Deutsche Bank Natl. Trust Co. v Lazar

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Deutsche Bank Natl. Trust Co. v Lazar 2021 NY Slip Op 30142(U) January 6, 2021 Supreme Court, Suffolk County Docket Number: 32556/2009 Judge: Denise F. Molia 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.: 32556/2009 SUPREME COURT - STATE OF NEW YORK l.A.S. PA RT 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA Justice DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE OF THE INDYMAC !NOB MORTGAGE LOAN TRUST 2005-1. MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 205-1, UNDER THE POOLING AND SERVICING AGREEMENT DATED SEPTEMBER I, 2005, Plaintiff, CASE DISPOSED: YES MOTION RID: 1/2-'/2020 SUBMISSION DATE: 6/5/2020 MOTION SEQUENCE NO.: 006; MD ATTORNEY FOR PLAINTIFF: Duane Morris LLP 1540 Broadway New York, New York I0036-4086 Farr & Bass 3100 Veterans Memorial Highway Bohemia, New York I 17 I 6 -against- JASON LAZAR, FIN FUNDING SERVICES, LLC, MERS, INC., Defendants. ATTORNEY FOR DF:FENDANTS: Grausso & Foy, LLP 13 1 West Main Street Riverhead. New York 11901 Upon the fol lowing papers read on the application of movant Enzie R o lli ns for an order vacating the judgment of foreclosure and sale and staying the warrant of eviction: Order to Show Cause dated January 24, 2020. Affirmation in Support dated January 6, 2020, Affidavit dated January 6. 2020 with Exhibits A through K annexed thereto: Affirmation in Opposition dated February 27, 2020 with Exhibits A through Z annexed thereto; it is ORDERED that the motion by Enzie Rollins for an order vacating her default and the judgment of foreclosure and sale pursuant to CPLR 5015 [a]. granting her leave to file late opposition papers to plaintiffs motion for summary judgment pursuant to CPLR 2004. 2005 and 3012 ( d). and staying the warrant of eviction and72-hour notice. is DENIED for the reasons set forth herein (CPLR 5015 [a]). This is an action to foreclose a mortgage on property located at 217 Oak Avenue. Riverhead . New York 1190 I (the ··subject property'') commenced by the filing of a summons [* 2] Deutsche Bank v. Lazar, et al. Index No. : 32556/2009 MOLIA,J. Page2 and verified complaint on August 14, 2009. A judgment of foreclosure and sale was granted on January 23, 2017. A foreclosure sale was held on September 27, 2017, at which time plaintiff was the highest bidder and subsequent thereto, a referee's deed dated October l L 2017 was issued to plaintiff. On July 20, 20 18. the subject property was sold and transferred from plaintiff to Insource East Properties, Inc. ("lnsource'') 1 by deed recorded on December 11 , 2018. lnsource then commenced an eviction proceeding on August 17, 2018 in Southampton Court, County of Suffolk (the ·'eviction action"). The eviction action was commenced against defendants Pamela Rollins, the daughter of movant Enzie Rollins, Daren L. Jefferson, and Tanaisha M. Jefferson (collectively referred to herein as "the tenants"). Jn the eviction action, Pamela Rollins consented to a judgment of possession and issuance of a warrant of eviction, which was so-ordered on October 5, 2018. On November 1. 2018, a warrant to remove the tenants from the subject premises was issued by the Southampton Court. Thereafter, movant Enzie Rollins, who resides at 15 Grove Street, Riverhead , New York (the ·'Rollins property"), presented herein an order to show cause requesting an order staying the enforcement of the warrant of eviction and 72-hour notice, granting her leave to intervene in this action, and vacating the judgment of foreclosure and sale and/or dismissing the action upon allegations that defendant Jason Lazar fraudulently induced her to sell the subject property on July 29. 2000 under the guise that she was refinancing her home. On February 22, 2019, the Court issued an order (the "2019 order"), which granted Rollins a stay of the eviction and enforcement of the 72-hour notice, leave to intervene pursuant to CPLR 1012 (a), and pursuant thereto directed Rollins to serve an answer within twenty days from the date of the order. On April 9, 2019, the Court issued an order that due to the failure of Enzie Roll ins to serve an answer and appear for a compliance conference on April 2. 2019, Enzie Rollins was found to be in defau lt and the stay of eviction and the 72-hour notice on the subject property was vacated. On September 20, 2019, the Court issued a further order. clarifying the 2019 order, directing the date by which Enzie Rollins was to serve an answer, and based upon such clarification, the answer was deemed untimely served. Enzie Rollins now moves by order to show cause seeking to stay the enforcement of the warrant of eviction and 72-hour notice on the subject property. The court notes that although the order to show cause does not seek any further speci fie relief, it appears from the affirmation of counsel for movant Enzie Rollins that she also is requesting an order vacating her default pursuant to CPLR 5015 (a) and granting her leave to file late opposition papers to plaintiff's motion for summary judgment pursuant to CPLR 2004, 2005 and 3012 (d). Plaintiff opposes the motion. On an application pursuant to CPLR 5015 (a)(3 ), the law is well settled that in order 1 The Court notes that lnsource filed an Affirmation in Reply to the motion by Enzie Rollins. lnsource, however. is not a party hereto and has not intervened in this action. Thus, the Court has not considered lnsource·s submissions. [* 3] Deutsche Bank v. Lazar, et al. Index No.: 32556/2009 MOLIA,J. Page3 to be relieved of a default judgment, a party must show: (1) a justifiable reason for the default; and (2) demonstrate that there is a meritorious defense to Lhe action (Chase Home Finance,LLCv Minott, 115 AD3d634, 981NYS2d757, 758 [2d Dept2014]; Wells Fargo Bank v Malave , l 07 AD3d 880 [2d Dept 2013]; Citimortgage, Inc. v Brown, 83 AD3d 644, 919 NYS2d 894 [2"d Dept 2011]; citing CPLR Rule 5015 [a] [l]; Developme111 Strategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628 [2d Dept 2010]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167 [2d Dept 2010]); Clarke v Clllrke, 75 A.D.2d 836, 427 N.Y.S.2d 871 [2nd Dept 1980]; 393 Lefferts Partner, LLC v New York Avenue at Lefferts, LLC, 68 AD3d 976 [2nd Dept 2009]). The determination of what constitutes a reasonable excuse for the default in answering is left to the sound discretion of the court (see Scott v. Ward, 130 AD3d 903 [2d Dept 2015]; Sgtmga v Sganga, 95 A.D.3d 872. 942 N.Y.S.2d 886 [2nd Dept 2012]; Rogers v Rogers, 65 A.D.3d 1029, 886 N.Y.S2d 44 (2nd Dept 2009]) and in exercising that discretion, the trial court may accept law office failure as an excuse (see CPLR 2005 ; Parker v City of New York, 272 AD2d 310, 707 NYS2d 199 (2d Dept 2000]). In order to demonstrate a meritorious defense, the defendant must do more than merely make conclusory allegations or vague assertions (Peacock v Kalikow, 239 A.D.2d 188, 658 N.Y.S.2d 7 [ Lst Dept 1997]; M. Cooper Motor Leasing Ltd. V Data Discount Center, 125 A.D.2d 454 [2nd Dept 1986]). If the court determines that a reasonable excuse of the default was not proffered, then it need not consider the existence of a meritorious defense (Cuzzo v Cuzzo, 65 A.D.3d 1274, 885 N.Y.S.2<l 619 [2nd Dept 2009]). Similarly, CPLR 3012 (d) provides that the court may extend the time for a party to appear or plead "upon such terms as may be just and upon a showing of reasonable excuse for delay or default.·· Whether there is a reasonable excuse for a default is a discretionary, · sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whcthc1· there ha:; been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits (Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877, 800 NYS2d 613 [2d Dept 2005]). The determination of what constitutes a reasonable excuse for a default lies w ithin the sound discretion of the trial court (see Bardales v Blades, 191 AD2d 667, 595 NYS2d 553 [2d Dept 1993]~ see also ft'1arti11s v Yuklwyev, 63 AD3d 697, 880 NYS2d 166 f2d Dept 2009] ; see also Parker v City of New York, 272 AD2d 310, 707 NYS2d 199 f2d Dept 2000]), and in exercising that discretion the trial court may accept law office failure as an excuse (see CPLR 2005; Parker v City of New York, 272 AD2d 310, 707 NYS2d 199 [2d Dept 2000]). It is well-established that vague. conclusory and unsubstantiated allegations of law office failure will not suffice to vacate a default (see Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789. 921 NYS2d 643 (2d Dept 2011 ]). Here, movant Enzie Rollins fails to present a reasonable excuse for her default. In that [* 4] Deutsche Bank v. Lazar, ct al. Index No. : 32556/2009 MOLIA,J. Page 4 regard. movant has repeatedly failed to file a timely answer pursuant to orders of this Court and failed to appear at the April 2, 2019 conference for which she provides no excuse for her non-appearance. As such, this Court need not consider whether movant Enzie Rollins has a meritorious defense to the action (Wells Fargo Bank Minnesota, N.A. v Coletta, 153 AD3d 757, 60 NYS3d 320 [2d Dept 2017];Wells Fargo Bank, N.A. v Mazzara, 124 AD3d 875, 2 NYS3d 553 [2d Dept 2015]). Notwithstanding, Enzie Rollins fails to assert a meritorious defense to the action and presents only bare and conclusory allegations of purported misconduct on the part of defendant Jason Lazar and Fin Funding dating back to 2005 (see e.g., Wells Fargo Bank, N.A. v Hornes, 94 AD3d 755, 942 NYS2d 129 [2d Dept 2012]; Bank ofNew York vStradford, 55 AD3d 765, 869 NYS2d 554 [2d Dept2008]; Bank ofNew York v Lagakos, 27 AD3d 678, 810 NYS2d 923 (2d Dept 2006]. Moreover, movant Enzie Rollins does not demonstrate any allegations of fraud on the part of plaintiff or that plaintiff was on notice of any facts that would have led it to make any inquiries regarding the 2005 sale from movant Enzie Rollins to defendant Jason Lazar (see Mathurin v Lost & Found Recovery, LLC, 65 AD3d 617, 884 NYS2d 462 [2d Dept 2009]). Further, the Court notes that Rollins has not commenced a separate action against Jason Lazar and/or Fin Funding for fraud or otherwise. As to movanfs allegations that she was not served with the swnmons and verified complaint, this argument is w ithout basis, as Enzie Rollins is not an indispensable party to the foreclosure action (see RP APL 1311; Wells Fargo Bank, N.A. v Mazzara, 124 AD3<l 875, 2 NYS3d 553 (2d Dept 2015]; NYCTL 1998-2 Trust v Michael Holdings, Inc., 77 AD3d 805, 910 NYS2d 469 (2d Dept 2010]). Indeed, movant Enzie Rollins provides no evidence that she resided at the subject property at the time the action was commenced. The evidence before the Court indicates that movant resided at the Roll ins property at all times relevant hereto. Moreover, it is undisputed that movant Rollins is neither a borrower, mortgagor. or owner ofrecord of the subject property. Thus, there is no evidence presented by movant Enzie Rollins that she has any interest at all in the subject property. Notwithstandin g, even ifmovant Enzic Roll ins was a tt:nant, notice pursuant to RP A P L 1303 was not required at the time this action was commenced. In 2009, only a mortgagor who occupied the premises was required to be served with RP APL 1303 notice. The amendments to RPAPL 1303 requiring such notice to be served upon tenants of a dwelling became eftective on January 14, 2010, which was after this action was commenced. Movant Enzic Rollins has presented no evidence of her ~tatus as a mortgagor occupying the premises. and thus~ her argument that she should have been given RP APL 1303 notice is without merit. Being thal movant Enzie Rollins has provided no evidence of any interest in the subject premises. her request to intervene at this juncture is both unwarranted and untimely (see Wells Fargo Bank, N.A. v Mazzara, 124 AD3d 875, 2 NYS3d 553 [2d Dept 2015]). Moving next to the request of movant Enzie Rollins for a stay of the eviction and 72hour notice. it is well established that in order to prevail on a motion for a preliminary injunction. the movant must demonstrate. by clear and convincing evidence, ( I ) a likelihood [* 5] Deutsche Bank v. Lazar, et al. Index No.: 32556/2009 MOLIA,J. Page 5 of ultimate success on the merits, (2) irreparable injury absent the granting of the preliminary injunction. and (3) that a balancing of the equities favors the movanfs position (see CPLR 6301: Aetna Ins. Co. v Capasso, 75 NY2d 860. 552 NYS2d 918 [1990]; Blinds and Carpet Gallery, Inc. v E.E.M. Realty, Inc. , 82 AD3d 69 1. 692. 917 NYS2d 680 [2d Dept 2011]: Dixon v Malouf, 61 AD3d 630, 875 NYS2d 918 [2d Dept 2009]: Coinmach Corp. v Alley Pond Owners Corp.. 25 A03d 642, 808 NYS2d 418 [2d Dept 2006]; Ginsberg v Ock-ABock Cmty. Ass'n, Inc ., 34 AD3d 637 (2d Dept 2006). The decision to grant or deny a preliminary injunction rests in the sound discretion ofthe Court (see Dixon v Malouf, supra). Further, preliminary injunctive relief is a drastic remedy that will not be granted unless the movant establishes a clear right to such relief which is plain from the undisputed facts (Blueberries Gourmet v A ris Realty Corp. , 255 AD2d 348, 680 NYS2d 557 [2d Dept 1998]; see also Hoeffner v Jolin F. Frank, Inc., 302 AD2d 428, 756 NYS2d 63 [2d Dept 2000]; Peterson v Corbin, 275 A02d 35, 7 13 NYS2d 36 1 (2d Dept 2000] ; Nalitt v City of New York, 138 AD2d 580, 526 NYS2d 162 [2d Dept 1988]). Failing to establish even one required element of a preliminary injunction mandates denial of the relief requested (Schweizer v Town ofSmithtown, 19 AD3d 682, 798 NYS2d 99 (2d Dept 2005). Here, a stay of the eviction and 72-hour notice is unwarranted, inasmuch as there is no basis upon which to vacate the judgment of foreclosure and sale (see HSBC Bank USA v Desrouilleres, 128 AD3d 1013. 11 NYS3 d 93 [2d Dept 2015]; Getz v Stuyvesant Manor, Inc., 194 AD2d 589, 599 NYS2d 988 [2d Dept 1993]; M & T Bank v Romero, 40 M isc.3d 12 10, 977 NYS2d 667 [Suffolk Cty. 20 13]; see also U.S. Bank N.A. v Qui11011es, 164 AD3d 93 8, 83 NYS3d 176 [2d Dept 20 18]; Home Sav of A merica, FSB v Isaacson, 240 AD2d 633. 659 NYS2d 94 [2d Dept 1997]). The court has considered the remaining contentions of movant Enzie Ro llins and finds that they lack merit (see HSBC Bank USA, N.A. v Talter, 104 AD3d 815 , 962 NYS2d 301 [2d Dept 2013] : HSBC Bank, USA v Dammond, 59 AD3 d 679, 875 NYS2d 490 (2d Dept 2009]). Accordingly. the motion by Enzie Rollins for an order vacating her default and the judgment of foreclosure and sale pursuant to CPLR 50 15 [a], granting her leave to file late opposition papers to plaintiffs motion for summary judgment pursuant to CPLR 2004. 2005 and 3012 (d). and staying the warrant of eviction and 72-hour notice is DENIED. The foregoing constitutes the decision and Order of this Court. Dated: January 6. 2021 &~ HO N. DENISE F. MOLIA A.J.S.C.

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