DECISION AND ORDER This residential foreclosure action was commenced on June 16, 2010. Plaintiff then filed a motion for an Order of Reference on July 30, 2010, which motion was held in abeyance pending the completion of settlement conferences (see CPLR 3408). On or about May 1, 2011, the Court determined that settlement was not possible and restored the motion to the calendar, issuing an Order of Reference on May 24, 2011.The action subsequently sat dormant until February 2013, when plaintiff filed a motion for an Order vacating the May 2011 Order of Reference and issuing a new Order of Reference. Defendant Lola Kubik (hereinafter defendant) cross-moved for leave to serve a late answer. By Decision and Order dated February 6, 2014, the Court granted the motion to the extent that the May 2011 Order of Reference was vacated, but it declined to issue a new Order of Reference. Rather, it granted defendant’s cross motion and directed her to serve an answer “within 30 days from the date [of the Order].”Defendant failed to serve an answer within the requisite time frame and plaintiff filed another motion for an Order of Reference in June 2015. By Decision and Order dated September 26, 2016, the Court denied this motion and sua sponte dismissed the complaint as abandoned (see CPLR 3215 [c]).Plaintiff then filed a motion in March 2017 for, inter alia, an Order vacating the dismissal of the complaint under CPLR 5015 (a) (1) and appointing a referee. By Decision and Order dated December 12, 2017, the Court granted this motion in its entirety. “To vacate the dismissal of an action pursuant to CPLR 5015 (a) (1), a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action” (Yong U Lee v. Huan Wen Zhang, 133 AD3d 651, 651 [2015]; see Hayes v. Village of Middleburgh, 140 AD3d 1359, 1362 [2016]; Wright v. City of Poughkeepsie, 136 AD3d 809, 809 [2016]; Aaron v. Carter, Conboy, Case, Blackmore, Napierski & Maloney, P.C., 12 AD3d 753, 754 [2004]). After finding that there was no need to consider whether plaintiff demonstrated a potentially meritorious cause of action — as defendant did not dispute the issue — the Court proceeded to consider whether plaintiff demonstrated a reasonable excuse for its default. In this regard, the Court stated as follows:“Under the circumstances, the Court finds that plaintiff has demonstrated a reasonable excuse for its default — namely that proceedings were being taken and that such proceedings manifested an intent not to abandon the case but to seek a judgment. While it is true that plaintiff did nothing to pursue a default judgment for approximately two years after issuance of the [May 2011] Order of Reference, this delay was occasioned by plaintiff’s attempts to confirm the accuracy and integrity of the affidavit of merit submitted in support of its initial motion (see CitiMortgage, Inc. v. Lottridge, 143 AD3d 1093, 1095 [2016]). Further, although plaintiff proffers no particular excuse as to why it waited over a year to file its [June 2015] motion for an Order of Reference, there were no specific directives as to when the filing was to occur and the motion was — in any event — made only a year and three months after defendant’s second default. While ‘plaintiff’s conduct [is] certainly worthy of criticism, extraordinary circumstances warranting the severe penalty of dismissal of the complaint without notice [are] not present’ (CitiMortgage, Inc. v. Lottridge, 143 AD3d at 1094-1095).”Significantly, the Court further stated:“To the extent that this proceeding has now been pending for more than seven years, plaintiff is hereby advised that the complaint will be dismissed if a motion for a Judgment of Foreclosure and Sale is not filed within sixty (60) days of the date of this Decision and Order” [emphasis in original].The Court provided counsel for both plaintiff and defendant with a copy of the December 2017 Decision and Order immediately upon issuance and then filed the original on December 14, 2017.Plaintiff subsequently failed to file its motion for a Judgment of Foreclosure and Sale within the requisite time frame, as the result of which the Court issued a Conditional Order of Dismissal on March 27, 2018. This Conditional Order of Dismissal recited the relevant procedural history and then ordered “that [the] action shall be dismissed with prejudice and the notice of pendency vacated unless plaintiff files its motion for a Judgment of Foreclosure and Sale within twenty (20) days of the date of this Order” [emphasis in original]. The Court provided counsel for both plaintiff and defendant with a copy of the Conditional Order immediately upon issuance and then filed the original on March 29, 2018.Again, plaintiff failed to file its motion for a Judgment of Foreclosure and Sale within the requisite time frame. As a result, an Order of Dismissal was issued on April 25, 2018 dismissing the complaint with prejudice and vacating the notice of pendency. The Court provided counsel for both plaintiff and defendant with a copy of the Order of Dismissal immediately upon issuance and then filed the original on April 27, 2018. Presently before the Court is plaintiff’s motion to vacate this Order of Dismissal pursuant to CPLR 5015 (a) (1).In support of the motion, plaintiff contends that it has a reasonable excuse for its default in filing the motion for a Judgment of Foreclosure and Sale, namely that “a loss mitigation hold was placed on the account from January 26, 2018, to September 5, 2018.” The Court, however, is not persuaded. There is no dispute that counsel for plaintiff received both the December 2017 Decision and Order and the March 2018 Conditional Order of Dismissal. This notwithstanding, counsel never contacted the Court to advise of the loss mitigation hold or to request an extension of the deadline by which to file its motion for a Judgment of Foreclosure and Sale. Indeed, counsel for plaintiff had no contact with the Court whatsoever during this time period.Furthermore, the documents submitted in support of the motion render plaintiff’s excuse unconvincing. Specifically, plaintiff submitted a copy of a “Notice” sent to the referee on May 14, 2018 advising that “a control date of June 14, 2018 [had been] set for documents to be submitted to [him] in order to ascertain the amount due to the plaintiff and to determine whether the mortgaged premises [could] be sold in parcels.” Plaintiff further submitted a copy of the referee’s oath sworn to on August 3, 2018 and a copy of his report dated August 6, 2018. These documents are all dated prior to September 5, 2018, when the loss mitigation hold was apparently lifted, and after April 25, 2018, when the Order of Dismissal was issued. This begs the question of whether the delay was in fact occasioned by the loss mitigation hold or if plaintiff simply scrambled to file its motion for a Judgment of Foreclosure and Sale upon receiving the Order of Dismissal.It must also be noted that plaintiff failed to provide adequate proof of the loss mitigation hold in support of the motion, submitting nothing more than two unsigned loan modification plans unaccompanied by the affidavit of anyone with personal knowledge.1To the extent that plaintiff has failed to establish a reasonable excuse for its default, the Court need not consider whether it has demonstrated a meritorious cause of action (see Financial Freedom Acquisition, LLC v. Unknown Heirs of the Estate of Kenner, ___ AD3d ___, ___, 2019 NY Slip Op 03954, *2 [2019]; BAC Home Loans Servicing, LP v. Funk, 154 AD3d 1244, 1246 [2017]). Under the circumstances, the Court declines to vacate the Order of Dismissal and denies plaintiff’s motion in its entirety (see Freedom Acquisition, LLC v. Unknown Heirs of the Estate of Kenner, 2019 NY Slip Op 03954 at *2; BAC Home Loans Servicing, LP v. Funk, 154 AD3d at 1246).The Court is cognizant that its power to dismiss a complaint with prejudice should be used sparingly and only when extraordinary circumstances exist warranting such a severe penalty (see U.S. Bank N.A. v. McCrory, 137 AD3d 1517, 1518-1519 [2016]; U.S. Bank N.A. v. Polanco, 126 AD3d 883, 885 [2015]; Bank of N.Y. v. Castillo, 120 AD3d 598, 600 [2014]; U.S. Bank, N.A. v. Emmanuel, 83 AD3d 1047, 1048 [2011]). Here, however, such circumstances exist. Plaintiff has exhibited an overall pattern of delay since the commencement of this proceeding nearly ten years ago. Moreover, plaintiff was given ample notice of the Court’s intention to dismiss the complaint with prejudice and had ample opportunity to either file it’s motion for a Judgment of Foreclosure and Sale or contact the Court to request an extension (compare U.S. Bank N.A. v. McCrory, 137 AD3d at 1518; Bank of N.Y. v. Castillo, 120 AD3d at 600-601) — it failed to do either. Such conduct simply cannot be condoned (see Goldstein v. CIBC World Mkts. Corp., 30 AD3d 217, 217 [2006]).Therefore, having considered the “Attorney Affirmation in Support of Motion to Vacate Dismissal” of Deana Cheli, Esq. with exhibits attached thereto, dated September 7, 2018; “Affidavit as to Military Service” of Orazio Devivo with exhibit attached thereto, sworn to September 17, 2018;2 “Attorney Affirmation Regarding CPLR 3408 Settlement Conferences” of Deana Cheli, Esq., dated September 7, 2018; “Costs of Plaintiff,” dated September 7, 2018; “Affirmation in Support of Reasonable Attorneys’ Fees” of Deana Cheli, Esq. with exhibit attached thereto, dated September 7, 2018; “Affidavit of Regularity” of Deana Cheli, Esq. with exhibits attached thereto, dated September 7, 2018;3 “Affirmation in Opposition to Plaintiff’s Motion to Vacate Dismissal and for Judgment of Foreclosure and Sale” of Daniel J. Alley, Esq. with exhibits attached thereto, dated October 11, 2018; and “Attorney Affirmation in Reply to Opposition and in Further Support of Plaintiff’s Motion” of Christopher M. McKniff, Esq. with exhibits attached thereto, dated November 8, 2018, and oral argument having been heard on May 31, 2019 with Noreen McCarthy, Esq. appearing on behalf of plaintiff and Daniel J. Alley, Esq. appearing on behalf of defendant, it is herebyORDERED that plaintiff’s motion is denied in its entirety.The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 7, 2018 and the submissions enumerated above. Counsel for defendant is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all other parties in accordance with CPLR 5513.Dated: July 22, 2019Lake George, New York
