American Home Mtge. Servicing, LLC v Abodalo

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American Home Mtge. Servicing, LLC v Abodalo 2018 NY Slip Op 32818(U) November 5, 2018 Supreme Court, Suffolk County Docket Number: 33968/2010 Judge: Thomas F. Whelan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SI !ORT FORM ORDER copy INDEXNo. 33968/2010 SUPREME COG RT - STATE OF NEW YORK 1.A.S. PART 33 - SUFFOLK COUNTY PRESE N T.· I lon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 9/20/ 18 SUBMIT DATE: 10/5118 Mot. Seq. 003 - M D CDISPY_ N X ---------------------------------------------------------------X AMERICAN HOME MORTGAGE SERVICING. LLC. Plaimiff, RAS BORISKIN Atty. For Plaintiff 900 Merchants Concourse. Suite I 06 Westbury. NY 11590 RONALD \\"EI S, PC -against- Atty. For Defendants Abodalo 734 Walt Whitman Rd. - Ste. 203 t\1elville. NY 1747 JALAL ABODALO, HE DR. MOHAMMAD SAED ALKENDT, WASHINGTON MUTUAL BANK, f/k/ WASHINGTON MUTUAL BA1 K. FA and REEM ABO DALO. Defendants. ---------------------------------------------------------------)( Upon the following papers numbered I to _J1__ read on this motion to dismiss the complaint, among. OLher things ; Notice of Motion/Order to Show Cause and suppo11ing papers _1_-_4__ Notice of Cross Motion and supponing papers: ; Opposing papers· 5-6 : Reply papers._.7~-8'---0ther ; (and after l1ea1 irrg cot111scl i11 111ppo11 :111d opposed to tire 111otion) it is. ORDJ::RED that this motion (#003) by the defendants. Jabal /\bodalo and Reem Abodalo. for an order dismissing the complaint or, in the alternative. vacating this Court's Order dated December 21. 2015. granting defendants lca,·e to amend their answer. and compelling discovery. is denied in its entirety; and it is further ORDERED that movant is directed to file a notice ofl.!nlry within fi, e days of receipt o f this Order pursuant to 22 NYCRR § 202 .5-b(h)(2). [* 2] American Home Mtge. Serv. v Abodalo index No. 33968/2010 Page 2 This is a n action to foreclose a mortgage on residentia l property situate in Northport, New York. ln essence. on June 1. 2006, defendant. JaJal Abodalo. borrowed $300,000.00 from plaintiffs predecessor-in-interest and executed a promissory note and mortgage. Since January 1. 20 I 0, the defendant has failed to pay the monthly installments due and owing. T hi s action was commenced by filing on September 15, 20 I 0. On January 29. 2011, Jalal Aboda1o filed a Notice of Appearance, though counsel. No other defendants answered or otherwise appeared in the action. On October 9, 2015 . the plaintiff moved (#00 1) for default judgments against the non-answering defendants, and for the appointment of a referee to compute. The motion was granted by this Court on Decem ber 21, 2015. Status conferences were thereafter held on August 4, 2016 and July 25, 2018 . On August I, 2018. plaintiff ti led an ex parte application seeking an amendment to the December 21, 2015 Order to provide for compensation to the referee upon the fiI ing of his report. The application was granted by Order dated August 8, 20 18. On August 22, 2018, defendant, Jalal Abodalo, now through new counsel and together with defendant, Reem Abodalo. filed the instant m otion (#003) seeking dismissal of the complaint pmsuant to CPLR 3215(c) or, in the alternative, vacatur of the December 21, 2015 Order, leave to serve a late answer, and further discovery. The defendants first contend that the plaintiffs motion for default and the appointment of a referee to compute fi led in October. 20 15 was untimely pursuant to CPLR 3215(c) and that the complaint should. therefore, be dismissed. CPLR 3215(c) provides that" [i)f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the cou1i shall not enter judgment but shall dismiss the compl a int as abandoned ... unless suffic ient cause is shown why the complaint should not be dismissed" (CPLR 3215[c] ; HSBC Bank USA, N.A. v Basis, 154 AD3d 832, 833 , 62 NYS3d 467 [2d Dept 2017), citing Wells Fargo Bank, NA v Bo11an110. 146 AD3d 844, 45 NYS3d 173 [2d Dept 2017]). To avoid dismissal, the plaintiff need not actually obtain nor specifically seek the default judgment within one year (see HSBC Bank USA, NA v Basis, 154 A D3d at S33. supro: see also W ells Fargo Bank, NA. v Daskal. 142 AD3d 1071 , 1072, 37 NYS3d 353 [1d Dept 2016)). A.s long as "'proceedings" are being taken that manifest "an intent not to abandon the case hut to seek a judgment. the case should nol be subject to dismissal" (Wells Fargo Bank, NA 11 Das/wt, 142 AD3d 107 1, 1073, 37 NYS3d 353 l2d Dept 2016] , c;,ing Brow11 v Rosedale N urseries. 259 AD2d 256. 257, 686 NYS2d 22 [l st Dept 1999], US Bank NA v Dorestant, 13 1 AD3d 467. 469. 15 NYS3d 1.+2 (2d Dept 2015): Wells Fargo Bank, N.A. v Combs. 128 AD3d 813,8 13, 10 NYS3d 257 [2d Dept 2015]; Klein vSt. Cyprian Props., l11c., 100 ADJd 71 l, 712, 954 NYS2d 170 [2012]; Pisciotta v Lifestyle Designs, Inc. , 62 AD3d 850, 852. 879 NYS2d 179 l2d Dept 2009]: Icon Equip. Distribs. v Gordon Envtl. & Mech. Corp .. 272 AD2d 579, 579 709 NYS2d 426 (2d Dept 2000) ). A defendant may waive the righL to seek relief w1der CPLR 3215(c) by serving an answer or taking ..any other steps which may be viewed as a formal or informal appearance" (HSBC Bank [* 3] American Home Mtge. Serv. v Abodalo Index No. 33968/2010 Page 3 USA, N(lt/. A ssn. v Grella, 145 AD3d 669, 44 NYS3d 56 [2d Dept 2016) quoting M eyers v Slusky. 139 AD2d 709. 527 NYS3d 464 (2d Dept 1988]; see DeLourdes Torres v Jon es, 26NY3d 742, 772. 27 NYS3d 468 [2016]; 1ISBC Bank USA v Lugo, 127 A03d 502, 503, 9 NYS3d 6 [2d Dept2015]; Hodson v Vinnie's Farm Mkt. , 103 AD3 d 549, 959 NYS2d 440 [2d D ept 2013]; Gilmore v Gilmore, 286 AD2d 416, 730 NYS2d 239 [2d Dept 2001 ]). The Second Depru1ment recently reaffirmed the rule that a defendant may waive the right to seek relief under CPLR 3215(c) by his or her conduct (see US Bank N.A. v Gusta via Home, LLC, 156 AD3d 843, 844, 67 NYS3d 242 [2d Dept 20171: Bank of A m erica, N.A . v Rice. 155 AD3d 593. 63 NYS3d 486 [2d Dept2017]). As noted above. Jalal Abodalo filed a 1 otice of Appearance through counsel on January 25, 2011 . A ·'defendant appears by serving an answer or a notice of appearance, or by making a motion which has the effect of extending the time to answer" (CPLR 320[a]). Additionally, pursuant to CPLR 320{b), "[aJn appearance of the defendant is equivalent to personal service of the summons upon him, unless an objection lo jurisdiction under CPLR 3211 (a)(8) is asserted by motion or in the answer as provided in [CPLR 3211]" (CPLR 32.0[b]). The defendant ,;i.,aived his right to seek a dismissal pursuant to CPLR 3215(c) by serving the notice of appearance on January 25, 2011, as such constituted a formal appearance in the action (see US Bank N.A. v Gustavia Hom e, LLC. 156 AD3d at 844. supra. citing CPLR 320[a]: Bank of A m., NA v Rice. 155 AD3 d at 593. supra. Myers 11 Slutsky, 139 AD2d 709, 710, 527 YS2d 464 l 2d Dept 1988]: tj' HSBC Ban k USA, N.A. v. Grella, 145 AD3d 669, 670. 44 NYS3d 56 [2d Dept 2016J). The Court, therefore, denies the defendant's a pplication to dismiss the complaint as abandoned pursuant to CPLR 321 S(c). The application also fails as to defendant Reem Abodalo, as said defendant. who is a party lo the action by virtue of her residency at the premises. did not move for such relief until after the default judgment was entered against her by plaintiff per the December 21, 20 15 Order (see Fuentes "Virgil . 88 AD3d 643. 644, 930 NYS2d -l.79 [2d Dept 2011 ]). Where, as here. an issue isjudicially determined.judges and courts of coordinate jurisdiction are precluded from further consideration of that issue under the doctrine of the "law of the case,·· \Nhich applies to any legal determinations that were necessarily resolved on the merits in a prior decision (see M artin v City o,f Coltoes, 37 NY2d 162, 165. 371 NYS2d 687. 689 [1975]: A ltrorgulova v 1li/ m111. 144 AD3d 953, 42 NYS3d 203 (2d Oept2016]: Struja11 v Gleu cord Bldg. Corp .. 137 AD3d 1252. 29NYS3d 398 [2d Oept2016]). Notwithstanding the above, the Court notes that the plaintiff has demonstrated its inte nt not to abandon the case by engaging in loss mitigation efforts and settlement communications with defendants. as well as, filing an additional notice of pendency. Delays attributable to the parties' engagement in mandatory settlement conference procedures, or other loss mitigation efforts including trial loan modifications and other settlement communicatiqns. motion practice and other pre-trial proceedings have been held to negate any intention to abandon the action and are thus [* 4] American Home Mtge. Serv. v Abodalo Index No . 33968/2010 Page 4 excusable under CPLR 32 l 5(c) (see Brooks v Somerset Surgical Assocs., 106 AD3d 624, 966 NYS2d 65 [1st Dept 2013]: L(lourd(lkis v Torres, 98 AD3d 892, 950 NYS2d 703 (1 si Dept 2012]). For these reasons, the branch of the motion seeking dismissal pursuant lo CPLR 321 S(c) is denied. The defendants next seek vacatur of their default in opposing plaintiffs motion (#00 I) for defaultjudgment and to appoint a referee to compute pursuant Lo CPLR 5015(a)(l). In order to do so, a party must demonstrate both a reasonable excuse for the default and a potentia lly meri torious opposition to the motion (see Hudson City Sav. Bank v Bomba, 14 AD3d 704, 51 NYS3d 570 [2d Dept 2017]; Ba11k ofNew York v Young, 123 AD3d 1068, 2 NYS3d 127 [2d Dept 2014]; Citibank [South Dakota}, N.A. v B(lr011 , 115 AD3d 90, 982 NYS2d 396 [2d Dept 20 14]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Court (see Hudson City Sa ii. Bank v Bomba, 14 AD3d at 705, supra; A urora Loan Servs. LLC v A /1111ed , 122 AD3d 557. 996 NYS2d 92 [2d Dept 2014]). The defendants contend lhal the failure to oppose the motion resulted from law office failure attributed to prior counsel. Defendants submit that because prior counsel did not inform rhem of the plaintiff s motion and failed to oppose the motion, they have demonstrated a reasonable excuse for fai ling 10 oppse the motion. The Court finds this proffered explanation unavailing. A Court has the discretion to accept law office fa ilure as a reasonable excuse, "where the claim ... is supported by a ·detailed and credible' explanation of the default" (Kim v Bishop. 2017 WL 6504625 [2d Dept 20 l 7]; see Kolin v Ko/111. 86 AD3d 630. 630. 928 NYS2d 55 (2d Dept 2011]; CPLR 2005: see also Strunk v Revenge C(lb C01p .. 98 AD3d I 029, 950 NYS2d 595[2dDept2012]). Ilowever, ''it was not the Legislature 's intent to routinely excuse such defaults, and mere neglect will not be accepted as a reasonable excuse.. (I11corporute d V il. of/ -I(tmpstecul 1•Jah/011sky, 283 AD2d 553, 553-5 54_ 725 NVS2d 68 [2d Dept 2001); 011ishe11ko v Ntansah,145 AD3d 910. 43 NYS3d 504 [2d Dept 2016]). Here. the defendants have failed to demonstrate a proper cause to vacate their default. The plaintiffs motion papers (#001) were properly served upon the defendant's counsel. and the bare allegation of law office failure is insufficient (see Strunk v Reve11ge Cab Corp., 98 AD3d 1029. supra; Bank of New York v Yo ung, 123 AD3d at I 069, supra; 011ishe11ko v Nta11sa!t ,J45 AD3cl ut 91 l- 912. suprn: B uclrnkian v Kurig(I. 138 AD3d 711, 28 NYS3d 724 [2d Dept 2016J). Because the defendants have not demonstrated a reasonable excuse for the default in opposing p laintiff's motion for summa1y judgment, it is unnecessary to consider whether defendants demonstrated a potentially merito1ious defense (see PNC Ballk, N.A . 11 Bannister, _ AD3d _ . 2018 NY Slip Op 03718 [2d Dept], citing Bank ofA m., l\~A. v Agarwal, 150 AD3d 651, 652, 57 [* 5] American Home Mtge. Serv. v Abodalo Index No. 33968/2010 Page 5 NYS3d 153 [2dDept 20 17J). The defendants' next request that the Court vacate its own j udgment '·for sufficient reason and in the interests of substantial justice·• pursuant to CPLR 50 I 5(a) (Hudson City Sav. Bank " Colten , 120 AD3d 1304. 1305, 993 NYS3d 66 (2d Dept 2014) [citations omitted]). In such a case. the defendant would be required to provide evidence of fraud, mistake, inadvertence, surprise, or excusabl e neglect (see Wells Fargo Bank Nfbwesota, N.A. v Coletta, 153 AD3d 757, 758, 60 NYS3d 320 [2d Dept 2017], citing HSBC Bank USA v Josephs- Byrd, 148 AD3d 788, 790, 49 NYS3d 477 [2d Dept 20 17]; 40 BP, LLC v Katatikam. 147 AD3d 710, 7 11 , 46 NYS3 d 2 17 [2d Dept 2017]: cf U.S. Bauk NA v Losuer. 1-+5 AD3d 935. 44 NYS3d 467 (2d Dept 2016); Hudson City Sav. Ba11k v Cohen , 120 AD3d 1304, supra: Wells Fargo Bank v Hodge. 92 AD3d 775. 939 NYS2d 98 [2d Dept 20 12]). Here, howeve r, the defendants fail to set forth any facts demonstrating their entitlement to this relief. Jn light of the above, the Court also denies the defcndanrs applicati on seeking leave to appear herein by service of an answer pursuant to CPLR 3012(d). To successfully vacate the default in answering the complaint and to compel plaintiff to accept service of an untimely answer. a defendant mus t establish both a reasonable excuse for his/her fai lure to answer and the existence of a potentially meritorious defense to the action (see CPLR 30 12[d], 5015(a][ll ; US Bank N.A. 1• Samuel, 138 AD3d ll05 , 30 NYS3d 305 [2d Dept 2016); SDF8 CBK, LLC v .6 89 St. Marks Ave., Inc.. 13 1 AD3d 1037, 16 NYS3d 463 [2d Dept 2015]; Chase Home Fin., LLC v Minott. 115 AD3d 634, 981 NYS2d 757 [2d Dept 2014]). As d iscussed above, the Court has determined that no reasonable excuse is offered (see Deutsche Bank Natl. Trust Co. v Patrick, 136 AD3d 970. 97 1, 25 NYS3d 364 [2d Dept 2016]). The absence of a reasonable excuse for the defaul t renders it unnecessary lo determine whether defendant demonstrated the existence of a potentially meritorious defense (see LaSalle Ba11k N.A. v Calle. 15:1 AD3d gol. 6 1 NYS3d 104 [2d Dept '.20 17]: Citimortgnge, Inc. v Bustama11te. 107 AD3d 752, 968 NYS2d 513 [2d Dept 2013]; Wells Fargo Bank, N.A. i Cen i11i, 84 AD3d 789, 921 NYS2d 643 [2d Dept :WI I]). 1 1 final ly. the defendant's request fo r d iscovery is denied. as there is no showing as to how such discovery would have helped to defeat plaintiffs motion fo r summary judgment (see JPMorgan Chase Bank, Natl. Assn. v Weinberger, 142 /\DJd at 645-6. SllJJra ; A merican Prescription Pfau, foe. v A m erican Postal Workers Union . 170 AD2d -l71, 565 NYS2d 830 [2d Dept 199 l ]). fn accordance with the above. the defendant" s motion (#003) is denied in its DATED _}_I /15 '~ s .C.

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