DECISION and ORDER Upon reading and filing of the notice of motion, dated March 1, 2018, by the Plaintiff and the affirmation of Bernard J. Tordesillas, Esq., attorney for the plaintiff, dated March 1, 2018, for an Order vacating the Court’s dismissal of Plaintiff’s action on April 24, 2014, pursuant to CPLR §5015 (a) (1) and §2221 (a) (1) and restoring the matter to the Court’s active calendar and reinstating Notice of Pendency upon the basis that the Court’s dismissal pursuant to CPLR §3216 was improper as the Court failed to meet the statutory conditions precedents prior to dismissal of the Plaintiff’s action, and the Court having reviewed the exhibits submitted in support of the motion and the entire Court file, including the Opposition of defendant Izuka P. Udom a/k/a Izuka P. Udom-Rice to this motion; and the motion having come before this Court on November 21, 2018; and the motion having been fully submitted; and after due deliberations having been had thereon;The Court finds that the Plaintiff’s claim that their failure to comply with the orders was merely the result of “law office failure” or “substitution of counsel” is lacking. The Plaintiff has not demonstrated a reasonable excuse for its failure to comply with the Court orders and it was therefore proper for the Court to deny Plaintiffs original motion to vacate and to deny the instant motion to reargue on the same grounds.FACTS AND PROCEDURAL HISTORYBy Residential Foreclosure Conference Order dated April 25, 2013, the Court ordered Plaintiff to file an application for an Order of Reference no later than July 24, 2013 regarding the foreclosure of property located at 172-65 Highland Avenue, Jamaica, New York, BLOCK 9884 and LOT 19, in the County of Queens. Plaintiff failed to make an application for an Order of Reference as directed without any reasonable explanation. Thereafter, a status conference was held on August 8, 2013, and Plaintiff was granted an extension by Status Conference Order dated the same date and was again directed to move for an Order of Reference and file an affirmation pursuant to AO 431/11 on or before December 5, 2013. In the Second Order, the Court warned Plaintiff that its failure to comply with the Second Order “may be grounds for dismissal without prejudice.” Plaintiff failed to comply with the Second Order and did not move for an Order of Reference by the December 5, 2013 deadline without any reasonable explanation.The Court granted Plaintiff another extension to file the AO 431/11 and move for an Order of Reference at the Status Conference held on December 5, 2013, due to Plaintiffs claim at the time that because of a change of counsel, Plaintiff was unable to file the AO 431/11 and move for an Order of Reference in compliance with the Second Order. The Plaintiff was granted this extension. At the December 5, 2013 Status Conference, the Court directed the Plaintiff to move for an Order of Reference by March 27, 2014. Plaintiff failed to do so. A fourth Status Conference was held on March 27, 2014, at which time Plaintiff appeared, but still did not move for an Order of Reference as directed. As a result of Plaintiffs chronic failure to comply with numerous Court Orders without a demonstration of good cause, Maria Bradley, Esq., the Law Secretary to the Administrative Judge, Jeremy Weinstein, J.S.C., issued a “Hear and Report Recommending Dismissal” dated April 3, 2014 in which Ms. Bradley found as follows: By Order of the Court dated April 25, 2013, the above-captioned action was set down for a status conference to be held in Status Conference Part F on August 8, 2013. Status conferences having been held on August 8, 2013, December 5, 2013, and March 27, 2014 in accordance with the court orders dated April 25, 2013 and August 8, 2013; and Plaintiff having appeared by LEOPOLD & ASSOCIATES, PLLC; and Plaintiff having failed to comply with the previous court orders dated April 25, 2013 and August 8, 2013, for the following reason(s): Plaintiff failed to file the Order of Reference, as previously directed by the Court, without good cause shown. Now, after conference, I recommend that it is hereby ORDERED that the above captioned matter is dismissed without prejudice, and is further ORDERED that the Queens County Clerk is directed, upon payment of the proper fees, if any, to cancel and discharge the [sic] all the Notices of Pendency filed in this action on February 13, 2014 against the property known commonly as 172-65 Highland Avenue, Jamaica, Queens, New York, BLOCK 9884 and LOT 19, and said Clerk is hereby directed to enter upon the margin of the record of the same, a notice of cancellation referring to this Order.On or about April 24, 2014, the Court confirmed the Dismissal Report and dismissed the within action without prejudice and directed the Clerk to cancel and discharge the notice of pendency. On or about May 27, 2014, Plaintiff moved to vacate the Dismissal Order. On August 28, 2014, this Court denied Plaintiffs motion and reasoned that Plaintiff did not demonstrate a reasonable excuse for failing to comply with multiple Court Orders. Specifically, in rejecting Plaintiffs explanation for its noncompliance, the Court stated as follows:[p]laintiff claims that the delay was caused by Administrative Order 431/11 which requires that an attorney for plaintiff in a residential foreclosure action certify the accuracy of the papers filed in support of the action. Contrary to Plaintiff’s contentions, as this Order merely requires that attorneys certify that they have met a minimum standard of diligence in prosecuting their cases, it should not cause any delay in the underlying proceeding.APPLICABLE CASE LAW AND STATUTORY AUTHORITYPursuant to CPLR §2221(a):(a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that:1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court.A motion to renew or reargue made under CPLR §2221, must be specifically identified as either a motion to renew or a motion to reargue. See CPLR §2221 (d) and (e). It is well-settled law that the purpose of a motion for reargument is to afford the moving party an opportunity to show that the Court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law. See CPLR §2221 (d)(2); See further Mazinov v. Rella, 79 A.D.3d 979, 980 (2nd Dept. 2010). Although the court “has the authority to grant a motion to reargue based on an exercise of sound discretion,” (V. Veeraswamy Realty v. Yenom Corp., 71 A.D.3d 874, 874 [2nd Dept 2010]), a motion for reargument “is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented” See McGill v. Goldman, 261 A.D.2d 593, 594 (2nd Dept 1999).The Court of Appeals has stressed the importance of parties’ compliance with court orders and the consequences for failing to comply, on the basis that our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice. “[T]he failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that “[i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity”. See Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 81 (2010) citing Brill v. City of New York, 2 N.Y.3d 648; See further Kihl v. Pfeffer, 94 N.Y.2d 118, (1999).It is well established that where a plaintiff does not deny receipt of CPLR §3216 notice from the Court, the fact that it was not served by certified mail is of no moment and is “no more than a procedural irregularity”. See Cecere v. Peters, 270 A.D.2d 49, 50 (2000) citing Balancio v. Am. Opt. Corp., 66 N.Y.2d 750, 751 (1985) To vacate a Dismissal Order, a Plaintiff must demonstrate both a reasonable excuse for its default and failure to comply with the court orders and a meritorious cause of action. See CPLR 5015(a)(l); Joseph v. GMAC Leasing Corp., 44 A.D.3d 905 (2nd Dept. 2007). Significantly, in determining what constitutes a justifiable and reasonable excuse, the Court has sound discretion. Khanal v. Sheldon, 74 A.D.3d 894 (2nd Dept. 2010). Conclusory and unsupported allegations in support of a motion to vacate a dismissal order are insufficient to sufficiently demonstrate a reasonable excuse for the default or a meritorious cause of action. See Matter of Samantha B. v. Arthur Eugene 72 AD.3d 682 (2nd Dept. 2010); See further Petersen v. Lysaght, Lysaght & Kramer, P.C., 47 A.D.3d 783 (2nd Dept. 2008). While courts may, under some circumstances, accept “law office failure” as a reasonable excuse, “it should not excuse conduct that amounts to a pattern of willful default or neglect”. See Wynne v. Wagner, 262 A.D. 2d 556 (2d Dept 1999).CONCLUSIONHere, plaintiff fails to submit a copy of the attorney affirmation required by AO 431/11 and the papers submitted in support of the motion fail to provide the date upon which the required attorney affirmation was executed. As such, even if compliance with 431/11 demonstrates good cause for the delay, the Court cannot determine base upon these papers whether plaintiffs compliance with Administrative Order 431/11 accounts for the entirety of the delay. Plaintiff claims that the delay was due to substitution of counsel is wholly without merit. Plaintiff own papers allege that the Court already granted plaintiff an extension of time on this ground and plaintiff’s counsel admits to receiving the file from prior counsel prior to the deadline.In sum, Plaintiff’s current motion, nearly (4) four years from the date of the Short Form Order denying the Prior Motion, to vacate the Dismissal Order, merely reiterates the same arguments. The Plaintiff has failed to establish that the Court misapprehended any relevant fact or law. Instead, the Plaintiff simply restates the same arguments it made on its original motion to vacate the Dismissal Order, effectively seeking a second opportunity to reargue the issues already decided in the prior motion and advances with the identical two arguments which the Court previously rejected as meritless. Indeed, in regard to Plaintiffs claim of law office failure, the Court has already ruled that such failure cannot create a reasonable excuse because Plaintiff was granted multiple extensions based on changing counsel and any law office failure that extends across so many orders cannot possibly be reasonable. Plaintiff does not raise any fact the court overlooked or mistake in law the Court made in reaching that conclusion. Further, as this Court has previously found, compliance with AO 431/11 “should not cause delay” because AO 431/11 “merely requires that attorneys certify that they have met a minimum standard of diligence in prosecuting their cases.” Thus, as a matter of law, Plaintiff has failed to demonstrate good cause for its willful failure to comply with Court Orders.Accordingly, Plaintiffs motion to reargue is denied in its entirety.NOW on motion of LEOPOLD & ASSOCIATES, PLLC, the attorneys for the plaintiff, it is herebyORDERED, that the motion is DENIED in its entirety; and it is furtherORDERED, that the Dismissal of this action dated March 24, 2014 and filed with the Court on May 19, 2014 is hereby undisturbed.This constitutes the DECISION and ORDER of this Court.
