Deutsche Bank Natl. Trust Co. v Lazinsky

[*1] Deutsche Bank Natl. Trust Co. v Lazinsky 2016 NY Slip Op 50418(U) Decided on March 23, 2016 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2016
Supreme Court, Suffolk County

Deutsche Bank National Trust Company, as Trustee for the Registered Holders of MORGAN STANLEY ABS CAPITAL 1 INC. TRUST 2007-NC4 MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-NC4, Plaintiff(s),

against

Kim Lazinsky, CAPITAL ONE BANK USA N.A., "JOHN DOE #1" through "JOHN DOE #12", the last twelve names being fictitious and unknown to plaintiff, the persons or parties intended being tenants, occupants, persons, or corporations, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendant(s).



22135-2013



Clarfield, Okon, Salomone & Pincus, P.C.

Attorneys for Plaintiff

425 RXR Plaza

Uniondale, New York 11556

Ronald D. Weiss, P.C. Attorneys for Defendant

734 Walt Whitman Road, Suite 203

Melville, New York 11747
Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated August 20, 2015, and supporting papers; (2) Notice of Cross Motion by the defendant, undated, and supporting papers; (3) Affirmation in Opposition by the plaintiff, dated November 9, 2015, and supporting papers; and now

UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is

ORDERED that the plaintiff's motion (seq. #001), which seeks an order deeming the plaintiff's complaint amended and served, nunc pro tunc, purportedly pursuant to CPLR 3025(b), is hereby denied, and the plaintiff's complaint is dismissed pursuant to CPLR 3215(c) for the reasons set forth herein; and it is further

ORDERED that the cross-motion (seq. #002) by the defendant Kim Lazinsky, which seeks, inter alia, an order granting an extension of time to answer the plaintiffs' summons and complaint is denied as moot; and it is further

ORDERED that counsel for the defendant shall promptly serve a copy of this Order upon counsel for plaintiff and all appearing parties by First Class Mail, and shall promptly thereafter file the affidavit(s) of such service with the Suffolk County Clerk.

This foreclosure action was commenced by the August 16, 2013 filing of the plaintiff's summons and complaint, which plaintiff alleges were served upon the defendant pursuant to CPLR 308(2) on August 26, 2013. On January 3, 2014, new (current) counsel was appointed by the plaintiff. On July 7, 2014, said counsel filed an RJI and the case appeared on the court's foreclosure conference calendar on October 1, 2014, October 27, 2014 and November 17, 2014. Although more than two-and-a-half years have elapsed since the defendant's alleged default, plaintiff has not yet sought a default order of reference against defendant. Instead, plaintiff has filed the instant motion to amend the complaint.

In its motion, plaintiff requests an order deeming the plaintiff's complaint amended and served, nunc pro tunc, to include the following allegation: "Plaintiff is the holder of the promissory note at issue in this proceeding. In addition, Plaintiff is the owner of the mortgage at issue in this proceeding. Prior to the filing of the complaint, Plaintiff or Plaintiff's agent was in possession and control of the original promissory note and mortgage." However, there is no statutory basis for the court to amend a complaint nunc pro tunc with all pleadings deemed served (see Enigan v Royal Ins. Co., 150 AD2d 635, 541 NYS2d 504 [2d Dept 1989]). To grant plaintiff a nunc pro tunc amendment to plaintiff's complaint concerning allegations bearing on [*2]plaintiff's standing, would be tantamount to a court-imposed waiver of defendant's statutory right to answer the amended complaint and challenge such alleged standing in an affirmative defense or dismissal motion under CPLR 3211.

Conspicuously absent from plaintiff's motion papers is any evidentiary basis, such as an affidavit from one with personal knowledge, to support the allegations contained in plaintiff's proposed amended complaint. An affirmation or affidavit of a party's attorney submitted in support of or opposition to a motion, and which is without actual knowledge of the facts, has no probative value (see Browne v Castillo, 288 AD2d 415, 733 NYS2d 494 [2d Dept 2001]; Dicupe v City of New York, 124 AD2d 542, 507 NYS2d 687 [2d Dept 1986]; Farina v Pan American World Airlines, Inc., 116 AD2d 618, 497 NYS2d 706 [2d Dept 1986]). Where a motion is supported merely by an affirmation of an attorney who demonstrates no personal knowledge of the substantive facts, it is without evidentiary value and is, therefore, unavailing on the issues presented to the Court (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Such circumstances require denial of plaintiff's application to amend the complaint.

Of greater consequence to plaintiff, however, is its failure to seek entry of judgment within one year after defendant's alleged default and failure to set forth a reasonable excuse for such delay. In relevant part, CPLR §3215(c) states: "If the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed" (emphasis added). The policy underlying the statute is to prevent parties who have asserted claims from unreasonably delaying the termination of actions, and to avoid inquests on stale claims (see Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 13 NYS3d 554 [2d Dept 2015]; Giglio v NTIMP, Inc., 86 AD3d 301, 926 NYS2d 546 [2d Dept 2011]). Upon a showing of the requisite one year of delay, dismissal is mandatory in the first instance (see Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 983 NYS2d 587 [2d Dept 2014]; Giglio v NTIMP, Inc., 86 AD3d 301, 926 NYS2d 546 [2d Dept 2011]). Failure to take proceedings for entry of judgment may be excused, however, upon a showing of sufficient cause.

To establish "sufficient cause," the plaintiff must demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action (see Ohio Savings Bank v Decaudin, 129 AD3d 925, 10 NYS3d 443 [2d Dept 2015]; LNV Corp. v Forbes, 122 AD3d 805, 996 NYS2d 696 [2d Dept 2014]). Where a movant fails to seek judgment within one year of the alleged default and fails to prove a reasonable excuse for the delay, the motion must be denied (see Aurora Loan Servs., LLC v Hiyo, 130 AD3d 763, 13 NYS3d 554 [2d Dept 2015]; Pipinias v J. Sackaris & Sons, Inc., 116 AD3d 749, 983 NYS2d 587 [2d Dept 2014]; GMAC v Minewiser, 115 AD3d 707, 981 NYS2d 580 [2d Dept 2014]; Giglio v NTIMP, Inc., 86 AD3d 301, 926 NYS2d 546 [2d Dept 2011]; London v Iceland Inc., 306 AD2d 517, 761 NYS2d 862 [2d Dept 2003]; State Street Bank and Trust Co. v Francis, 284 AD2d 324, 725 NYS2d 562 [2d Dept 2001]; Riggi v Sommerville, 273 AD2d 290, 710 NYS2d 543 [2d Dept 2000]; Demery v New York, 149 AD2d 405, 542 NYS2d 971 [2d Dept [*3]1989]; Manago v Giorlando, 143 AD2d 646, 533 NYS2d 106 [2d Dept 1988]).

Here, the record demonstrates that the plaintiff failed to seek judgment within one year of the alleged default and failed to prove a reasonable excuse for the delay. Therefore, the plaintiff's motion is denied and the complaint is dismissed. The defendant's motion is, accordingly, denied as moot.

This constitutes the Order and Judgment of the Court.

Dated: March 23, 2016

PETER H. MAYER, J.S.C.