The following papers, numbered 1 to 7 were read and considered in connection with Plaintiff’s Notice of Motion (Motion #3) for an Order (a) Pursuant to Civil Practice Law and Rules §5015(a), vacating the Stipulation of Voluntary Discontinuance of Action filed in this matter and restoring the matter to the Court’s active calendar due to a change in law; and (b) for such other and further relief as this Court may deem just and proper under the circumstances; and also read and considered in connection with Defendant’s Notice of Motion (Motion #4) for an order permitting the Defendant to file the Affirmation of Carl E. Person dated 8/30/23 in Opposition to the Plaintiff’s Motion to Vacate a Stipulation of Discontinuance; and for such other and further relief which this Court deems just and proper: PAPERS NUMBERED Notice of Motion (Motion #3)/Affirmation of Richard D. Femano, Esq./Proposed Order/Affidavit of Service 1 Affirmation of Carl E. Person, Esq./Affidavit of Service 2 Notice of Motion (Motion #4)/Affirmation of Carl E. Person, Esq./Affidavit of Service 3 Amended Notice of Motion (Motion #4)/Amended Affirmation of Carl E. Person, Esq./Affidavit of Service 4 Notice of Rejection of Defendant’s Untimely Opposition (Motion #3)/Affidavit of Service 5 Affirmation of Richard D. Femano, Esq. in Opposition to Defendant’s Motion for Leave of file Late Opposition (Motion #4)/Affidavit of Service 6 Reply Affirmation of Carl E. Person, Esq. (Motion #4)/Affidavit of Service 7 DECISION & ORDER Upon the foregoing papers, the Court now rules as follows: The instant action is one for foreclosure of real property located at 9 West End Drive, Highland Mills, New York 10930. Defendant executed and delivered a note to Plaza Home Mortgage on May 15, 2014, and the mortgage was recorded with the Orange County Clerk’s Office on May 19, 2014. Plaintiff alleges they became custodian of the original Note and assignment of mortgage as of May 20, 2014. In the instant action the Defendant contends that Defendant defaulted on the terms of the Note and Mortgage by failing to make mortgage payments beginning on June 1, 2016, and each subsequent payment. According to Plaintiff they complied with all pre foreclosure notices regarding the default. Plaintiff commenced the instant action on November 13, 2018, by filing a summons and complaint and a certificate of merit. Additionally, Plaintiff filed a Notice of Pendency at commencement of the action. The Plaintiff alleges that Defendant was served in compliance with Civil Practice Law and Rules §308(1), which is demonstrated by the Affidavit of Service filed November 27, 2018 (service occurred on November 24, 2018, in the State of North Carolina).1 Defendant Eljdid joined issue with the filing of an Answer (by his current counsel, Carl E. Person, Esq.) with affirmative defenses and counterclaims.2 The Plaintiff alleges that after issue was joined the matter was sent to the Foreclosure Settlement Conference part where settlement conferences were conducted on May 22, 2019, July 1, 2019, July 30, 2019, September 13, 2019, and October 16, 2019. According to Plaintiff based upon the parties’ inability to reach a settlement the matter was released from the Foreclosure Settlement Conference Part and the Plaintiff was directed to proceed with the foreclosure action. Upon release the matter was assigned to the Honorable Robert H. Freehill, A.J.S.C. and scheduled for a status conference unless a motion for an order of reference or summary judgment was filed by December 19, 2019. Due to the COVID 19 pandemic the matter was placed on hold. On December 9, 2020, the matter was scheduled for a conference with Court Attorney Referee Emily R. Fabrizio on December 23, 2020. On December 23, 2020, Defendant Eljdid failed to appear, but the Court was also made aware that the subject mortgage was one that was part of an enforcement moratorium in effect until January 31, 2021, based upon restrictions adopted by the FHA. On August 4, 2021, the matter was transferred to the Honorable Catherine M. Bartlett, A.J.S.C. who directed Plaintiff to file their motion prior to November 10, 2021, or provide a written explanation to the Court regarding the delay. On August 10, 2021, Plaintiff filed a Verified Reply to Defendant’s Counterclaims. Subsequently on August 12, 2021, Plaintiff filed a Stipulation between Plaintiff and Defendant to be so ordered (NYSCEF Doc. #29). The aforementioned Stipulation provided for the Plaintiff to have an extension to file a response to the Counterclaims of Defendant Eljdid until August 31, 2021. The parties also stipulated that Defendant Eljdid had been serving on active duty in the military since May 23, 2005, at the time the instant action was commenced the Defendant was on active military duty, that the instant action was stayed under the Servicemembers Civil Relief Act (hereinafter SCRA) until the Court modified or terminated the stay or either party moved for modification and the requirement to commence motion practice by November 4, 2021 was withdrawn. The Honorable Catherine M. Bartlett, A.J.S.C. so ordered the Stipulation on August 12, 2021. On November 4, 2021, the Plaintiff informed the Court that due to the damage caused by Hurricane Ida the Defendant petitioned for and was granted a FEMA stay/hold on his account pursuant to the rules and regulations of the FHA and sought an extension of the motion filing date to December 5, 2021. The request was granted. On January 20, 2022, the Court again directed motion practice to commence prior to April 4, 2022. On February 25, 2022, Plaintiff filed a Motion for Summary Judgment and an Order of Reference (Motion #1). On March 6, 2022, Defendant filed a cross motion to dismiss the complaint for noncompliance with Real Property Actions Proceedings Law §1304 (Motion #2). On March 23, 2022, the parties filed a Stipulation of Voluntary Discontinuance of Action, a cancellation of the Lis Pendens, withdrew the Plaintiff’s motion (Motion #1) and Defendant’s cross motion (Motion #2), and the Defendant withdrew his answer, defenses, and counterclaims (without prejudice to either party). See NYSCEF Doc. No. 59. The Honorable James L. Hyer, J.S.C. issued a Decision and Order (referencing Motion #2 only) on March 29, 2022, which consists solely of the aforementioned Stipulation so-ordered. The matter was marked disposed indicating that the action was dismissed, and no further action was required. Plaintiff filed the instant motion to vacate (Motion #3) the aforementioned Stipulation of Voluntary Discontinuance of the Action. Defendant failed to file his opposition to the aforementioned motion timely pursuant to Civil Practice Law and Rules §2214 and Plaintiff refused to grant Defendant’s request for an extension of time. Therefore, Defendant filed a motion (Motion #4) seeking the Court accept his untimely filed affirmation in opposition to Plaintiff’s motion to vacate the Stipulation. ARGUMENTS Plaintiff indicates in counsel’s affirmation of support that they are seeking to vacate the Stipulation of Voluntary Discontinuance of the Action and restoring the matter to the active calendar “due to a change in law.” According to Plaintiff they are entitled to the instant relief “in the interest of justice” since the basis of their voluntary discontinuance of the instant action was “formed by Plaintiff’s reliance on Appellate Division case law which was thereafter reversed.” Plaintiff notes that the Appellate Division, Second Department held in Bank of America, N.A. v. Kessler, 202 AD3d 10 (2d Dept 2021) that additional notices sent with the Real Property Actions and Proceedings Law §1304 New York 90 Day Notices were not part of the statutory requirements and therefore if included they resulted in making the notices invalid. The Plaintiff asserts that they relied upon the decision in Kessler and considered that the notices in the instant action contained more than the bare statutory requirements. As a result, Plaintiff states that they prepared and filed a Stipulation seeking to voluntarily discontinue the instant action and cancel the Notice of Pendency. The Stipulation was executed by both parties and So Ordered by the Honorable James L. Hyer, J.S.C. on March 28, 2022, and entered with the Orange County Clerk on March 29, 2022. However, Plaintiff notes that on February 14, 2023, the Court of Appeals reversed the Appellate Division, Second Department’s Decision in Kessler in Bank of America, N.A. v. Kessler, 202 AD3d 10, 11 (2d Dept 2021), rev’d 39 NY3d 317 (2023). As a result of the reversal of Kessler, Plaintiff contends that the law no longer creates any ambiguities as to whether the Plaintiff met the legal standards required to commence a foreclosure action in New York and as a result is seeking this Court to vacate the aforementioned Stipulation and restore the action to its calendar. The statutory basis of Plaintiff’s argument is that pursuant to Civil Practice Law and Rules §5015(a)(1) the Court has powers to act in the interest of justice and based upon that power the Court may vacate its own judgment. The Plaintiff asserts that the “sole reason” they voluntarily discontinued the instant action was based upon their own reliance on the decision in Kessler. According to Plaintiff since the Stipulation was So-Ordered by Judge Hyer the Stipulation is a “Dismissal Order,” making it an order of the court that can be vacated in the “interests of substantial justice.” Further, the Plaintiff states the instant application is timely since it was filed “within months of the reversal of the Kessler decision.” Plaintiff also asserts that the Defendant is not prejudiced by the vacatur of the Stipulation since he does not occupy the mortgaged premises evidenced by the Affidavit of Service demonstrating he resides in North Carolina and the tenants of the premises are also not prejudiced since they were previously served with the instant action. Based upon the alleged lack of prejudice to any party and the “meritorious nature of the Plaintiff’s cause of action and the procedural picture of the case” Plaintiff seeks the Court exercise its inherent statutory discretion to vacate the Stipulation and restore the matter to the Court’s calendar. In opposition Defendant through his counsel filed opposition which was untimely based upon Civil Practice Law and Rules §2214. Defendant contends that the Plaintiff is not entitled to vacate the Stipulation of Discontinuance pursuant to Civil Practice Law and Rules §5015(a) since the statute is only applicable if there is an order or judgment, which is not the case in this matter. According to Defendant the fact that the Stipulation was “so-ordered” by Judge Hyer does not alter the contents of the Stipulation and even if the “so-order” language was removed the action would remain dismissed as per agreement and stipulation of the parties. The Defendant contends that the Plaintiff is not precluded from commencing a new action since there is no Statute of Limitations defense available to Defendant. In regard to the untimely nature of Defendant’s opposition, Defendant’s counsel contends in his motion (Motion #4) that on August 29, 2023, he sought a two (2) week adjournment of Plaintiff’s motion from Plaintiff. However, according to Defendant the Plaintiff refused to consent to the adjournment or conform the stipulation of adjournment he sent Plaintiff’s counsel. Defendant’s counsel indicates that his excuse for the untimely opposition was that upon receipt of the Plaintiff’s motion he believed Civil Practice Law and Rules §5015(a) was “applicable” but needed time to review the motion papers and its basis. Defendant’s counsel indicates that after reviewing the motion papers, the Stipulation and Civil Practice Law and Rules §5015(a) “it is clear that the Plaintiff’s motion should be denied.” In opposition to Defendant’s motion for leave to file late opposition the Plaintiff asserts that Defendant has failed to offer a reasonable excuse for his default in answering the motion and further has not raised a meritorious defense to Plaintiff’s motion. Plaintiff asserts that Defendant admits in his own papers that he was aware of Plaintiff’s motion and return date and had “formulated a defense” to the motion, but wanted more time to consider the application for which Plaintiff’s counsel would not provide consent. According to Plaintiff the excuse that Defendant needed more time to “formulate an argument” is not a valid excuse for defaulting in response to Plaintiff’s motion. Additionally, Plaintiff contends that Defendant has failed to raise a meritorious defense in his papers and denial of Plaintiff’s motion would result in a “windfall” to Defendant in that he continues to have rental income and enjoyment of the subject premises for the additional time it will take Plaintiff to commence a new action all at the expense of Plaintiff. ANALYSIS Plaintiff seeks to vacate the Stipulation of Voluntary Discontinuance that was conformed and filed by the parties on March 23, 2022, and So-Ordered by Judge Hyer on March 29, 2022, based upon that the Stipulation became an Order upon its so-ordering. Civil Practice Law and Rules §5015(a)(10) states that a court that rendered a judgment or order may relieve a party of the terms of a judgment or order if the application is made within one (1) year of service of the judgment or order for an excusable default. The Plaintiff’s contention that a court has the authority to vacate its own order in the interest of justice is derived purely from caselaw, as a court is not afforded discretion within the statutory language of Civil Practice Law and Rules §5015(a)(1). Those court’s which have vacated an order of judgment based upon the interest of justice have generally been faced with an untimely motion to vacate (over the one [1] year mark) and rely on Civil Practice Law and Rules §2004 as their basis for the discretion since the statute permits a court to extend time deadlines upon terms that may be just and upon a demonstration of good cause. See Ibukun Ogunbekum v. Strong Memorial Hospital, 181 AD3d 1189 (4th Dept 2020). Another area in which courts have exercised their discretion based upon the interest of justice is when the excuse for default is due to law office failure, which is contemplated by Civil Practice Law and Rules §2005. In the instant application this Court is not faced with either basis to vacate the March 29, 2023, Stipulation as the Plaintiff is not arguing there was a law office failure or that the vacatur is being sought more than one (1) year since the Stipulation was filed (despite the application being filed more than one year after the Stipulation was so ordered). Rather, Plaintiff seeks this Court to exercise its discretion in vacating an order of the prior presiding Judge based upon a change of law that occurred subsequent to the parties’ entrance into a voluntary stipulation of discontinuance. This Plaintiff’s application is inherently flawed. Civil Practice Law and Rules §5015(a)(1) does not grant this Court the authority to exercise its discretion in vacating any prior judgment or order based upon a change of law as there is no language within any section of the statute that allows vacatur on that basis. The only statute that addresses motions when there is a change in the law is within the Civil Practice Law and Rules §2221(e) regarding renewal motions. Specifically, Civil Practice Law and Rules §2221(e) permits renewal motions when there has been a change in the law while the action is still pending that would alter the court’s prior motion determination. See Wilmington Savings Fund Society FSB v. Khandaker, 217 AD3d 729 (2d Det 2023). “A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law.” Dinallo v. DAL Elec., 60 AD3d 620, 621 (2d Dept 2009). However, in contrast to Civil Practice Law and Rules §5015(a)(2) which only applies to final orders and final judgments in actions §2221(e) is inapplicable to final orders or judgments. According to the practice commentaries from Civil Practice Law and Rules §5015 “[t]he reason CPLR 5015(a)(2) is restricted to new evidence, without extending to changes in the law is that if an order of judgment is final a change in the law thereafter is of no value to an aggrieved party.” Practice Commentary, Civil Practice Law and Rules §5015, Hon. Mark C. Dillon (2023). The Court of Appeals reinforced this stating “[a]bsent the sort of circumstances mentioned in CPLR §5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a determination of a court from which no appeal has been taken ought to remain inviolate.” Matter of Huie [Furman], 20 NY2d 568, 572 (1967). In March 2022 Plaintiff and Defendant filed a voluntary discontinuance which has the effect of ending the instant action. See Civil Practice Law and Rules §3217(c). The fact that the Court “so-ordered” the Stipulation of voluntary discontinuance does not convert the discontinuance into an order upon which vacatur can be sought under Civil Practice Law and Rules §5015(a)(1). The parties discontinued the instant action through the filing of the Stipulation of Voluntary Discontinuance pursuant to Civil Practice Law and Rules §3217(a)(2) which states a matter may be discontinued voluntarily without an order “by filing with the clerk of the court before the case has been submitted to the court or jury a stipulation in writing signed by the attorneys of record for all parties…” The subsequent placement of Judge Hyer’s signature on the Stipulation of Voluntary Discontinuance did not convert it into a discontinuance by order of court as contemplated in Civil Practice Law and Rules §3217(b). See Deutsche Bank National Trust Company v. Lee, 60 Misc3d 171 (Sup Ct, Westchester Cty 2018). Assuming arguendo that the So-Ordered Stipulation of Voluntary Discontinuance is considered an “order” as defined in §5015(a)(1) the Court still finds the statute inapplicable to the Plaintiff’s application since there is no portion of the statute that allows vacatur of an order or judgment based upon a change in the law. As discussed by the Honorable Mark C. Dillon, an order or judgment at the end of case is final, it ends the matter and allowing vacatur of a matter after the completion of the matter would allow cases to continue with no end. See Practice Commentary, Civil Practice Law and Rules §5015, Hon. Mark C. Dillon (2023). The Stipulation of Voluntary Discontinuance filed, and So-Ordered in March 2022 ended the instant matter and foreclosed Plaintiff’s ability to seek vacatur through Civil Practice Law and Rules §5015(a)(1). The Court finds that none of the circumstances set forth in Civil Practice Law and Rules §5015 nor circumstances that would warrant an exercise of this Court’s inherent power to provide relief from a judgment are present in this action. See IndyMac Bank, FSB v. Izzo, 166 AD3d 866 (2d Dept 2018). Additionally, Civil Practice Law and Rules §2221(e) is inapplicable to this matter as there was no prior determination made by this Court upon which Plaintiff make seek renewal based upon the Court of Appeals Decision in Kessler. As such, the Plaintiff’s motion is denied in its entirety. Further, based upon the foregoing the Court is denying Defendant’s motion to compel acceptance of his opposition to Plaintiff’s motion moot. Accordingly, it is hereby ORDERED that Plaintiff’s Motion to Vacate the Stipulation of Voluntary Discontinuance (Motion # 3) is denied in its entirety; and it is further ORDERED that Defendant’s Motion for an order nunc pro tunc permitting Defendant to file opposition to Plaintiff’s Motion (Motion # 4) is denied as moot. The foregoing constitutes the Decision and Order of this Court on Motions # 3 and 4. Dated: November 17, 2023
