Opinion
613622/15
12-08-2017
CENTRAL MORTGAGE COMPANY, Plaintiff v. Robert A. BEDROSSIAN, "John Doe #1" through "John Doe #12", the last twelve names being fictitious and unknown to the plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the complaint, Defendants.
RAS BORISKIN, LLC, 900 Merchants Concourse—Ste. 106, Westbury, NY 11590, Attys. For Plaintiff GENEVIEVE LANE LOPRESTI, 3958 Merrick Rd., Seaford, NY 11783, Atty. For Defendant Bedrossian
RAS BORISKIN, LLC, 900 Merchants Concourse—Ste. 106, Westbury, NY 11590, Attys. For Plaintiff
GENEVIEVE LANE LOPRESTI, 3958 Merrick Rd., Seaford, NY 11783, Atty. For Defendant Bedrossian
Thomas F. Whelan, J.
Upon the following papers numbered 1 to 13 read on this motion to appoint a referee to compute among other things, cross motion to vacate order among other things and cross motion to extend time to serve ; Notice of Motion/Order to Show Cause and supporting papers 1–6 ; Notices of Cross Motion and supporting papers: 7.11; 12–13 ; Opposing papers:; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 002) by the plaintiff for, among other things, a default judgment and the appointment of a referee to compute, is granted in part and denied in part, and it is further
ORDERED that the cross motion (# 003) by the defendant, Robert A. Bedrossian, to vacate the default, dismiss the complaint or for leave to serve an answer, is denied in its entirety, and it is further
ORDERED that the cross motion (# 004) by plaintiff, pursuant to CPLR 306–b, authorizing an extension of time to serve defendant, Robert Bedrossian, is granted in its entirety, and the Court extends the time to effectuate service for a 120–day period from notice of entry of this order and that any service occurring within the 120–day period be validated, authorized and effective nunc pro tunc, in the interest of justice and for good cause; and it is further
ORDERED that the proposed Order submitted by plaintiff, is marked "not signed," and it is further
ORDERED that Thomas Roach, Michael Cunningham and Karlie Cunningham be substituted in place and stead of "John Doe # 1" through "John Doe # 3", as party defendants to this action and the caption be amended accordingly; and it is further
ORDERED that defendants captioned as "John Doe # 4" through "John Doe # 12", not having been served with copies of the summons, complaint and certificate of merit, are neither necessary nor proper party defendants and the caption is hereby amended to strike said defendants from the caption of this action; and it is further
ORDERED that the caption shall be amended to read as follows:
CENTRAL MORTGAGE COMPANY,
Plaintiff,
against-Index No.
613622/15
ROBERT A. BEDROSSIAN, THOMAS
ROACH, MICHAEL CUNNINGHAM and
KARLIE CUNNINGHAM,
Defendants.
and it is further
ORDERED that plaintiff is directed to file this order with a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5–b(h)(3).
This foreclosure action was commenced by filing on December 31, 2015. The matter was reassigned to this Part pursuant to Administrative Order No. 110–17, dated September 28, 2017 and submitted for decision on October 19, 2017. In essence, on October 28, 2002, the defendant, Robert A. Bedrossian, borrowed, upon a promise to repay, $200,000.00 from the plaintiff's predecessor-in-interest and executed a promissory note and mortgage. However, the defendant subsequently defaulted and on June 24, 2014, the defendant executed a Loan Modification Agreement, with a new principal balance of $171,371.90. Yet, once again, the defendant defaulted upon the new promise to pay by failing to make the required mortgage payment due on May 1, 2015. The defendant and the various non-parties served at the premises, have not answered this action. Therefore, plaintiff has moved for a default judgment.
However, defendant, Robert A. Bedrossian, cross moves for various reliefs, but the main contention is that the claimed service upon said defendant was unauthorized upon his counsel and that the eventual personal delivery upon the defendant was untimely pursuant to CPLR 306–b. The affirmations from both defendant's and plaintiff's counsel detail attempts to resolve the issue of service, claims of service of only a portion of the complaint and disputes over whether the premises is the residence of the defendant or only an investment property. The defendant admits to making payments under the note, that he is in default thereunder and that he sought re-negotiation of the loan, but then claims that he did not sign the note. The arguments advanced are similar to those raised in the foreclosure action entitled Citimortgage, Inc. v. Robert Bedrossian , Suffolk Index No. 69168/2014, Whelan, J.S.C., short form order dated March 21, 2017. These various issues must be addressed with a full opportunity to be heard and not on the basis of a default judgment.
Here, defendant has, in essence, denied service at either 39 or 22 Northport Road, Sound Beach, NY. The Court could order a traverse hearing on that issue. However, the Court finds that plaintiff's application (# 004), pursuant to CPLR § 306–b, is the proper vehicle for resolution of the outstanding issues and grants the extension of time to serve in the interest of justice.
Therefore, the Court, for good cause and in the interest of justice, grants plaintiff's application, pursuant to CPLR § 306–b, for an extension of time to complete service upon defendant, Robert A. Bedrossian.
Initially, the Court notes that there was never a final judgment issued (see Cooke–Garrett v. Hoque , 109 AD3d 457, 970 NYS2d 81 [2d Dept. 2013] ). Moreover, good cause requires a showing of reasonable diligence in attempting to effectuate service (see Emigrant Bank v. Estate of Robinson , 144 AD3d 1084, 44 NYS3d 48 [2d Dept 2016] ). Here, various timely affidavits of service were submitted and it is admitted in the papers that defendant, individually, and through attempts to serve his counsel, had actual notice of the action within 120 days of its commencement (see generally Rivera v. Rodriguez , 142 AD3d 657, 36 NYS3d 704 [2d Dept. 2016] ). The Court finds that plaintiff certainly demonstrated reasonable diligence in attempting to serve process. There is no identifiable prejudice to defendant attributable to the delay in service (see Castillo v. JFK Medport, Inc. , 116 AD3d 899, 983 NYS2d 866 [2d Dept. 2014] ). Good cause has been shown.
Moreover, the application is granted under the less demanding interest of justice standard (see Leader v. Maroney, Ponzini & Spencer , 97 NY2d 95, 105, 736 NYS2d 291 [2001] ; Kuwano v. Linares , 133 AD3d 573, 18 NYS3d 563 [2d Dept. 2015] ; Bonilla v. Tutor Perini Corp. , 134 AD3d 869, 20 NYS3d 537 [2d Dept. 2015] ; Wilson v. City of New York , 118 AD3d 983, 988 NYS2d 650 [2014] ). As in Jhang v. Nassau Univ. Med. Ctr. , 140 AD3d 1018, 35 NYS3d 360 (2d Dept. 2016), plaintiff moved promptly for relief. The motion must be granted (see Singh v. Trahanan , 153 AD3d 961, 60 NYS3d 425 [2d Dept. 2017] ; cf. Krasa v. Dail 7 Car & Limousine Serv., Inc. , 147 AD3d 744, 46 NYS3d 196 [2d Dept. 2017] ).
There is no impediment to the granting of this cross motion (# 004) in the interest of justice (see US Bank Natl. Assn. v. Saintus , 153 AD3d 1380, 61 NYS3d 315 [2d Dept. 2017] ).
Accordingly the motion (# 002) is granted in part, to add additional parties and to amend the caption, and denied in part, the cross motion (# 003) is denied and the cross motion (# 004) is granted in its entirety. The Court marks the proposed order, as "not signed."