HSBC Bank USA N.A. v MacPherson
Annotate this CaseDecided on December 8, 2015
Supreme Court, Suffolk County
HSBC Bank USA National Association, as Trustee for Deutsche ALT-A Securities Mortgage Loan Trust, Series 2006-AB5, Plaintiff
against
Donald MacPherson, 324 POND CO. INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS INC. AS NOMINEE FOR AMERICAN BROKERS CONDUIT and PEOPLE OF THE STATE OF NEW YORK, Defendants
2007-32997
Corey Robson Esq.
Kozeny McCubbin & Katz LLP
Attorneys for Plaintiff
40 Marcus Drive
Melville, New York 11747
Irwin Popkin Esq.
Attorney for Defendant DONALD MacPHERSON
445 Broad Hollow Road
Melville, New York 11747
324 Pond Co. Inc.
Defendant Pro Se
324 Head Of Pond Road
Water Mill, New York 11976
MERS As Nominee for American Brokers Conduit
Defendant Pro Se
1595 Spring Hill Road
Vienna, Virginia 22182
People Of The State of New York Defendant Pro Se
400 Statler Towers
Buffalo, New York 14202
Jeffrey Arlen Spinner, J.
Plaintiff has applied to this Court for an Order vacating the dismissal of this matter and restoring same to the Court's active calendar. For the reasons hereinafter set forth, Plaintiff's application is denied in its entirety.
Plaintiff, through its predecessor counsel, commenced this action claiming foreclosure of a mortgage dated June 16, 2006 in the original amount of $ 746,250.00. Said mortgage was given to secure an Adjustable Rate Note of the same date and was recorded with the Clerk of Suffolk County on July 28, 2006 in Liber 21349 of Mortgages, Page 558. Said Mortgage constitutes a first lien upon residential real property known as 324 Head Of Pond Road, Water Mill, Town of Southampton, New York.
The within action was commenced on October 19, 2007. Following the entry of Administrative Order AO548/10 and a protracted period in which there was no movement on the matter, the Court issued a sua sponte order which scheduled a conference for July 16, 2012. Counsel for Plaintiff appeared thereat, the matter was addressed and the Court directed resumption of prosecution within sixty days else the matter would be subject to dismissal. Upon the failure of Plaintiff to resume prosecution or to otherwise request an extension of time in which to do so, the Court issued an Order dated November 21, 2012 which dismissed the action. The Order was mailed by the Court to Plaintiff's counsel and to all counsel and parties.
Plaintiff now applies, by Notice of Motion dated April 23, 2015 for an Order vacating the dismissal and restoring the matter to the Court's calendar. This application was filed some 29 months after the dismissal order was issued. In its application, Plaintiff invokes the authority contained within CPLR § 5015(a), asserting that it has both [*2]a reasonable excuse for its default and a meritorious cause of action. The Court is prepared, at this juncture, to review Plaintiff's application in toto and, in particular, its claimed excuse in order to determine its reasonableness.
The Affirmation of Corey Robson Esq. dated April 23, 2015 asserts, in pertinent part, that "...The Plaintiff's attorney was substituted as attorney of record in December of 2011. Due to the volume of the number files [sic] being transferred and the requirements under Administrative Order 548/10 and Administrative Order 431/11, the Plaintiff's attorney was unable to proceed within the time frame required by the court. Plaintiff's file went on a FEMA hold from October 2012 to March 2013 due to super storm Sandy." This language is in all respects identical, right down to the very words, punctuation and grammatical errors, to other applications for the same relief as filed by Plaintiff's attorney, leading this Court to conclude that counsel's affirmations are nothing more than what are commonly described as boilerplate.
Counsel's Affirmation appears to articulate a facially reasonable excuse. That being said, there are a number of other factors that are worthy of mention herein. First, Plaintiff's counsel was substituted into the matter some eight months prior to the July 16, 2012 conference at which its office appeared. Second, at that conference, no issues which might been an impediment to continued prosecution were raised. Third, at that conference, counsel was affirmatively made aware that dismissal was impending if no action were taken. Fourth, counsel never made any request of the Court that additional time be afforded to be able to resume prosecution. Fifth, in counsel's Affirmation, he states that "...Plaintiff now has the required documents and proper affidavits to proceed..." This bald assertion in and of itself seems a rather clear admission that for the twenty nine months preceding the instant application, Plaintiff has apparently not been in a position to proceed and did not even see fit to ask the Court for an extension of time to do so.
Counsel for Defendant DONALD MacPHERSON has interposed opposition to the application, premised upon Plaintiff's failure to proceed by way of Order To Show Cause together with the lack of a reasonable excuse for the default in proceeding. Defendant's counsel argues that this application must be denied upon procedural grounds because Plaintiff has failed to move by Order To Show Cause, see Smith v. Smith 291 AD2d 828 (4th Dept. 2002). Indeed, Plaintiff's application fails for this procedural irregularity alone. That said, the Court feels it best to deal with the underlying merits of Plaintiff's motion.
Plaintiff has filed a reply to Defendant's opposition which focuses primarily upon the claimed merits of Plaintiff's case. It also urges this Court to adhere to follow decisions rendered by Terms of the Supreme Court rather than those rendered by the Appellate Division.
In assessing the reasonableness of the excuse proffered by Plaintiff, the Court can consider the length of time that has elapsed between the rendition of the Order of Dismissal and the application to [*3]vacate (in this case, 29 months), Dominguez v. Carioscia 1 AD3d 396 (2nd Dept. 2003). Indeed, in the matter of DeLisca v. Courtesy Transportation Ltd. 6 AD3d 646 (2nd Dept. 2004), the Court determined that there was no reasonable excuse for a six month delay.
Plaintiff's counsel has failed to advance any colorable excuse to explain its delay in this matter. Some twenty nine months elapsed between the date of the Order of Dismissal and the application to vacate it. While counsel's excuse seems to sound in claims of law office failure, it is beyond dispute that it is within the sound discretion of the trial court to determine whether or not the excuse advanced is a reasonable one which would justify granting the relief sought, Chiarello v. Allessandro 38 AD3d 823 (2nd Dept. 2007). Moreover, while Plaintiff's counsel alludes to an influx of a large number of files into the office, that proffer, standing alone as advanced and without detail, does not constitute a reasonable excuse, Faga v. Harrison Central School District 40 AD3d 690 (2nd Dept. 2007). The excuse advanced by Plaintiff is wholly devoid of specificity and it only vaguely refers to events that preceded the conference (at which counsel was present, a fact that is neither admitted nor denied by Plaintiff) by at least eight months. An excuse which is amorphous is not reasonable under these circumstances, Dugan v. Belik 170 AD2d 746 (3rd Dept. 1991). This Court is compelled to conclude that Plaintiff's application herein is untimely.
In view of the lack of a reasonable excuse for the delay, as mandated by CPLR § 5015(a)(1), the Court need not consider whether or not the Plaintiff's claims are meritorious.
It is, therefore,
ORDERED that the within application by the Plaintiff shall be and the same is hereby denied in its entirety.
Dated: December 8, 2015
Central Islip, New York
_____________________________
HON. JEFFREY ARLEN SPINNER
J.S.C.
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