LEXIS 48, 3
(Sup. Ct., Kings Cty., Dear, J., 2013) citing Matter of Allstate Ins. Co. v. Dawkins, 52 A.D.3d 826,
826-827 (2d Dept. 2008); Board of Mgrs. of Foundry at Washington Park Condominium v.
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Foundry Dev. Co., Inc., 111 A.D.3d 776, 777 (2d Dept. 2013) (“the additional evidence and
arguments she submitted in support of the motion to dismiss were improperly submitted for the
first time in her reply papers”); LVNV Funding, LLC v Gibson, 43 Misc. 3d 131(A) (App. Term,
2d Dept. 2014).
RPAPL § 1351
19. Finally, the Defendants allege that the Plaintiff cannot have a foreclosure sale
herein as it did not comply with RPAPL 1351. As a preliminary matter the foreclosure sale has
been postponed to April 30, 2024 at the request of the Plaintiff.
20. Your affiant is not aware of any case law directly on point as whether scheduling a
foreclosure more than ninety days after a Judgment of Foreclosure and Sale warrants vacatur of
said judgment. However, case law in other contexts suggests that failing to strictly comply with
RPAPL 1351 can be considered a “mere irregularity” that is non-prejudicial to a mortgagor. In
TD Bank, N.A. v. Clinton Ct. Dev., LLC, 105 A.D.3d 1032 (2d Dept 2013), a Referee’s Report
was required to be filed within sixty days following the issuance of an Order of Reference. The
Plaintiff-Mortgagee failed to do so because of a delay in entering and serving the Order of
Reference with Notice of Entry. The Second Department held that the delay could be excused
nunc pro tunc as a mere non-prejudicial irregularity. Also, in Brown Bark I, L.P. v. Grant, 71
A.D.3d 1403 (4th Dept 2010), the Second Department declined to vacate a sheriff’s sale despite
the fact that the notice of sale was not posted in compliance with RPAPL 231(2)(b). The court
found that the error could be excused when the notice of sale was published four times, in a
newspaper circulated throughout the county where the property was located and when Defendant
was aware of the sale. Lastly, in South Point, Inc v. Rana, 139 A.D.3d 936 (2d Dept 2016), the
Appellate Division affirmed the lower’s court ruling in permitting an Amendment of the Judgment
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of Foreclosure and Sale to rename the newspaper where the sale was published instead of the
newspaper named in the judgment as the error was non-prejudicial to Defendant.
21. All of these cases suggest that failure to strictly comply with provisions of the
RPAPL may be excused in the court’s discretion when such errors are non-prejudicial. Defendants
have failed to demonstrate any prejudice as a result of the judicial sale not being held within ninety
days.
22. Accordingly, Plaintiff’s respectfully requests that the Court grant Plaintiff an
extension of time to hold the sale pursuant to CPLR § 2004 to avoid any future litigation on this
issue.
23. In anticipation of any argument to the contrary, the Court can grant relief pursuant
to CPLR § 2004, in its discretion, sua sponte without a motion by the party to whom the relief is
granted. See Khan v. Hernandez, 122 A.D.3d 802, 996 N.Y.S.2d 667 (2nd Dept. 2014) (Appellate
Division found that lower Court could correct procedural defect in filing proof of service by
“motion or sua sponte by the Court in its discretion pursuant to CPLR 2004”).
CONCLUSION
24. “It is elementary that a final judgment or order represents a valid and conclusive
adjudication of the parties' substantive rights...” Da Silva v. Musso, 76 N.Y.2d 436, 440 (1990).
25. “'[A] judgment of foreclosure and sale entered against a defendant is final as to all
questions at issue between the parties, and all matters of defense which were or might have been
litigated in the foreclosure action are concluded' (NAB Asset Venture IV, LLP v Orangeburg
Equities, 19 AD3d 565, 565, 796 NYS2d 536 [2005], quoting Green Point Sav. Bank v Clarke,
220 AD2d 384, 385, 631 NYS2d 888 [1995]).” TD Bank, N.A. v Talia Props., Inc., 110 A.D.3d
1057, 1057-1058 (2d Dept. 2013).
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26. “Whether prescription goes only to the remedy or extinguishes the right, it affects
the jurisdiction no more than any other defense. When a court has general jurisdiction to try the
question whether an alleged right exists the rules that determine the existence of the right ordinarily
govern the duty only of the court, not its power. Its judgment that the right is established cannot
be impeached collaterally by proof that the judgment was wrong.” Burnet v. Desmornes, 226 U.S.
145, 147 (1912).
27. “The Supreme Court indisputably has the power to entertain mortgage foreclosure
actions, like this one (see Security Pac. Natl. Bank v Evans, supra at 280), and that power remained
undisturbed by” Defendant’s proffer objections to the merits of Plaintiff’s claim. Wells Fargo
Bank Minn., Nat’l Ass’n v. Mastropaolo, 42 A.D.3d 239, 244 (2d Dept. 2007).
28. “Considerations of judicial economy as well as fairness to the parties mandate, at
some point, an end to litigation. Afterthoughts or after discoveries however understandable and
morally forgivable are generally not enough to create a right to litigate anew.” Reilly v. Reid, 45
N.Y.2d 24, 28 (1978).
29. Defendants do not dispute the validity of the mortgage loan. Moreover, Defendants
fail to offer any attempt to show that they may possess a potentially meritorious defense to
Plaintiff’s action.
30. Based upon the foregoing, Defendants’ order to show cause should be denied in all
respects and in its entirety, as a matter of law and fact..
WHEREFORE, it is respectfully requested that Defendants’ pending order to show cause
be denied in all respects and in its entirety; and such other and further relief as to the Court may
seem just and proper.
I affirm this 27th day of February, 2024, under penalties of perjury under the laws of New
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York, which may include a fine or imprisonment, that the foregoing is true, and I understand that
this document may be filed in an action or proceeding in a court of law.
________________________
Virginia Grapensteter, Esq.
Associate Attorney
LOGS LEGAL GROUP LLP F/K/A
SHAPIRO, DICARO & BARAK, LLC
Attorney for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
Fax: (585) 247-7380
To: Joshua Bronstein, Esq.
The Law Offices of Joshua Bronstein &
Associates, PLLC
Attorneys for Defendants
114 Soundview Drive
Port Washington, NY 11050
Served via efiling
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ATTORNEY'S CERTIFICATION
I, Virginia Grapensteter, am an attorney duly admitted to the practice of law in the State
of New York. I am an Associate of LOGS Legal Group LLP f/k/a Shapiro, DiCaro & Barak,
LLC, the attorneys for the Plaintiff, Plaza Home Mortgage, Inc., in the above captioned civil
action.
I HEREBY CERTIFY, pursuant to § 130-1.1-a of the Rules of the Chief Administrator
(22 NYCRR), to the best of my knowledge, information and belief, formed after an inquiry
reasonable under the circumstances, that the presentation of the papers in this action checked
below, or the contentions therein, are not frivolous as defined in subsection (c) of § 130-1.1 of
the Rules of the Chief Administrator (22 NYCRR):
{ } Summons & Complaint
{ } Answer or Reply
{ } Attorney Affirmation
{X} Other: Affirmation in Opposition
Word Count: The total number of words in this affirmation, exclusive of the caption,
signature block, and this Certification Statement is 2,184.
DATED: February 27, 2024 ________________________
Virginia Grapensteter, Esq.
Associate Attorney
LOGS LEGAL GROUP LLP F/K/A
SHAPIRO, DICARO & BARAK, LLC
Attorneys for Plaintiff
175 Mile Crossing Boulevard
Rochester, New York 14624
(585) 247-9000
Fax: (585) 247-7380
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Preview
FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF GREENE Plaza Home Mortgage, Inc., Plaintiff, AFFIRMATION IN OPPOSITION - against - Index No. EF2018-1107 Rochel Stern; Joseph Stern, Defendants. Virginia Grapensteter, Esq., an attorney at law, duly admitted to practice before the Courts of the State of New York, hereby affirms pursuant to CPLR § 2106 that: 1. I am an Associate of LOGS Legal Group LLP f/k/a Shapiro, DiCaro & Barak, LLC the attorneys of record for Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances underlying this action. 2. Your deponent submits the instant affirmation in opposition to the order to show cause interposed on behalf of Rochel Stern and Joseph Stern, hereinafter “Defendants”. 3. For the reasons set forth infra, Defendants’ order to show cause should be denied as a matter of law and fact and in its entirety. DEFENDANTS WAIVED ANY PERSONAL JURISDICTION DEFENSE WHEN THEY APPEARED IN THIS ACTION 4. While Defendants argue that they were not served herein, the fact is that they waived any such defense when they appeared herein through counsel and did not challenge service. 5. On June 6, 2023 counsel for Defendants appeared in the action, by filing a letter requesting that Plaintiff’s Motion for an Order to Amend Judgment be adjourned. See NYSCEF Doc. No. 82. 1 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 6. Thereafter, Defendants’ counsel filed opposition to Plaintiff’s Motion to Amend Judgment on June 28, 2023. See NYSCEF Doc. No. 85. 7. In that opposition the Defendants made no argument that they were not properly served herein or that the Court did not have the requisite jurisdiction. 8. Thus the Defendants waived any defense as to personal jurisdiction when they failed to “move to dismiss the complaint insofar as asserted against them on the ground of lack of personal jurisdiction at that time, or assert lack of personal jurisdiction in a responsive pleading (see U.S. Bank N.A. v Adolphe, 170 AD3d at 1236; Deutsche Bank Natl. Trust Co. v Vu, 167 AD3d at 846; JPMorgan Chase Bank, N.A. v Soussis, 165 AD3d at 1241; American Home Mtge. Servicing, Inc. v Arklis, 150 AD3d at 1182). 9. “An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he [or she] asserts an objection to jurisdiction either by way of motion or in his [or her] answer (Ohio Sav. Bank v Munsey, 34 AD3d 659, 659, 826 NYS2d 321 [2006], quoting Skyline Agency v Coppotelli, Inc., 117 AD2d 135, 140, 502 NYS2d 479 [1986]; see CPLR 320; National Loan Invs., L.P. v Piscitello, 21 AD3d 537, 537-538, 801 NYS2d 331 [2005]) [internal quotation marks removed].” Countrywide Home Loans Servicing, LP v. Albert, 78 A.D.3d 983 (2d Dept. 2010). 10. It is long-established law in New York that “[w]hen he is in court as a party, the law gives jurisdiction of his person whether his appearance was voluntary or by compulsion.” Daley v. Dennis, 137 Misc. 1, 242 N.Y.S. 408 (County Ct., Cayuga Cty. 1930). THE DEFENDANTS WER PROPERLY SERVED WITH THE SUMMONS AND COMPLAINT 11. It is well established that “[a] process server's affidavit of service constitutes prima 2 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 facie evidence of proper service (see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897, 964 N.Y.S.2d 543; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589, 884 N.Y.S.2d 254; Countrywide Home Loans Servicing, LP v Albert, 78 AD3d 983, 984, 912 N.Y.S.2d 96). ‘Although a defendant's sworn denial of receipt of service generally rebuts the presumption of proper service established by a 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’ (City of New York v Miller, 72 AD3d 726, 727, 898 N.Y.S.2d 643; see Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897; US Natl. Bank Assn. v Melton, 90 AD3d 742, 743, 934 N.Y.S.2d 352).” Deutsche Bank Natl. Trust Co. v Quinones, 114 A.D.3d 719 (2d Dept. 2014); Nazarian v. Monaco Imports, Ltd., 255 A.D.2d 265, 266 (1st Dept. 1998); see Kihl v. Pfeffer, 94 N.Y.2d 118, 122 (1999); Wells Fargo Bank, NA v Edwards, 95 A.D.3d 692 (1st Dept. 2012); Bank of N.Y. v Espejo, 92 A.D.3d 707, 708 (2d Dept. 2012); US Natl. Bank Assn. v Melton, 90 A.D.3d 742, 743 (2d Dept. 2011); Deutsche Bank Natl. Trust Co. v Hussain, 78 A.D.3d 989, 989-990 (2d Dept. 2010); Slimani v. Citibank, N.A., 47 A.D.3d 489 (1st Dept. 2008); Zara Realty Holding Corp. v E & J Deli & Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct., Queens Cty. 2012). 12. Said affidavit of service appears valid on its face, as it is signed by the affiant and accompanied by a certificate thereon to show that same was sworn as true by the affiant in front of a notary public (CPLR §2309[a]). 13. It is settled law in New York that an “affidavit of the process server constitute[s] prima facie evidence of proper service” (Melton, supra) “sufficient to withstand a naked denial of receipt of service.” Nazarian v. Monaco Imports, Ltd., 255 A.D.2d 265, 266 (1st Dept. 1998); see Bank of N.Y. v Espejo, 92 A.D.3d 707, 708 (2d Dept. 2012); Deutsche Bank Natl. Trust Co. v Hussain, 78 A.D.3d 989, 989-990 (2d Dept. 2010); Zara Realty Holding Corp. v E & J Deli & 3 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 Grocery, Inc., 34 Misc. 3d 1234A (N.Y. Sup. Ct., Queens Cty. 2012). 14. Again, Defendants makes no attempt to satisfy their burden in rebutting the valid proof of service. Here, Defendants allege that they do not know who the individual served was and that no other people reside at the premises besides the Defendants and their children. They then go into detail as to how Joseph Stern does match the description of the person served and irrelevantly that he was residing elsewhere in 2022 and 2023, well after service was effectuated herein. 15. In order to defeat the presumption of proper service upon them, Defendants must show that that no one of suitable age and discretion was at the premises at the time of service to accept the papers on their behalf. Roberts v. Anka, 45 A.D.3d 752, 846 N.Y.S.2d 280 (2d Dept. 2007); Public Administrator of the County of New York v. Markowitz, 163 A.D.2d 100, 557 N.Y.S.2d 348, 348 (1st Dept. 1990). 16. Further, CPLR 308(2) does not include any requirement that the person of suitable age and discretion reside at the premises. See Deutsche Bank Natl. Trust Co. v Benitez, 179 A.D.3d 891, 118 N.Y.S.3d 173 (2d Dept. 2020). 17. Said self-serving assertions epitomize the categorically insufficient “naked denial of receipt of service of process.” Nazarian, supra. 18. While Defendants may attempt to evade the natural consequences of their fatally defective denial of service of process by proffering a relevant and detailed objection to personal jurisdiction in reply, so as to assert allegations of fact and arguments he omitted from the original motion papers, “new material may not be introduced in reply papers.” Merrill Lynch Mtge. Capital, Inc. v Gbenga, 38 Misc. 3d 1209(A), 967 N.Y.S.2d 868, 2013 N.Y. Misc. LEXIS 48, 3 (Sup. Ct., Kings Cty., Dear, J., 2013) citing Matter of Allstate Ins. Co. v. Dawkins, 52 A.D.3d 826, 826-827 (2d Dept. 2008); Board of Mgrs. of Foundry at Washington Park Condominium v. 4 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 Foundry Dev. Co., Inc., 111 A.D.3d 776, 777 (2d Dept. 2013) (“the additional evidence and arguments she submitted in support of the motion to dismiss were improperly submitted for the first time in her reply papers”); LVNV Funding, LLC v Gibson, 43 Misc. 3d 131(A) (App. Term, 2d Dept. 2014). RPAPL § 1351 19. Finally, the Defendants allege that the Plaintiff cannot have a foreclosure sale herein as it did not comply with RPAPL 1351. As a preliminary matter the foreclosure sale has been postponed to April 30, 2024 at the request of the Plaintiff. 20. Your affiant is not aware of any case law directly on point as whether scheduling a foreclosure more than ninety days after a Judgment of Foreclosure and Sale warrants vacatur of said judgment. However, case law in other contexts suggests that failing to strictly comply with RPAPL 1351 can be considered a “mere irregularity” that is non-prejudicial to a mortgagor. In TD Bank, N.A. v. Clinton Ct. Dev., LLC, 105 A.D.3d 1032 (2d Dept 2013), a Referee’s Report was required to be filed within sixty days following the issuance of an Order of Reference. The Plaintiff-Mortgagee failed to do so because of a delay in entering and serving the Order of Reference with Notice of Entry. The Second Department held that the delay could be excused nunc pro tunc as a mere non-prejudicial irregularity. Also, in Brown Bark I, L.P. v. Grant, 71 A.D.3d 1403 (4th Dept 2010), the Second Department declined to vacate a sheriff’s sale despite the fact that the notice of sale was not posted in compliance with RPAPL 231(2)(b). The court found that the error could be excused when the notice of sale was published four times, in a newspaper circulated throughout the county where the property was located and when Defendant was aware of the sale. Lastly, in South Point, Inc v. Rana, 139 A.D.3d 936 (2d Dept 2016), the Appellate Division affirmed the lower’s court ruling in permitting an Amendment of the Judgment 5 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 of Foreclosure and Sale to rename the newspaper where the sale was published instead of the newspaper named in the judgment as the error was non-prejudicial to Defendant. 21. All of these cases suggest that failure to strictly comply with provisions of the RPAPL may be excused in the court’s discretion when such errors are non-prejudicial. Defendants have failed to demonstrate any prejudice as a result of the judicial sale not being held within ninety days. 22. Accordingly, Plaintiff’s respectfully requests that the Court grant Plaintiff an extension of time to hold the sale pursuant to CPLR § 2004 to avoid any future litigation on this issue. 23. In anticipation of any argument to the contrary, the Court can grant relief pursuant to CPLR § 2004, in its discretion, sua sponte without a motion by the party to whom the relief is granted. See Khan v. Hernandez, 122 A.D.3d 802, 996 N.Y.S.2d 667 (2nd Dept. 2014) (Appellate Division found that lower Court could correct procedural defect in filing proof of service by “motion or sua sponte by the Court in its discretion pursuant to CPLR 2004”). CONCLUSION 24. “It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights...” Da Silva v. Musso, 76 N.Y.2d 436, 440 (1990). 25. “'[A] judgment of foreclosure and sale entered against a defendant is final as to all questions at issue between the parties, and all matters of defense which were or might have been litigated in the foreclosure action are concluded' (NAB Asset Venture IV, LLP v Orangeburg Equities, 19 AD3d 565, 565, 796 NYS2d 536 [2005], quoting Green Point Sav. Bank v Clarke, 220 AD2d 384, 385, 631 NYS2d 888 [1995]).” TD Bank, N.A. v Talia Props., Inc., 110 A.D.3d 1057, 1057-1058 (2d Dept. 2013). 6 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 26. “Whether prescription goes only to the remedy or extinguishes the right, it affects the jurisdiction no more than any other defense. When a court has general jurisdiction to try the question whether an alleged right exists the rules that determine the existence of the right ordinarily govern the duty only of the court, not its power. Its judgment that the right is established cannot be impeached collaterally by proof that the judgment was wrong.” Burnet v. Desmornes, 226 U.S. 145, 147 (1912). 27. “The Supreme Court indisputably has the power to entertain mortgage foreclosure actions, like this one (see Security Pac. Natl. Bank v Evans, supra at 280), and that power remained undisturbed by” Defendant’s proffer objections to the merits of Plaintiff’s claim. Wells Fargo Bank Minn., Nat’l Ass’n v. Mastropaolo, 42 A.D.3d 239, 244 (2d Dept. 2007). 28. “Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation. Afterthoughts or after discoveries however understandable and morally forgivable are generally not enough to create a right to litigate anew.” Reilly v. Reid, 45 N.Y.2d 24, 28 (1978). 29. Defendants do not dispute the validity of the mortgage loan. Moreover, Defendants fail to offer any attempt to show that they may possess a potentially meritorious defense to Plaintiff’s action. 30. Based upon the foregoing, Defendants’ order to show cause should be denied in all respects and in its entirety, as a matter of law and fact.. WHEREFORE, it is respectfully requested that Defendants’ pending order to show cause be denied in all respects and in its entirety; and such other and further relief as to the Court may seem just and proper. I affirm this 27th day of February, 2024, under penalties of perjury under the laws of New 7 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law. ________________________ Virginia Grapensteter, Esq. Associate Attorney LOGS LEGAL GROUP LLP F/K/A SHAPIRO, DICARO & BARAK, LLC Attorney for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 Fax: (585) 247-7380 To: Joshua Bronstein, Esq. The Law Offices of Joshua Bronstein & Associates, PLLC Attorneys for Defendants 114 Soundview Drive Port Washington, NY 11050 Served via efiling 8 of 9 FILED: GREENE COUNTY CLERK 02/27/2024 03:57 PM INDEX NO. EF2018-1107 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 02/27/2024 ATTORNEY'S CERTIFICATION I, Virginia Grapensteter, am an attorney duly admitted to the practice of law in the State of New York. I am an Associate of LOGS Legal Group LLP f/k/a Shapiro, DiCaro & Barak, LLC, the attorneys for the Plaintiff, Plaza Home Mortgage, Inc., in the above captioned civil action. I HEREBY CERTIFY, pursuant to § 130-1.1-a of the Rules of the Chief Administrator (22 NYCRR), to the best of my knowledge, information and belief, formed after an inquiry reasonable under the circumstances, that the presentation of the papers in this action checked below, or the contentions therein, are not frivolous as defined in subsection (c) of § 130-1.1 of the Rules of the Chief Administrator (22 NYCRR): { } Summons & Complaint { } Answer or Reply { } Attorney Affirmation {X} Other: Affirmation in Opposition Word Count: The total number of words in this affirmation, exclusive of the caption, signature block, and this Certification Statement is 2,184. DATED: February 27, 2024 ________________________ Virginia Grapensteter, Esq. Associate Attorney LOGS LEGAL GROUP LLP F/K/A SHAPIRO, DICARO & BARAK, LLC Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 (585) 247-9000 Fax: (585) 247-7380 9 of 9