Globe Trade Capital, LLC v Hoey

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Globe Trade Capital, LLC v Hoey 2017 NY Slip Op 33362(U) December 21, 2017 Supreme Court, Suffolk County Docket Number: Index No. 14/70272 Judge: Jerry Garguilo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] SUFFOLK COUNTY CLERK 11/14/2017 03:17 PM NYSCEF DOC. NO. 268 INDEX NO. 070272/2014 RECEIVED NYSCEF: 12/21/2017 SHORT FORM FORM ORDER ORDER SHORT E-FIL INDEX NO. 14/70272 14170272 INDEX SUPREME NEW YORK SUPREME COURTCOURT - STATE STATE OF OF NEW YORK COMMERCIAL DIVISION DIVISION IAS lAS PART PART 48 - SUFFOLK SUFFOLK COUNTY COUNTY COMMERCIAL PRESENT: PRESENT: JERRY GARGUILO GARGUILO HON. JERRY SUPREME COURT COURT JUSTICE JUSTICE SUPREME AMENDED ORDER ORDER AMENDED ORIG. RETURN RETURN DATE: DATE: 8/30/17 8/30/17 ORIG. SUBMISSION DATE: DATE: SUBMISSION MOTION SEQ#007, SEQ#007, 008 MOTION MOTION: 007-MD; 007-MD; 008-MG MOTION: 008-MG CASEDISP CASEDISP GLOBE TRADE TRADE CAPITAL, CAPITAL, LLC, LLC, GLOBE Plaintiff, Plaintiff, -,", -against--against-" PLAINTIFF'S ATTORNEY ATTORNEY PLAINTIFF'S MEYER, SUOZZI, SUOZZI, ENGLISH ENGLISH & KLEIN, KLEIN, P.C. P.C. MEYER, Stewart A Avenue, Suite 300 990 Stewart venue, Suite P.O. Box 9194 9194 P.O. Garden City, City, New New York York 11530-9194 11530-9194 Garden , ' THOMAS J. HOEY, I;I0EY, JR., WENDY WENDY HOEY, HOEY, THOMAS THOMAS J. HOEY, HOEY, FR. AND AND WENDY WENDY HOEY HOEY /I THOMAS THE TRUSTEES TRUSTEES OFTHE OF THE THOMAS THOMAS J. AS THE HOEY, JR. AND AND WENDY WENDY HOEY HOEY LIVING LIVING HOEY, TRUST, NEW TRUST, THE THE COUNTY COUNTY OF SUFFOLK, SUFFOLK, NEW DEFENDANTS'ATTORNEY DEFENDANTS'ATTORNEY JOSEPH ADRAGNA, ADRAGNA, ESQ. ESQ. JOSEPH YORK, THE THE SUFFOLK SUFFOLK COUNTY COUNTY YORK, Main 58 E. Main St. TREASURER, THE THETOWN TREASURER, TOWN OF -Huntington, NY NY 11743 -Huntington, SOUTHAMPTON, NEW YO~, THE THE TOWN TOWN SOUTHAMPJ:ON, NEW YO]p(, SOUTHAMPTON, NEW YORK RECEIVER RECEIVER OF SOUTHAMPTON, NEW YORK TAXES, OF TAXES, Defendants. Defendants. Upon the the following following e-filed e-filed papers papers numbered numbered 197 to 259 read on the the motions motions to vacate vacate default default judgment, Upon_ 259 read judgment, aside Sheriff Sheriff Sale. Sale, dismiss dismiss action, action. motion motion to Confirm Confirm Referee Referee Report Report of of Sale Sale ; Notice Notice of of Motion/ Motion! Order Order to Show Show set aside Cause and supporting supporting papers papers 211, 252, 252, 253 ;)~otice Notice of of Cross Cross Motion Motion and and supporting supporting papers papers 212 212 - 222, 222, Cause 197 - 211, 260,-- 262 ; Replying 260 262 ; Answering Answering Affidavits Affidavits and supporting supporting papers papers 226 226 -• 246, 246 254 254 - 259 259 Replying Affidavits Affidavits and and supporting papers papers 248 ; Other Other _ _ _ .;(and motion) supporting 248 - 253 ; (ztnd aftel ztfte1 heal hrnt ing eotlllsel eotmsel in i11 Sl:lpport sttpport and ztnd opposed opposed to the the 111otio11) it is, ORDERED that 13,2017 ORDERED that the prior prior order, order, dated dated November November 13, 2017 (Garguilo, (Garguilo, J.), which which denied denied the Defendants' motion motion (007) (007) to vacate Defendants' vacate the default default and dismiss dismiss the complaint complaint with with prejudice, prejudice, and and granted granted motion (008) (008) for an order Sale and a deficiency Plaintiffs motion order confirming confirming the Referee's Referee's Report Report of of Sale deficiency the Plairitiff's judgment amended as hereinafter hereinafter set forth; and it is further further judgment is amended 1 of 4 [*FILED: 2] SUFFOLK COUNTY CLERK 11/14/2017 03:17 PM NYSCEF DOC. NO. 268 INDEX NO. 070272/2014 RECEIVED NYSCEF: 12/21/2017 Globe Trade Trade Capital Capital LLC v Thomas Thomas J. Hoey, Hoey, Jr. Globe Index No. 14/70272 14/70272 Page No. NO.22 Page both ORDERED that that the the motion (007) by Defendants Defendants Wendy Wendy Hoey Hoey and and Thomas Thomas J. Hoey, Hoey, Jr., both motion(007) ORDERED vacate Trust, Living Hoey Wendy and individually and as Trustees of the Thomas 1. Hoey; Jr Wendy Hoey Living Trust, to vacate the Hoey; J. Thomas of Trustees individiJally the action default judgment pursuant to CPLR CPLR 5015 and dismissing dismissing the action with with prejudice prejudice is denied denied in its judgment pursuant default entirety; and and it is further further · entirety; ORDERED that that the the Plaintiff's Plaintiffs motion motion (008) (008) for an order order confirming confirming the the Referee's Referee's Report Report ORDERED judgment is granted. of Sale and a deficiency deficiency judgment granted. of The Court Court notes notes that, that, although although Defendants' Defendants' papers papers were were considered considered in the the determination determination of of The \Yendy Hoey, their motion, motion, that that the the Court Court decided decided only only that that branch of the motion motion by Wendy Hoey, individually individually to branclfofihe their branch that branch now determi_nes vacate default and to dismiss the complaint. complaint. Therefore, Therefore, the Court Court I;.ow determi.nes that to dismiss her default-and vacate her of Defendants' Defendants ' motion motion by the the remaining remaining Defendants, Defendants, Thomas Thomas J. Hoey, Hoey, Jr., individually, individually, and and Thomas Thomas of Hoey, Jr: J. Hoey Hoey and Wendy Wendy Hoey, Hoey, as Trustees Trustees of of the Thomas Thomas J. J.Hoey, Jr. and and Wendy Wendy Hoey Hoey Living Living Trust. Trust. Turning to that that branch branch of of the motion motion by Defendant Defendant Thomas Thomas J. Hoey~ Hoey, Jr., individually, individually, the the Turning Court notes notes that that Defendant Defendant Hoey Hoey was properly served while while he was was incarcerated. incarcerated. properly served Court Exhibit B of of Plaintiff's Plaintiffs motion motion papers papers reveals reveals David David Chu's Chu's affidavit affidavit of of service service wherein wherein he Exhibit New York avers that he is a Deputy Deputy Sheriff Sheriff of of the City City and State State of of New York and that that he was was avers "authorized pursuant pursuant to [his] special special duties duties to serve serve proce~s, process, that that on "authorized • City York New the at p.m. December 26,2014 at approximately 1:00 p.m. the New York City :00 December 26, 2014 approximately 1 Elmhurst, East Elmhurst, Boulevard East Department of Corrections, Corrections, 75-20 75-20 Astoria Astoria Boulevard Department of -the served [he] Queens, New York 11370 in the Borough of Queens, served the of New York 11370 in the Borough Summons arid and Complaint, Complaint, Notice of Pendency, Pendency, Certificate Certificate of of Merit, Merit, Notice of · Summons Electric Mandatory Notice of Commencement of Action Subject to Mandatory Electric Subject Action of Notice of Commencement Filing & Help Help for Homeowners Horneowners in Foreclosure Foreclosure upon upon Thomas Thomas Hoey, Hoey, Filing manner: following manner: in the following Personal Service Service Personal NYC CORRECTION By delivering delivering to and leaving CORRECTION OFFICER OFFICER with, NYC leaving with, stated who discretion, and BA YLEY # 15424, a person of suitable discretion, who stated age suitable of . BAYLEY# 15424, person he/shewas SERVICE FOR FOR INMATES INMATES ACCEPT SERVICE AUTHORIZED TO ACCEPT he/she was AUTHORIZED CORRECTIONS OF IN THE CUSTODY THE NYC DEPt CORRECTIONS to DEPT NYC THE OF THE CUSTODY defendant/respondent, true copy copy thereof. thereof. Said Said address address is the the ent, a true · th~ defendant/respond ent." PLACE OF INCARCERATIO INCARCERATIONN of of the defendant/respond defendant/respondent." PLACE opposition, Defendant Defendant Thomas Thomas J. Hoey, Hoey, Jr. submits submits an affirmation affirmation (Defendant's (Defendant's Exhibit Exhibit In opposition, improper as affirmation the rejects Court D) and a personal affidavit (Defendant's Exhibit The Court rejects the affirmation improper The E). Exhibit personal affidavit (Defendant's 2 of 4 - - - ---------------- [*FILED: 3] SUFFOLK COUNTY CLERK 11/14/2017 03:17 PM NYSCEF DOC. NO. 268 INDEX NO. 070272/2014 RECEIVED NYSCEF: 12/21/2017 Globe Trade Capital Capital LLC v Thomas Thomas J. Hoey, Hoey, Jr. Globe Trade Index 14/70272 Index No. 14/70272 No. 3 Page Page NO.3 dentist physician, osteopath attorney, physician, form, inasmuch as an affirmation affirmation may osteopath or dentist made only by an attorney, may be made form, inasmuch whether to as silent Eis Exhibit Defendant's Exhibit E is silent pursuant CPLR 2106. The affidavit affidavit submitted submitted in Defendant's whether or 2106. The pursuant to CPLR process. not he received service of of process. received service 21017 (Garguilo, As stated stated in the order 1,21017 (Garguilo, J.), June 1, dated June order dated required to "In seeking seeking to vacate Defendant is required default, a Defendant vacate a default, "In and appearing delay the of demonstrate a reasonable excuse of the delay in appearing and excuse reasonable demonstrate the defense to the meritorious defense answering the complaint and a potentially potentially meritorious the complaint answering AD3d 817,830 Ludhar, 37 AD3d Sime v Ludhar, action (see (see CPLR CPLR 5015 [a] [4]; Sime 817, 830 action vacate a NYS2d seeking to vacate defendant seeking When a defendant 2007]). When Dept 2007]). NYS2d 775 [2d Dept 5015 (a) CPLR 5015 pursuant to CPLR default raises raises a jurisdictional objection pursuant jurisdictional objection default before question jurisdictional question before court is required resolve the jurisdictional required to resolve 4), the court ((4), vacatur discretionary vacatur grant a discretionary determining appropriate to grant whether it is appropriate determining whether Anka, v Roberts (see (1) of the default under CPLR 5015 (a) Roberts Anka, 45 CPLR of the default under 317, a Under CPLR Dept 2007]). AD3d 2007]). Under CPLR 317, NYS2d 280 [2d Dept AD3d 752, 846 NYS2d her his excuse reasonable defendant is not required to offer a reasonable excuse for his or her offer defendant not required Lbr. Co., 67 Dutton Lbr. A.C. Dutton default (see Eugene DiLorenzo, Inc. v A.C Eugene DiLorenzo, default that he demonstrate must but [1986]); NY2d 138, 141,501 NYS2d 8 [1986]); but must demonstrate that NYS2d 138,141,501 NY2d time to the summons of the or she did not summons in time notice of receiver notice personally receiver not personally P.C. v Barrett, P.C defend the action action (Id., at 143; see also Clover M. Barrett, defend ])." 2011 Dept 09581 [2d Dept 2011])." Gordon, 90 AD3d NY Slip Op 09581 973, 2011 NY AD3d 973, Gordon, proper service prima facie evidence Here, the Sheriff's Sheriffs affidavit of service service constituted constituted prima evidence of of proper service affidavit of Here, presumption of the presumption rebut the Defendant's failure upon CPLR 308 (2) and and Defendant's failure to rebut of pursuant to CPLR Defendant pursuant upon Defendant Corp. Service Homeowner Beneficial (see fatal is proper service created Sheriffs affidavit Beneficial Homeowner Service affidavit created by the Sheriff's proper service not that he did not Defendant failed v Girault, 60 AD3d AD3d 984, 875 NYS2d Dept 2009]). failed to state state that 2009]). Defendant NYS2d 815 [2d Dept Therefore, action. defend time process of receive service, or that he did not receive service of process in time to defend the action. Therefore, service receive receive service, that did not denied. CPLR 317 is denied. vacatur 5015 (a) (4) (4) and CPLR CPLR 5015 pursuant to CPLR vacatur pursuant sale foreclosure and of foreclosure judgment of the judgment of the As to the branch of the motion seeks vacatur and sale vacatur of which seeks motion which branch of upon default upon of its default effect of the effect from the party from granted relieve a party may relieve discretion may Court, in its discretion the Court, default, the granted on default, (see party adverse an by proof default was was the result of fraud, misconduct adverse party (see misrepresentation, or misconduct fraud, misrepresentation, result of proof the default A judgment will NYS2d 908 [1979]). CPLR 5015 [3]; Oppenheimerv Oppenheimer v Westcott, 47 NY2d 595,419 595, 419NYS2d [1979]). Ajudgmentwill 47NY2d CPLR tricked was tricked wherein fraud extrinsic be vacated and the default excused if the movant articulates an extrinsic fraud wherein it was vacated and the default excused if the movant articulates and fairly the movant induced by the the Plaintiff defaulting thereby thereby preventing movant from fully fully and fairly preventing the Plaintiff into defaulting or induced 2008]). Dept [2d 554 NYS2d 869 765, litigating the matter (see Bank ofN. 1: v Stradford, AD3d 765,869 NYS2d [2d Dept 2008]). AD3d 55 matter (see Bank ofN. Y. Stradford, litigating extrinsic vacatur for extrinsic of vacatur claim of out a claim make out To the extent read to make may be read allegations may Defendants' allegations that Defendants' extent that conduct that established not has fraud in the procurement of the foreclosure judgment, he has established that any conduct by the the judgment, foreclosure procurement of (see matter this litigating this matter (see Plaintiff caused him default or prevented and fairly fairly litigating prevented him from fully and him to default Plaintiff caused Dept NYS2d 149 [2d Dept 614 NYS2d 297, 614 AD2d 297, Putnam County Natl. Bank Carmel v Simpson, 204 AD2d Simpson, 204 of Carmel Bank of Putnam County denied. is (3) (a) 5101 CPLR Therefore, vacatur denied. pursuant to CPLR vacatur pursuant 1994]). Therefore, 3 of 4 [*FILED: 4] SUFFOLK COUNTY CLERK 11/14/2017 03:17 PM NYSCEF DOC. NO. 268 . INDEX NO. 070272/2014 RECEIVED NYSCEF: 12/21/2017 . Jr. Hoey; JI. J: Hoey; Thomas 1: Globe v Thomas LLCv Capital LLC Trade Capital Globe Trade · Index Index No. 14/70272 14170272 · Page No. 4 Page order, prior order, the prior With previously <iiscussed in the Trust, as previously the Trust, upon the process upon service _of process regard to service.of With regard documented service substituted Trust Wendy Hoey, was properly served as Trustee of the Trust by substituted service as documented by the of Wendy Hoey, was properly served Trustee process server 2015. The January 20, 2015. affidavit of of service service (Plaintiff's (Plaintiff's Exhibit dated January The process server avers avers in Exhibit D), dated _an affidavit Jr. Hoey, Thomas the of Trustees Hoey the affidavit that he "served ThomasHoey and Wendy Hoey as Trustees of the Thomas J Hoey, JI. Wendy Hoey Thomas "served that the affidavit personally York by personally New York City, New Garden City, and Wendy Road, Garden Brixton Road, Living Trust at 176 Brixton Hoey Living-Trust Wendy Hoey Hoey, as Wendy Hoey, as Wendy Inasmuch as addres~." Inasmuch that addres~." deliverihg with Thomas Thomas "Hoey at that same with leaving same and leaving delivering ahd was that the Trust the Court Trustee of of the Trust, Trust, was served served by substituted substituted service, Court concludes concludes that Trust was service, the Trustee Road, Brixton Road, orily 176 Brixton that only reveals that Trust reveals properly served. In any event, of the Trust reading of plain reading event, a plain properly served. subject the to Trust is silent the Trust Trust, and the Garden property of silent as the subject the Trust, of the listed as .property York is listed New York City, New Garden City, York. New York. Westhampton, New Court; Westhampton, Quarter Court; focated_at 9 Quarter premises located,at foreclosed premises - foreclosed merit. have no merit. court finds ofthe defendants' arguments arguments have the defendants' remainder of thatthe remainder finds thatthe The court deficiency and a deficiency of Sale Report of Turning Sale and Referee's Report confirn:i the Referee's (008) to confil11)the motion (008) to-Plaintiffs motion Turning to-Plaintiff's pertinent the submitted duly Plaintiff judgment, after the Court has determined that the Plaintiff has duly submitted the pertinent the that determined has Court after judgment, motion is Accordingly, Plaintiffs motion documents, that entitled to the relief requested. Accordingly,Plaintiff's reliefrequested. Plaintiff is entitled that the Plaintiff documents, granted.. · granted ,....-.______ .__-r....... Jr., both Hoey, JI.,both Thomas J. Hoey, and Thomas Accordingly, Defendants Wendy Hoey and Wendy Hoey byDefend_ants (007) by motion (007) the motion Accordingly, the the vacate the Trust, to vacate Living Trust, Hoey Living and Wendy Hoey Jr ahdWendy individually Hoey, Jr Thomas). Hoey, of the Thonias). Trustees of and as Trustees individually and prejudice is denied with prejudice the action default judgment CPLR 50 15 and dismissing dismissing the action with denied in its 5015 pursuant to CPLR judgment pursuant default of Sale Report Referee's Report of confirm the Referee's to confirrnthe entirety. seeking to Sale and (008) seeking motion (008) In addition, Plaintiff's motion entirety. Inaddition,Plaintiff'_s granted. judgment is granted. a deficiency deficiency judgment DATED: 21, 2017 Decerp.ber 21,2017 DATED: Decerpber 4 of 4

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