Deutsche Bank Natl. Trust Co. v Pascarella
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Deutsche Bank Natl. Trust Co. v Pascarella 2018 NY Slip Op 32870(U) November 13, 2018 Supreme Court, Suffolk County Docket Number: 11575/2008 Judge: Howard H. Heckman 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] Short Fonn Order SUPREME COURT- STATE OF NEW YORK IAS PART 18 - SUFFOLK COUNTY PRESENT: HON. HOW ARD H. HECKMAN JR., J.S.C. -------------------------------------------------------------X DEUTSCHE BANK NATIONAL TRUST COMPANY, Plaintiff, -against- ANTHONY PASCARELLA, et al., Defendants. ----------------------------------~----------------------------X INDEX NO.: 11575/2008 MOTION DATE: 10/16/2018 MOTION SEQ. NO.: #006 MD #007MG CASEDISP PLAINTIFF'S ATTORNEY: MCCABE, WEISBERG & CONWAY, P.C. 145 HUGUENOT ST., STE. 201 NEW ROCHELLE, NY 10801 DEFENDANT'S ATTORNEY: SIMON MEYROWITZ MEYROWITZ, ESQS. 355 LEXINGTON AVENUE, STE 401 NEW YORK, NY 10017 DEFENDANT PRO SE: ANTHONY PASCARELLA 33 LEE AVE. BABYLON, NY 11702 ANTHONY PASCARELLA 960 SUNRISE HWY. WEST BABYLON, NY 11704 Upon the following papers numbered l to 45 read on this motion : Notice of Motion/ Order to Show Cause and supporting papers 1-14 (#006) 15-20 (#007) ; Notice of Cross Motion and supporting papers_ ; Answering Affidavits and supporting papers 21-29, 30-40 ; Replying Affidavits and supporting papers 41-43. 44-45 ; Other_ ;it is, ORDERED that this motion by defendant Thomas Pascarella for an order pursuant to CPLR 3216 & 6514: 1) vacating the Order (Tanenbaum, J.) dated February 17, 2009 granting a default judgment in favor of the plaintiff; 2) disi:nissing plaintiffs complaint for failure to prosecute; and 3) cancelling the notice of pendency filed by the plaintiff is denied; and it is further ORDERED that the motion by plaintiff Deutsche Bank National Trust Co. for an order confinning the referee's report of sale dated September 27, 2017 and for a judgment of foreclosure and sale is granted to the following extent: This foreclosure action has had a long procedural history which needs to be detailed for purposes of addressing the issues raised by the defendant. Plaintiffs action seeks to foreclose a mortgage in the original sum of $220,500.00 executed by defendants Anthony Pascarella and Thomas Pascarella on September 30, 2005 in favor of Argent Mortgage Company, LLC. On the same date defendant Anthony Pascarella executed a promissory note promising to repay the entire amount of monies borrowed to the mortgage lender. The note and mortgage were subsequently assigned to the plaintiff by assignment dated October 15, 2008. The Pascarella defendants defaulted in making payments since November 1, 2007 and the default has [* 2] continued Lo date. Plain ti ff commenced this action by Ii ling a notice of pcndcncy, summons and complaint in the Suffolk County Clerk's Office on March 24, 2008. Defendants Anthony Pascarella and Thomas Pascarella served a timely answer which was withdrawn by stipulation dated October 6, 2008. By Order (Tanenbaum, J.) dated February 17, 2009 plaintiffs unopposed motion for an order grunting a default judgment and for the appointment or a referee was granted. Court records indicate that a total of five justices were previously assigned to this action and that twenty-six court conferences were scheduled and held prior to reassignment of this action to this Part. The parties also e ngaged in extensive motion practice which included the following motions which were decided subsequent to Justice Tanenbaum· s February 17, 2009 Order granting a default judgment:: a) Motion Sequence #2- Plaintiff submitted a motion on August 3 1, 2009 seeking a judgment of foreclosure and sale with an original return date or January 25. 2010. By short form Orders (Tanenbaum, J.) dated November 1, 201 0 a nd October I 9, 20 I I , the motion was adjourned pending plaintifrs submission of additional aflidavits or attorney affirmations certifying compliance with court rules. Upon Justice Tancnbaum's retirement on December 31, 2011, thi s action was assigned to Justice I lcctor D. LaSalle. Ry short form Order dated January 10. 2012, plaintiffs motion was denied: b) Motion Sequence #3- Plaintiff subrr1itted an unopposed motion on January 28, 2014 seeking a judgment of foreclosure and sale with an original return date of f'ebruary 24, 20 14. By Order (Tarantino. J.) dated May 19. 20 14 plaintiff's motion was denied without prejudice to renewal to submission of a renewal motion within one hundred twenty days; c) Motion Sequence #4- Defendant Thomas Pascarella submitted a motion on March 4, 2015 seeking an order dismissing plaintifrs complaint for failure to prosecute with an original return date of March 31, 20 15. By Order (Tarantino. J.) dated August 12. 20 15 defendant's motion was denied; d) Motion Sequence f/5- Plaintiff submitted a motion on March 27. 2015 seeking a judgment of foreclosure and sale with an original return date of March 31, 2015. This motion was marked submitted on April 21, 2015. By Order (Tarantino, .I.) dated September 15, 2016 plaintiffs motion was denied without prejudice. Sometime in 2012 this action was assigned to Supreme C<mrt Justice Jerry Garguilo. Beginning June 12, 2012 and extending until January 7. 2014 a total of seven foreclosure conferences were held in Justice Garguilo ·s part. The action was thereafter reassigned to Acting Supreme Court Justice Andrew U. Tarantino, Jr. Beginning January 28, 20 l 4 and continuing until November 30. 20 I 6 a total or thirteen foreclosure conforcnces were held in Acting Justice Tarantin<>s part. The action was thereafter assigned to Acting Supreme Court .Justice Martha Luft. Beginning .January 11, 2017 and continuing until September 19, 2017 a total of six conferences were held in Acting Justice Lull's part. The action was thereafter reassigned to this part by Administrative Order (I linrichs . .I .) dated June 27. 2018. Before this court arc two motions: the first, defendant Pascarella· s motion seeking an order -2- [* 3] dismissing plaintilTs complaint for failure to prosecute and cancel.ing the notice of pcndency: and the second, plaintiffs motion seeking an order confirming the referee's most recent report and for a judgment of foreclosure and sale. Defondant's motion was origin.ally served on September 14, 2017 with an original return date of September 19, 2017. The motion was thereafter marked submitted on Acting Justice Lufrs motion calendar on October 17. 2017 where it remained sub judice until reassignment to this part where it was re-calendared and submitted on October 16, 2018. Plaintifrs motion was originally served on October 20. 2017 with an original return date of >lovembcr 14. 2017. The motion vvas thereafter marked submitted on Acting Justice Luft's motion calendar on December 19. 2017 where it remained sub judice until reassignment to this part where it was rccalcndared and submitted on October 16. 2018. Defendant's motion seeks an order dismissing the complaint for failure to prosecute. Defendant claims that plaintiff was served with a CPLR 3216 90 day notice by certified mail on May 26. 2017 and upon plaintiffs failure to comply with the demand defondant claims the complaint must be d ismissed for failure to prosecute. Defendant Pascarella claims that plaintiff's failure to timely prosecute this action for the pa<;t nine (9) years has caused him substantial prejudice and prevented him from "moving on with his life." Defondant also argues that even if the court were to grant plaintifrs motion to confirm the referee's report and for a judgment of foreclosure and sah.:, the amount interest to be awarded to the mortgage lender should be limited based upon plaintiffs significant delay in prosecuting this action. or or The legal grounds for dismissing a pre-note issue action are dictated by the requirements of CPLR 3216. The statute docs not permit dismissal unless issue has been joined (CPLR 32 I 6(b)( I). In this case, although the Pascarella defendants initially appeared in this action by serving an answer, the answer was subsequently withdrawn by stipulation signed by the mortgagors on October 6, 2008. Based upon this record a condition precedent to dismissal pursuant to CPLR 3216 is absent since issue was not joined as a resu lt of the defendants' withdrawal of the answer and therefore the court is without authority to dismiss this foreclosure :.iction pursuant to CPLR 3216 (see We/fr Fargo Bank. N. A. ' '· Pinwxote. 150 AD3d 1311. 52 NYS3d 907(2017); Deutsche Bank Nalional 1i·ust ( 'ompany 1•. I !all. 149 AD3d 803. 49 NYS3d 91O(~O17): Downey Sa1•ings & 1.()(111 /lssoiciation, F.A. v. /l rihisala. 147 A03d 911, 47 NYS3d 413 (2017)~ U.S. Bank, N.A. v. Bassel!. 137 J\D3d 1109, 28 NYS3d l 09(2016))* l. With respect to defendants' claims concerning the substantive issues surrounding the reforcc · s report and computations, no legal basis exists to deny confirmation of thl! referee's report . Plaintiffs submissions establish its entitlement to a judgment of foreclosure and sale ba<;ed upon the refcree·s report and findings (see U.S. Bank N.A. v. Saraceno. 147 AD3d 1005. 48 NYS3d 163 (2nd Dept.. 2017): !!SBC Bank USA. NA. v. Simmons. 125 /\D3d 930, 5 NYS3d 175 (2"d Dept., 2015)). Whereas the court is not bound by the referee's report of the damages due the plaintil1~ the report a referee should be confirmed in circumstances where the findings are substantially supported by the evidence in the record (CiliMortgage, Inc. v. Kidd. 148 AD3d 767. 49 NYS3d 482 (2"d Dept.. 2017); Malla <?{Cinco/la, 139 /\D3d 1058. 32 NYS3d 610 (2"d Dept., 2 0 16)). In this case, the referee submitted sufficient evidence in the form of an affidavit from a representative of the mortgage servicer (Ocwen Loan Servicing, LLC). together with sufficient documentary proof, to establish the accuracy of the rclerce·s computations and to confirm the finding that the mortgaged premises should be sole.I in one parcel (CitiMortgage. Inc. v. Kidd. supra.: l/udson v. Smith. 127 /\D3d 816. 4 NYS3d 894 (211J Dept.. 20 I 5)). or -3- [* 4] *I- The court notes that defendant· s motion was the second such motion defendant has submitted citing CPLR 3216 as grounds for dismissal. Defendant 's initial CPLR 3216 motion was denied by Order (Tarantino, J.) dated August 12, 2015. A fair reading of that prior order reveals that the denial was premised upon the motion having been submitted as an application pursuant to CPLR 3126 and not pursuant to CPLR 3216. With respect to the issue of interest to be awarded. in an action of an equitable nature, such as this proceeding, the recovery of interest is within the court's discretion and the exercise of such discretion should be governed by the particular facts of the case including ··wrongful .. conduct on the part of either party (see IJA( · I fume loans Servicing. f,P v. .Jackwn, 159 AD3d 861. 74 NYS3d 59 (211J Dept., 2018)~ Greenport Mortgage Corp. v. Lo111herfi, 155 AD3d I 004, 66 NYS3d 32 (2°J Depl.. 2017); Citicorp Trust Bank v. Vidaurre, 155 AD3d 934, 65 NYS3d 237 (2"J Dept., 2017)). An unexplained and prolonged delay which results in unusual circumstances substantially prejudicing a party could result in forfeiture of interest during the unexplained period of delay (BAC' f lom<! Loans ServidnK. JJ> v. .Jackson, supra.). The history of this action reveals that. although there has been an extensive period of time between Lhe original order granting a default judgment and an award granting a judgment of foreclosure and sale, there exists no legal or equitable grounds to either grant defendant's dismissal motion (thereby rewarding the defaulting mortgagor a windfall- a defendant who has not made a mortgage payment during the past eleven (11) years) nor to deny plaintiff's motion. The record shows that the prolonged delay in awarding a final judgment of foreclosure and sale was due to a number of reasons including: the imposition of administrative attorney ce11ification requirements during the immediate period after the award of a default judgment, the period beginning June 12, 2012 through November JO, 2016 during which a total of twenty foreclosure conferences were scheduled; additional lengthy and prolonged delays which were the result of the assigned motion coun's failure to render decisions on submitted motions; and a period of unexplained delay on the part counsel then representing plaintiff during the period between September 16, 2014 and March 23, 20 15. or Defendant claims that Acting.Justice Tarantino 's August 12. 2015 Order indicated that plaintiff's award of interest should he tolled for periods including: 1) the time between September, 16. 2014 and March 23. 2015 (the period beginning on the date plaintiff was required to serve a renewal motion and the date the renewal motion was actually made): 2) the time between November L 2010 and Janum)' 12. 20 12 (the period between plaintiffs first motion seeking a judgment of foreclosure and sale anti the order denying that motion): and 3) the time beLween f-'ebruary, 2014 and March 24, 2015 (representing the period between the final settlement conference and plaintiffs filing of its second motion seeki ng a judgment of foreclosure and sale). I lowcver a fair reading of Acting Justice Tarantino 's Order reveals that there was no such legal determination- merely a directive that a hearing was required to determine these issues. Court records indicate that no hearing was ever conducted and that by Order (Tarantino. J.) dated September 15, 2016 plaintifPs motion was denied withoul prejudice to renewal. Plaintifl~s subm ission of this third motions seeking a judgment of foreclosure and sale again raises the issue of whether there exists any admissible proof sufficient to deny, or toll, the interest to -4- [* 5] be awarded to the mortgage lender. Based upon this record this Court finds that there is an tmcxplained and prolonged period of delay which, in fairness and equity, requires a tolling of interest to be awarded to the mortgage lender between the period beginning September 16, 2014 and ending March 23, 20 .1 5- that period represents the actual date when plaintiff was required by Act ing Justice Tarantino·s May 19, 2014 Order to serve its renewal motion, and ending when plaintiff did in fact serve its renewal motion seeking a judgment of foreclosure and sate. Plaintiff has submitted no reasonable explanation for plaintiffs prior counsel's failure to serve a timely motion in compliance with that order. Accordingly, interest on the outstanding mortgage debt shall be tolled for this period which amounts to a reduction in interest in the sum of $7,921.13 ( I 89 days x $41.91076600 per diem interest), so that the total amount to be awarded the pJajntiff as of August 31. 20 J 7, shall be the sum $428, 128.52. or The remaining periods of time which resulted in a deh:ly of prosecution of this action are either not attributable solely lo the inaction of the plaintiffs counsel; arc periods during which conferences were continually being scheduled and held; or arc periods during which motions had been submitted and were sub judice awaiting the court's determination. The initial period of delay beginning with plaintiff's service or its initial motion seeking a judgment or foreclosure and sale was during a time when plaintiff's counsel in all pending foreclosure actions were required to comply with administrative orders which became effective October 10, 2010, resulting in nearly universal delays in prosecution of these cases. There is no relevant, admissible evidence submitted to attribute ..wrongful conduct'' to the plaintiff during this period and all remaining periods of time recited in Acting Justice Tarantino's Order between February, 2014 and March 24, 2015, and periods since that lime. Court records indicate that court conferences were continuously being held during these periods which included a total of twelve (12) conferences before Act ing Justice Tarantino and six (6) conferences before Acting Justice Lul't. J\.n<l, although Acting Justice Tarantino 's September 15, 2016 Order refers lo a ·'tortuous history of missing documents and delays", the court never issued an order citing such conduct as warranting some form oC sanction and, in fact, reflected that plaintiff was still involved in attempting to reach a "cash for keys" settlement agreement while conducting such con ferences. Based upon this record there is insufficient proof submitted to deny plaintiff's motion with the exception that the interest to be awarded in the judgment shall be limited to the extent indicated hcrcinabove. Defendant ' s remaining contentions are without merit. Accordingly, defondant's motion is denied in its entirety, and plaintiffs motion is granted to the extent indicated. The proposed, modified judgment of foreclosure and sale has been signed simultaneously with execution of this order. HON. HOWARD II. HECKMA N, JR. Dated: November 13, 2018 J.S.C. -5-
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