Preview
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------------------
--X
U.S. BANK NATIONAL ASSOCIATION, Index No.: 22820/2010
Plaintiff,
-against- NOTICE OF MOTION TO
LIFT STAY, VACATE
AUDELINE JEAN; LASSALE NATIONAL BANK, AS DISMISSAL, RESTORE CASE
TRUSTEE; MARK LABARBIERA, CHRISTOPHER TO ACTIVE CALENDAR3 AND
LABARBIERA, ANTHONY LABARBIERA, AMEND AND SUPPLEMENT
MADHUSUDAN VYAS, VASANT GODBOLE, PLEADINGS
SHUBHADA GODBOLE, EUGENE EVANS , ESTHER
EVANS, ROBERT ORENDORF, BEATRICE
MEHLBURG, NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD; NEW YORK CITY PARKING
VIOLATIONS BUREAU; NEW YORK CITY TRANSIT
ADJUDICATION BUREAU; THE CITY OF NEW
DOES"
YORK; "JOHN and "JANE DOES", said names
being fictitious, parties intended being possible tenants or
occupants of premises, and corporations, other entities or
person who claim, or may claim, a lien against the
premises,
Defendants..
Motion Of/By: 6
Time: March 25. 2020 at 10:0Ó a.m. r
Date, Place,
Hon. Kenneth P. Sherm
°
Brooklyn, NY 11201
Relief Sought: An Order, (1) vacating the Conditional Order of
Dismissal signed by the Hon. Lawrence Knipel on
February 6, 2014; (2) lifting the stay in place and
restoring the case to active calendar; (3) granting
Plaintiff leave to Amend and Supplement its
Complaint pursuant to CPLR § 3025(b), (4) granting
leave to extend service of its pleadings pursuant to
CPLR 306(b); and (5) for any such other and further
relief as the Court may deem just and proper.
l#llilllillIlilI10111111111111111I1 111111111111JI1111I|M111101111Illl I IIIIIIIlllIllI I Ililli
16-186846 - RoS c
Papers in Support: Affirmation of Glenn W. Caulfield, Esq.
Type of Action: Foreclosure.
Papers: Answering papers, if any, are to be served on
Answering
Plaintiff s counsel seven (7) days prior to the return
date of this Motion, pursuant to CPLR § 2214(b).
Dated: February 21, 2020
Westbury, New York
RAS BORISKIN, LLC
By: 6fenn W. Caulfiel
Attorneys for Plainti
900 Merchants C ourse - Suite 310
Westbury, NY 590
Tel: 516-280-7675
WE ARE A DEBT COLLECTOR AND WE ARE ATTEMPTING TO COLLECT A
DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.
To:
JOSEPH GREENLATT, ESQ.
ATTORNEY FOR AUDELINE JEAN
4429 18TH AVE
BROOKLYN, NY 11230
512 CLASSON REALTY, LLC
3532 12TH AVENUE
BROOKLYN, NY 11218
RONALD D. WEISS, ESQ.
ATTORNEY FOR WORTHNET PARTNERS, INC.
734 WALT WHITMAN ROAD, SUITE 203
MELVILLE, NY 11747
BANK OF AMERICA, N.A. A/S/O LASALLE NATIONAL BANK, AS TRUSTEE
265 MONTAUK HWY
ISLIP, NY 11751
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BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK,
FSB
265 MONTAUK HWY
ISLIP, NY 11751
MARK LABARBIERA
432 HAWTHORNE AVENUE - UNIT M
STATEN ISLAND, NY 10314
CHRISTOPHER LABARBIERA
355 WALTHERY AVENUE
RIDGEWOOD, NJ 07450
ANTHONY LABARBIERA
4429 18TH AVENUE
B5ROOKLYN, NY 11230
MADHUSUDAN VYAS
4429 18TH AVENUE
BROOKLYN, NY 11230
VASANT GODBOLE
4429 18TH AVENUE,
BRROKLYN, NY 11230
SHUBHADA GODBOLE
4429 18TH AVENUE
BROOKLYN, NY 11230
EUGENE EVANS
4429 18TH AVENUE
BROOKLYN, NY 11230
ESTHER EVANS
4429 18TH AVENUE
BROOKLYN, NY 11230
ROBERT ORENDORF
4429 18TH AVENUE
BROOKLYN, NY 11230
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BEATRICE MEHLBURG
4429 18TH AVENUE
BROOKLYN, NY 11230
NEW YORK CITY ENVIRONMENTAL CONTROL BOARD
66 JOHN STREET - 10TH FLOOR
NEW YORK, NY 10038
NEW YORK CITY PARKING VIOLATIONS BUREAU
66 JOHN STREET - 10TH FLOOR
NEW YORK, NY 10038
NEW YORK CITY TRANSIT ADJUDICATION BUREAU
130 LIVINGSTON STREET
BROOKLYN, NY 12201
THE CITY OF NEW YORK
66 JOHN STREET - 10TH FLOOR
NEW YORK, NY 10038
NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT
100 GOLD STREET
NEW YORK, NY 10038
JANE CHRISTIAN (FIRST NAME REPUSED) S/H/A JANE DOE NO. 1
512 CLASSON AVENUE - APT 3
BROOKLYN, NY 11238
EARL BROWN S/H/A JOHN DOE NO. 1
512 CLASSON AVENUE - APT 4,
BROOKLYN, NY 11238
BARBARA WASHINGTON, S/H/A JANE DOE NO. 1
512 CLASSON AVENUE - APT 4
BROOKLYN, NY 11238
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At
New
IAS _ of
held
the
in
Supreme
and for the
Court of the
of
State
KINGS
of
at
York, County
the Courthouse thereof, 360 Adams Street,
Brooklyn, NY 11201 on the day of
, 20 .
P R E S E N T:
Honorable
J.S.C.
......................-________.__________........----X
U.S. BANK NATIONAL ASSOCIATION, Index No.: 22820/2010
Plaintiff,
-against- ORDER VACATING
D RESTORIN__G
AUDELINE JEAN; LASSALE NATIONAL BANK, AS CASE TO ACTIVE
TRUSTEE; MARK LABARBIERA, CHRISTOPHER CALENDAR, AND
LABARBIERA, ANTHONY LABARBIERA, GRANTING LEAVE TO
MADHUSUDAN VYAS, VASANT GODBOLE, AMEND AND SUPPLEMENT
SHUBHADA GODBOLE , EUGENE EVANS , ESTHER PLEADINGS
EVANS, ROBERT ORENDORF, BEATRICE
MEHLBURG, NEW YORK CITY ENVIRONMENTAL Premises:
CONTROL BOARD; NEW YORK CITY PARKING 512 CLASSON AVENUE,
VIOLATIONS BUREAU; NEW YORK CITY TRANS1T BROOKLYN, NY 11238
ADJUDICATION BUREAU; THE CITY OF NEW
DOES"
YORK; "JOHN and "JANE DOES", said names
being fictitious, parties intended being possible tenants or
occupants of premises, and corporations, other entities or
person who claim, or may claim, a lien against the
premises,
Defendawa.
----------------------=-----------==========================X
UPON reading and filing the annexed Attorney's AfHrmation of Glenn W. Caulfield,
Esq., the exhibits annexed thereto, upon the proposed Supplemcñtal Summons3 Amended
Complaint and Amended Notice of Pendency, upon the pleadings previously had herein, and
upon good cause shown;
NOW, upon motion by RAS BORISKIN, LLC, its attorneys for Plaintiff itis hereby
lllN111111111111l111111151l111 IIImIIIlillullillgIIIIlllnilN Itl11111111111111111111111111
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ORDERED that the stay imposed by this Court on February 18, 2016 is hereby lifted;
and it isfurther
ORDERED that Plaintiffs prior moden filed on December 3, 2015 is hereby deemed
withdrawn; and itis further
ORDERED, that the Conditional Order of Dismissal signed by the Hon. Lawrence
Knipel on February 6, 2014 is hereby vacated; and it isfurther
ORDERED, that the case is hereby restored to the active case celander; and it isfurther
ORDERED, that the Motion requesting leave to Amend and Supplement its Pleadings is
hereby granted; and itis further
ORDERED, that Plaintiff's annexed Supplemental Summons, Amended Complaint and
Amended Notice of Pendency, is hereby deemed issued and filed upon entry of the granted
Order, without prejudice to any proceedings heretofore had herein; and itis further
ORDERED that the instant action is hereby discontinued against defendant AUDELINE
JEAN (DECEASED) as said defendant is no longer a necessary party herein; and it isfurther
ORDERED that the designation in the caption for Defendant LASSALE NATIONAL
BANK, AS TRUSTBE is hereby amended to read as "BANK OF AMERICA, N.A. A/S/O
LASALLE NATIONAL BANK, AS TRUSTEE"; and itis further
ORDERED that 512 CLASSON REALTY, LLC; WORTHNET PARTNERS, INC.;
BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK,
FSB and NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND
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DEVELOPMENT are hereby added to the caption herein as necessary party dafendants, withGut
prejudice to the proceedings heretofore had herein; and itis further
ORDERED, that the time in which to serve 512 CLASSON REALTY, LLC;
WORTHNET PARTNERS, INC.; BANK OF AMERICA, N.A. AS SUCCESSOR BY
MERGER TO COUNTRYWIDE BANK, FSB and NEW YORK CITY DEPARTMENT OF
HOUSING PRESERVATION AND DEVELOPMENT herein pursuant to CPLR 306(b) is
extended for one hundred and twenty (120) days from the entered date of this Order.
E N T E R:
J.S.C.
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SUPREME COURT OF THB STATE OF NEW YORK
COUNTY OF KINGS
------------------------------------------- ---------X
U.S. BANK NATIONAL ASSOCIATION, Index No.: 22820/2010
Plaintiff,
-agaiñst- ATTORNEY AFFIRMATION
IN SUPPORT OF MOTION
AUDELINE JEAN; LASSALE NATIONAL BANK, AS
TRUSTEE; MARK LABARBIERA, CHRISTOPHER
LABARBIERA, ANTHONY LABARBIERA,
MADHUSUDANVYAS, VASANT GODBOLE,
SHUBHADA GODBOLE , EUGENE EVANS , ESTHER
EVANS, ROBERT ORENDORF, BEATRICE
MEHLBURG, NEW YORK CITY ENVIRONMENTAL
CONTROL BOARD; NEW YORK CITY PARKING
VIOLATIONS BUREAU; NEW YORK CITY TRANSIT
ADJUDICATION BUREAU; THE CITY OF NEW
DOES"
YORK; "JOHN and "JANE DOES", said names
being fictitious, parties intended being possible tenants or
occupants of premises, and corporations, other entities or
person who claim, or may claim, a lien against the
premises,
Defendants.
_________________¬__.._ _________...,_..________.._....-X
I, Glenn W. Caulfield, Esq., pursuant to § 2106 [NYCLS] and under the penalties of
perjury, affirms as follows:
1. I am an associate of the firm RAS BORISKIN, LLC, attorneys for the Plaintiff
US BANK NATIONAL ASSOCIATION (hereinafter referred to as "PlaintifP') in the
above-entitled action and as such, I am familiar with all facts and circumstances therein.
2. I make this statement in support of PlaintifPs applicatian, on its foreclosure
complaint (1) vacating the Conditional Order of Dismissal signed by the Hon. Lawrence Knipel
on 6, 2014; the case to active calendar; Plaintiff leave to
February (2) restoring (3) granting
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Amend and Supplement itsComplaint pursuant to CPLR § 3025(b), (4) granting leave to extend
service of itspleadings pursuant to CPLR 306(b); and (5) for any such other and further relief as
the Court may deem just and proper.
PRELIMINARY STATEMENT
3. The above-entitled action is for the foreclosure of a Mortgage, held by Plaintiff,
on the premises known as 512 CLASSON AVENUE, BROOKLYN, NY 11238 (hereinafter
referred to as the "Subject Premises").
4. The following factual and legal argument together with the documentary evidence
attached hereto will set forth Plaintiff s entitle..ent for leave to amend its Complaint and
supplement its pleadings. The foregoing will further establish that Plaintiff s •-=mdmmt is with
merit and non-prejudiaial to the parties hereto.
any delay being
PROCEDURAL POSTURE
5. On May 22, 2009, AUDELINE JEAN duly executed, acknowledged and delivered
to Plaintiffs predecessor-in-interest a Note in which the borrower promised to repay the sum of
$908,245.00 with interest as set forth in the Note. A copy of the Note is annexed hereto as
hhibit "A".
6. In order to secure repayment, AUDELINE JEAN duly executed and delivered to
Plaintiffs predecessor-in-interest a Mortgage dated May 22, 2009. Said Mortgage was recorded
in the KINGS County Clerk's OfHce on August 5, 2009 at CRFN: 2009000242448. A copy of the
Mortgage is annexed hereto as Dhibit "B".
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7. The Note was transfened to Plaintiff and the Mortgage followed. An Assignment
of Mortgage reflecting the transfer was examtted on September 1, 2010 and recorded in the
KINGS County Clerk's Office on October 12, 2010 at CRFN: 2010000340552. A copy of the
Assignment of Mortgage is annexed hereto as hhibit "C".
8. The Mortgage provided, among other things, that the total indebtedness shall
become due at the option of the holder of said Mortgage after failure to keep any promise or
agreement in the Mortgage, including the pramisee to pay when due the amounts owed to the
lender under the Note and under the Mortgage.
9. Borrower AUDELINE JEAN failed to comply with the terms of the Note and
Mortgage by defaulting on the payment due on March 1, 2010 and all subsequent payments
thereafter. In response to the default, Plaintiff mailed the Notice of Default and the 90-day letter
pursuant to RPAPL 1304 on May 10, 2010 and May 26, 2010 respectively. See copies of the
E"
Notice of Default and 90-day letter annexed hereto as Exhibits "D & respectively.
10. On September 15, 2010, prior counsci filed the Summons, Complaint, Notice of
Pendency and AfBrmation with respect to this action. See copies of the Summons, Complaint,
Notices of Pendency and Affrmation annexed hereto as Exhibit "F".
11. The Dah ants herein were duly served with copies of the Su==om and
Complaint in this action in accordance with the guidelines set forth in CPLR 308 and RPAPL
1303, and the affidavits of service were duly filed. See copies of the Af.davits of Service annexed
hereto as Bhibit "G".
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12. On February 3, 2011, a settlement conference was held. No settlement was
reached and the matter was released from the settlement conference part. See a copy of the
WebCivil Supreme - Appearance Detail annexed hereto as Dhibit "L".
13. On February 6, 2014, this Court held a status conference in which this Court
issued a Conditional Dismissal Order d--ing the action to be dismissed unless Plaintiff filed a
note of issue or a motion for judgment within 90 days of the order, See a copy of the Conditional
Dismissal Order annexed hereto as &hibit "I"; see also &hibit "L".
14. On May 25, 2014, Borrower AUDELINE JEAN passed away. See a copy of the
Death Certif cate annexed hereto as Exhibit "J". However, prior to the passing of the borrower,
AUDELINE JEAN deeded away her interest in the Subject Property to 512 CLASSON
REALTY, LLC on February 17, 2012, yet this Deed (the "2012 Deed") was not recorded in the
KINGS County Clerk's Office until December 31, 2015 at CRFN: 2015000463397. A copy of the
2012 Deed is annexed hereto as Dhibit "K".
15. Although 512 CLASSON REALTY, LLC is the record owner, the 2012 Deed was
both signed and recorded while there were active notices of pendency on file, thereby making
512 CLASSON REALTY, LLC not a bonafide purchaser and therefore, subject to this
foreclosure action. See Bhibits "F & K".
16. Due to Plaintiffs failure to with the Conditional Diamianal Order, this
comply
Court formally dismissed the action on June 5, 2014. See khibit "L".
17. Prior counsel filed a previous moden for the relief requested herein on December
3, 2015, but this Court marked the matter as stayed on February 18, 2016. See Exhibit "L".
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Plaintiff now requests that the prior motion be deemed withdrawn and that the instant motion by
Plaintiffs current counsel to vacate the dismimnal restore the matter to the Court's active
seeking
calendar, and leave to amend the pleadings herein be granted in Plaintiffs favor.
AFFIRMATION IN SUPPORT OF LATENESS
15. ROSICKI, ROSICKI & ASSOCIATES, P.C., as prior counsel for Plaintiff,
commenced this action on September 15, 2010. See Exhibit "F".
16. On February 6, 2014, a status conference was held and the Hon. Lawrence Knipel
issued a Conditional Order of Dismissal directing Plaintiff to file a Note of Issue or otherwise
proceed by motion for entry of judgment within 90 days of said Order. See Exhibis "I & L".
Thereafter, this Court formally dismissed the action on June 5, 2014 due to Plaintiffs failure to
comply with the Conditional Dismissal Order. See Exhibit "L". A separate Order dismissin-g the
action was not issued.
17. On December 3, 2015, prior counsel filed a motion with this Court seeking to
vacate the Conditional Di-i==al Order, restore the matter to the Court's active calendar, and
appoint a referee to compute the amount due and owed to Plaintiff No decision was ever
rendered on this motion, as the Court marked the motion as stayed on Febrearf 18, 2016. See
Exhibit "L".
18. Upon information and belief, the stay was imposed by the Court due to the
"
passing of bormwer AUDELINE JEAN on May 25, 2014. See Exhibit J". However, Plaintiffs
curmat counsel cannot attest as to the reason prior counsel for plaintiff did not address this
why
issue, nor why Plaintiff failed to timely proceed with the instant action in the firstplace.
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19. According to computer records, RAS BORISKIN, LLC received the documents
for this case from prior counsel on August 17, 2016. RAS BORISKIN, LLC was formally
substituted in as counsel for Plaintiff via the filing of the Consent to Change Attorney on
November 14, 2016. See a copy of the Consent to Change Attorney annexed hereto as Echibit
20. Upon receipt of the file, Plaintiffs counsel conducted an extensive review of the
file and supporting documents, and discovered several severe issues that needed to be remedied
before Plaintiff could proceed.
21. Aside from the death of the borrower, PlaintifFs current counsel also discovered
that the borrower deeded the property away to 512 CLASSON REALTY, LLC via the 2012
Deed. See Echibit "K".
22. Following the death of AUDELINE JEAN, the heirs of the estate filed a petition
in the Kings County Surrogate's Court, and PlaintifT was unable to proceed until an administrator
was appointed. the Kings Surrogate's Court issued Letters of Admj-f e-=%n
Ultimately, County
on October 6, 2016 in favor of Albert Jean. See a copy of the Decree annexed hereto as Exhibit
nun
23. However, Plaintiff has since determined that AUDELINE JEAN (DECEASED) is
no longer a necessary party defendant, nor is the ESTATE OF AUDELINE JEAN necessary
given that the Estate is not the record owner of the Subject Property, and Plaintiff has elected to
waive its right to pursue a deficiency judgment in this matter.
24. Plaintiffs current counsel also leamed that a prior mortgage affecting the Subject
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Property dated January 16, 2007 and recorded on April 19, 2007 at CRFN 2007000204136 had
been erroneously satisfied via a Satisfaction of Mortgage dated June 16, 2009 and recorded on
July 21, 2009 at CRFN 2009000223388. Said prior Mortgage had been previously assigned to
COUNTRYWIDE BANK, FSB via an Assignment of Mortgage dated June 12, 2008 which was
recorded on July 11, 2008 at CRFN 2008000276330, thereby making BANK OF AMERICA,
N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB a necessary party
defendant herein. See copies of the Prior Mortgage, Assignment of Mortgage and Erroneous
Satisfaction annexed hereto as Exhibit "H". Plaintiff attempted to obtain a stipulation from
BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK,
FSB to resolve this issue, or at minimum obtain the consent of BANK OF AMERICA, N.A. AS
SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB to be added as a party
defendant to this action, but Plaintiff was unsuccessful in this regard.
25. Additionally, Plaintiffs current counsel discovered that prior counsel failed to
name the NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND
DEVELOPMENT as a judgment creditor and necessary party defendant herein pursuant to a
judgment recorded on May 18, 2010 under Index No. 242/2010.
26. All of these aforementioned issues were completely overlooked by prior counsel,
and Plaintiffs current counsel cannot attest as to the reason why these issues were not discovered
or addressed sooner.
27. When Plaintiffs current counsel inherited this file,it was waiting for the Court to
render a decision on prior counsel's motion filed on December 3, 2015. However, the motion
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remains pending without a decision to this day. See Exhibit "L".
28. More recently, to further complicate the title issues surra=ding the Subject
Property, counsel for WORTHNET PARTNERS, INC. reached out to Plaintiffs counsel on
February 13, 2020 claiming that WORTHNET PARTNERS, INC. were the current record
owners of the Subject Property pursuant to a deed between Phoenix Holdings and Investments,
LLC and WORTHNET PARTNERS, INC. dated September 11, 2019 and recorded on
September 27, 2019 at CRFN 2019000314259 (the "2019 Deed"). See a copy of the 2019 Deed
annexed hereto as Exhibit "O". However, 512 CLASSON REALTY, LLC is the true record
owner of the Subject Property, but is not the grantor of the 2019 Deed, which means that
WORTHNET PARTNERS, INC. did not acquire valid title of the Subject Property. See Exhibit
ngn
29. Moreover, the 2019 Deed was executed and recorded while there was an active
Notice of Pendency on file that had been filed on October 18, 2017, thereby making
WORTHNET PARTNERS, INC. subject to this foreclosure action as well. See Exhibit "F".
30, Given the multitude of issues surrounding this file, and the lack of attention to the
still pending motion filed prior counsel, Plaintin now endeavors to the issues
by remedy
burdening this matter by seeking leave to file and serve amended pleadings once the dismissal is
vacated and this matter is restored to active status. To that end, Plaintiff respectfully requests that
prior counsel's motion be deemed withdrawn, as it fails to address the problems highlighted
above. Additionally, the stay imposed by the Court should be lifted, as the ESTATE OP
AUDELINE JEAN is not a necessary party to this action going forward.
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31. To not allow PlaintifT to resume this action now would be extremely prejudiciel to
Plaintiff as its interest in the Subject could be extinguished. the Dahdaa+=
Property Further,
have not been prejudiced by the delay in this action, and have become unjustly enriched by
the benefits of the mortgaged premises free and clear of the obligation=
reaping possessing
undertaken pursuant to the Mortgage without any payments being made on the loan since March
1, 2010.
A MOTION TO VACATE IS THE PROPER PROCEDURAL VEHICLE
FOR A PARTY TO SEEK REVIEW OF A SUA SPONTE ORDER
32. The Court of Appeal= has determined that there is no right of appeal from an ex
parte order, including an order entered sua sponte. Sholes v. Meagher, 100 NY2d 333, 763
NYS2d 522 (2003). The correct pmcedure to be followed by a party seeking appellate review of
a sua sponte or ex parte order is to move, on notice, to vacate the order and appealing as of right
from the order denying the motion to vacate. Sholes, 100 NY2d at 335 ; Mid)¶rst v. Bellinger, 117
AD3d 1520, 986 NYS2d 294 (4th Dep't 2014).
33. Here, the Plaintiff is using the appropriate procedural mechanism to seek review
of the sua sponte order of the Hon. Lawrence Knipel, JSC by moving, upon notice, to vacate the
die=iesal order dated 2014. As each Dahd-+ will have an to be
February 6, such, opportunity
heard and the Court will rule on the merits of the PlaintifTs motion;
THE COURT LACKED THE JURISDICTION AND AUTHORI_TY TO DISMISS THE
ACTION PURSUANT TO CPLR 43216 AND FAILED TO COMPLY WITH THE
REQUIREMENTS OF CPLR 83216 WHEN DISMISSING THIS ACTION
34. At the Pebruary 6, 2014 conference, this Court issued a Conditional Diamiaael
Order deeming the action to be dismissed unless Plaintif F filed a note of issue or a motion for
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judgment within 90 days of the order. See Exhibit "I". Thereafter, the case was formally
dismissed on June 5, 2014 due to Plaintiff's failure to comply with the Conditional Dismised
Order.See Exhibit "L".
35. It is axiomatic that the dismissal of this action occurred at a pre-note stage of the
proceedings, and as such, is subject to CPLR §3216, which provides, in partinent part:
(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
with·
the following conditions precedent have been complied
(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;
(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 the said demand for dismissal as
by party serving
against him or her for umeasonably 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.
36. Itis well settled that strict compliance with the statutory conditions precedent to a
dismissal under CPLR §3216 is required since "courts do not possess the power to dismiss an
delay."
action for general See U.S. Bank N.A. v. Bassett, 137 A.D.3d 1109, 1110 (2nd Dept
2015).
37. Pertinently, the Appellate Division, Second Department has made it abundantly
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clear that in cases where issue has never been joined, even if a CPLR §3216 notice was sent by
the Court and a conditional dismissal order was issued, as is the case here, the Court is without
power to dismiss- See e.g., Deutsche Bank Natl. 2>ust Co. v. Hall, 149 A.D.3d 803 (2nd Dept
2017); see also Midfirst v. Bellinger, 117 AD3d 1520, 986 NYS2d 294 (4th Dep't 2014);
Attarian v. Cutting Edge Marble & Granite, Inc., 285 AD2d 432, 727 NYS2d 882 (1st Dep't
2001).
38. The Conditional Dismissal Order claims, erroneously, that "more than one year
issue."
has elapsed since the joinder of See Dhibit "I". This assertion is patently incorrect as no
defendants have answered the Complaint herein. See a copy of the Court minutes annexed hereto
as &hibit "L".. As such, issue has never been joined in this matter, and therefore, CPLR §3216
cannot possibly serve as a basis for dismissal in this context.
39. Additionally, the Conditional Dismissal Order dated February 6, 2014 was not
served upon Plaintiff by registered
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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------- --X U.S. BANK NATIONAL ASSOCIATION, Index No.: 22820/2010 Plaintiff, -against- NOTICE OF MOTION TO LIFT STAY, VACATE AUDELINE JEAN; LASSALE NATIONAL BANK, AS DISMISSAL, RESTORE CASE TRUSTEE; MARK LABARBIERA, CHRISTOPHER TO ACTIVE CALENDAR3 AND LABARBIERA, ANTHONY LABARBIERA, AMEND AND SUPPLEMENT MADHUSUDAN VYAS, VASANT GODBOLE, PLEADINGS SHUBHADA GODBOLE, EUGENE EVANS , ESTHER EVANS, ROBERT ORENDORF, BEATRICE MEHLBURG, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; THE CITY OF NEW DOES" YORK; "JOHN and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or person who claim, or may claim, a lien against the premises, Defendants.. Motion Of/By: 6 Time: March 25. 2020 at 10:0Ó a.m. r Date, Place, Hon. Kenneth P. Sherm ° Brooklyn, NY 11201 Relief Sought: An Order, (1) vacating the Conditional Order of Dismissal signed by the Hon. Lawrence Knipel on February 6, 2014; (2) lifting the stay in place and restoring the case to active calendar; (3) granting Plaintiff leave to Amend and Supplement its Complaint pursuant to CPLR § 3025(b), (4) granting leave to extend service of its pleadings pursuant to CPLR 306(b); and (5) for any such other and further relief as the Court may deem just and proper. l#llilllillIlilI10111111111111111I1 111111111111JI1111I|M111101111Illl I IIIIIIIlllIllI I Ililli 16-186846 - RoS c Papers in Support: Affirmation of Glenn W. Caulfield, Esq. Type of Action: Foreclosure. Papers: Answering papers, if any, are to be served on Answering Plaintiff s counsel seven (7) days prior to the return date of this Motion, pursuant to CPLR § 2214(b). Dated: February 21, 2020 Westbury, New York RAS BORISKIN, LLC By: 6fenn W. Caulfiel Attorneys for Plainti 900 Merchants C ourse - Suite 310 Westbury, NY 590 Tel: 516-280-7675 WE ARE A DEBT COLLECTOR AND WE ARE ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. To: JOSEPH GREENLATT, ESQ. ATTORNEY FOR AUDELINE JEAN 4429 18TH AVE BROOKLYN, NY 11230 512 CLASSON REALTY, LLC 3532 12TH AVENUE BROOKLYN, NY 11218 RONALD D. WEISS, ESQ. ATTORNEY FOR WORTHNET PARTNERS, INC. 734 WALT WHITMAN ROAD, SUITE 203 MELVILLE, NY 11747 BANK OF AMERICA, N.A. A/S/O LASALLE NATIONAL BANK, AS TRUSTEE 265 MONTAUK HWY ISLIP, NY 11751 16-186846 - RoS BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB 265 MONTAUK HWY ISLIP, NY 11751 MARK LABARBIERA 432 HAWTHORNE AVENUE - UNIT M STATEN ISLAND, NY 10314 CHRISTOPHER LABARBIERA 355 WALTHERY AVENUE RIDGEWOOD, NJ 07450 ANTHONY LABARBIERA 4429 18TH AVENUE B5ROOKLYN, NY 11230 MADHUSUDAN VYAS 4429 18TH AVENUE BROOKLYN, NY 11230 VASANT GODBOLE 4429 18TH AVENUE, BRROKLYN, NY 11230 SHUBHADA GODBOLE 4429 18TH AVENUE BROOKLYN, NY 11230 EUGENE EVANS 4429 18TH AVENUE BROOKLYN, NY 11230 ESTHER EVANS 4429 18TH AVENUE BROOKLYN, NY 11230 ROBERT ORENDORF 4429 18TH AVENUE BROOKLYN, NY 11230 16-186846 - RoS BEATRICE MEHLBURG 4429 18TH AVENUE BROOKLYN, NY 11230 NEW YORK CITY ENVIRONMENTAL CONTROL BOARD 66 JOHN STREET - 10TH FLOOR NEW YORK, NY 10038 NEW YORK CITY PARKING VIOLATIONS BUREAU 66 JOHN STREET - 10TH FLOOR NEW YORK, NY 10038 NEW YORK CITY TRANSIT ADJUDICATION BUREAU 130 LIVINGSTON STREET BROOKLYN, NY 12201 THE CITY OF NEW YORK 66 JOHN STREET - 10TH FLOOR NEW YORK, NY 10038 NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT 100 GOLD STREET NEW YORK, NY 10038 JANE CHRISTIAN (FIRST NAME REPUSED) S/H/A JANE DOE NO. 1 512 CLASSON AVENUE - APT 3 BROOKLYN, NY 11238 EARL BROWN S/H/A JOHN DOE NO. 1 512 CLASSON AVENUE - APT 4, BROOKLYN, NY 11238 BARBARA WASHINGTON, S/H/A JANE DOE NO. 1 512 CLASSON AVENUE - APT 4 BROOKLYN, NY 11238 16-186846 - RoS At New IAS _ of held the in Supreme and for the Court of the of State KINGS of at York, County the Courthouse thereof, 360 Adams Street, Brooklyn, NY 11201 on the day of , 20 . P R E S E N T: Honorable J.S.C. ......................-________.__________........----X U.S. BANK NATIONAL ASSOCIATION, Index No.: 22820/2010 Plaintiff, -against- ORDER VACATING D RESTORIN__G AUDELINE JEAN; LASSALE NATIONAL BANK, AS CASE TO ACTIVE TRUSTEE; MARK LABARBIERA, CHRISTOPHER CALENDAR, AND LABARBIERA, ANTHONY LABARBIERA, GRANTING LEAVE TO MADHUSUDAN VYAS, VASANT GODBOLE, AMEND AND SUPPLEMENT SHUBHADA GODBOLE , EUGENE EVANS , ESTHER PLEADINGS EVANS, ROBERT ORENDORF, BEATRICE MEHLBURG, NEW YORK CITY ENVIRONMENTAL Premises: CONTROL BOARD; NEW YORK CITY PARKING 512 CLASSON AVENUE, VIOLATIONS BUREAU; NEW YORK CITY TRANS1T BROOKLYN, NY 11238 ADJUDICATION BUREAU; THE CITY OF NEW DOES" YORK; "JOHN and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or person who claim, or may claim, a lien against the premises, Defendawa. ----------------------=-----------==========================X UPON reading and filing the annexed Attorney's AfHrmation of Glenn W. Caulfield, Esq., the exhibits annexed thereto, upon the proposed Supplemcñtal Summons3 Amended Complaint and Amended Notice of Pendency, upon the pleadings previously had herein, and upon good cause shown; NOW, upon motion by RAS BORISKIN, LLC, its attorneys for Plaintiff itis hereby lllN111111111111l111111151l111 IIImIIIlillullillgIIIIlllnilN Itl11111111111111111111111111 16-186846 - RoS ORDERED that the stay imposed by this Court on February 18, 2016 is hereby lifted; and it isfurther ORDERED that Plaintiffs prior moden filed on December 3, 2015 is hereby deemed withdrawn; and itis further ORDERED, that the Conditional Order of Dismissal signed by the Hon. Lawrence Knipel on February 6, 2014 is hereby vacated; and it isfurther ORDERED, that the case is hereby restored to the active case celander; and it isfurther ORDERED, that the Motion requesting leave to Amend and Supplement its Pleadings is hereby granted; and itis further ORDERED, that Plaintiff's annexed Supplemental Summons, Amended Complaint and Amended Notice of Pendency, is hereby deemed issued and filed upon entry of the granted Order, without prejudice to any proceedings heretofore had herein; and itis further ORDERED that the instant action is hereby discontinued against defendant AUDELINE JEAN (DECEASED) as said defendant is no longer a necessary party herein; and it isfurther ORDERED that the designation in the caption for Defendant LASSALE NATIONAL BANK, AS TRUSTBE is hereby amended to read as "BANK OF AMERICA, N.A. A/S/O LASALLE NATIONAL BANK, AS TRUSTEE"; and itis further ORDERED that 512 CLASSON REALTY, LLC; WORTHNET PARTNERS, INC.; BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB and NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND 16-186846 - RoS DEVELOPMENT are hereby added to the caption herein as necessary party dafendants, withGut prejudice to the proceedings heretofore had herein; and itis further ORDERED, that the time in which to serve 512 CLASSON REALTY, LLC; WORTHNET PARTNERS, INC.; BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB and NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT herein pursuant to CPLR 306(b) is extended for one hundred and twenty (120) days from the entered date of this Order. E N T E R: J.S.C. 16-186846 - RoS SUPREME COURT OF THB STATE OF NEW YORK COUNTY OF KINGS ------------------------------------------- ---------X U.S. BANK NATIONAL ASSOCIATION, Index No.: 22820/2010 Plaintiff, -agaiñst- ATTORNEY AFFIRMATION IN SUPPORT OF MOTION AUDELINE JEAN; LASSALE NATIONAL BANK, AS TRUSTEE; MARK LABARBIERA, CHRISTOPHER LABARBIERA, ANTHONY LABARBIERA, MADHUSUDANVYAS, VASANT GODBOLE, SHUBHADA GODBOLE , EUGENE EVANS , ESTHER EVANS, ROBERT ORENDORF, BEATRICE MEHLBURG, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; THE CITY OF NEW DOES" YORK; "JOHN and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or person who claim, or may claim, a lien against the premises, Defendants. _________________¬__.._ _________...,_..________.._....-X I, Glenn W. Caulfield, Esq., pursuant to § 2106 [NYCLS] and under the penalties of perjury, affirms as follows: 1. I am an associate of the firm RAS BORISKIN, LLC, attorneys for the Plaintiff US BANK NATIONAL ASSOCIATION (hereinafter referred to as "PlaintifP') in the above-entitled action and as such, I am familiar with all facts and circumstances therein. 2. I make this statement in support of PlaintifPs applicatian, on its foreclosure complaint (1) vacating the Conditional Order of Dismissal signed by the Hon. Lawrence Knipel on 6, 2014; the case to active calendar; Plaintiff leave to February (2) restoring (3) granting 11111101I111511111181lll11 ElpltillililMIlililllllnR IInWillININiIII 16-186846 - RoS Amend and Supplement itsComplaint pursuant to CPLR § 3025(b), (4) granting leave to extend service of itspleadings pursuant to CPLR 306(b); and (5) for any such other and further relief as the Court may deem just and proper. PRELIMINARY STATEMENT 3. The above-entitled action is for the foreclosure of a Mortgage, held by Plaintiff, on the premises known as 512 CLASSON AVENUE, BROOKLYN, NY 11238 (hereinafter referred to as the "Subject Premises"). 4. The following factual and legal argument together with the documentary evidence attached hereto will set forth Plaintiff s entitle..ent for leave to amend its Complaint and supplement its pleadings. The foregoing will further establish that Plaintiff s •-=mdmmt is with merit and non-prejudiaial to the parties hereto. any delay being PROCEDURAL POSTURE 5. On May 22, 2009, AUDELINE JEAN duly executed, acknowledged and delivered to Plaintiffs predecessor-in-interest a Note in which the borrower promised to repay the sum of $908,245.00 with interest as set forth in the Note. A copy of the Note is annexed hereto as hhibit "A". 6. In order to secure repayment, AUDELINE JEAN duly executed and delivered to Plaintiffs predecessor-in-interest a Mortgage dated May 22, 2009. Said Mortgage was recorded in the KINGS County Clerk's OfHce on August 5, 2009 at CRFN: 2009000242448. A copy of the Mortgage is annexed hereto as Dhibit "B". 16-186846- RoS 7. The Note was transfened to Plaintiff and the Mortgage followed. An Assignment of Mortgage reflecting the transfer was examtted on September 1, 2010 and recorded in the KINGS County Clerk's Office on October 12, 2010 at CRFN: 2010000340552. A copy of the Assignment of Mortgage is annexed hereto as hhibit "C". 8. The Mortgage provided, among other things, that the total indebtedness shall become due at the option of the holder of said Mortgage after failure to keep any promise or agreement in the Mortgage, including the pramisee to pay when due the amounts owed to the lender under the Note and under the Mortgage. 9. Borrower AUDELINE JEAN failed to comply with the terms of the Note and Mortgage by defaulting on the payment due on March 1, 2010 and all subsequent payments thereafter. In response to the default, Plaintiff mailed the Notice of Default and the 90-day letter pursuant to RPAPL 1304 on May 10, 2010 and May 26, 2010 respectively. See copies of the E" Notice of Default and 90-day letter annexed hereto as Exhibits "D & respectively. 10. On September 15, 2010, prior counsci filed the Summons, Complaint, Notice of Pendency and AfBrmation with respect to this action. See copies of the Summons, Complaint, Notices of Pendency and Affrmation annexed hereto as Exhibit "F". 11. The Dah ants herein were duly served with copies of the Su==om and Complaint in this action in accordance with the guidelines set forth in CPLR 308 and RPAPL 1303, and the affidavits of service were duly filed. See copies of the Af.davits of Service annexed hereto as Bhibit "G". 16-186846- RoS 12. On February 3, 2011, a settlement conference was held. No settlement was reached and the matter was released from the settlement conference part. See a copy of the WebCivil Supreme - Appearance Detail annexed hereto as Dhibit "L". 13. On February 6, 2014, this Court held a status conference in which this Court issued a Conditional Dismissal Order d--ing the action to be dismissed unless Plaintiff filed a note of issue or a motion for judgment within 90 days of the order, See a copy of the Conditional Dismissal Order annexed hereto as &hibit "I"; see also &hibit "L". 14. On May 25, 2014, Borrower AUDELINE JEAN passed away. See a copy of the Death Certif cate annexed hereto as Exhibit "J". However, prior to the passing of the borrower, AUDELINE JEAN deeded away her interest in the Subject Property to 512 CLASSON REALTY, LLC on February 17, 2012, yet this Deed (the "2012 Deed") was not recorded in the KINGS County Clerk's Office until December 31, 2015 at CRFN: 2015000463397. A copy of the 2012 Deed is annexed hereto as Dhibit "K". 15. Although 512 CLASSON REALTY, LLC is the record owner, the 2012 Deed was both signed and recorded while there were active notices of pendency on file, thereby making 512 CLASSON REALTY, LLC not a bonafide purchaser and therefore, subject to this foreclosure action. See Bhibits "F & K". 16. Due to Plaintiffs failure to with the Conditional Diamianal Order, this comply Court formally dismissed the action on June 5, 2014. See khibit "L". 17. Prior counsel filed a previous moden for the relief requested herein on December 3, 2015, but this Court marked the matter as stayed on February 18, 2016. See Exhibit "L". 16-186846 - RoS Plaintiff now requests that the prior motion be deemed withdrawn and that the instant motion by Plaintiffs current counsel to vacate the dismimnal restore the matter to the Court's active seeking calendar, and leave to amend the pleadings herein be granted in Plaintiffs favor. AFFIRMATION IN SUPPORT OF LATENESS 15. ROSICKI, ROSICKI & ASSOCIATES, P.C., as prior counsel for Plaintiff, commenced this action on September 15, 2010. See Exhibit "F". 16. On February 6, 2014, a status conference was held and the Hon. Lawrence Knipel issued a Conditional Order of Dismissal directing Plaintiff to file a Note of Issue or otherwise proceed by motion for entry of judgment within 90 days of said Order. See Exhibis "I & L". Thereafter, this Court formally dismissed the action on June 5, 2014 due to Plaintiffs failure to comply with the Conditional Dismissal Order. See Exhibit "L". A separate Order dismissin-g the action was not issued. 17. On December 3, 2015, prior counsel filed a motion with this Court seeking to vacate the Conditional Di-i==al Order, restore the matter to the Court's active calendar, and appoint a referee to compute the amount due and owed to Plaintiff No decision was ever rendered on this motion, as the Court marked the motion as stayed on Febrearf 18, 2016. See Exhibit "L". 18. Upon information and belief, the stay was imposed by the Court due to the " passing of bormwer AUDELINE JEAN on May 25, 2014. See Exhibit J". However, Plaintiffs curmat counsel cannot attest as to the reason prior counsel for plaintiff did not address this why issue, nor why Plaintiff failed to timely proceed with the instant action in the firstplace. 16-186846 - RoS 19. According to computer records, RAS BORISKIN, LLC received the documents for this case from prior counsel on August 17, 2016. RAS BORISKIN, LLC was formally substituted in as counsel for Plaintiff via the filing of the Consent to Change Attorney on November 14, 2016. See a copy of the Consent to Change Attorney annexed hereto as Echibit 20. Upon receipt of the file, Plaintiffs counsel conducted an extensive review of the file and supporting documents, and discovered several severe issues that needed to be remedied before Plaintiff could proceed. 21. Aside from the death of the borrower, PlaintifFs current counsel also discovered that the borrower deeded the property away to 512 CLASSON REALTY, LLC via the 2012 Deed. See Echibit "K". 22. Following the death of AUDELINE JEAN, the heirs of the estate filed a petition in the Kings County Surrogate's Court, and PlaintifT was unable to proceed until an administrator was appointed. the Kings Surrogate's Court issued Letters of Admj-f e-=%n Ultimately, County on October 6, 2016 in favor of Albert Jean. See a copy of the Decree annexed hereto as Exhibit nun 23. However, Plaintiff has since determined that AUDELINE JEAN (DECEASED) is no longer a necessary party defendant, nor is the ESTATE OF AUDELINE JEAN necessary given that the Estate is not the record owner of the Subject Property, and Plaintiff has elected to waive its right to pursue a deficiency judgment in this matter. 24. Plaintiffs current counsel also leamed that a prior mortgage affecting the Subject 16-186846 - RoS Property dated January 16, 2007 and recorded on April 19, 2007 at CRFN 2007000204136 had been erroneously satisfied via a Satisfaction of Mortgage dated June 16, 2009 and recorded on July 21, 2009 at CRFN 2009000223388. Said prior Mortgage had been previously assigned to COUNTRYWIDE BANK, FSB via an Assignment of Mortgage dated June 12, 2008 which was recorded on July 11, 2008 at CRFN 2008000276330, thereby making BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB a necessary party defendant herein. See copies of the Prior Mortgage, Assignment of Mortgage and Erroneous Satisfaction annexed hereto as Exhibit "H". Plaintiff attempted to obtain a stipulation from BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB to resolve this issue, or at minimum obtain the consent of BANK OF AMERICA, N.A. AS SUCCESSOR BY MERGER TO COUNTRYWIDE BANK, FSB to be added as a party defendant to this action, but Plaintiff was unsuccessful in this regard. 25. Additionally, Plaintiffs current counsel discovered that prior counsel failed to name the NEW YORK CITY DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT as a judgment creditor and necessary party defendant herein pursuant to a judgment recorded on May 18, 2010 under Index No. 242/2010. 26. All of these aforementioned issues were completely overlooked by prior counsel, and Plaintiffs current counsel cannot attest as to the reason why these issues were not discovered or addressed sooner. 27. When Plaintiffs current counsel inherited this file,it was waiting for the Court to render a decision on prior counsel's motion filed on December 3, 2015. However, the motion 16-186846 - RoS remains pending without a decision to this day. See Exhibit "L". 28. More recently, to further complicate the title issues surra=ding the Subject Property, counsel for WORTHNET PARTNERS, INC. reached out to Plaintiffs counsel on February 13, 2020 claiming that WORTHNET PARTNERS, INC. were the current record owners of the Subject Property pursuant to a deed between Phoenix Holdings and Investments, LLC and WORTHNET PARTNERS, INC. dated September 11, 2019 and recorded on September 27, 2019 at CRFN 2019000314259 (the "2019 Deed"). See a copy of the 2019 Deed annexed hereto as Exhibit "O". However, 512 CLASSON REALTY, LLC is the true record owner of the Subject Property, but is not the grantor of the 2019 Deed, which means that WORTHNET PARTNERS, INC. did not acquire valid title of the Subject Property. See Exhibit ngn 29. Moreover, the 2019 Deed was executed and recorded while there was an active Notice of Pendency on file that had been filed on October 18, 2017, thereby making WORTHNET PARTNERS, INC. subject to this foreclosure action as well. See Exhibit "F". 30, Given the multitude of issues surrounding this file, and the lack of attention to the still pending motion filed prior counsel, Plaintin now endeavors to the issues by remedy burdening this matter by seeking leave to file and serve amended pleadings once the dismissal is vacated and this matter is restored to active status. To that end, Plaintiff respectfully requests that prior counsel's motion be deemed withdrawn, as it fails to address the problems highlighted above. Additionally, the stay imposed by the Court should be lifted, as the ESTATE OP AUDELINE JEAN is not a necessary party to this action going forward. 16-186846- RoS 31. To not allow PlaintifT to resume this action now would be extremely prejudiciel to Plaintiff as its interest in the Subject could be extinguished. the Dahdaa+= Property Further, have not been prejudiced by the delay in this action, and have become unjustly enriched by the benefits of the mortgaged premises free and clear of the obligation= reaping possessing undertaken pursuant to the Mortgage without any payments being made on the loan since March 1, 2010. A MOTION TO VACATE IS THE PROPER PROCEDURAL VEHICLE FOR A PARTY TO SEEK REVIEW OF A SUA SPONTE ORDER 32. The Court of Appeal= has determined that there is no right of appeal from an ex parte order, including an order entered sua sponte. Sholes v. Meagher, 100 NY2d 333, 763 NYS2d 522 (2003). The correct pmcedure to be followed by a party seeking appellate review of a sua sponte or ex parte order is to move, on notice, to vacate the order and appealing as of right from the order denying the motion to vacate. Sholes, 100 NY2d at 335 ; Mid)¶rst v. Bellinger, 117 AD3d 1520, 986 NYS2d 294 (4th Dep't 2014). 33. Here, the Plaintiff is using the appropriate procedural mechanism to seek review of the sua sponte order of the Hon. Lawrence Knipel, JSC by moving, upon notice, to vacate the die=iesal order dated 2014. As each Dahd-+ will have an to be February 6, such, opportunity heard and the Court will rule on the merits of the PlaintifTs motion; THE COURT LACKED THE JURISDICTION AND AUTHORI_TY TO DISMISS THE ACTION PURSUANT TO CPLR 43216 AND FAILED TO COMPLY WITH THE REQUIREMENTS OF CPLR 83216 WHEN DISMISSING THIS ACTION 34. At the Pebruary 6, 2014 conference, this Court issued a Conditional Diamiaael Order deeming the action to be dismissed unless Plaintif F filed a note of issue or a motion for 16-186846 - RoS judgment within 90 days of the order. See Exhibit "I". Thereafter, the case was formally dismissed on June 5, 2014 due to Plaintiff's failure to comply with the Conditional Dismised Order.See Exhibit "L". 35. It is axiomatic that the dismissal of this action occurred at a pre-note stage of the proceedings, and as such, is subject to CPLR §3216, which provides, in partinent part: (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 with· the following conditions precedent have been complied (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; (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 the said demand for dismissal as by party serving against him or her for umeasonably 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. 36. Itis well settled that strict compliance with the statutory conditions precedent to a dismissal under CPLR §3216 is required since "courts do not possess the power to dismiss an delay." action for general See U.S. Bank N.A. v. Bassett, 137 A.D.3d 1109, 1110 (2nd Dept 2015). 37. Pertinently, the Appellate Division, Second Department has made it abundantly 16-186846 - RoS clear that in cases where issue has never been joined, even if a CPLR §3216 notice was sent by the Court and a conditional dismissal order was issued, as is the case here, the Court is without power to dismiss- See e.g., Deutsche Bank Natl. 2>ust Co. v. Hall, 149 A.D.3d 803 (2nd Dept 2017); see also Midfirst v. Bellinger, 117 AD3d 1520, 986 NYS2d 294 (4th Dep't 2014); Attarian v. Cutting Edge Marble & Granite, Inc., 285 AD2d 432, 727 NYS2d 882 (1st Dep't 2001). 38. The Conditional Dismissal Order claims, erroneously, that "more than one year issue." has elapsed since the joinder of See Dhibit "I". This assertion is patently incorrect as no defendants have answered the Complaint herein. See a copy of the Court minutes annexed hereto as &hibit "L".. As such, issue has never been joined in this matter, and therefore, CPLR §3216 cannot possibly serve as a basis for dismissal in this context. 39. Additionally, the Conditional Dismissal Order dated February 6, 2014 was not served upon Plaintiff by registered