Bank of N.Y. Mellon v Eggers

[*1] Bank of N.Y. Mellon v Eggers 2019 NY Slip Op 51326(U) Decided on July 31, 2019 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2019
Supreme Court, Suffolk County

The Bank Of New York Mellon F/K/A The Bank Of New York, As Trustee For The Certificateholders Cwalt, Inc., Alternative Loan Trust 2006-18CB, Mortgage Pass-Through Certificates, Series 2006-18CB, Plaintiff,

against

Frederick William John Eggers III aka Frederick Eggers, Denise A Eggers, NYS Department Of Taxation And Finance, Property Tax Reduction Consultants, Bay Shore Check Cashing Corp., Culpeper Of Bay Shore, LLC, Gregory J. Blass, His Successor Or Assigns, As Commissioner Of Social Services Of Suffolk County, Social Services District, Defendants.



62289/2013



DRUCKMAN LAW GROUP PLLC

Attorneys for Plaintiff

242 Drexel Avenue

Westbury, New York 11590

JAMES J. QUAIL & ASSOCIATES, P.C.

Attorneys for Defendant Denise A. Eggers

5550 Merrick Road, Suite 300

Massapequa, NY 11758

RADOW LAW GROUP, P.C. Attorneys for Defendant

Frederick William John Eggers III

1010 Northern Blvd

Great Neck, NY 11021
Robert F. Quinlan, J.

Upon the following papers read on this motion for an order dismissing the action pursuant to CPLR 3215 or alternatively granting leave to file a late answer; Notice of Motion and supporting papers (Doc No.49-57); Affirmation in Opposition (Doc #59); Affirmation in Reply (Doc #61); it is,

ORDERED that the portion of defendant Denise A. Eggers' motion for an order dismissing the action against her pursuant to CPLR §3215 (c) is denied; and it is further

ORDERED that the portion of defendant Denise A. Eggers' motion for an order granting her leave to file a late answer pursuant to CPLR §3012 is granted upon the consent of plaintiff; and it is further

ORDERED that as plaintiff has consented to defendant Denise A. Eggers filing of a late answer, the vacates that part of its decision placed on the record on July 26, 2018 which fixed and set the default of Ms. Eggers in answering; and it is further

ORDERED that defendant Denise A. Eggers' is to serve and file the proposed answer submitted with this motion upon counsel for plaintiff within thirty (30) days of the date of this order;

ORDERED that counsel for the parties are to appear at a status conference before this part on September 30, 2019 at 9:30 AM at which time a schedule will be set for any discovery and motions; and it is further

ORDERED that no party shall make any further motions before the conference of September 30, 2019.

This is an action to foreclose a mortgage upon residential real property located at 25 Howells Road, Bay Shore, Suffolk County, New York given by defendants Frederick William John Eggers III and Denise A. Eggers ("defendants") to plaintiff The Bank Of New York Mellon F/K/A The Bank Of New York, As Trustee For The Certificateholders Cwalt, Inc., Alternative Loan Trust 2006-18CB, Mortgage Pass-Through Certificates, Series 2006-18CB 's ("plaintiff") [*2]predecessor in interest on April 17, 2006. Defendants purportedly defaulted on the obligation and plaintiff's prior counsel commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk through the New York State Court E-Filing System ("NYSCEF") on August 7, 2013. Defendant Denise A. Eggers ("Ms. Eggers") in her affidavit in support of her present motions acknowledges service upon her on August 17, 2013 (NYSCEF Doc. # 51).From the submissions it appears that defendants separated sometime in 2011.

Although this was an action that was to proceed as electronically filed in NYSCEF, a fact acknowledged by The Ranalli Law Group, PLLC ("Ranalli") by filing a notice of appearance and a consent to e-filing dated and e-filed on September 21, 2013 (NYSCEF Docs. # 14, #15), no answer was e-filed on behalf of either defendant. Instead it appears that Ranalli "served" an answer by fax on plaintiff's then counsel, which plaintiff's present counsel included in its motion for summary judgment ( Mot. Seq. #001) as an exhibit (NYSCEF Doc. #32). This answer, verified by counsel, states that it was filed by Ranalli only on behalf of defendant Frederick William John Eggers III ("Mr. Eggers"). There appears to have been no answer filed by Ms. Eggers.

Plaintiff moved for summary judgment dismissing and striking Mr. Eggers' answer and setting the default of the non-answering defendants by motion filed September 21, 2016, originally returnable October 25, 2016 (NYSCEF Docs. # 21-34). On October 31, 2016 Ranalli filed a consent to change attorneys dated October 25, 2016 which substituted Anadel Canale, P.C ("Canale") as incoming attorney for "FREDERICK WILLIAM JOHN EGGERS A/K/A FREDERICK EGGERS, DENISE A. EGGERS" and stated that the outgoing attorney Ranalli shall make have no further contact with them and will cease all work (NYSCEF Doc# 35). This document was signed by both Mr. Eggers and Ms. Eggers, as well as by both attorneys. Canale then made a multi-document filing in NYSCEF (NYSCEF Doc. # 36). This filing included a stipulation to adjourn the return date of the summary judgment motion and his affirmation in opposition to plaintiff's motion along with exhibits thereto. In paragraph #1 of his affirmation, Canale states that he is attorney for both defendants. As Exhibit "B" to Canale's affirmation is submitted an affidavit from Mr. Eggers in which he states that although he and his wife separated in 2011, they worked together in an attempt to obtain a loan modification, that "we" were served with the foreclosure papers in August 2013 and that "we" retained Ranalli to "handle the foreclosure" In reply, plaintiff's counsel's affirmation pointed to the fact that Ranalli only filed an answer on behalf of Mr. Eggers and that Ms. Eggers was in default in answering (NYSCEF Doc. # 38, par. 5).

At the time of submission of Mot. Seq # 001 sometime in December of 2016, the action had been assigned to the Hon. Peter H. Mayer, J.S.C., but was transferred to this part by District Administrative Order #20-18, dated March 23, 2018. Originally scheduled by order dated April 9, 2018 for oral argument on June 18, 2018 (NYSCEF Doc. # 39), the oral argument was rescheduled to June 28, 2018 (NYSCEF Doc. # 40). Meanwhile, on May 9, 2018 the Radow Law Group, P.C. ("Radow") filed a consent to change attorneys in place of Canale and a notice of appearance solely on behalf of Mr. Eggers (NYSCEF Doc. # 41, #42). There is clearly no [*3]mention of Radow representing Ms. Eggers.

The oral argument was adjourned from June 28, 2018 to July 26, 2018 because the court was involved with a jury trial, and a court notice was sent to that effect (NYSCEF Doc.# 44).

On July 26, 2018 only plaintiff and Ms. Eggers appeared. It became apparent to the court that Ms. Eggers believed that Ranalli had filed the answer on her behalf as well as on behalf of Mr. Eggers and that she was being represented by the same attorney as Mr. Eggers, a position that plaintiff's counsel contested and which, on the face of the answer, appeared to be misplaced. The court heard oral argument by plaintiff's counsel and issued a decision placed on the record that granted plaintiff's application to set the default of Ms. Eggers for failing to answer the complaint, but granted plaintiff only partial summary judgment pursuant to CPLR 3212 (g) dismissing Mr. Eggers' 4th, 5th, 7th and 9th affirmative defenses. Because issues remained as to plaintiff's proof of compliance with service of the notice required by RPAPL § 1303 (2nd affirmative defense), with the mailing of the notices required by RPAPL § 1304 (3rd affirmative defense), and plaintiff's standing (1st, 6th and 8th affirmative defenses), as well as plaintiff's proof of Mr. Egger's default in payment pursuant to the terms of the note and mortgage required as part of its prima facie case, the court denied plaintiff full summary judgment and denied its application for the appointment of a referee pursuant to RPAPL § 1321. The court issued a discovery and scheduling order setting the remaining issues for a limited issue trial pursuant to CPLR § 2218, authorizing discovery on those issues and setting a conference to direct the filing of a note of issue for November 14, 2018, authorizing successive summary judgment motions which were to be filed within 30 days of the filing of the note of issue and amending the caption (NYSCEF Docs. #45 and 46). At the conclusion of the decision the court advised Ms. Eggers to contact Radow in an attempt to clarify for her his position as to his representation.

Ms. Eggers' present counsel filed this motion through the NYSCEF system on October 25, 2018 (NYSCEF Docs. # 49-57) seeking dismissal of the action against her pursuant to CPLR 3215 (c) for plaintiff's failure to take proceedings for default within one year, or alternatively granting defendant leave to file a late answer pursuant to CPLR 3012(d). In support of the motion Ms. Eggers provides her affidavit which states that after the service of the summons and complaint upon her, she met with Ranalli along with Mr. Eggers, discussed the matter with that firm, provided Ranalli with documents, that Mr. Eggers gave a check to Ranalli and it was her belief that she was being represented along with him by Ranalli. She apparently believed that the answer filed by Ranalli was on behalf of both of them. Plaintiff opposes the application, although agreeing to accept Ms. Egger's late answer, but argues against dismissal pursuant to CPLR 3215 (c) claiming that any delay was due to prior counsel's difficulty in locating and serving Mr. Eggers, that there were changes in servicers, and that once the RJI was filed in November 2015 there were two settlement conferences on February 19, 2016 and April 20, 2016 at which time the matter was released to an IAS part, and the file was transferred to plaintiff's present counsel in August 2016 who filed the summary judgment motion (Seq. #001) on September 21, 2016.

CPLR 3215 (c) was enacted to dispose of abandoned cases and provides a saving provision to what is otherwise mandatory dismissal, allowing denial of such a motion by stating that the court "shall dismiss the complaint as abandoned, without costs, ..., unless sufficient cause is shown why the complaint should not be dismissed." This saving provision has been found when the plaintiff's conduct has shown that there was no intent to abandon the complaint (see LNV Corp v Forbes, 122 AD3d 805 [2d Dept 2014]; US Bank National Assoc v Wolnerman, 135 AD3d 850 [2d Dept 2016]). The determination as to what is a reasonable excuse is committed to the sound discretion of the motion court (see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d 793 [2d Dept 2016]; Golden Eagle Capital Corp. v Paramount Mgt. Corp., supra; Bank of New York Mellon v Adago, 155 AD3d 594 [2d Dept 2017]).

But here the court does not have to make a such a determination as another principle applicable to the application of CPLR 3215 (c) is present. Although there appears to be a question as to whether the answer filed by Ranalli was on behalf of both defendants, there is no question that the consent to change attorneys filed by Canale was on behalf of both defendants, as was the opposition he filed to plaintiff's motion for summary judgment. Such acts constituted a formal appearance on behalf of Ms. Eggers. Where a defendant has filed a formal appearance (CPLR 320, §321[a]) or taken actions which amount to an informal appearance, defendant has waived the ability to move pursuant to CPLR § 3215 (c) (see Myers vSlutsky, 139 AD2d 709 [2d Dept 1988]; Bank of America, NA v Rice, 155 AD3d 593 [2d Dept 2017]; US Bank Natl. Assoc. v Gustavia Home, LCC, 156 AD3d 843 [2d Dept 2017]; Household Finance Realty Corp. of NY v Adeosun-Agyebusi, 156 AD3d 870 [2d Dept 2017]). The filing of the consent to change attorneys which was signed by Ms. Eggers and the opposition by Canale to plaintiff's motion clearly on behalf of both defendants, and the fact that Canale at that time did not cross-move to dismiss as to her pursuant to CPLR 3215 (c), waived any claim for dismissal under that statute. Ms. Eggers motion to dismiss the action for failure to comply with CPLR 3215 (c) is denied.

That part of defendant's application for an order pursuant to CPLR 3012 compelling plaintiff to accept defendant's answer to the complaint is granted, as plaintiff acknowledges its willingness to accept such late filing in its' counsel's affirmation in opposition. As plaintiff has accepted Ms. Eggers' late answer, the court vacates that part of its decision placed on the record on July 26, 2018 which fixed and set the default of Ms. Eggers in answering.

Ms. Eggers' counsel is to serve and file the proposed answer within in thirty (30) days of the date of this order. Counsel for all parties are to appear for a conference before this court on September 30, 2019 at 9:30 AM to discuss further proceedings in light of the court's decision placed on the record as to Mot. Seq. #001 on July 26, 2018.

This constitutes the Order and decision of the Court.

ENTER

Dated: July 31, 2019

________________________________

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