Tribeca Lending Corp. v Peets
Annotate this CaseDecided on August 19, 2015
Supreme Court, Kings County
Tribeca Lending Corporation, Plaintiff,
against
Sonia Avila Peets a/k/a SONIA ARICELY AVILA ZUNIGA; WELLS FARGO FINANCIAL NY INC.; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; "JOHN DOE' AND "JANE DOE" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of the premises being foreclosed herein , Defendants.
22919/092
Attorney for Plaintiff
FINE, SUCH & CRANE, LLP
28 EAST MAIN STREET, STE 1800 ROCHESTER, NEW YORK 14614
585 232-7400
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex parte motion of plaintiff Tribeca Lending Corporation (hereinafter TLC or the movant), filed on July 19, 2013 with the Kings County Clerk's Office (hereinafter KCCO) for, among other things, an order appointing a referee to compute pursuant to the RPAPL § 1321.
Ex parte motion
Affirmation regarding CPLR 3408
Affirmation in accordance with A/O 431/11
Affidavit of merit
Exhibits A-L
Proposed order of reference
BACKGROUND
On September 9, 2009, TLC commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the KCCO.
The movant has described the papers annexed as exhibit F to the its motion as a copy of the commencement papers. Exhibit F purportedly contains a copy of the notice of pendency, the summons and the complaint used to commence the action. The complaint refers to five annexed schedules labeled A through E. Paragraph four of the complaint describes schedule C as a copy of the subject bond or note. Paragraph five of the complaint describes schedule D as a copy of the mortgage securing the indebtedness. Paragraph six of the complaint describes schedule E as a total amount due and a breakdown of the interest, taxes, assessments, water rates, insurance premiums, escrows and other charges that the mortgagor failed to pay. Schedule C, D or E are not annexed to the complaint.
The complaint alleges, among other things, that Sonia Avila Peets (hereinafter Peets or the mortgagor) is the borrower on a note and the mortgagor on the property securing the note and that Peets has defaulted on making payments due and owing on the subject note. Based on the mortgagor's alleged default and the failure to cure same, the movant has accelerated the subject note and commenced the instant mortgage foreclosure action.
TLC has also alleged that it is the current holder of the subject note and that no defendant has answered the complaint or moved respect thereto and the time in which to answer has expired.
LAW AND APPLICATION
CPLR 2214(c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. Contrary to this requirement, TLC did not annex complete copy of the complaint. On this basis alone the motion must be denied. However, there is a separate fundamental problem with the motion, namely, TLC's failure to move by notice of motion.
A motion for an order of reference is a preliminary step toward obtaining a default judgment of foreclosure and sale (see HSBC Bank USA, N.A. v Alexander, 124 AD3d 838 [2nd Dept 2015]; see also RPAPL 1321 [1].
CPLR 3215 (g) sets forth when and under what circumstances notice of an [*2]application or motion for leave to enter a default judgment must be given. It provides that any defendant who has appeared in an action but subsequently defaults "is entitled to at least five days' notice of the time and place" of the motion for leave to enter a default judgment. It further provides, as relevant to the instant motion, that if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise.
The failure of the plaintiff to give notice to the defendants of its motion for leave to enter a default judgment pursuant to CPLR 3215 (g) (1) deprives the Supreme Court of jurisdiction to entertain the motion (Paulus v Christopher Vacirca, Inc.,128 AD3d 116 [2nd Dept 2015]).
The failure to provide a defendant with proper notice of a motion renders the resulting order and judgment entered upon that order nullities, warranting vacatur pursuant to CPLR 5015 (a) (4) (Id. citing Financial Services Vehicle Trust v Law Offices of Dustin J. Dente, 86 AD3d 532, 533 [2nd Dept 2011]). The failure to provide proper notice of a motion can readily be viewed as a fundamental defect because it deprives the opposing party of a fair opportunity to oppose the motion (Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2nd Dept 2015]).
In a mortgage foreclosure action, a plaintiff that has initiated proceedings for entry of default judgment within one year of defendant's default, by taking preliminary step of moving for order of reference, does not abandon its foreclosure action (see Klein v St. Cyprian Properties, Inc., 100 AD3d 711 [2nd Dept 2012]).
CPLR 3215 (c) provides, with regard to default judgments, in pertinent part, that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed (Pipinias v J. Sackaris & Sons, Inc.,
116 AD3d 749, 750 [2nd Dept 2014]).
TLC commenced the instant foreclosure action on September 9, 2009 and made the instant motion on July 19, 2013. The affidavit of service of the commencement papers was filed with the KCCO on September 21, 2009 and demonstrates service upon Peets pursuant to CPLR 308 (2). CPLR 308 (2) provides that service is deemed complete ten days after the affidavit of service is filed with KCCO ( see Reem Contracting v Altschul & Altschul, 117 AD3d 583 [1st Dept 2014]). This is so even in those instances where the affidavit is filed on a date later than that required by CPLR 308 (2) (Id.) Therefore, assuming that TLC properly served the commencement papers upon Peets service was completed on October 1, 2009.
CPLR 3012 (c) provides in pertinent part that if the complaint is served with the summons and the service is made on the defendant pursuant to CPLR 308 (2), service of an answer shall be made within thirty days after service is complete.
Accordingly, Peets was in default as of November 1, 2009. Under these [*3]circumstances, and in accordance with CPLR 3215 (g) (1) the instant motion for a default judgment may not be made ex parte. The movant's determination to move ex parte under these circumstances has deprived the Court of jurisdiction to entertain the motion (Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2nd Dept 2015]).
Based on the failure of the movant to move by notice of motion served upon all of the allegedly defaulting defendants, the Court is denying the motion in its entirety, including that branch which seeks an order to amend the caption. The motion, however, is denied without prejudice.
In the interest of judicial economy, the Court stopped reviewing the instant motion papers after finding the above mentioned problem. In the event that the movant seeks the same relief in a subsequent motion it is directed to annex the instant decision and order with its motion papers and to move by notice of motion in accordance with CPLR 3215 (g) (1).
CONCLUSION
TLC's motion for an order of reference pursuant to RPAPL 1321 is denied without prejudice.
TLC's motion for a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.
TLC's motion to amend the caption is denied without prejudice.
The foregoing constitutes the decision and order of this court.
Enter:———————————————————————————x
J.S.C.
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