Nationstar Mtge. LLC v Joseph

[*1] Nationstar Mtge. LLC v Joseph 2018 NY Slip Op 50340(U) Decided on March 16, 2018 Supreme Court, Suffolk County Quinlan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018
Supreme Court, Suffolk County

Nationstar Mortgage LLC, Plaintiff,

against

Marie-Karoll Joseph A/K/A KAROL JOSEPH; et al., Defendant(s).



014780/2013



GROSS POLOWY LLC

Attorneys for Plaintiff

1775 Wehrle Drive, Suite 100

Williamsville, NY 14221

RONALD D. WEISS, P.C.

Attorney for Defendant Marie-Karoll Joseph

734 Walt Whitman Road, Suite 203

Melville, NY 11747
Robert F. Quinlan, J.

Upon the following papers read on this motion for preliminary injunction staying the sale of the propery and vacating the judgment of foreclosure and sale; Notice of Motion/ Order to Show Cause and supporting papers granted January 26, 2017; Affirmation In Opposition to Order to Show Cause dated February 14, 2017 and [*2]supporting papers; it is,

ORDERED that this order to show cause by defendant Marie-Karoll Joseph for preliminary injunction restraining, enjoining and staying plaintiff from proceeding with the foreclosure sale; or in the alternative setting aside the sale if the sale goes forward; and an order vacating the judgment of foreclosure and sale and order of reference is denied.

This is an action to foreclose a mortgage on real property known as 443 Wolf Hill Road, Dix Hills, Suffolk County, New York ("the property"). Plaintiff Nationstar Mortgage LLC ("plaintiff") commenced the action by filing of the summons and verified complaint on June 5, 2013. Defendant Marie-Karoll Joseph ("defendant") was served pursuant to CPLR 308(2) on July 5, 2013. Defendant's prior counsel filed a notice of appearance dated December 30, 2013. None of the defendants answered the complaint. Plaintiff's unopposed motion for summary judgment and order of reference was granted March 31, 2015 (MacKenzie, J.) (Mot. Seq. #001) and judgment of foreclosure and sale granted September 21, 2015 (MacKenzie, J.) (Mot. Seq. #002). Upon filing the present motion the action was administratively assigned to the general inventory of this part as Justice MacKenzie is no longer available to hear foreclosure actions.

Defendant, appearing by new counsel, brings the present application by order to show cause granted January 26, 2017 (Rebolini, J.) for preliminary injunction restraining plaintiff from proceeding with the foreclosure sale of the property, and vacating the March 31, 2015 and September 21, 2015 orders of Justice

MacKenzie granting summary judgment and judgment of foreclosure and sale, respectively. Defendant moves to vacate her default pursuant to CPLR 5015(a)(3) on grounds of misrepresentation, that she has a reasonable excuse to file a late answer pursuant to CPLR 2005 and that her meritorious defense of lack of standing has not been waived. In opposition plaintiff submits its affirmation of counsel and argues defendant is not entitled to vacatur, the matter has been fully litigated and defendant has no meritorious defense as the only defense she raises is standing which defense is waived if not raised in a timely pre-answer motion to dismiss or in an answer.

CPLR 5015(a)(3) provides that the court may relieve a party from judgment upon such terms as may be just upon the ground of fraud, misrepresentation, or other misconduct of an adverse party (emphasis supplied). Here defendant's excuse for her default consists of allegations against her prior attorney, who is not an adverse party under 5015(a)(3). It appears to this court that rather than moving to vacate on grounds of misrepresentation against an adverse party, defendant's proffered excuse amounts to "law office failure." As the misconduct claimed is not by plaintiff, defendant has not established a basis to vacate the prior orders pursuant to CPLR 5015(a)(3) that claim is dismissed and defendant's motion denied.

Even if the court were to consider defendant's motion as one to vacate under CPLR 5015(a)(1), which has not been argued by defendant, the court would similarly deny it. The court declines to exercise its discretion to accept law office failure as a reasonable excuse. Law office failure should not be excused and accepted as a reasonable excuse for delay where there has been a long period of unexplained inaction, failed strategy, or no detailed or credible explanation (see [*3]Star Industries, Inc. v. Innovative Beverage, Inc., 55 AD3d 903 [2d Dept 2008]; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789 [2d Dept 2011; Cantor v Flores, 94 AD3d 936 [2d Dept 2012]; Bank of NY Mellon v Colucci, 138 AD3d 1047 [2d Dept 2016]; US Bank Natl Assn v Barr, 139 AD3d 937 [2d Dept 2016]).

Here defendant raises no issue that she was unaware of the action. In fact defendant admits to "immediately" retaining counsel, and a notice of appearance was filed on her behalf in December 2013, although she was already in default. The court records indicate a conference in the Foreclosure Settlement Part was held January 3, 2014 at which defendant believes her attorney appeared. The conference was continued to February 27, 2014 and marked "not settled." The court is aware of the disciplinary proceeding and disbarment of defendant's prior counsel. Where a defendant is clearly aware that she is a party to a foreclosure action, and the action is pending for over two years before a judgment of foreclosure is entered, the court is unable to exercise its discretion to excuse a default, even one based on law office failure (see Cantor v Flores, 94 AD3d 936 [2d Dept 2012]; Buchakian v Kuriga, 138 AD3d 711 [2d Dept 2016]). Since defendant failed to establish a reasonable excuse for her default, it is unnecessary to determine whether she had a potentially meritorious defense (see JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048 [2d Dept 2014]; One W. Bank, FSB v Valdez, 128 AD3d 655 [2d Dept 2015]; Deutsche Bank v Kuldip, 136 AD3d 969[2d Dept 2016]; Bank of NY v Krausz, 144 AD3d 718 [2d Dept 2017]).

Notwithstanding the foregoing the court notes the only defense asserted by defendant in support of her claim of a meritorious defense is standing. As plaintiff attached a copy of the note, undated and indorsed in blank, to the complaint, it has established its standing (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Deutsche Bank Natl. Trust v Leigh, 137 AD3d 841 [2d Dept 2016]; JPMorgan Chase Bank, NA v Weinberger, 142 AD3d 643 [2d Dept 2016]; Nationstar Mortg., LLC v Weisblum, 143 AD3d

866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 AD3d 861 [2d Dept 2017]; Deutsche Bank Trust v Garrison, 147 AD3d 725 [2d Dept 2017]; Wells Fargo Bank v Thomas, 150 AD3d1312 [2d Dept 2017]; Deutsche Bank Natl Trust Co. v Carlin, 152 AD3d 491[2d Dept 2017]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]; Wells Fargo Bank, NA v Soskil, 155 AD3d 923 [2d Dept 2017]; Bank of NY Mellon v Burke, 155 AD3d 932 [2d Dept 2017]). Defendant's claimed defense is therefore without merit.

The court has considered defendant's remaining arguments and found them to be without merit.

In accordance with the foregoing defendant's motion is denied and any provision in the of January 26, 2017 which stayed the foreclosure sale is vacated. Plaintiff may proceed upon the judgment of foreclosure previously issued, pursuant to the provisions of RPAPL the mortgaged premises is to be sold within 90 days of the date of this order.

This constitutes the Order and decision of the Court.

Dated: March 16, 2018

Hon. Robert F. Quinlan, J.S.C.