Morequity, Inc. v Casale
Annotate this CaseDecided on September 12, 2014
Supreme Court, Suffolk County
Morequity, Inc., Plaintiff(s),
against
John B. Casale; Lauren Casale; Gemini Asset Recoveries, Inc.; County of Suffolk; Midland Credit Management Inc.; New York State Department of Taxation and Finance; John Does" and "Jane Does," said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, Defendant(s).
9701-2009
Rosicki, Rosicki & Associates, P.C.
Attorneys for Plaintiff
26 Harvester Avenue
Batavia, New York 14020
John B. Casale
Lauren Casale Defendants Pro Se
6 Gordal Lane
Coram, New York 11727
Peter H. Mayer, J.
UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is
ORDERED that the plaintiff's motion (005), which seeks an order vacating this Court's April 17, 2013 sua sponte Order dismissing plaintiff's complaint, and granting an order of reference and change of caption, is hereby denied; and it is further
ORDERED that counsel for the plaintiff shall promptly serve a copy of this Order upon all parties via First Class Mail, and shall promptly thereafter file the affidavit of such service with the County Clerk.
By Short Form Order dated February 11, 2011, this Court denied plaintiff's first application (seq. #001) for an order of reference for failure to submit the attorney affirmation mandated by New York's Chief Administrative Judge in her October 20, 2010 Administrative Order (548/10). A review of the court's records indicate that no appeal was filed and no motion to vacate, reargue or renew was submitted by plaintiff with regard to that Order.
Plaintiff's second application (seq. #002) for an order of reference was denied as well, by this Court's May 17, 2012 Short Form Order due to plaintiff's failure to submit proper evidentiary proofs required by CPLR §3215(f), RPAPL §1302, and RPAPL §1304. The May 17, 2012 Order cautioned the plaintiff that:
[W]ith regard to any scheduled court conferences or future applications by the plaintiff, if the Court determines that such conferences have been attended, or such applications have been submitted, without proper regard for the applicable statutory and case law, or without regard for the required proofs delineated herein, the Court may, in its discretion, dismiss this case or deny such applications with prejudice and/or impose sanctions pursuant to 22 NYCRR §130-1, and may deny those costs and attorneys fees attendant with the filing of such future applications.
The court's records indicate that plaintiff did not appeal the May 17, 2012 Order, nor did plaintiff move to vacate, reargue or renew that Order. After denial of plaintiff's second motion, the Court issued a sua sponte Order, dated March 1, 2013, scheduling a Conference for April 17, 2013, which enumerated the foreclosure proofs the Court required plaintiff to provide at the time of the Conference. The Order clearly stated, in bold, italic type, that it is:
ORDERED that failure by plaintiff to appear at the scheduled conference and to fully comply with the directives set forth in this Order, shall result in dismissal of plaintiff's complaint, without prejudice, and any other appropriate sanction under the CPLR and/or Court Rules" (emphasis in original).
According to Court records, the plaintiff did not move for leave to appeal the March 1, 2013 sua sponte Order, nor was a motion to vacate, reargue or renew submitted by plaintiff concerning that Order. When plaintiff's counsel appeared at the April 17, 2013 Conference (more than 4 years after plaintiff filed the complaint) without the requisite proofs delineated in the March 1, 2013 Order, the Court issued the subject April 17, 2013 sua sponte Order dismissing plaintiff's complaint. The Order noted that plaintiff's counsel had "not complied with any of the directives set forth [in the March 1, 2013 Order]" and "appeared without any of the required proofs" (emphasis in original). As a result, the Court decreed that "the plaintiff's complaint is dismissed, without prejudice, and the Notice of Pendency is cancelled." As with the March 1, 2013 Order, court records reveal that plaintiff did not seek leave to appeal the April 17, 2013 sua sponte Order. Notwithstanding the dismissal, plaintiff's counsel submitted a third motion (seq. #003) for an order of reference, which was denied as moot by Order dated August 1, 2013, pursuant to counsel's July 24, 2013 letter withdrawing the motion.
In the instant motion (inadvertently designated as seq. #'s 004 and 005), plaintiff seeks an order vacating this Court's April 17, 2013 sua sponte Order, and granting an order of reference with a change of caption. In relevant part, CPLR §5015(a)(1) provides that the "court which rendered a judgment or order may relieve a party from it upon such terms as may be just ... upon the ground of ... excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party ..."
To vacate an order dismissing plaintiff's complaint, a plaintiff is required to demonstrate both a reasonable excuse for its default and a meritorious cause of action (see CPLR 5015[a][1]; Joseph v GMAC Leasing Corp., 44 AD3d 905, 843 NYS2d 691 [2d Dept 2007]; Glanville v Lets Care Again Daycare, Inc., 40 AD3d 580; 833 NYS2d 402 [2d Dept 2007]; Watson v New York City Tr. Auth., 38 AD3d 532, 832 NYS2d 240 [2d Dept 2007]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court (Khanal v Sheldon, 74 AD3d 894, 904 NYS2d 453 [2d Dept 2010]; Westchester Med. Ctr. v Clarendon Ins. Co., 304 AD2d 753, 757 NYS2d 765 [2d Dept 2003]; Holt Constr. Corp. v J & R Music World, Inc., 294 AD2d 540, 742 NYS2d 876 [2d Dept 2002]; Bouxsein v Bialo, 35 AD2d 523, 313 NYS2d 426 [2d Dept 1970]). Conclusory and unsupported allegations in support of a motion to vacate a default are insufficient to show a reasonable excuse for the default or a meritorious cause of action (see Matter of Samantha B. v Arthur Eugene S., 72 AD3d 682, 897 NYS2d 915 [2d Dept 2010]; Petersen v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 851 NYS2d 209 [2d Dept 2008]; Matter of Vanessa F., 9 AD3d 464, 779 NYS2d 917 [2d Dept 2004]; Thattil v Mondesir, 275 AD2d 408, 712 NYS2d 869 [2d Dept 2000]; Schiavetta v McKeon, 190 AD2d 724, 593 NYS2d 303 [2d Dept 1993]; Starr Block Co. v Tedesco, 146 AD2d 692, 538 NYS2d 463 [2d Dept 1989]).
Plaintiff does not deny that its motions have failed to include proper evidentiary proof of compliance with the statutes identified by the Court in its prior Orders. Nor does plaintiff deny that plaintiff did not submit any of the documents plaintiff was required to provide at the April 17, 2013 Conference. These failures to submit mandated documents at the April 17, 2013 Conference are inconsistent with the representations of plaintiff's counsel in paragraph 11 that "all proceedings herein have been regular and in conformity with law; and in accordance with the rules and practice of this Court." Such a representation, given the history, suggests the motion was made in a somewhat cavalier fashion. Counsel is advised to more carefully scrutinize the representations made in their affirmations in support of requested relief.
The basis of the plaintiff's request for vacatur of the April 17, 2013 Order is set forth in paragraph 16 of counsel's affirmation, which states: "Plaintiff respectfully requests the order of dismissal be vacated as the information requested by the court is provided with this application." The Court does not pass judgment upon whether or not plaintiff's motion papers now satisfy the proper evidentiary showing of compliance with the various statutes applicable to foreclosure proceedings, nor upon whether or not plaintiff's motion includes all of the documentary proofs required of the plaintiff at the April 17, 2013 Conference. Nevertheless, the implication by counsel that a post-dismissal compliance can somehow "undo" a default or resurrect a dismissed complaint is neither sanctioned by any of this Court's Orders, nor supported by any statute or case authority cited by the plaintiff.
Counsel also states in paragraph 16 that: "Plaintiff worked diligently to obtain all needed information by the [April 17, 2013] conference [sic] however Plaintiff was unable to provide all the requested proofs by the time of the conference." In fact, plaintiff's affidavit of merit from Barbara Kraemer in support of this motion is dated March 18, 2013, one month before the April 17, 2013 Conference. Thus, it stretches credulity to conclude that plaintiff worked "diligently," but unsuccessfully, to obtain the documents for the April 17, 2013 Conference, when Ms. Kraemer was asserting the bona fides of these very same documents approximately one month before.
While the Court will not impose or consider sanctions in this dismissed action, counsel is reminded of the pitfalls of submitting any motions papers that may constitute sanctionable conduct. In relevant part, 22 NYCRR 130-1.1(a) provides that "the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in [130-1.1(c) of] this Part . . ." Likewise, 22 NYCRR 130-1.1A(b) states that "[b]y signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances . . . the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c)."
Based upon the foregoing and in the Court's discretion, it is apparent that the plaintiff has failed to show a reasonable excuse for its default and, therefore is not entitled to vacatur of this Court's April 17, 2013 Order pursuant to CPLR 5015(a)(1). Since the plaintiff [*2]failed to demonstrate a reasonable excuse for its default, the Court need not consider whether plaintiff demonstrated the existence a potentially meritorious cause of the action (see Indymac Federal Bank FSB v Quattrochi, 99 AD3d 763, 952 NYS2d 239 [2d Dept 2012]; U.S. Bank N.A. v Stewart, 97 AD3d 740, 948 NYS2d 411 [2d Dept 2012]; Reich v Redley, 96 AD3d 1038, 947 NYS2d 564 [2d Dept 2012]; Tribeca Lending Corp. v Correa, 92 AD3d 770, 938 NYS2d 599 [2d Dept 2012]; Fremont Inv. & Loan v Bertram, 90 AD3d 988, 934 NYS2d 822 [2d Dept 2011]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 921 NYS2d 643 [2d Dept 2011]; Lane v Smith, 84 AD3d 746, 922 NYS2d 214 [2d Dept 2011]).
This constitutes the Decision and Order of the Court.
Dated:September 12, 2014 PETER H. MAYER, J.S.C.
[ ] FINAL DISPOSITION[ X ] NON FINAL DISPOSITION
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
