Alexander v B.N.C.M. Inc.
Annotate this CaseDecided on December 1, 2021
Supreme Court, Kings County
Jonathan Alexander, Plaintiff,
against
B.N.C.M. Inc., WILMINGTON TRUST NATIONAL ASSOCIATION, AS SUCCESSOR TRUSTEE TO CITIBANK, N.A., AS TRUSTEE FOR BNC MORTGAGE LOAN TRUST SERIES 2007-3, MORTGAGE PASS-THROUGH CERTIFICATIONS, SERIES 2007-E, Defendants.
Index No. 6513/2011
Pro Se Plaintiff
Jonathan Alexander
BNC Mortgage Inc.
80 State Street
Albany, New York 12207
and 1350 Park Meadows Drive
Littleton, Colorado 80124
Francois A. Rivera, J.
By notice of motion filed on June 17, 2021, under motion sequence number three, defendant Wilmington Trust National Association, As Successor Trustee to Citibank, N.A., As Trustee for BNC Mortgage Loan Trust Series 2007-3, Mortgage Pass-Through Certifications, Series 2007-E (hereinafter WTNA) has moved for an order: (1) granting a default judgment against plaintiff Jonathan Alexander (hereinafter plaintiff or Alexander) on WTNA's counterclaim to cancel and expunge the Order recorded in the Rockland County Clerk's office on October 27, 2011 in Instrument No. 2012-00014739 (hereinafter the Erroneous Satisfaction) as void ab initio pursuant to Real Property Law § 329 and Article 15 of RPAPL and reinstating the mortgage dated April 9, 2007 and recorded in the Rockland County Clerk's office on April 30, 2007 in Instrument No. 2007-00021773 (hereinafter the mortgage), nunc pro tunc; and (2) dismissing the complaint pursuant to CPLR 3212.
[*2]BACKGROUND
On March 22, 2011, plaintiff, proceeding pro se, commenced the instant action by filing a summons and complaint with the Kings County Clerk's office. The complaint alleged thirty-two allegations of fact for three denominated causes of action.
MOTION PAPERS
WTNA's motion papers filed on June 17, 2021, contained a Notice of motion, an affirmation in support and thirteen annexed exhibits labeled one through thirteen. Exhibit thirteen is a copy of WTNA's answer and counterclaim. Following WTNA's answer and counterclaim was a document denominated as an affidavit in support of WTNA's motion to intervene and vacate order. Following that affidavit was seven annexed exhibits labeled A through G.
The instant motion was made returnable on July13, 2021, and notified the plaintiff that pursuant to CPLR 2214 (b) the answering affidavits were to be served seven days before the return date. The affirmation of service of the instant motion reflected service on the plaintiff and upon BNC Mortgage, Inc. on June 15, 2021, by United States Postal Service First Class Mail at certain specific addresses.
On July 1, 2021, WTNA filed a document denominated as an Amended Notice of Motion which sought the exact same relief requested in the Notice of motion filed on June 17, 2021. The Amended Notice of Motion was returnable on July 20, 2021 and notified the plaintiff that pursuant to CPLR 2214 (b) answering affidavits were to be served seven days before the return date. The affirmation of service of the Amended Notice of Motion reflected service on the plaintiff and upon BNC Mortgage, Inc. on June 25, 2021, by United States Postal Service First Class Mail at certain specific addresses. The Amended Notice of Motion did not contain any other documents.
On July 12, 2021, WTNA filed a document denominated as a Second Amended Notice of Motion which sought the exact same relief requested in the Notice of Motion filed on June 17, 2021. The Second Amended Notice of Motion was returnable on July 29, 2021 and notified the plaintiff that pursuant to CPLR 2214 (b) answering affidavits were to be served seven days before the return date. The affirmation of service of the Second Amended Notice of Motion reflected service on the plaintiff and upon BNC Mortgage, Inc. on July 9, 2021, by United States Postal Service First Class Mail at certain specific addresses. The Second Amended Notice of Motion did not contain any other documents.
LAW AND APPLICATION
CPLR 2214 (b) requires that "[a] notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard." In other words, the movant must give at least 8 days' notice of the motion.
A motion on notice is made when it is served (see CPLR 2211). When motion papers are served via ordinary mail, the 5- or 6-day period in CPLR 2103 (b) (2) must be added to the 8 days. The 5 or 6-day addition of CPLR 2103 (b) (2) for ordinary mailing are applicable only when a period of time is measured from the service of a paper and that paper is served via regular mail or an overnight service (see Siegel & Connors, New York Practice § 202 [6th ed. 2018]).
The instant notice of motion is such a paper, because it is from its mailing that the return day is measured (see In re Estates of Brillon, 142 Misc 2d 124, 125 (Sur. Ct., Bronx County,1988). Therefore, except in those relatively rare situations when the movant plans personal delivery of the motion papers, the basic notice period for an ordinary notice of motion is usually 13 days and not 8 days. If the papers are served via first class mail through the United States Postal Service outside New York State, 6 extra days are added to the minimum 8 days, requiring that the papers be served 14 days prior to the return date (see CPLR 2103 [b][2]).
When the movant demands pursuant to CPLR 2214 (b) that responding papers be served at least seven days prior to the return date, the movant must serve the motion papers at least twenty-one days prior to the return date.
In the case at bar, the movant amended the notice of motion twice. The Second Amended Notice of Motion was the final amendment and replaced the notice of motion and the Amended Notice of Motion. The notice of motion, the Amended Notice of Motion, and the Second Amended Notice of Motion all requested the exact same relief. The difference between each of them was the return date of the motion.
The Second Amended Notice of Motion was returnable on July 29, 2021 and notified the plaintiff that pursuant to CPLR 2214 (b) answering affidavits were to be served seven days before the return date. The affirmation of service of the Second Amended Notice of Motion reflected service on the plaintiff and upon BNC Mortgage, Inc. on July 9, 2021, by United States Postal Service First Class Mail at certain specific addresses.
Under these circumstances the movant did not give the plaintiff the requisite twenty-one days to submit answering papers to the motion. The failure to give the plaintiff timely notice of the motion deprives the court of jurisdiction to entertain the motion and renders any resulting order void (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907 [2nd Dept 2017]). Such a defect has been found to be jurisdictional, at least where there has been no appearance by the other side (see Financial Servs. Veh. Trust v Law Offs. of Dustin J. Dente, 86 AD3d 532, 533-34 [2nd Dept 2011]).
Applying this analysis here, the Court has no jurisdiction over the movant's instant motion. It is also noted that the movant is also moving pursuant to CPLR 3212 for an order dismissing the complaint. However, the movant did not include a statement of material facts as required pursuant to 22 NYCRR 202.8-g. The motion is therefore denied without prejudice.
The foregoing constitutes the decision and order of this Court.
ENTER:
______________________________________
J.S.C.
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