Bismark Mtge. Co., LLC v Akinsanya

[*1] Bismark Mtge. Co., LLC v Akinsanya 2015 NY Slip Op 51263(U) Decided on August 21, 2015 Supreme Court, Kings County Rivera, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 21, 2015
Supreme Court, Kings County

Bismark Mortgage Company, LLC, Plaintiff,

against

Esther T. Akinsanya A/K/A ESTHER AKINSANYA, "JOHN DOE", said name being fictitious, it being the intention of plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, Defendants.



17503/2012



Attorney for the Plaintiff

SHAPIRO, DICARO & BARAK

175 MILE CROSSING BOULEVARD ROCHESTER, NEW YORK 14624

(585) 247-9000Attorney for the Defendant

OFSHTEIN LAW FIRM, P.C.

1723 EAST 12TH STREET, 4TH FLR BROOKLYN, NY 11229

718-455-5252
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex parte [*2]motion of plaintiff Bismark Mortgage Company, LLC (hereinafter BMC or the movant), filed on July 2, 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 in support

Affidavit of merit

Exhibits A-G

Proposed order of reference

BACKGROUND

On August 28, 2012, BMC commenced the instant mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the KCCO.

The complaint alleges, among other things, that Esther T. Akinsanya (hereinafter Akinsanya or the mortgagor) is the borrower on a note in the modified sum of $513,216.67 and the mortgagor on the property known as 709 Schenck Avenue, Brooklyn, New York, Block 4308 Lot 33 (hereinafter the subject property) securing 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.

BMC's counsel has alleged in the affirmation in support of the motion that no defendant has answered the complaint or moved respect thereto and the time in which to answer has expired. On April 11, 2013, Ofshtein Law Firm, P.C. filed a Notice of Appearance on behalf of Akinsanya with the Kings County Clerk's office.[FN1]

LAW AND APPLICATION

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 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 [*3]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]).

BMC has alleged that no defendant has appeared in the action. The minutes of the KCCO demonstrate, however, that Akinsanya has made an appearance in the action by having her attorney file a notice of appearance with the KKCO on April 11, 2013. This raises a factual issue which effects the manner in which BMC may move for the relief it seeks. Under these circumstances, and in accordance with CPLR 3215 (g) (1) it is not clear whether the instant motion for a default judgment may be made ex parte. Also unclear, is whether the movant by its determination to move ex parte has deprived the Court of jurisdiction to entertain the motion (Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2nd Dept 2015]).

Based on the foregoing issue of fact, 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. It is further directed to address whether defendant Akinsanya has appeared in the action. It is also directed to move in accordance with the requirments of CPLR 3215 (g) (1).

CONCLUSION

BMC's motion for an order of reference pursuant to RPAPL 1321 is denied without prejudice.

BMC's motion for a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.

BMC'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.

Footnotes

Footnote 1:The Court obtained this information by checking the KCCO's minutes. The Court may take judicial notice of undisputed court records and files (Kingsbrook Jewish Medical Center v Allstate Ins. Co., 61 AD3d 13 [2d 2009] citing Matter of Khatibi v. Weill, 8 AD3d 485 [2d 2004]).