Chrispin v Leon

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Chrispin v Leon 2020 NY Slip Op 33238(U) September 28, 2020 Supreme Court, Kings County Docket Number: 502377/18 Judge: Lawrence S. Knipel 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. [*FILED: 1] KINGS COUNTY CLERK 10/02/2020 01:08 PM INDEX NO. 502377/2018 NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 10/02/2020 At an IAS Tern1, Part Co111n1 6 of tl1e Supreme :;<! Court of tl1e State of New York, held in and for the County of f(ings, at the Courtl1ouse, at Civic Ce!nter, Brooklyn, Ne\v York, on the 28 1h day of September, 2020. PRESENT: 1: HON. LAWRENCE KNIPEL, Justice. - - - -- --- -- - - - - - - - - - - - - - -- -- - - - - - -:~ -X CARL CI-JRISPIN, Plaintiff, - against - Index No. 502377/18 EVENER LEON; GLOBAL MlJLTIPLE SERV1CES, 1: INC.; UNITED STATES OF AMERICA; NEW YORK i: STATE DEPARTMENT OF TAXATION AND FJNANQ~; CITY OFNE\V YORK ENVIRONMENTAL CONTROL{ BOARD; PEOPLE OF Tl-IE STATE OF NEW YORK; CITY OF NEW YORK; GLOBAL SERVICES; ' AUTOTECI-I DRIVING SCHOOL; RALPH MYRTIL; DIALJNE BOJSNORD, :; ;: Defendants:. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~~-X The following e-filed papers read herein: NYSCEF Doc. Nos. Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affinnations) Annexed. _____ '/ 51-57 Opposi11g Affidavits (Affirn1ations)_ _ __ 64-66 64-66 Upon tl1e foregoing papers in this ac~ion to foreclose a second mortgage on the ,, residential property at 1776 Nostrand Avepue in Brooklyn (Property), plaintiff Carl Chrispin (Chrispin) moves (in motion seque)ice [mot. seq.] two) for an order awarding ;: him aj11dgment of foreclosure and sale and c~nfirming the referee's report. Defendant Evener Leon (Leon) oppo~es Cl1rispin's motion and cross-111oves (in mot. seq. three) for an order, pursuant to CPtR 5015 (a), vacating the October 16, 2019 ''; ---------- 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 10/02/2020 01:08 PM NYSCEF DOC. NO. 69 order, pursuant to which the court INDEX NO. 502377/2018 RECEIVED NYSCEF: 10/02/2020 (Vaugh~µ, J.) granted Chrispin's motion for summary judgment and an order of reference on defaJit. ••'; Defense counsel affirms that Leon's prior cot1nsel cat1sed Leon to default in failing to oppose Chrispin's motion for summafy judgment and failing to appear for oral ••• argu1nent, "eveh after representing to [Leon) that opposition was filed." Defe11se counsel affirms that Leon's default was not deliberkte, Leon "was under the impression that his • then-attorney had filed the necessary oppo~.ition papers" and Leon "has since sought to 1: rectify [his default] by hiring another attomdy." Defense counsel further affirn1s t11~t Leon has a meritorious defense to this !:;: foreclosure action based on fraud beca11se ieon, ·"an illiterate purchaser [who was] not i adequately represented by counsel was infodriect that 11e was purcl1asing the property" and 'i; "[a]! no point did Defendant Leon agree lo have a [second] mortgage placed on the \; property." Defense counsel contends that 'j[t]he transaction between the parties was an :; executed contract of sale for which consid,6ration was fully paid." In addition to the 1: alleged fraud, defense counsel asserts that ~hrispin's failure to join US National Bank, the successor to Lend America, the first ino*gagee on the Property, "is fatal to the case" because US National Bank is a 11ecessary p~y to this foreclosure action. Leon submits an affidavit attesting that his prior counsel, Naomi Zeltser, Esq., 1: never consulted hiln about Chrispin's moti~n for sum1nary judg_1nent and an order of '/ reference. Leon explains that he was a tenarit of the Property since Jul)' 1984, and that in 1: 2006, he was approached by Chrispin, hislJandlord, to purchase the Property. ' :i.· 2 of 4 Leon [*FILED: 3] KINGS COUNTY CLERK 10/02/2020 01:08 PM NYSCEF DOC. NO. 69 INDEX NO. 502377/2018 RECEIVED NYSCEF: 10/02/2020 farther attests that on September 29, 2006j, he purchased the Property to live in with his r family, but he never agreed to take out ;:a. second mortgage on the Property. i~ describes the alleged fraud as follows: Lco11 "I arrived at the closing and Ja.s bo1nbarded with hundreds of papers to sign. :; "My attorney, Robert Savit$ky, Esq., at the closing was someone I only 1net a few tiiPes, who was recommended by the[ ] Mortgage Broker. English is not my first language so I trusted both Carl Chrispin and Mr. Savitsky. Mr. Savitsky is currently dis barred due to ban* fraud. "I sat at the table and closed: the transaction. I took a first mortgage with Lend America:: in the amount of $460,363.00. The purchase price was $464,qoo .... "I was not advised that I wou~d be taking a second 1nortgage with the Plaintiff; Carl Chrisgin. It is unconscionable that I would purchase the premises !!for full 1narl(et value and still now owe. Carl Chrispin who W~s the seller. I do not owe hi1n any money. That contract of ~.ale was the full agreement and there was no other valid agreetfient between Chrispin and I. :; Cl1rispin now 1noves for a judg1n~nt of foreclosure and sale and an order confirming the referee.'s report. Notably,. ctrispin does not oppose Leon's cross motion to vacate the October 16, 2019 order. "In order to vacate a default in oppos/ng a motion pursuant to CPLR 5015 (a) (I), the moving party is required to demonstrate ci1: reasonable excuse f'or his or her default and a potentially meritorious opposition to the ~otion" (Rocco v Family Center, 94 AD3d 1077, 1079 [2012]). Here, Leon has estaBlished a reasonable excuse for his default i: ;: because he inadvertently failed to oppose CI}rispin's 1notion for summary judgment and 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 10/02/2020 01:08 PM NYSCEF DOC. NO. 69 INDEX NO. 502377/2018 RECEIVED NYSCEF: 10/02/2020 an order of refere11ce due to ineffective i: assistance of his prior co11nsel. Leon has demonstrated that his default was neither jlIIful nor deliberate, and he promptly retained i: new defense counsel. In addition, Leoni: has de111onstrated a potentially meritorious defense based on Chrispin's alleged fra~d regarding the origination of the second ••• inortgage a11d Chrispin's failure to na1ne Ys Bank National, a necessary party to this foreclosure action. Given the 111erits of Leon's cross ~:otion to vacate the October 16, 2019 order granting Chrispin su1n1nary judgment and aµ order of reference, Chrispin's motion for a :: • • judgmen1 of foreclosure and sale and to cQhfirm the referee"s report is rendered inoot. 1: Accordingly, it is hereby i: ORDERED that Chrispin's motion (ip mot. seq. two) is denied; and it is further ( ORDERED that Leon's cross mot\~n (in mot. seq. three) is granted without ii opposition, and the October 16, 2019 order granting Chrispin summary judgment and an i: order of reference on default is hereby vacat~d. ( • This constitutes the decision and orde~ of the court. ii': ENTER, .· J. S. C. 4 of 4

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