Greenpoint Mtge. v Spoleti

[*1] Greenpoint Mtge. v Spoleti 2017 NY Slip Op 50352(U) Decided on March 24, 2017 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 24, 2017
Supreme Court, Suffolk County

Greenpoint Mortgage, Plaintiff(s),

against

Ann T. Ford Spoleti, STATE OF NEW YORK o/b/o UNIVERSITY HOSPITAL, CARYN LEE HARSCHE, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC., acting solely as nominee for PLAINTIFF MORTGAGE FUNDING INC., CITIBANK N.A., and PETER SPOLETI, Defendant(s).



34993-2006



Leopold & Associates, PLLC

Attorneys for Plaintiff

80 Business Park Drive, Suite 110

Armonk, New York 10504

Grausso & Foy, LLP

Attorney for Deft Ann T. Ford Spoleti

131 West Main Street

Riverhead, New York 11901

Law Office of Brett Margolin, PC

Attorney for Defendants

140 Fell Court, Suite 202

Hauppauge, New York 11788
Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated October 27, 2014 , and supporting papers; (2) Affirmation in Opposition by the defendant, Ann T. Ford Spoleti, dated December 9, 2014, and supporting papers; (3) Reply Affirmation by the plaintiff, dated December 18, 2014, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the branch of plaintiff's motion (#006) by the plaintiff, which essentially seeks an order, inter alia, pursuant to CPLR 2221(d), granting plaintiff leave to reargue its previously filed motion, which was denied, without prejudice and with leave to resubmit, for failure to comply with the court's rules regarding pre-motion conferences, is hereby granted solely to the extent that this Court's June 25, 2014 Order is vacated on the grounds that a premotion conference had, in fact, been held prior to the issuance of the June 25, 2014 Order; and it is further

ORDERED that the branch of the plaintiff's motion which seeks an order granting its previously filed motion to vacate this Court's April 18, 2012 on-the-record dismissal of plaintiff's complaint, is hereby denied in all respects; and it is further

ORDERED that counsel for the movant shall promptly serve a copy of this Order upon counsel for all parties via first class mail, and shall promptly thereafter file a copy of such service with the County Clerk.

By Order from the bench on April 18, 2012, this Court granted defendant's counsel's application to dismiss plaintiff's case, on the grounds that plaintiff had failed to appear at the April 18, 2012 court ordered conference, as well as other prior conferences, and for failure to otherwise comply with this Court's March 18, 2011 Order. The Court is not aware of any appeals taken from that Order. Thereafter, plaintiff's counsel moved to vacate the April 18, 2011 dismissal order. By Order dated June 25, 2014, the Court denied that motion for plaintiff's failure to comply with this Court's Part Rules regarding pre-motion conferences. Plaintiff's current motion seeks, in part, leave to reargue the prior motion pursuant to CPLR 2221(d) and upon reargument, vacatur of the Court's June 25, 2014 Order. Leave to reargue is granted; however, vacatur of the April 18, 2012 Order is denied.

In relevant part, CPLR 2221(d)(2) requires that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior [*2]motion." It is now apparent that in rendering its June 25, 2014 Order, the Court overlooked the fact that before making its prior motion, plaintiff's counsel had, indeed, conducted a pre-motion conference in compliance with the Court's Rules. Accordingly, the branch of plaintiff's motion that seeks reargument of the June 25, 2014 Order is granted, and said Order is hereby vacated. Plaintiff's request for vacatur of the April 18, 2012 dismissal, however, is denied.

In dismissing plaintiff's case from the bench on April 18, 2012, the Court stated, in relevant part:

The Court is in possession of its own order dated March 18, 2011, which, essentially ordered, the [CPLR] 3408 conference to take place on May 4th. In that order, the 'order,' itself, reads, in pertinent part, that: 'With regard to any scheduled Court conferences . . . if the Court determines that such conferences have been attended . . . without proper regard for the applicable statutes and case law, or without the required proofs, the Court may, in its discretion, strike that noncompliant party's pleadings.'In addition, that the plaintiff was ordered to, on each conference, to bring all documents necessary for evaluating the potential settlement, modification or other work-out plans.' Predicated upon all of those provisions and the absence of plaintiff's representative to the conferences as has been adjourned by way of the mandate of the order of March 18, 2011, the Court grants the [defendants'] application pursuant to 202.27 of the New York State Code [of] Rules and Regulations, Subdivision B, as well as CPLR 3126.

Although plaintiff's notice of motion does not set forth relief sought under CPLR 5015, plaintiff's counsel argues for vacatur of the Court's April 18, 2012 Order dismissing plaintiff's case. 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 ..." For a party to succeed on a motion to vacate a judgment under CPLR §5015, he or she must show that entry thereof occurred as a result of an excusable default, and that there exists a meritorious claim (see Justus v.Justus, 92 AD2d 858, 459 NYS2d 843 [2d Dept 1983]; Bouxsein v Bialo, 35 AD2d 523, 313 NYS2d 426 [2d Dept 1970]). Such motion is addressed to the discretion of the court (id).

The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Gambardella v Ortov Lighting, Inc., 278 AD2d 494, 717 NYS2d 923 [2d Dept 2000]). Conclusory and unsupported allegations in support of a motion to vacate are insufficient to show a reasonable excuse (see HSBC Mortgage Corporation (USA) v Morocho, 106 AD3d 875, 965 NYS2d 570 [2d Dept 2013]; Matter of Samantha B. v Arthur Eugene S., 72 AD3d 682, 897 NYS2d 915 [2d Dept 2010]; 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]).

In an attempt to offer a reasonable excuse for the default, counsel states:

During the year of on-going settlement conferences in his matter, the servicing responsibilites were transferred from Litton Loan Servicing, LP to Ocwen Loan Servicing, LLC. Due to confusion and delay in the transfer of the servicing rights, Plaintiff's counsel who, upon information and belief, had been advised that he would no longer continue to represent Plaintiff as a result of the transfer of servicing rights, failed to appear at what is believed to be four consecutive settlement conferences (emphasis added).

This assertion, offered merely "upon information and belief," is wholly unsupported by any evidentiary proof. In any event, to the extent that plaintiff's current counsel may be alleging that plaintiff's prior counsel is guilty of law office failure, such allegations would not, in any event, be a basis to vacate the Dismissal Order. Although a court may in its discretion accept a claim of law office failure as a basis to vacate a prior order, the court's rejection of such claim does not constitute an improvident exercise of its discretion where, as here, the claim is vague, unspecified, or unsubstantiated (see Gourdet v Hershfeld, 277 AD2d 422, 716 NYS2d 714 [2d Dept 2000]; GE Capital Auto Lease v Terzi, 232 AD2d 449, 648 NYS2d 167 [2d Dept 1996]). Whether attributable to plaintiff's former attorneys or its current attorneys, plaintiff's current counsel's conclusory and unsubstantiated claims of alleged law office failure do not rise to the level of a reasonable excuse (see Petersen v v Lysaght, Lysaght & Kramer, P.C., 47 AD3d 783, 851 NYS2d 209 [2d Dept 2008]; Piton v Cribb, 38 AD3d 741, 742, 832 NYS2d 274 [2d Dept 2007]; Matter of Bloom v Lubow, 45 AD3d 680, 845 NYS2d 439 [2d Dept 2007]; Lugauer v Forest City Ratner Co., 44 AD3d 829, 843 NYS2d 456 [2d Dept 2007]).

Plaintiff's repeated failure to appear at the court-ordered conferences also included repeated failure by plaintiff to comply with the Court's discovery order. In this regard, this Court's March 18, 2011 Order required disclosure by the plaintiff as follows:

ORDERED that the plaintiff shall bring to each conference all documents necessary for evaluating the potential settlement, modification, or other workout options which may be agreed to, including but not limited to the payment history, an itemization of the amounts needed to cure and pay off the loan, and the mortgage and note; if the plaintiff is not the owner of the mortgage and note, the plaintiff shall provide the name, address and telephone number of the legal owner of the mortgage and note.

With regard to non-appearance by a defendant at a court ordered conference, 22 NYCRR § 202.27(b), provides that "[a]t any scheduled call of a calendar or at any conference . . . [i]f the defendant appears but the plaintiff does not, the judge may dismiss the action . . ." Likewise, CPLR §3126(3) states, in relevant part: "If any party . . . refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them . . . an order striking out pleadings or parts thereof . . . or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party."

Compliance with a disclosure order requires a timely response and one that shows a good-faith effort to address the requests meaningfully (see Kihl v Pfeffer, 94 NY2d 118, 700 NYS2d 87 [1999]). Therefore, a party must respond within the time set by the court for compliance, and must ensure that the responses answer the demands in a meaningful way (id). "If the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity. Indeed, the Legislature, recognizing the need for courts to be able to command compliance with their disclosure directives, has specifically provided that a 'court may make such orders as are just,' including dismissal of an action" (Kihl v. Pfeffer, 94 NY2d at 123, 700 NYS2d at 90).

Although dismissal of a complaint pursuant to CPLR 3126 is a drastic remedy, it is warranted where, as here, a party repeatedly fails to adequately respond to discovery demands and court directives to comply with such demands, and where there are inadequate explanations for failure to so comply (see Schwartz v Suebsanguan, 15 AD3d 565, 791 NYS2d 569 [2d Dept 2005]; see also Lanc v Donnelly, 13 AD3d 593, 786 NYS2d 340 [2d Dept 2004]; Prescott v Kramer Chemicals, Inc., 12 AD3d 585, 784 NYS2d 393 [2d Dept 2004]). Plaintiff's current counsel's conclusory and unsubstantiated allegations, which imply that plaintiff's failures to appear were attributed to prior counsel's law office failure, do not constitute a reasonable excuse for failure to comply with this Court's Orders.

Lastly, plaintiff's explanations for its delay in seeking vacatur are unavailing. On one hand, plaintiff's counsel contends that "on or about March 4, 2013, this office was retained to represent Plaintiff and began the process of moving to vacate the Dismissal Order" (emphasis added). On the other hand, however, counsel states that "[w]ith respect to Plaintiff's delay in seeking to vacate the Dismissal Order, it was not until . . . May 7, 2013, that we were even advised by Defendant's counsel that such Order existed . . ." (emphasis added). No matter which explanation is accepted as true, plaintiff's counsel's initial motion to vacate the Dismissal Order was not made until the beginning of 2014.

Based upon the foregoing, the plaintiff's request for vacatur of the April 18, 2012 Order is denied. All other contentions are without merit.

This constitutes the Decision and Order of the Court.

Dated: March 24, 2017

PETER H. MAYER, J.S.C.