Citimortgage v Ferrari
Annotate this CaseDecided on August 28, 2017
Supreme Court, Suffolk County
Citimortgage, Plaintiff,
against
Nora C. Ferrari, ANDRE SANTELLI a/k/a ANDRE J. SANTELLI, HARYN CAPITAL CORP., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, et. ano., Defendants.
2009-14285
Richard J. Galati Jr. Esq.
Akerman LLP
Attorneys for Plaintiff
666 Fifth Avenue
New York, New York 10103
Brian J. Lester Esq.
Tarbet & Lester PLLC
Attorney for Defendants FERRARI and SANTELLI
132 North Main Street
East Hampton, New York 11937
Jeffrey Arlen Spinner, J.
Plaintiff has applied to this Court, by Order To Show Cause dated November 2, 2016, for an Order vacating the dismissal of this matter and restoring same to the Court's active calendar. Defendants FERRARI and SANTELLI have cross moved for what is styled as a dismissal of the Complaint herein. The delay in the rendition of this decision has been occasioned by the reassignment of the undersigned Justice to the Family Court. For all of the reasons hereinafter set forth, Plaintiff's application is denied in its entirety and Defendants' cross application is determined to be academic in light of the Order of Dismissal dated November 21, 2012.
Plaintiff, through its predecessor counsel, commenced this action claiming foreclosure of a mortgage dated April 14, 2003 in the original amount of $ 1,300,000.00. Said mortgage was given to secure a Note of the same date and was recorded with the Clerk of Suffolk County on June 20, 2003 in Liber 20425 of Mortgages, Page 899. Said Mortgage constitutes a first lien upon residential real property known as 32 Oyster Shores Road, East Hampton, New York. The Mortgage and Note were assigned to Plaintiff by an instrument dated February 3, 2009 which was duly recorded with the Clerk of Suffolk County.
The within action was commenced on April 14, 2009, premised upon a claimed default by Defendants as of September 1, 2008. Mesne process was duly served upon Defendants and, through counsel, they timely filed a responsive pleading to Plaintiff's Complaint. Following the entry of Administrative Order AO548/10, the convening of eleven mandatory foreclosure settlement conferences together with the passage of a protracted period in which there was no movement on the matter, the Court, sua sponte, issued an order which scheduled a conference for July 31, 2012. An attorney for Plaintiff appeared thereat, the matter was addressed, the Court directed resumption of prosecution within sixty days else the matter would be subject to dismissal. Subsequently and on October 12, 2012, counsel for Defendants served discovery demands which, according to Defendants' papers, apparently were ignored by Plaintiff. Upon the failure of Plaintiff to resume prosecution as directed, the Court issued an Order dated November 21, 2012 (which was some 113 days after said conference) which dismissed the action. The Order was mailed by the Court to all counsel of record and to all parties. To the best of the Court's knowledge, no appeal was taken therefrom and, until the filing by Plaintiff of the motion that is sub judice, no application was made to modify, vacate, set aside or otherwise affect the order of dismissal.
Thereafter, Plaintiff twice sought to voluntarily discontinue this action voluntarily (notwithstanding the dismissal) by transmitting a Stipulation Discontinuing Action And Cancelling Notice Of Pendency, on November 26, 2014 and again on June 1, 2015. By letter dated October 21, 2015, Plaintiff purported to revoke its prior acceleration of the indebtedness that it alleged was due under the Note. By way of a subsequent letter dated March 17, 2016, Plaintiff advised Defendants, inter alia, that it was waiving sums claimed due as "...uncollectible because they were not enforced within the applicable statute of limitation..." On May 20, 2016, Defendants commenced an action against Plaintiff in this Court under Article 15 of the Real Property Actions and Proceedings Law, under index number 2016-607802.
Plaintiff now applies to this Court for an Order vacating the dismissal and restoring the matter to the Court's calendar. Plaintiff expressly invokes the authority contained within CPLR § 5015 and asserts that this Court was without power or authority to dismiss the action herein. Not surprisingly, Defendants' counsel vigorously opposes the relief sought.
While the Affirmation of Plaintiff's counsel appears to articulate a facially reasonable argument for granting the relief sought, the history of this matter, both before and after the dismissal clearly demonstrates otherwise. First, on July 31, 2012, a conference was held before the Court, at which counsel for Plaintiff appeared and wherein resumption of prosecution was expressly directed within sixty days else the case would be dismissed. Second, counsel for Plaintiff never made any request of the [*2]Court for additional time to be afforded to be able to resume prosecution before dismissal. Third, in view of the failure of Plaintiff to resume prosecution or to request an extension of time in which to do so, the Court, on November 21, 2012, issued a written Order dismissing the case for failure to prosecute, which was served on all counsel and parties by the Court. Fourth, Plaintiff has proffered no excuse whatsoever, reasonable or otherwise, to explain the passage of time (three years, eleven months and twelve days) between the dismissal and the filing of the application that is sub judice during which time there was no action taken to resume prosecution. Fifth, it was only after the filing of the instant motion that Defendants (not Plaintiff) disclosed to this Court that there were two separate written requests made by Plaintiff to "voluntarily discontinue" this action (in spite of the previous dismissal). Sixth, it was once again disclosed by Defendants (not Plaintiff) that a letter was sent by Plaintiff to Defendants advising that the statute of limitations had, in fact, expired with respect to the prosecution of Plaintiff's claim against Defendants. All of this activity engaged in by Plaintiff, when viewed in toto, can hardly be viewed by any reasonable person as evincing an intent to resume prosecution of the action. Indeed, this drives the Court to the inescapable conclusion that Plaintiff has, for a period approaching five years, effectively abandoned its prosecution of the within action.
That being said, it is the province of the Court, in assessing the reasonableness of any excuse proffered for delay, to consider the length of time that has elapsed between the rendition of the order at issue and the application to vacate (in this case, 23 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. As noted above, Plaintiff's present counsel fails to explain the delay of almost four years between the dismissal and the instant application to vacate nor has Plaintiff seen fit to advise that Court that it sought "voluntary discontinuance" of the action upon two separate occasions or that it affirmatively advised Defendants, in effect, that the statute of limitations for enforcement of its claim had expired. Indeed, Plaintiff has advanced no excuse at all. An excuse which is amorphous or otherwise specious is not a reasonable one, Dugan v. Belik 170 AD2d 746 (3rd Dept. 1991). Plaintiff instead elects to focus upon its assertion that the dismissal was effectively void ab initio.
In view of the failure of Plaintiff to proffer any excuse whatsoever for its post-dismissal delay of almost four years coupled with Plaintiff's affirmative conduct as hereinabove set forth, 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; and it is further
ORDERED that Defendants' application is determined to be academic in light of the Order of Dismissal dated November 21, 2012; and it is further
ORDERED that the Order of Dismissal dated November 21, 2012 shall be and the same is hereby ratified and confirmed; and it is further
ORDERED that any relief not expressly granted herein shall be and the same is hereby denied.
This constitutes the decision, judgment and order of this Court.
Dated: August 28, 2017
Central Islip, New York
_____________________________
HON. JEFFREY ARLEN SPINNER
J.S.C.
___ X Final Disposition
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