Opinion
No. 37309–09.
2013-03-15
US BANK NATIONAL ASSOCIATION, Plaintiff, v. Silverio VARDALES, et al., Defendants.
Gross, Polowy & Orlans, PC, Amherst, NY, for plaintiff. Cabanillas & Assoc., PC, White Plains, for defendant Vardales.
Gross, Polowy & Orlans, PC, Amherst, NY, for plaintiff. Cabanillas & Assoc., PC, White Plains, for defendant Vardales.
THOMAS F. WHELAN, J.
Upon the following papers numbered 1 to 7 read on this motion by defendant Vardales to dismiss the complaint; Notice of Motion/Order to Show Cause and supporting papers 1–3; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 4–5; Replying Affidavits and supporting papers 6–7; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 002) by the mortgagor for an order dismissing the complaint pursuant to CPLR 3216 is considered thereunder and is denied; and it is further
ORDERED that a hearing pursuant to 22 NYCRR Part 130–1.1(d) shall be held at 9:30 a.m. on May 24, 2013 in the courtroom of the undersigned regarding the imposition of sanctions in the form of costs, attorneys fees and/or monetary sanctions against the moving defendant's counsel pursuant to 22 NYCRR Part 130–1.1.
The plaintiff commenced this mortgage foreclosure action on September 17, 2009. The mortgagor/moving defendant, Silverio Vardales, and all others joined by service of process, defaulted in timely answering the summons and complaint. In June of 2010, the plaintiff moved, on notice to the moving defendant and others, for an order fixing the defaults of all defendants and for the appointment of a referee to compute. The moving defendant did not appear or otherwise respond to this motion which was granted on July 9, 2010 by order of this court.
By the instant motion (# 002), defendant Vardales moves to dismiss this action pursuant to CPLR 3216 by reason of plaintiff's failure to resume prosecution of the action within 90 days of receipt of the defendant's 3216 demand. In support of this relief, counsel for defendant Vardales claims full familiarity with the facts and circumstances of this action based upon verbal information and/or documents provided by the defendant ( see ¶ 1 of attorney Alain Cesar's affirmation in support of motion to dismiss). Next asserted is a recitation of the September 17, 2009 commencement of this action by the filing of the summons and complaint and the July 10, 2010 granting of the plaintiff's motion “to appoint a referee” ( see ¶¶ 4–5). Continuing, counsel asserts that a 3216 notice containing a demand to resume the prosecution of this action issued to the plaintiff's counsel on September 17, 2012 ( id., ¶ 6). Counsel further asserts that the 90 day time period within which the plaintiff was required to resume prosecution has expired ( id., ¶¶ 7, 8). Counsel goes on to recite the provisions of CPLR 3216 which impose three conditions precedent for dismissal thereunder, including, that issue must have been joined in the action for a period of one year ( id., ¶ 9). Counsel then alleges that issue was joined in this action “when the defendant filed an answer” ( id., ¶ 15), no copy of which is attached to the moving papers.
The motion is denied. It is well settled law 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 action for general delay” (Chase v. Scavuzzo, 87 N.Y.2d 228, 638 N.Y.S.2d 587 [1995];Alli v. Baijnath, 101 AD3d 771, 957 N.Y.S.2d 166 [2d Dept 2012] ). The statutory conditions precedent set forth in CPLR 3216 include: (1) issue must have been joined, (2) one year must have elapsed following joinder, and 3) service of written demand to resume prosecution within ninety days of such service that is fully compliant with the statutory criteria ( see Michaels v. Sunrise Bldg. and Remodeling, Inc., 65 AD3d 1021, 885 N.Y.S.2d 110 [2d Dept 2009] ). Because courts are prohibited from dismissing an action based on neglect to prosecute unless the CPLR 3216 statutory preconditions to dismissal are met, the failure to have served an answer renders service of a 90 day demand a nullity ( seeCPLR 3216; Alli v. Baijnath, 101 AD3d 771, 957 N.Y.S.2d 166 [2d Dept 2012] ). Here, the record is devoid of any evidence that an answer was served by the defendant. In fact, the record is replete with evidence that the defendant defaulted in answering as that default adjudicated in the July 9, 2010 order of reference. The moving defendant's failure to satisfy the joinder of issue condition precedent imposed upon a dismissal pursuant to CPLR 3216 warrants denial of this motion.
A further ground for such denial of this motion exists. Absent a “viable jurisdictional claim”, a party in default may not move for affirmative relief without an order relieving such defendant from his or her default in place at the time the affirmative relief is demanded ( see U.S. Bank Natl. Assn. v. Gonzalez, 99 AD3d 694, 952 N.Y.S.2d 59 [2d Dept 2012]; Holubar v. Holubar, 89 AD3d 802, 934 N.Y.S.2d 710 [2d Dept 2011]; McGee v. Dunn, 75 AD3d 624, 906 N.Y.S.2d 74 [2d Dept 2010] ). Here, there was no vacatur of the defendant's default in answering in place at the time of the interposition of this motion and no application for relief from such default was included in the moving papers. The defendant's motion (# 002) for dismissal of the complaint is procedurally improper thus subject to denial on that ground.
Finally, the moving papers put before this court give rise to deep concerns as to the nature and tenor of the application advanced therein and its continued prosecution after facts regarding its lack of merit should have been known to the defendant's counsel. Under the rules set forth in 22 NYCRR Parts 130–1 and 131–2, parties and/or their counsel may be subject to the imposition of monetary sanctions, counsel fees and costs where their engagement in motion practice, appearances and/or trial practice constitutes frivolous conduct as that term is defined in 22 NYCRR 130–1(c). “[F]rivolous conduct includes the assertion of arguments that are completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130–1.1[c][1] ), and the assertion of “material factual statements that are false” (22 NYCRR 130–1.1[c][3]; Gihon, LLC v. 501 Second Street, LLC, 103 AD3d 840, 103 AD3d 840, 2013 WL 692707 [2d Dept 2013] ).
Here, the assertion by defendant's counsel, Alain Cesar, Esq., that issue was joined “when the defendant filed an answer” is contradicted by the record and by the existence of the July 9, 2010 order of reference wherein such default was fixed and a referee to compute was appointed pursuant to RPAPL § 1321. The non-existence of the joinder of issue due to the defendant's default in answering should have been known to defense counsel even upon a most cursory review of the July 9, 2010 order. Under these circumstances, the court considers the interposition of this motion by the defendant's counsel completely lacking in merit and thus frivolous under 22 NYCRR 130–1.1(c)(1). Also considered frivolous is the continued prosecution of this motion following counsel's receipt of the opposing papers of the plaintiff wherein the defendant's default in answering was put before court. Defense counsel was then on actual notice that an element of the defendant's claims for dismissal had not been satisfied, an issue that was not addressed in the reply papers. That left the motion without a proper, legal basis and as one resting upon false factual statements regarding the joinder of issue by service of an answer by the moving defendant ( see22 NYCRR 130–1.1[c][3] ).
Accordingly, the court shall conduct a hearing of the type contemplated by 22 NYCRR 130–1.1(d) to allow Cabanillas & Associates, P.C., the defendant's attorney of record, and it's associate attorney, Alain Cesar, Esq., to be heard with respect to the imposition of costs, counsel fees and/or monetary sanctions against them, due to their engagement in frivolous conduct as outlined above. Said hearing shall be conducted on Friday, May 24, 2013 at 9:30 a.m. in the courtroom of the undersigned located at 1 Court Street–Annex, Riverhead, New York.