Citimortgage, Inc. v La Fortune
Annotate this CaseDecided on September 2, 2015
Supreme Court, Kings County
Citimortgage, Inc., Plaintiff
against
Marie La Fortune; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU, CAPITAL ONE BANK; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY ENVIRONMENTAL CONTROL; BOARD; "JOHN DOES" and "JANE DOES" (Said name 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.), Defendants.
15648/2013
Attorney for Plaintiff
Rosicki, Roicki & Associates, P.C.
Jonathan Falk, Esq
26 Harvester Avenue
Batavia, new York 14020
Attorney for Defendant
Warren Sussman
1044 Franklin Avenue, Suite 212
Garden City, NY 11530
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex parte motion of plaintiff Citimortgage, Inc., (hereinafter CMI or the movant), filed on June 6, 2014 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
Exhibits A-F
Proposed order of reference
BACKGROUND
On August 27, 2013, CMI commenced the instant foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the KCCO.
The instant motion papers consists of a proposed order of reference, an attorney's affirmation in support, and five annexed exhibits labeled A through E. The affirmation in support contains thirteen allegations of fact that are based upon the attorney's review of a file maintained at his office and conversations with plaintiff's staff. The affirmation does not contain an index of the annexed documents or otherwise identify or refer to the documents that are annexed and labeled A through E. Exhibit A is an affidavit by an individual who described himself as the vice president of document control for the plaintiff. The affidavit contains fourteen allegations of fact. The affidavit does not contain an index of the annexed documents or otherwise identify or refer to the documents that are annexed and labeled D, E and F.
CMI'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 December 27, 2013, Warren Sussman, Esq. filed a Notice of Appearance on behalf of Marie La Fortune (hereinafter Fortune) with the Kings County Clerk's office.[FN1]
LAW AND APPLICATION
Part A of the Kings County Supreme Court Uniform Civil Term Rules provides in pertinent part that motions, orders and other filed papers filed with the KCCO shall be indexed with protruding tabs. Contrary to this requirements CMI's motion papers lack an index identifying the numerous exhibits annexed to it. This defect would normally be [*2]disregarded as a mere irregularity if the annexed exhibits had been had described or explained in the affirmation of CMI's counsel or in the affidavit of its vice president for document control. However, half of the annexed exhibits were not described or explained.
CPLR 2214 requires that a movant set forth the facts, the proffered evidence and the law relied upon for the relief it is requesting. By not explaining the annexed exhibits the movant has not complied with CPLR 2214 and has made the motion into a puzzle and a mystery. In effect, the Court is being asked to sort through all of the unexplained annexed exhibits to figure out what they are and what their relevance is to relief sought. The Court declines to do so.
CMI's papers contain the following additional problems, among others.
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 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]).
CMI has alleged that no defendant has appeared in the action. The minutes of the KCCO demonstrate, however, that defendant Fortune has made an appearance in the action by having her attorney file a notice of appearance with the KCCO on December 27, 2013. This raises a factual issue which effects the manner in which CMI 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 [*3]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: (1) annex the instant decision and order with its motion papers; (2) address whether defendant Fortune has appeared in the action; (3) include an index and protruding tabs for all exhibits annexed to its motion; (4) move in accordance with the requirements of CPLR 3215 (g) (1).
CONCLUSION
CMI's motion for an order of reference pursuant to RPAPL 1321 is denied without prejudice.
CMI's motion for a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.
CMI'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.
FootnotesFootnote 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]).
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