Opinion
No. 7476/09.
2012-06-18
BAC HOME LOANS SERVICING, LP f/k/a Countrywide Home Loans Servicing LP, Plaintiff, v. Beatrice M. MUSA, Israel I. Musa, Eric Goldfine Serpt, Mortgage Electronic Registration Systems, Inc. As Nominee for MCS Mortgage Bankers Inc. and John Doe, Defendants.
Robert D. Aronin, Esq., Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, for plaintiff. Bruce Richardson, Esq., New York, Bradford Kendall, County Clerk of Dutchess County, Poughkeepsie, for defendant.
Robert D. Aronin, Esq., Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, for plaintiff. Bruce Richardson, Esq., New York, Bradford Kendall, County Clerk of Dutchess County, Poughkeepsie, for defendant.
JAMES D. PAGONES, J.
The following papers were read and considered on the motion of defendant Israel I. Musa, brought by order to show cause, for, inter alia, leave to file and serve a late answer:
Order to Show Cause
Richardson Affirmation
Musa Affidavit
Exhibits A–F
Opposition
Aronin Affirmation in Opposition
Exhibits A–E
Plaintiff commenced this action for foreclosure on September 17, 2009, and the defendant Israel I. Musa was served by personal delivery on October 5, 2009 at the property address sought to be foreclosed.
Musa (hereinafter the homeowner) did not answer the complaint, and, by letter dated November 16, 2009, the court advised the homeowner of the availability of a foreclosure settlement conference. The homeowner did not request a conference, and, by letter dated December 17, 2009, the court advised plaintiff's counsel to submit whatever motion it deemed appropriate since the action would not be referred to the foreclosure settlement part.
Although the note and mortgage were both signed by Beatrice Musa and Israel Musa, only Israel Musa has moved to be relieved of the default in pleading.
For the next twenty-two (22) months, plaintiff failed to take any action to move the case toward judgment. Then, in September 2011, the homeowner moved for, inter alia, leave to serve and file a late answer. Plaintiff opposed the motion on procedural grounds and did not cross move for an order of reference. By order dated November 7, 2011, the court dismissed the homeowner's motion on procedural grounds.
Because plaintiff still had failed to take any proceedings to move the case toward judgment, by letter dated January 27, 2012, the court scheduled a status conference for March 5, 2012. Before the conference date, the homeowner again moved, by order to show cause signed on March 2, 2012, for leave to, inter alia, file and serve a late answer. Consequently, the status conference was canceled. However, the homeowner withdrew the application but, within days, submitted the instant application seeking the same relief.
Specifically, the homeowner moves: 1) for a stay of all proceedings; 2) to vacate the judgment of foreclosure; 3) to dismiss the complaint; and, 4) for leave to file and serve a late answer.
The homeowner claims, as defenses to the action, that plaintiff lacks standing and, without offering any details, that plaintiff's prior counsel engaged in misconduct. Plaintiff opposes the motion on the grounds that the homeowner does not assert a reasonable excuse for the delay in seeking leave to serve and file a late answer and that the claimed defenses lack merit.
The homeowner does not submit a copy of the proposed pleading as an exhibit to his motion papers ( see Heller v. Ward, 10 A.D.2d 633 [2d Dep't 1960]; cf. Branch v. Abraham and Strauss Dept Store, 220 A.D.2d 474 [2d Dep't 1995] ).
Initially, the court notes that plaintiff never obtained a judgment of foreclosure and, therefore, the court cannot grant the homeowner's request to vacate the judgment. Further, the homeowner's request to dismiss the complaint is time-barred ( seeCPLR 3211[e] ). The homeowner's alternate request for leave to serve and file a late answer is denied. It is axiomatic that in order to vacate a default in answering, a defendant must demonstrate a reasonable excuse for the default and a meritorious defense ( see Dev. Strategies Co., LLC, Profit Sharing Plan v. Astoria Equities, Inc., 71 AD3d 628 [2d Dep't], lv dismissed in part and granted in part15 NY3d 888 [2010];Hellman v. City of New York, 52 AD3d 568 [2d Dep't 2008]; Elite Limousine Plus, Inc. v. Allcity Ins. Co., ––– A.D.2d –––– [2d Dep't 1999]; Ortiz v. Delman Recycling Corp., 244 A.D.2d 392 [2d Dept 1997] ). Here, the homeowner offers no excuse for the delay in seeking leave to excuse his default in pleading. Therefore, the court need not address whether the homeowner has asserted any colorable defenses. Accordingly, the homeowner's motion for leave to serve and file a late answer is denied.
The homeowner has been in default of pleading for over two and a half years. During this time, the case was never in the foreclosure settlement part. Thus, plaintiff was never precluded from moving the case forward after the homeowner's time to answer the complaint had expired ( cf.22 NYCRR 202.12–a [7] [motions shall be held in abeyance while settlement conferences are being held] ). Consequently, given the homeowner's default in pleading and plaintiff's failure to take proceedings for the entry of judgment within one year after the default, the court, sua sponte, dismisses the complaint, as abandoned, without costs, pursuant to CPLR 3215(c).
Based on the foregoing it is hereby
ORDERED that the motion of defendant Israel Musa is denied; and it is further
ORDERED that the complaint is dismissed as abandoned, sua sponte, pursuant to CPLR 3215(c), without costs; and it is further
ORDERED that the County Clerk of the County of Dutchess be and is hereby directed, upon payment of the proper fees, if any, to cancel and discharge of record, all Notices of Pendency filed in this action on September 17, 2009, against the premises commonly known as 152 Schlueter Drive in the Town of East Fishkill, County of Dutchess, State of New York and more specifically known as Section 6456, Block 03, Lot 297419, and said Clerk is hereby directed to enter upon the margin of the record of the same, a notice of cancellation referring to this Order.
The foregoing constitutes the decision and order of the court.
Plaintiff is advised that any attempt to re-commence this action must be in compliance with Administrative Order 431/11 of the Chief Administrative Judge of the Courts.