GMAC Mtge., LLC v Alfred

[*1] GMAC Mtge., LLC v Alfred 2015 NY Slip Op 51621(U) Decided on November 12, 2015 Supreme Court, Albany County Zwack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 12, 2015
Supreme Court, Albany County

GMAC Mortgage, LLC, Plaintiff,

against

Ester Alfred, YOUNAS K. MAL, Defendants.



5364-12



McCabe, Weisberg & Conway, P.C.

Attorneys for Plaintiff

Megan Harris, Esq., of counsel

145 Huguenot Street

New Rochelle, New York 10801
Henry F. Zwack, J.

Plaintiff GMAC Mortgage, LLC moves pursuant to CPLR 5015[a][1] to vacate dismissal, restore the subject foreclosure action, and for judgment of foreclosure. Defendants Ester Alfred and Younas K. Mal have not appeared or opposed.

This foreclosure action was commenced on September 25, 2012. The defendant mortgagors were served on October 12, 2012, with service complete on October 15, 2012. The defendants did not appear or answer and are in default. Residential Mortgage Foreclosure Settlement Conferences (CPLR 3408) were held on April 17, 2013 and July 23, 2013, with the matter released from the settlement part and plaintiff permitted to proceed with the foreclosure action on or after October 28, 2013. The Court (Teresi, J.) by Order of Reference dated October 30, 2013 appointed a referee to ascertain and compute. By letter dated February 28, 2014, Judge Teresi requested a status report from plaintiff, and receiving no response issued a April 8, 2014 [*2]scheduling order, which provided "this action is dismissed without further order of the Court unless within 170 days of this order, a proposed judgment of foreclosure is filed/delivered to the Supreme Court Clerk..." On September 26, 2014, and within the time prescribed by Judge Teresi, plaintiff requested a 90 day extension, which this Court granted and directing plaintiff to submit the proposed judgment of foreclosure by on or before December 26, 2014.[FN1]

By Notice of Motion dated May 21, 2015, plaintiff moved for judgment of foreclosure, together with a May 21, 2015 Affirmation and also Affidavit, both by Deana Chili, Esq. Particularly, the Court's August 3, 2015 Decision and Order denying plaintiff's application for judgment of foreclosure noted that the matter was dismissed on December 26, 2014 — on account of plaintiff's failure to timely file the motion — and that plaintiff failed to "rebut the presumption of abandonment after automatic dismissal" (Castillo v City of New York, 6 AD3d 568, 569 ]2d Dept 2004]), including the failure to demonstrate whatsoever of a reasonable excuse for its failure to comply with a clear court directive to move for judgment by December 26, 2014.

Now, plaintiff moves to vacate the December 26, 2014 dismissal, offering in support the Affirmations of Megan Harris, Esq., dated August 11, 2015, together with other supporting documentation.

Here, the Court is mindful that CPLR 5015[a][1] affords a party to relief upon a demonstration of a reasonable excuse for the default and a potentially meritorious cause of action or defense (Wells Fargo Bank, N.A. v Cean Owens, LLC, 110 AD3d 872, 872 [2d Dept 2013]; Alterbaum v Shubert Org., Inc., 80 AD3d 635, 638 [2d Dept 2011]). Clearly, the October 2013 Order of Reference sufficiently establishes the merit of the subject foreclosure action, thus leaving only the determination of whether has shown a reasonable excuse for not complying with the Court's scheduling order sufficient to warrant vacating the December 2014 dismissal.

On the issue of reasonable excuse, plaintiff's counsel tells the Court that the foreclosure action was commenced by plaintiff's former counsel; that the file, along with "a large volume of other foreclosure actions" was transferred to present counsel following entry of the 2013 Order of Reference, and that "a careful review was needed to ensure compliance with all relevant statues, Court directives and administrative orders...", which in sum caused the delay and thus failure to comply with the Court's scheduling orders, ultimately resulting in the December 2014 dismissal.

What plaintiff's excuse lacks, however, is supporting documentation detailing facts sufficient to support the nearly two year delay, following the 2013 Order of Reference, before plaintiff submits the proposed judgment of foreclosure. Here, plaintiff's bald, vague, and self serving contention that a "careful review" caused the default, tells the Court absolutely nothing (Buro Happold Consulting Engineers, PC v RMJM, 107 AD3d [*3]602 [1st Dept 2013]; CEO Business Brokers, Inc. v Alqabili, 105 AD3d 989, 990 [2d Dept 2013]) — particularly when offered by counsel with no independent knowledge of the claimed events and without any evidentiary support (Bronson v Algonquin Lodge Assn, Inc., 295 AD2d 681 [3d Dept 2002]).[FN2] Stated differently, albeit Court has considerable discretion to accept as a reasonable excuse a party's claim of intervening events and further required work, it must be supported by more than conclusory, undetailed, and uncorroborated claims (Thomas v Avalon Gardens Rehabilitation & Health Care Center, 107 AD3d 694, 695 [2d Dept 2013]; Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671, 672 [2d Dept 2006]), which plaintiff utterly failed to do.

Further, included in the Court's consideration of whether the excuses offered could be reasonable under the circumstances presented was the net effect of plaintiff's failure to comply with the scheduling orders.[FN3] While, of course, a dismissal order should be utilized sparingly (Wehringer v Brannigan, 232 AD2d 206, 207 [1st Dept 1996]), the Court is also mindful that,"[c]ourt ordered time frames are requirements that must be taken seriously by the parties, as the the failure to comply with deadlines not only impairs the efficient functioning of the courts and adjudication of claims, but...breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution'" (Willis v Keeler Motor Car Company, 121 AD3d 1373, 1374 [3d Dept 2012], quoting Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]).

Accordingly, it is

ORDERED, that plaintiff's motion is denied in its entirety.

This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for the Plaintiff. A duplicate original Decision and Order is delivered, together with all other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk for filing and entry under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to Notice of Entry, and is directed to serve within 20 days, by Regular U. S. Mail, a copy of this Decision and Order, with Notice of Entry, on each defendant.

Dated:November 12, 2015

Troy, New York____________________________

Henry F. Zwack

Acting Supreme Court Justice

Papers Considered:

Notice of Motion dated August 11, 2015; Affirmation of Megan Harris, Esq., dated August 11, 2015; Affirmation of Megan Harris, Esq., dated August 11, 2015; Affirmation of Regularity of Megan Harris, Esq., dated August 11, 2015, all together with Exhibits "A" through "D".

Footnotes

Footnote 1:That plaintiff requested this extension, but failed to request a further extension and simply let the scheduling order become a final dismissal order, is not lost on the Court.

Footnote 2:Incidentally, the Court notes Attorney Harris' 2015 bar admission, well after whatever may have occurred to delay the matter.

Footnote 3:A review of the Court's file shows plaintiff failed to attend a scheduled Residential Foreclosure Settlement Conference held on April 13, 2013, failed to respond to the Court's February 18, 2014 letter requesting a status report, and also failed to comply with the subsequent scheduling order, ultimately resulting in the December 2014 dismissal.