Upon the following papers numbered 1 to 7 read on this Order to Show Cause by respondent Maude McCalman to vacate default and supporting papers 1-2; Motion by respondent’s counsel in support of Order to Show Cause and supporting papers 3-4; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 5; Replying Affidavits and supporting papers_; Filed papers _; Other exhibits 6-7; it is, DECISION AND ORDER ON MOTION TO VACATE DEFAULT This Order follows the Court’s signing of respondent’s Order to Show Cause, which was filed pro se on October 17, 2023, temporarily staying execution of the judgment of possession and warrant of eviction issued in petitioner’s favor on January 4, 2023, and, further, constitutes the Decision and Order of the Court on the underlying motion based upon a review of the original moving papers and the supplemental motion papers of respondent’s newly retained counsel in further support of the motion, which were submitted on October 18, 2023, and petitioner’s opposition filed on October 30, 2023. PROCEDURAL BACKGROUND The history of this case is quite extensive. Petitioner commenced this post-foreclosure holdover summary proceeding on or about August 19, 2022. The matter was initially scheduled for hearing on October 20, 2022. The request of Respondent Maude McCalman (“Movant”), who appeared pro se, for an adjournment of the first Court appearance was granted as of right, and the matter was adjourned to November 3, 2022 with a final marking against respondents. Notwithstanding the “final marking”, Movant moved for a second adjournment of the matter, and, in exercising its discretion, the Court again granted the request and further adjourned the matter to November 10, 2022 with a continuation of the final marking against respondents. Respondents again failed to appear on November 10, 2022, at which time, petitioner’s application for a judgment of possession and warrant of eviction was granted. The judgment of possession and warrant of eviction were issued on January 4, 2023. POST-JUDGMENT APPLICATIONS — SIX (6) ORDERS TO SHOW CAUSE Following issuance of the judgment of possession and warrant of eviction, Movant filed in this Court no fewer than six (6) Orders to Show Cause (“OTSC”). The first OTSC was signed by the Court on February 24, 2023, and was made returnable on March 9, 2023. Movant failed to comply with the service requirements set forth by the Court, but notwithstanding the defective service of the motion papers, the Court considered the motion on its merits on the return date. By Order dated March 9, 2023, the Court denied the motion holding, inter alia, that “there is no basis for the relief requested.” Movant filed a second OTSC the following month, in April 2023. Following a review of the supporting papers, the Court declined to sign that OTSC because Movant again failed to provide a “basis for the relief requested” (see Decision, dated April 27, 2023). At that time, the Court further noted that Movant had submitted the pre-printed motion forms of another court (i.e., Suffolk County Supreme Court) and that she could have sought an appeal of the Court’s denial of the first OTSC, dated March 9, 2023 (Id.). Nonetheless, in its discretion, pursuant to RPAPL §749(3), the Court further extended the stay on execution of the warrant of eviction an additional three (3) weeks to May 18, 2023, and suggested that Movant seek legal counsel, and, if she was unable to afford counsel, provided the name and contact number for Nassau/Suffolk Law Services, an agency independent of the New York State Unified Court System that provides free legal services to occupants who meet federally mandated guidelines (Id.). Thereafter, on June 2, 2023, Movant filed a third pro se OTSC for identical relief. The Court declined to sign the OTSC on the grounds of res judicata. The Court further noted that in support of the OTSC, Movant provided, inter alia, “a series of documents pertaining to the [preceding] Foreclosure proceeding in Supreme Court [regarding the property in question] and an assortment of other documents that do not formulate a basis for the relief requested” (Declination of OTSC, dated June 6, 2023). On September 21, 2023, Movant filed a fourth pro se OTSC for similar relief based upon the same arguments previously asserted, e.g., disputing the merits of the underlying foreclosure proceeding. On that date, the Court declined to sign the OTSC, but, once again, exercised its discretion by further extending the stay on execution to October 5, 2023. Movant’s fifth pro se OTSC was filed on October 6, 2023, predicated on the same grounds, which the Court again refused to sign. Movant thereafter moved the Appellate Term for the Ninth and Tenth Judicial Districts for a further stay of the eviction. The Appellate Term denied the application on October 10, 2023 pursuant to CPLR §5704(b). The instant pro se OTSC was submitted on October 16, 2023. The Court signed the OTSC after being informed by the Clerk of the Court that an attorney on behalf of Movant had contacted the Court indicating that Movant had retained counsel and that he was planning on submitting motion papers in support of the application. Due to the longstanding history of this case, the fact that litigation has been pending in multiple courts, and due to the fact Movant had been unrepresented in this proceeding since inception of the case, the Court temporarily stayed the eviction to afford both incoming respondent’s counsel and petitioner’s counsel an opportunity to submit papers. On October 18, 2023, respondent’s counsel submitted motion papers in support of the Order to Show Cause and further seeking a temporary stay of the eviction. Since this Court had issued a stay of the judgment and warrant of eviction on October 16th, when the then still pro se respondent’s OTSC was signed, the Court refused to sign that portion of counsel’s request, and, as such, considers counsel’s motion papers as being submitted in support of the motion. The Court notes that counsel’s motion papers listed petitioner’s former counsel for the purposes of service. Therefore, by Order dated October 19, 2023, the Court directed Movant’s counsel to serve a copy of the motion papers on petitioner’s current counsel via overnight delivery, which was completed. Petitioner’s counsel filed opposition to the motion on October 30, 2023. DISCUSSION Due to respondent’s non-appearance on November 10, 2022, the Court granted petitioner’s request for a judgment of possession and warrant of eviction. In order to now vacate the default judgment, Movant must establish both a reasonable excuse for her failure to appear as well as the possibility of a meritorious defense (CPLR §5015(a)(1),(4); Citibank, N.A. v. Dervas, 204 AD3d 745 [2d Dep't 2022]; Lotz v. Westbourne Apts., Inc., 159 AD3d 810 [2d Dep't 2018]). Respondent failed to satisfy either prong that would entitle her to the relief sought. The determination of what constitutes a reasonable excuse for failing to appear “[l]ies within the sound discretion” of the Court (Dervas, 204 A.D.3d at 746). Here, Movant consented to the jurisdiction of the Court by appearing twice in the proceeding, on October 22, 2022 and November 3, 2022, and submitting requests for adjournments, both of which were granted, without disputing service or preserving the right to pursue a personal jurisdiction defense. Thus, Movant clearly had notice of the proceeding, and at no point did she dispute or assert a claim for a lack of personal jurisdiction. A review of Movant’s motion papers clearly demonstrates that Movant’s dispute with service, inter alia, pertains to the underlying foreclosure proceeding in Suffolk County Supreme Court, bearing index number 605995/17 (“Supreme Court Action”). Absent a sufficient basis for her non-appearance in this Court when the default was awarded on November 10, 2022, Movant failed to establish a reasonable explanation for the non-appearance. Movant similarly failed to assert a potentially meritorious defense in this post-foreclosure holdover proceeding. After reviewing the several hundreds of pages submitted by Movant and her counsel in connection with the six (6) OTSC, the gravamen of Movant’s dispute was and remains the legitimacy of the underlying foreclosure proceeding and the acquisition of personal jurisdiction over her in the Supreme Court Action. It is well-established that the findings and conclusions of law rendered by the Supreme Court in the underlying foreclosure proceeding may not be challenged in this Court in the context of a summary proceeding (see JVJC Corp. v. Hampton, 121 NYS3d 507 [App. Term, 9th & 10th Jud. Dists. 2020]; Kushnir v. Hartman, 110 NYS3d 862 [App. Term, 9th & 10th Jud. Dists. 2018]). This is the case because the “judgment of foreclosure and sale [are] final as to all issues and defenses that might have been litigated in the foreclosure action, and the Supreme Court’s determination is not subject to collateral attack in the [District] Court” (NBD 1818 2019, LLC v. Johnson, 166 NYS3d 823 [App. Term, 2d, 11th & 13th Jud. Dists. 2022] [citing Nassau Homes Corp. v. Shuster, 941 NYS2d 539 [App. Term, 9th & 10th Jud. Dists. 2011]]). In other words, since this Court lacks the authority to alter, amend, or in any way modify a ruling of the higher Court, the appropriate forum in which Movant may challenge the foreclosure is the Supreme Court. Movant’s counsel acknowledges this point in his moving papers, and, as such, Movant’s request is essentially for this Court to impose a stay upon its own rulings while Movant seeks to vacate the foreclosure in Supreme Court. The Court considered the remaining arguments asserted within the supporting papers, and similarly found them to be devoid of merit. Based upon the foregoing, the instant OTSC seeking to vacate the default judgment is denied as there is no basis for granting such relief. Moreover, the Movant’s filing of six (6) OTSC for identical relief based upon the same arguments and rationale was neither proper nor appropriate. Notwithstanding these impediments, the Court has stayed execution of the warrant of eviction since March 3, 2023, providing Movant more than ample time to seek counsel and opportunity to pursue relief in the appropriate forum. Albeit late in the process, Movant has now retained counsel who raises questions regarding service of the pleadings in the Supreme Court Action and the tax-related information pertaining to the foreclosure and the underlying reverse mortgage, which he indicates will be pursued in Supreme Court. Petitioner contends that these issues have been previously litigated in the Supreme Court Action, where Movant appears pro se. While petitioner’s counsel may be correct, the Record from the Supreme Court Action was not presented to this Court, and, as a result, the scope of the specific issues adjudicated by the Supreme Court is not entirely clear. In light of these developments, it would be prudent to afford Movant the opportunity to pursue her defenses with the benefit of counsel. However, instead of waiting for that potential future litigation to be completed, which may take a significant amount of time, the Court will briefly hold the herein Decision and Order denying Movant’s motion to vacate the default judgment in abeyance so as to afford Movant and her counsel the opportunity to make application for a stay of the eviction in the Supreme Court. Accordingly, Movant’s motion to vacate the default judgment is denied, subject to the following terms and conditions. For the foregoing reasons, it is hereby, ORDERED, that the motion to vacate the default judgment is denied, the stay is vacated and execution of the warrant of eviction shall be stayed as set forth below; and it is hereby further ORDERED, that the Court is not requiring the Sheriff to serve upon Movant (or the other occupants properly noticed and served in this proceeding) another further 14-Day Notice of Eviction prior to the eviction; and it is hereby further ORDERED, that in order to provide Movant opportunity to seek relief from a higher Court prior to the eviction, the Court is staying issuance of this Decision and Order until November 21, 2023; at which time the Decision and Order shall immediately go into effect and may be acted upon without need for any further Order of this Court, absent the issuance of a stay of these proceeding from a higher Court; and it is hereby further ORDERED, that due to the time sensitive nature of this proceeding, the Clerk of the Court is directed to immediately provide a copy of this Decision and Order to both petitioner’s counsel and Movant’s counsel via electronic mail and regular mail; and it is hereby further ORDERED, that upon receipt of this Decision and Order, Movant’s counsel is to serve a copy of same upon the Suffolk County Sheriff’s Department. This constitutes the Decision and Order of the Court. Dated: October 31, 2023
