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FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015
NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
WELLS FARGO BANK, NATIONAL
ASSOCIATION, AS TRUSTEE FOR PARK Index No.: 51165/2015
PLACE SECURITIES, INC., ASSET-BACKED
PASS-THROUGH CERTIFICATES, SERIES
2005-WLL1,
Plaintiff,
v.
DENWORTH K BILLY, AMERICAN EXPRESS
TRAVEL RELATED SERVICES, INC., CAPITAL
ONE BANK, BENEFICIAL NEW YORK, INC.,
AMERICAN EXPRESS BANK, FSB,
#1" #12,"
"JOHN DOE through 'JOHN DOE the MORTGAGED PROPERTY:
last twelve names being fictitious and unknown to 172 Lincoln Avenue
the plaintiff, the person or parties intended being New Rochelle, New York 10801
the tenants, occupants, persons or corporations, if COUNTY: Westchester
any, having or claiming an interest in or lien upon SBL #: 4-1262-79
the premises, described in the complaint,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO
RESTORE, VACATE DISMISSAL, FOR SUMMARY JUDGMENT, A
DEFAULT JUDGMENT, ORDER OF REFERENCE, TO VOID TWO
ASSIGNMENTS OF MORTGAGE, AND TO AMEND THE CAPTION
RESPECTFULLY SUBMITTED,
By: MATTHEW LIZOTTE, ESQ.
LEOPOLD & ASSOCIATES, PLLC
Attorneys for Plaintiff
80 Business Park Drive, Suite 110
Armonk, New York 10504
(914) 219-5787
mlizotte@leopoldassociates.com
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I. DISMISSAL SHOULD BE VACATED PURSUANT TO CPLR 5015
(a) (1) OR CPLR 2221 (a)
CPLR 2221(a) provides:
(a) A motion for leave to renew or to reargue a prior motion, for leave
to appeal from, or to stay, vacate or modify, an order shall be made, on
notice, to the judge who signed the order, unless he or she is for any
reason unable to hear it, except that:
1. if the order was made upon a default such motion may be
made, on notice, to any judge of the court; and
2. if the order was made without notice such motion may be
made, without notice, to the judge who signed it, or, on notice, to any
other judge of the court.
CPLR 5015 (a) (1) reads as follows:
(a) On Motion. The court which rendered a judgment or order may
relieve a party from it upon such terms as may be just, on motion of
any interested person with such notice as the court may direct, upon
the ground of:
1. excusable default, if such motion is made within one year
after service of a copy of the judgment or order with written notice of
its entry upon the moving party, or, if the moving party has entered
the judgment or order, within one year after such entry...
Here, Plaintiff seeks to vacate the Court's sua sponte Dismissal Order issued
on September 15, 2017. It is respectfully submitted that dismissal pursuant to
CPLR 3216 was unwarranted and improper as there were no extraordinary
circumstances that merited dismissal of the action. Notwithstanding, the order
should be vacated because Plaintiff has sufficient cause for the delay in prosecuting
the action and meritorious cause of action. Plaintiffs motion should be granted in
its entirety.
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II. DISMISSAL PURSUANT TO CPLR 3216 WAS UNWARRANTED
AND IMPROPER
Even prior to the amendment of CPLR 3216 effective January 1, 2015, the
Court of Appeals held that the statute is extremely forgiving. Baczkowski v. D.A.
Collins Constr. Co., 89 N.Y.2d 499, 503 (1997). The amendment effective January 1,
2015 affected the preconditions to dismissal, making sua sponte dismissal under
CPLR 3216 more difficult. See Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771,
772, 56 N.Y.S.3d 228, 229 (2d Dept 2017). A Court is not permitted to dismiss an
action for neglect to prosecute unless all of the preconditions set forth within CPLR
3216 are met. See US Bank, Nat'l Ass'n v. Mizrahi, 156 A.D.3d 661, 662, 64
N.Y.S.3d 565, 566 (2d Dep't 2017). The conditions precedent to bringing a motion to
dismiss for failure to prosecute under CPLR 3216 must be complied with strictly.
Frank L. Ciminelli Constr. Co. v. Buffalo, 110 A.D.2d 1075, 488 N.Y.S.2d 932 (2d
Dep't 1985).
CPLR 3216 (b) contains several preconditions for dismissal under the statute:
(b) No dismissal shall be directed under any portion of subdivision (a)
of this rule and no court initiative shall be taken or motion made
thereunder unless the following conditions precedent have been
complied with:
(1) Issue must have been joined in the action;
(2) One year must have elapsed since the joinder of issue or six
months must have elapsed since the issuance of the preliminary court
conference order where such an order has been issued, whichever is
later;
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(3) The court or party seeking such relief, as the case may be,
shall have served a written demand by registered or certified mail
requiring the party against whom such relief is sought to resume
prosecution of the action and to serve and file a note of issue within
ninety days after receipt of such demand, and further stating that the
default by the party upon whom such notice is served in complying
with such demand within said ninety day period will serve as a basis
for a motion by the party serving said demand for dismissal as against
him or her for unreasonably neglecting to proceed. Where the written
demand is served by the court, the demand shall set forth the specific
conduct constituting the neglect, which conduct shall demonstrate a
general pattern of delay in proceeding with the litigation.
It is respectfully submitted that the statutory preconditions of CPLR 3216 we
not met when the Court issued the September 15, 2017 Dismissal Order.
Specifically, 1) the notice to resume prosecution did not contain the required
language, 2) there is no evidence that the notice required by CPLR 3216 was
properly mailed, and 3) Plaintiff was not provided with a true opportunity to be
heard.
A) The notice to resume prosecution did not contain the required
language or cite specific conduct as required by CPLR 3216.
Dismissal under CPLR 3216 is improper where the notice does not contain
the required statutory language. Deutsche Bank Nat'l Tr. Co. v. Cotton, 147 A.D.3d
1020, 1021, 46 N.Y.S.3d 913, 914 (2d Dep't 2017) (reversing the Supreme Court's
denial of Plaintiffs motion to vacate dismissal where the notice did not state, "will
motion"
serve as a basis for a by the Court to dismiss for failure to prosecute.
CPLR 3216 further provides that the notice shall state:
... that the default by the party upon whom such notice is served in
complying with such demand within said ninety day period will serve
as a basis for a motion by the party serving said demand for dismissal
as against him or her for unreasonably neglecting to proceed.
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basis"
Here, the notice did not state that Plaintiffs default "will serve as a for
a motion for unreasonably neglecting to prosecute as required by the statute.
Instead, the Court substituted its own language, which does not comply with the
statute. See Exhibit 17. Accordingly, as the Notice to Resume Prosecution does not
contain the required statutory language, dismissal must be vacated.
Moreover, when the notice is issued by the Court, the notice must contain
specific conduct constituting neglect. See Goetz v. Pub. Serv. Truck Renting, Inc.,
2018 NY Slip Op 04534, ¶ 1 (2d Dep't 2018). CPLR 3216 (b) (3) provides:
Where the written demand is served by the court, the demand shall set
forth the specific conduct constituting the neglect, which conduct shall
demonstrate a general pattern of delay in proceeding with the
litigation.
In the case at bar, the Notice to Resume Prosecution does not contain specific
conduct constituting neglect, "demonstrating a general pattern of delay in
litigation."
proceeding with the Here, the notice only includes form language
reciting the requirements for dismissal under CPLR 3216. No specifics, such as
dates, events, or actions of the parties are cited. Nor can it be said that a general
patter of delay is demonstrated. Accordingly, for this reason alone, dismissal must
be vacated.
B) There is no proof that the notice to resume prosecution was sent
by regular and certified mail.
Dismissal pursuant to CPLR 3216 is not permitted without proper service of
the notice required by the statute by both certified and regular. See BankUnited v.
Kheyfets, 150 A.D.3d 948, 949, 57 N.Y.S.3d 159, 160 (2d Dep't 2017).
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Here, based upon a review of the firm's business records, there is no
indication that the Notice to Resume Prosecution was ever received by regular or
certified mail. See Exhibit 17 for a copy of the notice. Accordingly, the Court was
without power to dismiss the action pursuant to CPLR 3216, dismissal must be
vacated, and the action must be restored.
C) Plaintiff was not provided with a true opportunity to be heard.
The notice requirement of CPLR 3216 is meant to provide the opportunity to
be heard prior to dismissal. Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771,
773, 56 N.Y.S.3d 228, 229 (2d Dep't 2017) (citing John R. Higgit, 2015 Supp Practice
Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3216, 2017 Supp
Pamph at 796). The Second Department has made clear that CPLR 3216 dismissals
without the opportunity to be heard are improper. See Id.; Deutsche Bank Nat'l Tr.
Co. v. Cotton, 147 A.D.3d 1020, 1021, 46 N.Y.S.3d 913, 914 (2d Dep't 2017).
Here, Plaintiff was not provided with a true opportunity to be heard. Plaintiff
appeared on September 12, 2017 when the action was placed on what was termed a
calendar."
"dismissal At the appearance, no record was created. The fact that the
loan was just recently released from a loss mitigation hold was entirely ignored.
Upon information and belief, the part where the matter was held does not recognize
loss mitigation holds required by Consumer Financial Protection Bureau
regulations, but as no record was created, Plaintiff is unable to cite this fact.
Further, upon information and belief, the Part where the appearance took place has
excuse"
very little power to accept a "justifiable to extend the time limits of the
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Notice to Resume Prosecution. Accordingly, dismissal must be vacated and the
action restored as Plaintiff was not provided with a true opportunity to be heard.
III. SUA SPONTE DISMISSAL IS EXTREMELY DISFAVORED
The Court's power to dismiss an action sua sponte must be used sparingly
and only when extraordinary circumstances exist warranting dismissal. Bank of
N.Y. Mellon v. Shterenberg, 153 A.D.3d 1310, 61 N.Y.S.3d 304, 305 (2d Dep't 2017).
Indeed, the Appellate Division Second Department has emphasized that sua
sponte dismissal is not an appropriate remedy where there are no extraordinary
circumstances within the record. E2 HSBC Bank USA, N.A. v. Taher, 104 A.D.3d
815, 817-18, 962 N.Y.S.2d 301, 303-04 (2d Dep't 2013) (admonishing the court of
first instance for dismissing a case sua sponte where no extraordinary
circumstances were present).
The Appellate Division Second Department has repeatedly indicated that
there are very few circumstances where sua sponte dismissal may be appropriate,
such as "willful noncompliance with court-ordered deadlines". Onewest Bank, FSB
v. Tarantola, 156 A.D.3d 711, 711-12, 64 N.Y.S.3d 903, 904 (2d Dep't 2017);
Emigrant Mtge. Co. v. Gosdin, 119 A.D.3d 639, 989 N.Y.S.2d 609 (2d Dept. 2014);
... "[a] court's power to dismiss a complaint, sua sponte, is to be used
sparingly and only when extraordinary circumstances exist to warrant
dismissal"
(U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048, 921
NYS2d 320 [2011]; see Aurora Loan Servs., LLC v Sobanke, 101 AD3d
1065, 1066, 957 NYS2d 379 [2012]; Bank of Am., N.A. v Bah, 95 AD3d
1150, 1151-1152, 945 NYS2d 704 [2012]). Here, the Supreme Court
was not presented with any extraordinary circumstances warranting
[**4] a sua sponte dismissal of the complaint, and there was no
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indication that the plaintiff had engaged in a pattern of willful
noncompliance with court-ordered deadlines (see Bank of Am., N.A. v
Bah, 95 AD3d at 1151-1152; U.S. Bank, N.A. v Guichardo, 90 AD3d
1032, 1033, 935 NYS2d 335 [2011]). Consequently, the court erred in,
sua sponte, directing the dismissal of the complaint with prejudice (see
Bank of N.Y. v Castillo, 120 AD3d 598, 600, 991 NYS2d 446 [2014];
Bank of Am., N.A. v Bah, 95 AD3d at 1151-1152; U.S. Bank, N.A. v
Guichardo, 90 AD3d at 1033; U.S. Bank, N.A. v Emmanuel, 83 AD3d
at 1048).
U.S. Bank N.A. v Polanco, 126 A.D.3d 883, 884-885, 7 N.Y.S.2d 156, 157-158
(2d Dep't 2015).
Here, during almost the entire period provided for in the Notice to Resume
Prosecution, the foreclosure was on a loss mitigation hold. It is respectfully
submitted that the delay was in no way prejudicial to Defendant as the parties were
engaging in loss mitigation, and Defendant maintains ownership and has been
living at the premises rent-free while Plaintiff maintains the premises by paying
the taxes and insurance.
Plaintiffs de minimus delay did not constitute extraordinary circumstances
and did not warrant sua sponte dismissal of the foreclosure complaint.
Under these circumstances, the instant action should not have been
dismissed. Plaintiff has demonstrated meritorious cause of action. See Exhibit 5 for
the Certificate of Merit. Additionally, Plaintiff submits the affidavit of Ashley
Kessler, Contract Management Coordinator of Ocwen Loan Servicing, servicer for
Plaintiff. See Exhibit 3.
It is respectfully submitted that Plaintiffs failure to proceed is not an
extraordinary circumstance that should have led to dismissal of Plaintiffs action. In
a review of the Court records, it is respectfully submitted that Plaintiff has not
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engaged in a pattern of willful non-compliance with Court's Orders or a general
intent to abandon the action. Indeed, Plaintiff was stayed from proceeding for 542
days due to state law and federal regulation. Dismissal under these circumstances
is extremely inequitable. The Court should vacate the dismissal of Plaintiffs action
and allow Plaintiff to proceed with the prosecution of the action by restoring the
action. Plaintiffs motion should be granted.
In the case, despite affirming the meritorious nature of Plaintiffs cause of
action through submission of the Certificate of Merit with supporting documents
Defendants'
pursuant to CPLR 3012-b (See Exhibit "5") and despite default during
the Foreclosure Settlement Conference phase, Plaintiffs meritorious cause of action
was stayed for over thirteen (13) months pursuant to CPLR 3408.
Thereafter, the parties continued to engage in loss mitigation, which led to an
additional delay of over four (4) months.
Plaintiffs de minimus delay in filing its note of issue and motion for
summary judgment did not constitute extraordinary circumstances and did not
warrant sua sponte dismissal of the foreclosure complaint.
Under these circumstances, the instant action should not have been
dismissed. Plaintiffs meritorious cause of action was stayed for over a year,
culminating with Defendant's failure to appear at a mandatory foreclosure
settlement conferences, while Plaintiffs de minimus delay in filing a note of issue
and motion for summary judgment resulted in sua sponte dismissal.
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Accordingly, the Court should vacate the dismissal of Plaintiffs action and
allow Plaintiff to proceed with the prosecution of the action by restoring the action.
Plaintiffs motion should be granted.
IV. PLAINTIFF HAS SUFFICIENT CAUSE FOR DELAY, THERE IS
NO EVIDENCE THAT PLAINTIFF INTENDED TO ABANDON THE
ACTION, AND THERE IS NO EVIDENCE THAT DEFENDANT
WAS PREJUDICED
In determining whether to vacate dismissal pursuant to CPLR 3216, the Court
should consider whether plaintiff intended to abandon the action, whether the
default was willful, and whether the defendants were prejudiced. US Bank, Nat'1
Ass'n v. Mizrahi, 156 A.D.3d 661, 662, 64 N.Y.S.3d 565, 566 (2d Dep't 2017).
Plaintiffs sufficient cause includes delays caused by Plaintiff and Plaintiffs
Counsel's efforts to comply with Federal Regulation regarding dual tracking. In
Countrywide Home Loans Servicing, L.P. v Crespo, 46 Misc. 3d 1226(A), 1226A
(N.Y. Sup. Ct. 2015) analyzed the delays plaintiffs in foreclosure actions face in
proceeding:
In the mortgage foreclosure arena, delays in the prosecution of
cases may fairly be attributable to various legislative
enactments and administratively rules which are [**6] aimed at
resolving foreclosure actions in a manner favorable to
mortgagors. These legislative enactments and rules have
dramatically slowed the pace of residential mortgage foreclosure
actions pending at the time of such enactments or rule were
adopted and have caused serious delays in the institution of new
actions (see Laws of Ch. 472 —
3-a as amended the
2008, § by
Laws of 2009 Ch. 507 § 10; CPLR 3408; 22 NYCRR 202.12-a).
The seemingly endless imposition of new procedural mandates
include the scheduling of a mandatory settlement conference
pursuant to CPLR 3408, which was extended by administrative
rule to include multiple conferences (see 22 NYCRR 202.12-
abeyance"
a[c][6]); the holding of all motions "in during the
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conference process (22 NYCRR 202.12-a(c)(7)); and the merit
based vouching requirements that were imposed upon counsel
for foreclosing plaintiff in all pending cases by court
administrators (see A.O. 548/10, amended by A.O. 431/11; and
A.O. 208/13), which are now the subject of CPLR 3012-a for
cases commenced after August 30 2013. In addition, many
servicers and/or lenders are subject to a host of federal
regulations adopted on a temporary basis in 2013 and formally
in January of 2014 which prohibit the commencement and/or
continued prosecution of claims for foreclosure [**7] and sale in
cases wherein the borrower may be eligible for a loan
modifications of other loss mitigation alternatives under federal
programs.
* * *
Here, the court finds that the plaintiff has advanced sufficient
evidence of a meritorious cause of action for foreclosure and sale.
In addition, the court finds that the plaintiff demonstrated a
reasonable excuse for the delay in moving for the fixation of the
defendants'
defaults, namely, an ardent, albeit unsuccessful, five
year attempt on the part of the plaintiff to modify the moving
defendant's loan or to otherwise secure an alternative that
began in March of 2010 when the plaintiff initiated the referral
of this action to the specialized mortgage foreclosure conference
part. Moreover, the absence of prejudice to the moving
defendant tips the balance in favor of the plaintiff. The record
reflects that the moving defendant [**9] has enjoyed the use of
the mortgaged premises since January of 2009 when her default,
and that of her missing co-defendant mortgagor, occurred,
without making payments of amounts due for principal and
interest under note and for taxes and other municipal
assessments. Although she was aware that the nature of this
action was one to remedy such default, as the moving defendant
appeared herein by counsel in June of 2010, she never moved to
vacate her default. Instead the moving defendant continued to
negotiate a myriad of loan modification agreements which the
plaintiff offered under the overlay of constantly evolving
obligations imposed by both state and federal statutes and rules,
all of which are aimed at assisting the defendant obligor reach
an agreement while forestalling the remedy of foreclosure and
sale while modification discussions were ongoing. These
circumstances, coupled with the plaintiffs filing of successive
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notices of pendency, warrant a finding of the absence of any
intent to abandon this action.
Therefore, as explained above, courts have interpreted the multiple delays
caused in foreclosure actions including the delay in compliance with regulations and
loss mitigation efforts to be sufficient cause for failing to proceed with an action.
Moreover, this matter was delayed by settlement conferences.
It would be unduly prejudicial for plaintiff to forego its rights in the
foreclosure action due to the circumstances provided herein. At no time during the
pendency of the action did plaintiff willfully delay or intended to abandon the
action. Simply put, this action has been delayed due to a variety of reasons outside
of Plaintiffs control, and delays in obtaining documentation. It is respectfully
submitted that Plaintiff has sufficient cause for the delay and is now proceeding
with the prosecution of this action. And, as discussed above, Defendant was not
prejudiced by the delay. As such, Plaintiffs motion should be granted in all aspects.
V. PLAINTIFF HAS A MERITORIOUS CAUSE OF ACTION
Not only does Plaintiff have sufficient cause, it also has a meritorious cause
of action. In order to establish a claim in foreclosure, a plaintiff is only required to
show that a note and mortgage exist and that there has been a default in same.
KeyBank demonstrated its prima facie entitlement to judgment as a
matter of law on the first cause of action by submitting, inter alia, the
mortgage, [***3] the unpaid note, and an affidavit evidencing
Chapman's default (see Independence Bank v Valentine, 113 AD3d 62,
64, 976 NYS2d 504 [2013]; Mishal v Fiduciary Holdings, LLC, 109
AD3d 885, 971 NYS2d 334 [2013]).
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KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 A.D.3d 991, 986 N.Y.S.2d
598 (2d Dept. 2014).
"Entitlement to a judgment of foreclosure is established, as a matter of
law, where the plaintiff produces the mortgage, the unpaid note, and
evidence of the default (see Emigrant Mtge. Co., Inc. v Beckerman, 105
AD3d 895; Solomon v Burden, 104 AD3d 839; Baron Assoc., LLC v
793)."
Garcia Group Enters., Inc., 96 AD3d 793,
Independence Bank v. Valentine, 113 A.D.3d 62, 64, 976 N.Y.S.2d 504 (2d Dept.
2013).
It is now well settled that a prima facie case for foreclosure and sale is
established by the plaintiffs production of the mortgage, the unpaid
note and due evidence of a default under the terms thereof (see CPLR
3212; RPAPL § 1321; KeyBank Natl. Ass'n v Chapman Steamer
Collective, LLC, 117 AD3d 991, 986 NYS2d 598 [2d Dept 2014];
Independence Bank v Valentine, 113 AD3d 62, 64, 976 NYS2d 504 [2d
Dept 2014 Bank v Valentine, 113 AD3d 62, 64, 976 NYS2d 504 [2d
Dept 2014]; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 964
NYS2d 548 [2d Dept 2013]; Solomon v Burden, 104 AD3d 839, 961
NYS2d 535 [2d Dept 2013]; Baron Assoc., LLC v Garcia Group Enters.,
Inc., 96 AD3d 793, 793, 946 NYS2d 611 [2d Dept 2012]). To establish
prima facie entitlement to judgment as a matter of law on the issue of
liability with respect to a guaranty, a plaintiff must submit proof of the
underlying note, a guaranty, and the failure of the defendant to make
payment in accordance with the terms of those instruments (see
Griffon V, LLC v 11 East 36th, LLC, 90 AD3d 705, 934 NYS2d 472 [2d
Dept 2011]; Baron Assoc., LLC v. Garcia Group Enters., Inc.., 96 AD3d
793, 946 N.Y.S.2d 611, supra).
Community Natl. Bank v. Teresa's Family Cleaning, Inc., 2014 NY Slip Op
32171(U) (N.Y. Sup. Ct. July 11, 2014).
Here, Plaintiff has demonstrated the existence of a Note, Mortgage and the
default therein by submission of the Certificate of Merit and the Affidavit of Ashley
Kessler. S_ee Exhibit
Preview
FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR PARK Index No.: 51165/2015 PLACE SECURITIES, INC., ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2005-WLL1, Plaintiff, v. DENWORTH K BILLY, AMERICAN EXPRESS TRAVEL RELATED SERVICES, INC., CAPITAL ONE BANK, BENEFICIAL NEW YORK, INC., AMERICAN EXPRESS BANK, FSB, #1" #12," "JOHN DOE through 'JOHN DOE the MORTGAGED PROPERTY: last twelve names being fictitious and unknown to 172 Lincoln Avenue the plaintiff, the person or parties intended being New Rochelle, New York 10801 the tenants, occupants, persons or corporations, if COUNTY: Westchester any, having or claiming an interest in or lien upon SBL #: 4-1262-79 the premises, described in the complaint, Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION TO RESTORE, VACATE DISMISSAL, FOR SUMMARY JUDGMENT, A DEFAULT JUDGMENT, ORDER OF REFERENCE, TO VOID TWO ASSIGNMENTS OF MORTGAGE, AND TO AMEND THE CAPTION RESPECTFULLY SUBMITTED, By: MATTHEW LIZOTTE, ESQ. LEOPOLD & ASSOCIATES, PLLC Attorneys for Plaintiff 80 Business Park Drive, Suite 110 Armonk, New York 10504 (914) 219-5787 mlizotte@leopoldassociates.com Page 1 of 24 1 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 I. DISMISSAL SHOULD BE VACATED PURSUANT TO CPLR 5015 (a) (1) OR CPLR 2221 (a) CPLR 2221(a) provides: (a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that: 1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and 2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court. CPLR 5015 (a) (1) reads as follows: (a) On Motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry... Here, Plaintiff seeks to vacate the Court's sua sponte Dismissal Order issued on September 15, 2017. It is respectfully submitted that dismissal pursuant to CPLR 3216 was unwarranted and improper as there were no extraordinary circumstances that merited dismissal of the action. Notwithstanding, the order should be vacated because Plaintiff has sufficient cause for the delay in prosecuting the action and meritorious cause of action. Plaintiffs motion should be granted in its entirety. Page 2 of 24 2 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 II. DISMISSAL PURSUANT TO CPLR 3216 WAS UNWARRANTED AND IMPROPER Even prior to the amendment of CPLR 3216 effective January 1, 2015, the Court of Appeals held that the statute is extremely forgiving. Baczkowski v. D.A. Collins Constr. Co., 89 N.Y.2d 499, 503 (1997). The amendment effective January 1, 2015 affected the preconditions to dismissal, making sua sponte dismissal under CPLR 3216 more difficult. See Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771, 772, 56 N.Y.S.3d 228, 229 (2d Dept 2017). A Court is not permitted to dismiss an action for neglect to prosecute unless all of the preconditions set forth within CPLR 3216 are met. See US Bank, Nat'l Ass'n v. Mizrahi, 156 A.D.3d 661, 662, 64 N.Y.S.3d 565, 566 (2d Dep't 2017). The conditions precedent to bringing a motion to dismiss for failure to prosecute under CPLR 3216 must be complied with strictly. Frank L. Ciminelli Constr. Co. v. Buffalo, 110 A.D.2d 1075, 488 N.Y.S.2d 932 (2d Dep't 1985). CPLR 3216 (b) contains several preconditions for dismissal under the statute: (b) No dismissal shall be directed under any portion of subdivision (a) of this rule and no court initiative shall be taken or motion made thereunder unless the following conditions precedent have been complied with: (1) Issue must have been joined in the action; (2) One year must have elapsed since the joinder of issue or six months must have elapsed since the issuance of the preliminary court conference order where such an order has been issued, whichever is later; Page 3 of 24 3 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 (3) The court or party seeking such relief, as the case may be, shall have served a written demand by registered or certified mail requiring the party against whom such relief is sought to resume prosecution of the action and to serve and file a note of issue within ninety days after receipt of such demand, and further stating that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. It is respectfully submitted that the statutory preconditions of CPLR 3216 we not met when the Court issued the September 15, 2017 Dismissal Order. Specifically, 1) the notice to resume prosecution did not contain the required language, 2) there is no evidence that the notice required by CPLR 3216 was properly mailed, and 3) Plaintiff was not provided with a true opportunity to be heard. A) The notice to resume prosecution did not contain the required language or cite specific conduct as required by CPLR 3216. Dismissal under CPLR 3216 is improper where the notice does not contain the required statutory language. Deutsche Bank Nat'l Tr. Co. v. Cotton, 147 A.D.3d 1020, 1021, 46 N.Y.S.3d 913, 914 (2d Dep't 2017) (reversing the Supreme Court's denial of Plaintiffs motion to vacate dismissal where the notice did not state, "will motion" serve as a basis for a by the Court to dismiss for failure to prosecute. CPLR 3216 further provides that the notice shall state: ... that the default by the party upon whom such notice is served in complying with such demand within said ninety day period will serve as a basis for a motion by the party serving said demand for dismissal as against him or her for unreasonably neglecting to proceed. Page 4 of 24 4 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 basis" Here, the notice did not state that Plaintiffs default "will serve as a for a motion for unreasonably neglecting to prosecute as required by the statute. Instead, the Court substituted its own language, which does not comply with the statute. See Exhibit 17. Accordingly, as the Notice to Resume Prosecution does not contain the required statutory language, dismissal must be vacated. Moreover, when the notice is issued by the Court, the notice must contain specific conduct constituting neglect. See Goetz v. Pub. Serv. Truck Renting, Inc., 2018 NY Slip Op 04534, ¶ 1 (2d Dep't 2018). CPLR 3216 (b) (3) provides: Where the written demand is served by the court, the demand shall set forth the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation. In the case at bar, the Notice to Resume Prosecution does not contain specific conduct constituting neglect, "demonstrating a general pattern of delay in litigation." proceeding with the Here, the notice only includes form language reciting the requirements for dismissal under CPLR 3216. No specifics, such as dates, events, or actions of the parties are cited. Nor can it be said that a general patter of delay is demonstrated. Accordingly, for this reason alone, dismissal must be vacated. B) There is no proof that the notice to resume prosecution was sent by regular and certified mail. Dismissal pursuant to CPLR 3216 is not permitted without proper service of the notice required by the statute by both certified and regular. See BankUnited v. Kheyfets, 150 A.D.3d 948, 949, 57 N.Y.S.3d 159, 160 (2d Dep't 2017). Page 5 of 24 5 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 Here, based upon a review of the firm's business records, there is no indication that the Notice to Resume Prosecution was ever received by regular or certified mail. See Exhibit 17 for a copy of the notice. Accordingly, the Court was without power to dismiss the action pursuant to CPLR 3216, dismissal must be vacated, and the action must be restored. C) Plaintiff was not provided with a true opportunity to be heard. The notice requirement of CPLR 3216 is meant to provide the opportunity to be heard prior to dismissal. Rhodehouse v. CVS Pharmacy, Inc., 151 A.D.3d 771, 773, 56 N.Y.S.3d 228, 229 (2d Dep't 2017) (citing John R. Higgit, 2015 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 3216, 2017 Supp Pamph at 796). The Second Department has made clear that CPLR 3216 dismissals without the opportunity to be heard are improper. See Id.; Deutsche Bank Nat'l Tr. Co. v. Cotton, 147 A.D.3d 1020, 1021, 46 N.Y.S.3d 913, 914 (2d Dep't 2017). Here, Plaintiff was not provided with a true opportunity to be heard. Plaintiff appeared on September 12, 2017 when the action was placed on what was termed a calendar." "dismissal At the appearance, no record was created. The fact that the loan was just recently released from a loss mitigation hold was entirely ignored. Upon information and belief, the part where the matter was held does not recognize loss mitigation holds required by Consumer Financial Protection Bureau regulations, but as no record was created, Plaintiff is unable to cite this fact. Further, upon information and belief, the Part where the appearance took place has excuse" very little power to accept a "justifiable to extend the time limits of the Page 6 of 24 6 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 Notice to Resume Prosecution. Accordingly, dismissal must be vacated and the action restored as Plaintiff was not provided with a true opportunity to be heard. III. SUA SPONTE DISMISSAL IS EXTREMELY DISFAVORED The Court's power to dismiss an action sua sponte must be used sparingly and only when extraordinary circumstances exist warranting dismissal. Bank of N.Y. Mellon v. Shterenberg, 153 A.D.3d 1310, 61 N.Y.S.3d 304, 305 (2d Dep't 2017). Indeed, the Appellate Division Second Department has emphasized that sua sponte dismissal is not an appropriate remedy where there are no extraordinary circumstances within the record. E2 HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817-18, 962 N.Y.S.2d 301, 303-04 (2d Dep't 2013) (admonishing the court of first instance for dismissing a case sua sponte where no extraordinary circumstances were present). The Appellate Division Second Department has repeatedly indicated that there are very few circumstances where sua sponte dismissal may be appropriate, such as "willful noncompliance with court-ordered deadlines". Onewest Bank, FSB v. Tarantola, 156 A.D.3d 711, 711-12, 64 N.Y.S.3d 903, 904 (2d Dep't 2017); Emigrant Mtge. Co. v. Gosdin, 119 A.D.3d 639, 989 N.Y.S.2d 609 (2d Dept. 2014); ... "[a] court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" (U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048, 921 NYS2d 320 [2011]; see Aurora Loan Servs., LLC v Sobanke, 101 AD3d 1065, 1066, 957 NYS2d 379 [2012]; Bank of Am., N.A. v Bah, 95 AD3d 1150, 1151-1152, 945 NYS2d 704 [2012]). Here, the Supreme Court was not presented with any extraordinary circumstances warranting [**4] a sua sponte dismissal of the complaint, and there was no Page 7 of 24 7 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 indication that the plaintiff had engaged in a pattern of willful noncompliance with court-ordered deadlines (see Bank of Am., N.A. v Bah, 95 AD3d at 1151-1152; U.S. Bank, N.A. v Guichardo, 90 AD3d 1032, 1033, 935 NYS2d 335 [2011]). Consequently, the court erred in, sua sponte, directing the dismissal of the complaint with prejudice (see Bank of N.Y. v Castillo, 120 AD3d 598, 600, 991 NYS2d 446 [2014]; Bank of Am., N.A. v Bah, 95 AD3d at 1151-1152; U.S. Bank, N.A. v Guichardo, 90 AD3d at 1033; U.S. Bank, N.A. v Emmanuel, 83 AD3d at 1048). U.S. Bank N.A. v Polanco, 126 A.D.3d 883, 884-885, 7 N.Y.S.2d 156, 157-158 (2d Dep't 2015). Here, during almost the entire period provided for in the Notice to Resume Prosecution, the foreclosure was on a loss mitigation hold. It is respectfully submitted that the delay was in no way prejudicial to Defendant as the parties were engaging in loss mitigation, and Defendant maintains ownership and has been living at the premises rent-free while Plaintiff maintains the premises by paying the taxes and insurance. Plaintiffs de minimus delay did not constitute extraordinary circumstances and did not warrant sua sponte dismissal of the foreclosure complaint. Under these circumstances, the instant action should not have been dismissed. Plaintiff has demonstrated meritorious cause of action. See Exhibit 5 for the Certificate of Merit. Additionally, Plaintiff submits the affidavit of Ashley Kessler, Contract Management Coordinator of Ocwen Loan Servicing, servicer for Plaintiff. See Exhibit 3. It is respectfully submitted that Plaintiffs failure to proceed is not an extraordinary circumstance that should have led to dismissal of Plaintiffs action. In a review of the Court records, it is respectfully submitted that Plaintiff has not Page 8 of 24 8 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 engaged in a pattern of willful non-compliance with Court's Orders or a general intent to abandon the action. Indeed, Plaintiff was stayed from proceeding for 542 days due to state law and federal regulation. Dismissal under these circumstances is extremely inequitable. The Court should vacate the dismissal of Plaintiffs action and allow Plaintiff to proceed with the prosecution of the action by restoring the action. Plaintiffs motion should be granted. In the case, despite affirming the meritorious nature of Plaintiffs cause of action through submission of the Certificate of Merit with supporting documents Defendants' pursuant to CPLR 3012-b (See Exhibit "5") and despite default during the Foreclosure Settlement Conference phase, Plaintiffs meritorious cause of action was stayed for over thirteen (13) months pursuant to CPLR 3408. Thereafter, the parties continued to engage in loss mitigation, which led to an additional delay of over four (4) months. Plaintiffs de minimus delay in filing its note of issue and motion for summary judgment did not constitute extraordinary circumstances and did not warrant sua sponte dismissal of the foreclosure complaint. Under these circumstances, the instant action should not have been dismissed. Plaintiffs meritorious cause of action was stayed for over a year, culminating with Defendant's failure to appear at a mandatory foreclosure settlement conferences, while Plaintiffs de minimus delay in filing a note of issue and motion for summary judgment resulted in sua sponte dismissal. Page 9 of 24 9 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 Accordingly, the Court should vacate the dismissal of Plaintiffs action and allow Plaintiff to proceed with the prosecution of the action by restoring the action. Plaintiffs motion should be granted. IV. PLAINTIFF HAS SUFFICIENT CAUSE FOR DELAY, THERE IS NO EVIDENCE THAT PLAINTIFF INTENDED TO ABANDON THE ACTION, AND THERE IS NO EVIDENCE THAT DEFENDANT WAS PREJUDICED In determining whether to vacate dismissal pursuant to CPLR 3216, the Court should consider whether plaintiff intended to abandon the action, whether the default was willful, and whether the defendants were prejudiced. US Bank, Nat'1 Ass'n v. Mizrahi, 156 A.D.3d 661, 662, 64 N.Y.S.3d 565, 566 (2d Dep't 2017). Plaintiffs sufficient cause includes delays caused by Plaintiff and Plaintiffs Counsel's efforts to comply with Federal Regulation regarding dual tracking. In Countrywide Home Loans Servicing, L.P. v Crespo, 46 Misc. 3d 1226(A), 1226A (N.Y. Sup. Ct. 2015) analyzed the delays plaintiffs in foreclosure actions face in proceeding: In the mortgage foreclosure arena, delays in the prosecution of cases may fairly be attributable to various legislative enactments and administratively rules which are [**6] aimed at resolving foreclosure actions in a manner favorable to mortgagors. These legislative enactments and rules have dramatically slowed the pace of residential mortgage foreclosure actions pending at the time of such enactments or rule were adopted and have caused serious delays in the institution of new actions (see Laws of Ch. 472 — 3-a as amended the 2008, § by Laws of 2009 Ch. 507 § 10; CPLR 3408; 22 NYCRR 202.12-a). The seemingly endless imposition of new procedural mandates include the scheduling of a mandatory settlement conference pursuant to CPLR 3408, which was extended by administrative rule to include multiple conferences (see 22 NYCRR 202.12- abeyance" a[c][6]); the holding of all motions "in during the Page 10 of 24 10 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 conference process (22 NYCRR 202.12-a(c)(7)); and the merit based vouching requirements that were imposed upon counsel for foreclosing plaintiff in all pending cases by court administrators (see A.O. 548/10, amended by A.O. 431/11; and A.O. 208/13), which are now the subject of CPLR 3012-a for cases commenced after August 30 2013. In addition, many servicers and/or lenders are subject to a host of federal regulations adopted on a temporary basis in 2013 and formally in January of 2014 which prohibit the commencement and/or continued prosecution of claims for foreclosure [**7] and sale in cases wherein the borrower may be eligible for a loan modifications of other loss mitigation alternatives under federal programs. * * * Here, the court finds that the plaintiff has advanced sufficient evidence of a meritorious cause of action for foreclosure and sale. In addition, the court finds that the plaintiff demonstrated a reasonable excuse for the delay in moving for the fixation of the defendants' defaults, namely, an ardent, albeit unsuccessful, five year attempt on the part of the plaintiff to modify the moving defendant's loan or to otherwise secure an alternative that began in March of 2010 when the plaintiff initiated the referral of this action to the specialized mortgage foreclosure conference part. Moreover, the absence of prejudice to the moving defendant tips the balance in favor of the plaintiff. The record reflects that the moving defendant [**9] has enjoyed the use of the mortgaged premises since January of 2009 when her default, and that of her missing co-defendant mortgagor, occurred, without making payments of amounts due for principal and interest under note and for taxes and other municipal assessments. Although she was aware that the nature of this action was one to remedy such default, as the moving defendant appeared herein by counsel in June of 2010, she never moved to vacate her default. Instead the moving defendant continued to negotiate a myriad of loan modification agreements which the plaintiff offered under the overlay of constantly evolving obligations imposed by both state and federal statutes and rules, all of which are aimed at assisting the defendant obligor reach an agreement while forestalling the remedy of foreclosure and sale while modification discussions were ongoing. These circumstances, coupled with the plaintiffs filing of successive Page 11 of24 11 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 notices of pendency, warrant a finding of the absence of any intent to abandon this action. Therefore, as explained above, courts have interpreted the multiple delays caused in foreclosure actions including the delay in compliance with regulations and loss mitigation efforts to be sufficient cause for failing to proceed with an action. Moreover, this matter was delayed by settlement conferences. It would be unduly prejudicial for plaintiff to forego its rights in the foreclosure action due to the circumstances provided herein. At no time during the pendency of the action did plaintiff willfully delay or intended to abandon the action. Simply put, this action has been delayed due to a variety of reasons outside of Plaintiffs control, and delays in obtaining documentation. It is respectfully submitted that Plaintiff has sufficient cause for the delay and is now proceeding with the prosecution of this action. And, as discussed above, Defendant was not prejudiced by the delay. As such, Plaintiffs motion should be granted in all aspects. V. PLAINTIFF HAS A MERITORIOUS CAUSE OF ACTION Not only does Plaintiff have sufficient cause, it also has a meritorious cause of action. In order to establish a claim in foreclosure, a plaintiff is only required to show that a note and mortgage exist and that there has been a default in same. KeyBank demonstrated its prima facie entitlement to judgment as a matter of law on the first cause of action by submitting, inter alia, the mortgage, [***3] the unpaid note, and an affidavit evidencing Chapman's default (see Independence Bank v Valentine, 113 AD3d 62, 64, 976 NYS2d 504 [2013]; Mishal v Fiduciary Holdings, LLC, 109 AD3d 885, 971 NYS2d 334 [2013]). Page 12 of24 12 of 25 FILED: WESTCHESTER COUNTY CLERK 07/13/2018 02:34 PM INDEX NO. 51165/2015 NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 07/13/2018 KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 A.D.3d 991, 986 N.Y.S.2d 598 (2d Dept. 2014). "Entitlement to a judgment of foreclosure is established, as a matter of law, where the plaintiff produces the mortgage, the unpaid note, and evidence of the default (see Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895; Solomon v Burden, 104 AD3d 839; Baron Assoc., LLC v 793)." Garcia Group Enters., Inc., 96 AD3d 793, Independence Bank v. Valentine, 113 A.D.3d 62, 64, 976 N.Y.S.2d 504 (2d Dept. 2013). It is now well settled that a prima facie case for foreclosure and sale is established by the plaintiffs production of the mortgage, the unpaid note and due evidence of a default under the terms thereof (see CPLR 3212; RPAPL § 1321; KeyBank Natl. Ass'n v Chapman Steamer Collective, LLC, 117 AD3d 991, 986 NYS2d 598 [2d Dept 2014]; Independence Bank v Valentine, 113 AD3d 62, 64, 976 NYS2d 504 [2d Dept 2014 Bank v Valentine, 113 AD3d 62, 64, 976 NYS2d 504 [2d Dept 2014]; Emigrant Mtge. Co., Inc. v Beckerman, 105 AD3d 895, 964 NYS2d 548 [2d Dept 2013]; Solomon v Burden, 104 AD3d 839, 961 NYS2d 535 [2d Dept 2013]; Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 793, 946 NYS2d 611 [2d Dept 2012]). To establish prima facie entitlement to judgment as a matter of law on the issue of liability with respect to a guaranty, a plaintiff must submit proof of the underlying note, a guaranty, and the failure of the defendant to make payment in accordance with the terms of those instruments (see Griffon V, LLC v 11 East 36th, LLC, 90 AD3d 705, 934 NYS2d 472 [2d Dept 2011]; Baron Assoc., LLC v. Garcia Group Enters., Inc.., 96 AD3d 793, 946 N.Y.S.2d 611, supra). Community Natl. Bank v. Teresa's Family Cleaning, Inc., 2014 NY Slip Op 32171(U) (N.Y. Sup. Ct. July 11, 2014). Here, Plaintiff has demonstrated the existence of a Note, Mortgage and the default therein by submission of the Certificate of Merit and the Affidavit of Ashley Kessler. S_ee Exhibit