Opinion
Index No. 514573/18
12-21-2023
PENNYMAC, Plaintiff, v. RIMMA VOLOVNIK et al, Defendant,
Unpublished Opinion
DECISION AND ORDER
LARRY D MARTIN, J.S.C.
Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion:
Papers
Numbered
Motion (MS 5)
......1
Opp/Cross (MS 6)
......2
Reply/Opp to Cross
......3
Cross-Reply
......4
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: Plaintiff moves for judgment of foreclosure and sale. Defendant opposes and crossmoves for dismissal or, in the alternative, tolling of interest. Plaintiff opposes.
Defendants argue that the action should be dismissed pursuant to UCTR F, 8 which states that "[w]ithin one year after the signing and entry of an Order of Reference, an application for a Judgment of Foreclosure and Sale must be made ... [and failure to comply will result in an automatic dismissal of the action." The Appellate Division has treated the dismissal provision of F,8 as being similar to that of CPLR 3215 [c] (see, for example, One West Bank, FSB v. Rodriguez, 171 A.D.3d 772, 773 [2d Dept 2019][using 3215[c] case law to address F,8]; Deutsche Bank v Bakarey, 198 A.D.3d 718, 721 [2d Dept 2021] [using F,8 case law in the context of 3215 [c]]). To that end, a Court has discretion to not dismiss if it finds that the Plaintiff has a reasonable excuse for not timely filing a motion for judgment of foreclosure and sale (Rodriguez, 171 A.D.3d at 773) and "the determination of whether the excuse is reasonable is committed to the sound discretion of the motion court" (US Bank v Cabrera, 192 A.D.3d 1176,1176 [2d Dept 2021]). Here, an order of reference was granted shortly before the onset of the COVID-related moratoria and, as no referee was named therein, Plaintiff moved for an amended order when foreclosure actions resumed. Following the appointment of a referee, Defendant filed a motion to renew and shortly following the denial of that motion Plaintiff filed the instant motion. As such, Plaintiffs delay was reasonable and dismissal pursuant to F,8 is unwarranted.
Defendant's RPL 421 argument is novel - but unavailing. That section explicitly states that it deals with "registered properties" which the property in suit is not.
Tolling for prelitigation delay is inappropriate (Nationstar Mtge, LLC v Dunn, 186 A.D.3d 836 [2d Dept 2020]; see, also, NY State Mortg. Loan Enforcement & Admin. Corp, v N. Town Phase II Houses, Inc., 191 A.D.2d 151 [1st Dept 1993]; First Fed. Savs. & Loan Ass'n of Rochester v Capalongo, 152 A.D.2d 833 [3d Dept 1989]; OneWest Bank, N.A. v Melina, 2015 WL 5098635 [EDNY 2015]; FDIC v Kisosoh Realty Corp., 1994 WL 702026 [SDNY 1994]). While the Appellate Division recently did so, therein the panel noted that it was the unexplained delay in prosecuting the prior action that led to the sanction (see, Deutsche Bank v Armstrong, 218 A.D.3d 738 [2d Dept 2023]).
"The report of a referee should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility" (Citimortgage v Kidd, 148 A.D.3d 767, 768 [2d Dept 2017]). Herein, the referee's report appears to be substantially supported by the record - which includes server records from 2007-2023.
Motion granted (see accompanying order). Cross-motion denied. This constitutes the decision and order of the Court.