JP Morgan Chase Bank, N.A. v Brunett

[*1] JP Morgan Chase Bank, N.A. v Brunett 2018 NY Slip Op 50794(U) Decided on May 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2018
Supreme Court, Suffolk County

JP Morgan Chase Bank, National Association, Plaintiff,

against

George Brunett; MIDLAND FUNDING OF DELAWARE, LLC D/B/A IN NEW YORK AS MIDLAND FUNDING, LLC; STIM AND WARMUTH, PC, Defendants.



601969-2015



ROSICKI, ROSICKI & ASSOCIATES, P.C.

Attorneys for Plaintiff

51 East Bethpage Road

Plainview, NY 11803

GRAUSSO & FOY,LLP

by: EDMOND R. FOY, ESQ.

8 West Main Street, Ste 5

Patchogue, NY 11772

STIM AND WARMUTH, PC

2 Eigtht Street

Farmingville, NY 11738
Robert F. Quinlan, J.

Upon the following papers filed in NYSCEF numbered 69-115 read on this motion for judgment of foreclosure and sale and cross-motion seeking renewal and dismissal: Notice of Motion and supporting papers 69-80; Notice of Cross Motion and supporting papers 81-104; Affirmations and supporting papers in opposition and reply 105-113; Other opposition by co-[*2]defendant 114-115 ; it is

ORDERED that this motion by plaintiff JP Morgan Chase Bank, National Association for an order pursuant to RPAPL § 1351 granting a judgment of foreclosure, approving plaintiff's request for attorney's fees and associated relief (Mot. Seq. #005) is granted; and it is further,

ORDERED that defendant George Brunett's cross-motion to renew his prior motion for dismissal pursuant to CPLR § 3211 denied by the order of January 29, 2016 (Mot. Seq. #001),or alternatively, pursuant to CPLR 5015 (a) vacating his default in answering (Mot. Seq. #006) is denied; and it is further

ORDERED that defendant Stim and Warmuth, PC's application for costs and sanctions pursuant to 22 NYCRR § 130.1.1 is not entertained by the court; and it is further

ORDERED that plaintiff shall serve the notice of the foreclosure sale and any adjournments upon the Supreme Court Calendar Clerk; and it is further

ORDERED that the referee complete and file the Suffolk County Foreclosure Action Surplus Monies form with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the foreclosure sale; and it is further

ORDEREDthat the referee submit proof of deposit of any surplus monies with the County Comptroller with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the closing of title; and it is further

ORDERED that the referee may make an application for additional fees, by letter to the court, as a result of any adjournments of the sale, providing proof of compliance with 22 NYCRR Part 36 including the filing of USC Forms 872 and 875; and it is further

ORDERED that pursuant to RPAPL § 1351(1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order.

This is an action an to foreclose a mortgage on residential real property located at 39 Pearl Street, Holbrook,, Suffolk County, New York ("the property") given by defendant George Brunett ("defendant"). The history of this action, to the extent not referred to herein, is set forth in the court's prior decisions: January 29, 2016 denying defendant's pre-answer motion to dismiss pursuant to CPLR 3211(Mot. Seq. #001) and the order of November 19, 2015 (Mot. Seq. #002) both issued by the Honorable Arthur G. Pitts, J.S.C. before the action was transferred to this part by Administrative Order # 58-16 of the District Administrative Judge, dated October 12, 2016; and this court's decision placed on the record after oral argument on January 26, 2017 which denied defendant's cross-motion to reargue the decision of January 29, 2016, which had sought upon the granting of reargument, to dismiss the complaint for plaintiff's failure to comply with the requirements of RPAPL § 1304 and, pursuant to CPLR 3212, to grant defendant summary judgment dismissing the complaint for plaintiff JP Morgan Chase Bank, National Association's [*3]("plaintiff") failure to comply with the requirements of RPAPL §1303 (Mot. Seq. #004), and granted plaintiff's motion setting the default of defendant in answering and for the appointment of a referee pursuant to RPAPL § 1321 (Mot. Seq. #003).

Plaintiff now moves for a judgment of foreclosure and sale pursuant to RPAPL § 1351 (Mot. Seq. #005) and defendant moves to renew, pursuant to CPLR § 2221only that part of his motion for dismissal denied by the order of January 29, 2016 ( Mot. Seq. #001), and, alternatively, to vacate his default in answering, whether as stated pursuant to CPLR 5015 (a) or, as indicated by plaintiff, pursuant to CPLR § 3212 (d) to compel acceptance of a late answer (Mot. Seq. #006). Defendant neither addresses, nor seeks renewal of the denial of Mot. Seq. #004. Although defendant does not refer to his motion as a cross-motion, as he obtained the consent of plaintiff to adjourn plaintiff's motion and both motions were submitted on the same day, the court will treat it as a cross-motion and refer to it as such.

Before discussing the merits of defendant's application, the court notes that as a result of a clerical failure, the court was unaware of the stipulation to adjourn plaintiff's motion from the original submission date of May 4, 2017 to June 8, 2017, and coincidentally, on that adjourn date, signed plaintiff's proposed order, as modified by the court, believing the motion to be unopposed. The court recalled that order, notifying the parties.

Defendant's cross-motion is without merit and is denied.

NO BASIS FOR RENEWAL

Leave to renew must be on new facts not available at the time of the prior motion (CPLR 2221 [e] [2]), or, in the court's discretion, upon facts know at the time to the movant but not presented where the movant establishes reasonable justification for not presenting them originally (CPLR 2221 [e] [3]; See Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585 [2d Dept 2012]; Wells Fargo Bank, N.A. v Rooney, 132 AD3d 980 [2d Dept 2015]; Fed. Natl. Mtge. Assn. v Sakizada, 153 AD3d 1236 [2d Dept 2017]; J. P. Morgan Chase Bank, N.A. v Novis, 157 AD3d 776 [2d Dept 2018]). Here defendant's counsel makes inexplicable, unsupportable arguments claiming a basis for renewal based upon facts he should have reasonably been aware of at the time of Mot. Seq. #004, yet offers no reason why they were not raised at that time.

The first is that information provided by plaintiff's affiant in her affidavit dated April 14, 2016, submitted as part of plaintiff's motion filed April 25, 2016, was "new information" "unknown to [d]efendant at time of the original motion" (see defendant's counsel's statement in his memorandum of law, p.2). Although this may have been true as to defendant's original motion (Mot. Seq. #001) in 2015, that information was clearly available to defendant's counsel when he cross-moved for reargument, submitting his motion on June 23, 2016 (Mot. Seq. #004). As a reasonably prudent attorney, he should have been aware of this information submitted by plaintiff, yet he never raised that information as an issue in his prior motion. He offers no reasonable explanation as to why he waited until now to raise it on this cross-motion in May [*4]2017. This information, and the claim surrounding it, was clearly available to defendant's counsel when he prepared his cross-motion of 2016. He does not address this fact in this cross-motion, nor offer a reasonable justification for not raising it in 2016. Just as an act of law office failure should not form the basis to vacate a default, it cannot form the basis to support this failure of counsel to act on information a reasonably prudent attorney should have known at the time (see 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]). That is an issue between defendant and his counsel. The court is left to conclude that as it is raised in response to plaintiff's motion for a judgment of foreclosure and sale, it is simply a delaying tactic.

It is somewhat ironic that defendant's counsel's second argument for renewal is based on a claim that defendant's prior counsel committed an act of "law office failure" by failing to file a timely answer to the action. Again, this is something defendant's counsel should have addressed in Mot. Seq. #004 before the default was entered, and asked at that time for the alternative relief of compelling acceptance of a late answer, he did neither. Defendant's counsel appears not to recognize that by filing the pre-answer motion to dismiss, defendant's then counsel had acted properly. It was only after that motion was denied by Justice Pitts on January 29, 2016 and notice of entry was filed on with NYSCEF on March 2, 2016 (NYSCEF Doc. #36), that an answer had to be filed within ten (10) days, after which a default occurred (CPLR 3211 [f]). Having moved to be relieved by Mot. Seq. #002, defendant's prior counsel was relieved of its responsibilities by entering into a consent to change attorneys with defendant's present counsel filed with NYSCEF on November 17, 2015 (NYSCEF Doc. # 33). Therefore it was defendant's present counsel, not former counsel, who failed to file a timely answer by March 12, 2016. Defendant's present counsel either appears not to realize this, or ignores it, in making this baseless claim to support renewal. The court also notes that defendant's present counsel never addressed the issue of failure to file an answer in Mot. Seq. #004 seeking reargument and dismissal, nor did he seek to either compel acceptance of a late answer or vacate defendant's default in answering.

Defendant's cross-motion for renewal is denied, for, as noted above, defendant has provided no adequate basis for renewal.

LAW OFFICE FAILURE NOT A REASONABLE EXCUSE FOR DEFAULT

Defendant's application to vacate his default in answering pursuant to CPLR 5015 (a), without specifying a subdivision, or pursuant to CPLR § 3012 (d) if converted by the court into an application to compel acceptance of a late answer, is denied.

Defendant makes no claim of lack of service of the summons and complaint, only a claim, as in prior motions, that he did not receive notices required by RPAPL §§ 1303 and1304. Therefore, if defendant attempts to rely upon CPLR 5015 (a) to vacate his default in answering, [*5]he appears to rely upon CPLR 5015 (a) (1). Whether to extend time to answer a complaint and compel acceptance of a late answer pursuant to CPLR § 3012 (d), or to vacate a default for not filing an answer under CPLR 5015 (a) (1), defendant must provide a reasonable excuse and proof of a meritorious defense (see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 890 [2d Dept 2010]; Midfirst Bank v Al—Rahman, 81 AD3d 797 [2d Dept 2011]; Karalis v New Dimensions HR, Inc., 105 AD3d 707 [2d Dept 2013]; TCIF REO GCM, LLC v Walker, 139 AD3d 7945 [2d Dept 2016]). This standard governs applications made both prior and subsequent to a formal fixing of a default by the court (see Integon Natl. Ins. Co. v Norterile, 88 AD3d 654 [2d Dept 2011]; Bank of New York v Espejo, 92 AD3d 707 [2d Dept 2012]).

The determination as to what constitutes a reasonable excuse lies within the sound discretion of the trial court (see Matter of Gambardella v Ortov Light., 278 AD2d 494 [2d Dept 2000]; Segovia v Delcon Constr. Corp., 43 AD3d 1143 [2d Dept 2007]). Courts have found that law office failure, even where established, is not a reasonable excuse for delay where there has been a period of unexplained inaction, a failed strategy, or no detailed or credible explanation for it, and have denied motions to vacate defaults in answering based on such claims (see Star Industries, Inc. v. Innovative Beverage, Inc., supra; Wells Fargo Bank, N.A. v. Cervini, 84 AD3d 789 [2d Dept 2011]; Cantor v. Flores, supra; Bank of NY Mellon v Colucci, supra; US Bank Natl Assn v Barr, supra). The court sees no basis for claims that defendant's prior counsel committed any act of "law office failure," and if any were committed by failing to promptly file an answer, it was committed by defendant's present counsel. The court will not sua sponte convert defendant's counsel's claim of lack of diligence to one against his own law firm, and in any event, it would not exercise its discretion to find a reasonable excuse in counsel's failure to promptly act upon retention to file an answer or vacate the default in answering (see JP Morgan Chase Bank, N.A. v Russo, 121 AD3d 1048 [2d Dept 2014]; Bank of NY v Young, 123 AD3d 1068 [2d Dept 2014]).

As defendant has not established a reasonable excuse for his default, the court need not consider his claim of meritorious defenses (see HSBC Bank USA v Miller, 121 AD3d 1044 [2d Dept 2014]; One W. Bank FSB v Valdez, 128 AD3d 655 [2d Dept, 2015]); Deutsche Bank National Trust Co v Kuldip, 136 AD3d 969 [2d Dept 2016] Bank of NY Mellon v Colucci, supra; US Bank Natl Assn v Barr, supra; Bank of NY v Krausz, 144 AD3d 718 [2d Dept 2016]; Wells Fargo Bank v Pelosi; 159 AD3d 852 [2d Dept 2018]).

WITHOUT VACATUR NO CLAIMS FOR DISMISSAL

As a party may not move for affirmative relief of a non-jurisdictional nature, such as dismissal without successfully moving to vacate his default (see Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011]; U.S. Bank Natl. Assn. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Southstar III, LLC v Ettienne, 120 AD3d 1332 [2d Dept 2014]; Chase Home Finance, LLC v Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mortgage, LLC v Avella, 142 AD3d 594 [2d Dept 2016]; Nationstar Mortgage, LLC v Kamil, 155 AD3d 968 [2d Dept 2017]); without vacatur the court cannot consider defendant's application for dismissal. Even though it has been said that compliance with the requirements of RPAPL §§ 1303 and 1304 are conditions precedent that can be raised at any time, they are not jurisdictional (see Citimortgage v. Espinal, [*6]134 AD3d 876 [2d Dept 2015]; U.S. Bank N.A. v Carey, 137 AD3d 894 [2d Dept 2016]). In order to raise them, defendant must have answered or successfully moved to vacate his default in answering (see PHH Mtg Corp v Celestin, 130 AD3d 703 [2d Dept 2015]; HSBC Bank USA, NA v Clayton, 146 AD3d 942 [2d Dept 2017]). As defendant has failed to vacate his default in answering, those issues are waived.

Other than referring to the inaccurate claim that his prior counsel failed to file a timely answer, the affidavit of defendant submitted with this motion contains the same claims raised in Mot. Seq. #004, which were rejected by the court in its decision placed on the record on January 26, 2017. There is nothing new in this motion that would cause the court to deviate from it's prior ruling.

22 NYCRR § 130.1.1 APPLICATION NOT ENTERTAINED

As defendant's prior counsel had been listed as a defendant in this action since it was filed, they received the NYSCEF filings relating to defendant's cross-motion alleging defendant's claim of prior counsel's "law office failure" and they filed their own "response" to defendant's counsel's claims, correctly supporting the propriety of their conduct. Offended by this claim, they seek redress from the court by asking that the court impose cost and sanctions against defendant's present counsel for his inaccurate claims against them, pointing to 22 NYCRR § 130.1.1. Although the court is sympathetic to this claim, it does not believe that this motion for an order pursuant to RPAPL § 1351 is the appropriate vehicle to adjudicate this issue between two law firms.

Such a finding would require additional proceedings, including testimony, hearings and a decision by this court to resolve what is otherwise a dispute between lawyers (22 NYCRR § 130.1.1 [d]). The rule requires that such an application be made by a motion pursuant to CPLR 2214 or 2215, which was not done here, or may be on the court's own initiative. The court notes that although making similar arguments against defendant's counsel's claims of failure to file an answer, as well as pointing out other baseless and meritless claims by defendant's counsel, such as that the RPAPL § 1303 notice served on defendant must have been white paper because the "xeroxed" copy submitted with the motion was white, ignoring the fact that the affidavit of service stated it was blue, plaintiff's counsel makes no such claims for cost and sanctions against defendant's present counsel. The court follows his course; as this application was not made by a notice of motion pursuant to CPLR 2214 or 2215, the court will not exercise it's discretion to entertain it on it's own initiative; without prejudice to defendant's former counsel pursuing such claim in another form, action or forum.

PLAINTIFF GRANTED JUDGMENT OF FORECLOSURE

The default of defendant having been established, an order of reference granted, and plaintiff's submissions, including the report of the referee, having provided the necessary basis to warrant a judgment of foreclosure and sale, that application is granted and plaintiff's proposed [*7]order, as modified by the court, is signed contemporaneously herewith.

This constitutes the Order and decision of the Court.

Dated: May 29, 2018

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