NYCTL 2014-A Trust v 774 Props. LLC
Annotate this CaseDecided on December 14, 2016
Supreme Court, Kings County
NYCTL 2014-A Trust and THE BANK OF NEW YORK MELLON AS COLLATERAL AGENT AND CUSTODIAN, Plaintiff,
against
774 Properties LLC; CONFIDENTIAL LENDING, LLC., JAY KIMMEL AS NOMINEE; BOARD OF MANAGERS OF 776 EAST 8TH STREET CONDOMINIUM; THE PEOPLE OF THE STATE OF NEW YORK AND "JOHN DOE No.1" through "JOHN DOE No.100" inclusive, the names of the last 100, defendants being fictitious, the true names of said defendants being unknown to plaintiff, it being intended to designate fee owners, tenants or occupants of the liened premises and/or persons or parties having or claiming an interest in or a lien upon the liened premises, if the aforesaid individual defendants are living, and if any or all of said individual defendants be dead, their heirs at law, next of kin, distributees, executors, administrators, trustees, committees, devisees, legatees, and the assignees, lienors, creditors and successors in interest of them, and generally all persons having or claiming under, by, through, or the said defendants named as a class, of any right, title, or interest in or lien upon the premises described in the complaint herein, Defendants.
506066/15
Attorney for Plaintiff John Dayton Dello-Iacono, Esq.
105 Maxes Road, Ste. 205
Melville, NY 11747
631-861-3001
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the ex parte application of plaintiff, NYCTL 2014-A Trust and the Bank of New York Mellon as Collateral Agent and Custodian (hereinafter NYCTL 2014-A or the plaintiff), filed on August 16, 2016, for an order: (1) granting a default judgment against all defendants pursuant to CPLR 3215 and (2) appointing a referee to compute pursuant to the RPAPL1321.
Proposed Order
Affidavit of Merit
Affirmation in Support
Exhibits A-E
BACKGROUND
On May 8, 2015, NYCTL 2014-A commenced the instant foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the KCCO. On January 13, 2016, NYCTL 2014-A filed a motion for an order granting default judgment and to appoint a referee to compute the amount due (hereinafter the first motion). On January 22, 2016, NYCTL 2014-A withdrew the first motion.
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 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 [*2]oppose the motion (Paulus v Christopher Vacirca, Inc., 128 AD3d 116 [2nd Dept 2015]).
In support of the motion NYCTL 2014-A submits an affidavit of service which states that on June 9, 2015, the defendant 774 Properties was served via the Secretary of State. NYCTL 2014 alleges that 774 Properties and has not answered or otherwise appeared in the action. The first motion for a default judgment was made within one year of the defendants alleged default. However, that motion was withdrawn. The instant motion was made more than a year after the alleged default. Under these circumstances, and in accordance with CPLR 3215 (g) (1) the instant motion for a default judgment may not be made ex parte. 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]).
CONCLUSION
NYCTL 2014-A Trust and the Bank of New York Mellon as Collateral Agent and Custodian ex parte application for an order granting a default judgment against all defendants pursuant to CPLR 3215 is denied without prejudice.
NYCTL 2014-A Trust and the Bank of New York Mellon as Collateral Agent and Custodian ex parte application for an order appointing a referee to compute pursuant to the RPAPL1321 is denied.
The foregoing constitutes the decision and order of this Court.
Enter:
J.S.C.
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