Midfirst Bank v Morris
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Midfirst Bank v Morris 2019 NY Slip Op 33313(U) October 21, 2019 Supreme Court, Suffolk County Docket Number: 17216/2008 Judge: William G. Ford 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] INDEX NO.: 17216/2008 SHORT FORM ORDER COpt SUPREME COURT - ST TE OF NEW YORK I.A.S. PART 38 - UFFOLK COUNTY PRESENT: Motion Submit Date: 06/13/19 Mot Seq 009 MD; CASE DISP HON. WILLIAM G. FORD JUSTICE OF THE SUPREME COURT PLAINTIFF'S COUNSEL: Frenkel Lambert Weis Weisman Gordon LLP 53 Gibson Street Bay Shore, New York 11706 MIDFIRST BANK, Plaintiff, DEFENDANT'S COUNSEL: Andrew L. Saraga, PC -against- 23 Green Street, Ste I07 Huntington, New York 11743 ASHLEY MORRIS as Administrator, LYNFORD MORRIS, et al. DEFENDANT PRO SE: LYNFORD MORRIS 42 Blacker Street Brentwood, New York 11717 Defendant. Read on plaintiffs unopposed motion for consolidation of putatively related matters and for entry of default judgment pursuant to CPLR 6q2(a) & 3215 respectively, the Court considered the following papers in reaching its def rmination: 1. Notice of Motion, Affirmation in Suppbrt & supporting papers; and upon due deliberation and full consideration of tlie same; it is ORDERED that plaintiffs motion pursua~t to CPLR 602 for c. onsolidation of this action with a latter action for all purposes is denied as forlows; and it is further ORDERED that plaintiff's motion for leave to enter a default judgment as against defendant is hereby denied; and it is further ORDERED that plaintiffs complaint is h reby dismissed premised upon plaintiff's failure to demonstrate reasonable excuse for its delay in timely seeking entry of default; and it is further ORDERED that plaintiff's counsel is her by directed to serve a copy of this decision and order with notice of entry certified first class mail, return receipt requested upon defendant's counsel and via personal service upon defendant forthwith; and it is further 4ro se ORDERED that, if applicable, within 30 qlays of the entry of this decision and order, that defendant's counsel is also hereby directed to giv~ notice to the Suffolk County Clerk as required by CPLR 8019( c) w ith a copy of this decision and order and pay any fees should any be l [* 2] required. Before this Court is plaintiffs residential m rtgage foreclosure action concerning a 1 premises more commonly known as 42 Blacker S et, Brentwood, New York 11717. As this is the third decision rendered by this Court concernin the parties in this litigation, the Court presumes familiarity with the salient facts and circ mstances which are not reiterated here for the sake of brevity. Previously, this Court by short-form decisi n and order dated September 7, 2018 denied defendants' motion to dismiss plaintiffs complain for foreclosure for failure to timely substitute the now deceased borrower defendant. By thats e decision, this Court granted plaintiffs motion to substitute defendant Ashley Morris, her ather's estate representative in his stead. Subsequently, this Court by short-form decision d order dated February 19, 2019 denied plaintiffs motion to vacate Supreme Court's (Ken~, J. ret.) prior denial of default judgment and order of reference for unexplained and unreasonab~e delay amounting to /aches. Now, plaintiff again moves for entry of d)ault judgment against defendant Morris pleadings in this matter, despite having premised on grounds that she has failed to previously appeared by counsel seeking dismissal lof the action as referenced above. Further, founded on the representation that a separate but putatively related second residential mortgage foreclosure action is presently pending before Su~reme Court (Pastoressa, J.) entitled Midfirst Ba11k v Ashley Morris under Index Number 6256~/2013, arising from the same set of operative facts, circumstances and occurrences, and involvifg identical issues, claims, parties and the subject premises, plaintiff also seeks to transfer a~d consolidate that latter action with this matter before this Court. Plaintiff's motion is unopposej' answer~he New York CPLR § 602(a) provides that "[w]hen actions involving a common question of law or fact are pending before a court, the court, tlpon motion, may order a joint trial of any or all of the matters in issue, may order the actions j onsolidated, and may make such other orders concerning proceedings therein as may tend to av9id unnecessary costs or delay." Thus, the Court is mindful that a motion to consolidate actions orjfor a joint trial pursuant to CPLR § 602(a) rests in the sound discretion of the trial court. Absen~ a showing of prejudice to a substantial right by a party opposing the motion, consolidation for trial should be granted where common questions of law or fact exist (see, Mattia v. Food Emporium1. Inc. , 259 AD2d 527 [2d Dept. 1999]). Where common questions of law or fact exist, a motion t consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of pre·udice to a substantial right by the party opposing the motion (see Nationwide Assoc. v. Targee St. 5,nternal Med. Group, P.C. Profit Sharing Trust, 286 AD2d 717, 730 NYS2d 349; Gadelov v. Shure, 274 AD2d 375, 711 NYS2d 896; J & A Vending v. J.A.M. Vending, 268 AD2d 505, 103 NYS2d 53; Perini Corp. v. WDF, Inc., 33 A.D.3d 605, 606, 822 N.Y.S.2d 295, 296 [2d Der. 2006]). Although plaintiffs motion is unopposedj, the Court's analysis does not end there. This Court has previously determined that a pattern of delay and possibly neglect has attended this matter on the plaintiff's part. Arguing in suppor of its applications plaintiff acknowledges this action's history and attendant delay but seeks to attribute it to a combination of actions taken and decisions of prior counsel, to defendant's passin~ unbeknownst to counsel, court delays and complications. The applications are supported ~y inter alia present counsel's affirmation, but not by an affidavit of anyone with direct firsthadd knowledge concerning this matter's ¥ l I [* 3] procedural history. Nevertheless, as referenced ab ve, this Court is now well familiar with this matter' s history. Plaintiff fails to persuade this Court that all of the attendant delays accompanying prosecution of this matter have not worked substan ial prejudice against defendants in this matter. Put differently, having previously determ~·ed that plaintiff committed /aches in the prosecution of this case, plaintiffs present applicat on for consolidation has done nothing by way of renewing or rearguing the issue of reasonable e cuse explaining plaintiffs failure to take reasonable steps in moving this 2008 action forwarti in the present: 2019. Rather, having encountered difficulties and procedural hurdles all~hroughout the maintenance of this action, plaintiff sought to reduce exposure to an adverse o tcome and commenced another action against decedent's estate representative, defendant Morris ere. That matter is before a different justice of this Court. It appears that that action similarlytuffers from delay, plain . tiff having not taken any steps to move that action along, the last appea nee before the Foreclosure Settlement Conference Part having occurred on December 8, 014, with no further motion practice noted in the court fi le. I Thus, this Court adheres to its prior determination that the unreasonable and unexplained delays are attributable to plaintiffs dilatory condui t. Having given this Court no justification for the same, this Court denies plaintiff's application ~o transfer the second action, sought without consent of the other court, and consolidation of th9 2014 matter to this antiquated 2008 litigation. To do so would permit the potential of substantial prejudice to the defendant, despite the fact that defendant to date has failed to answer the pleadings. Accordingly, plaintiffs motion for consoli ation is denied. Turning next to the merits of plaintiff's application for entry of default, the Court begins its analysis noting that" '[a] party's right to recov~ upon a defendant's fail ure to appear or answer is governed by CPLR 3215' "(U.S. Bank, N.A. v. Razon, 115 AD3d 739, 740, 981 NYS2d 571, quoting Beaton v. Transit Facility C rp., 14 AD3d 637, 637, 789 NYS2d 314; see Todd v. Green, 122 AD3d 831 , 831-832, 997 N*2d 155). "Thus, a plaintiff moving for a default judgment against a defendant must submit roof of service of the summons and complaint, proof of the facts constih1ting the clai , and proof of the defaulting defendant's failure to appear or answer" (see CPLR 3215[f]; 'Priangle Props.# 2, LLC v. Narang, 73 AD3d 1030, 1032, 903 NYS2d 424; DLJ Mortg. Capital Inc. v United Gen. Tit. Ins. Co., 128 AD3d 760, 761, 9NYS3d 335, 336 (2d Dept2015]). Generally, where a party has defaulted in ipearing or answering a complaint, he or she will be "deemed to have admitted all factual alleg tions contained in the complaint and all reasonable inferences that flow from them" (Mort age Elec. Registration Sys., Inc. v. Smith, 111 AD3d 804, 806, 975 NYS2d 121 [citations a~d internal quotation marks omitted]; Boudine v Goldmaker, Inc., 130 AD3d 553, 554, 14 NYS3d 405, 407 [2d Dept 2015]). It is well settled that public policy favors ti e resolution of cases on the merits. Courts have broad discretion to grant relief from pleading defaults where the moving party's claim or defense is meritorious, the default was not willful, and the other party is not prejudiced (see, Cleary v East Syracuse-Minoa Cent. School Dis , 248 AD2d 1005; Lichtman v Sears, Roebuck & Co. , 236 AD2d 373). 3 [* 4] Generally, a process server's affidavit of seryice constitutes prima facie evidence of proper service" (Scara110 v. Scara110, 63 AD3d 716, 716, 880 NYS2d 682; see NYCTL 2009-A Trust v. Tsafatinos, 101 AD3d 1092, 1093, 956 NYS2d 57!:; Countrywide Home Loa11s Servicing, LP v. Albert, 78 AD3d 983, 984, 912 NYS2d 96). Bare nd unsubstantiated denials are insufficient to rebut the presumption of proper service (see Waclt via Bank N.A. v. Greenberg, 138 AD3d 984, 985, 31NYS3d110; Wells Fargo Bank, N.A. v. C ristie, 83 AD3d 824, 825, 921N.Y.S.2d127; Wachovia Mtge. Corp. v Toussaint, 144 AD3d 1132, 11 33, 43 NYS3d 373, 374 [2d Dept 2016]). "Although a defendant's sworn denial of rec-~pt of service generally rebuts the presumption of proper service established by the process serlr's affidavit and necessitates an evidentiary hearing, no hearing is required where the defendtt fails to swear to specific facts to rebut the statements in the process server's affidavits" ( see Edwards, Angell, Palmer & Dodge, LLP v. Gerschman, 116 AD3d 824, 825, 984 NYS2d 39 ; Simo11ds v. Grohman, 277 AD2d 369, 370, 716 NYS2d 692; Mtge. Elec. Registration Sys., In . v Losco, 125 AD3d 733, 733, 5 NYS3d 112, 11 3 [2d Dept 2015]). A defendant who has failed to appear or a3wer the complaint must provide a reasonable excuse for the default and demonstrate a meritorio s defense to the action to avoid the entering of a default judgment or to extend the time to ans er (Ennis v. Lema, 305 A.D.2d 632, 633, 760 N.Y.S.2d 197, 198-99 [2d Dept. 2003]). The determination of what constitutes a reasonable excuse for a default lies within the sound discretiorof the trial court (see McHenry v. San Miguel, 54 AD3d 912, 864 NYS2d 541; Tlwmpso v. Steuben Realty Corp., 18 AD3d 864, 795 NYS2d 470; Gambardella v. Ortov Liglttillg, Inc. , 278 A.D.2d 494, 495, 717 N.Y.S.2d 923 [2d Dept. 2000]). I Furthermore, as applicable here, it is settle~hat the mere denial ofreceipt of the legal process is insufficient to rebut the presumption of roper service created by the affidavit of service (see Commissioners of Stale Ins. Fund v. obre, Inc. , 29 AD3d 511, 816 NYS2d 493 ; Trusce/lo v. Olympia Conslr., 294 AD2d 350, 741 NYS2d 709; De La Barrera v. Handler, 290 AD2d 476, 736 NYS2d 249; Trini Realty Corp. v f u/ton Ctr. LLC, 53 AD3d 479, 480, 861 NYS2d 743, 744-45 [2d Dept 2008]; Wassertlteil Elburg, LLC, 94 AD3d 753, 753-54, 941 NYS2d 679, 680 [2d Dept 2012]). However, plaintiff is also charged with knowledge of the caveat that pursuant to CPLR 3215(c), "[i]fthe plaintiff fails to take proceedings/for the entry of judgment within one year after [a defendant's] default, the court shall not enter judgment but shall dismiss the complaint as abandoned ... unless sufficient cause is shown· wh~ the complaint should not be dismissed" (JBBNY, LLC v Begum, 156 AD3d 769, 771 , 67 NYS3d 284, 286 (2d Dept 2017]). Thus, the Appellate Division has recently r 1 affirmed that "CPLR 3215(c) is: strictly construed, as " [its] language ... is not, in the first instance, discretionary, but mandatory, inasmuch as courts shall dismiss claims ... for which default judgments are not sought within the requi~te one-year period, as those claims are then deemed abandoned. [It] further prov' des, however, that the failure to timely seek a default may be excused if sufficient cause is shown why the complaint should not be dismissed. To establish the sufficient cause required by CPLR 4 [* 5] 3215(c), "the party opposing dismissal mus demonstrate that it had a reasonable excuse for the delay in taking proceedings for entry of a default judgment and that it has a potentially meritorious action (U.S. Ba11k N.A. v Stewart, 174 AD3d 551 , 551-52 103 NYS3d 139, 140 (2d Dept 2019] [internal citations omitted]) "Sufficient cause requires a showing of a reasonable excuse for the delay in timely moving for leave to enter a default judgment, plus 1demonstration that the cause of action is potentially meritorious" (HSBC Bank USA, N.A. vSeidner, 159 AD3d 1035, 1035-36, 74 NYS3d 282, 284 [2d Dept 2018]). Here, without a doubt, delays have caused aintiff to seek entry of default far beyond the 1-year period under CPLR 32 l5(c). Plaintiff argu~s that it is not responsible, but rather, decedent's passing, difficulties in identifying the estate representative, delays with the court in filing the appropriate actions under the correct inde(X number, are in combination responsible for all the delay this Court cited as justification for fint'7i ng plaintiff guilty of /aches. That notwithstanding, the Court notes that this action co enced more than a decade ago. Even assuming for the purposes of the present applicatio , that it would be fairer and more appropriate to measure the relevant time period from when de~ndant Morris appeared by counsel seeking dismissal of the action in the latter part of Februa 2017, that application was determined by this Court in September 2018. Thereafter, plaintiff un uccessfully sought an order of reference in late December 2018, which was denied in February 2019. Plaintiff then waited an additional 4 months to consolidate the latter 2013 action with n real activity, and at the same time to default defendant for her failure to join issue. For many of the same reasons that plaintiff's application to consolidate is unsuccessful, so must plaintiffs motion for default judgment failt. Plaintiff has not provided a reasonable excuse for failing to seek entry of default within th mandatory and requisite statutory timeframe. Accordingly, plaintiffs motion for en ry of default judgment is denied. The foregoing constitutes the decision and rder of this Court. Dated: October 21, 2019 Riverhead, New York WILLIAM G. FORD, J.S.C. -~X'--- _ _ _ NON-FINAL DISPOSITION FINAL DISPOSITION 5
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