The following e-filed papers read herein: NYSCEF Doc. Nos.: Notice of Motion/Order to Show Cause/Petition/Cross-Motion and Affidavits (Affirmations) and Exhibits 62-78 Opposing Affidavits (Affirmations) and Exhibits 81-93, 99-107 Reply Affidavits (Affirmations) and Exhibits 108 ORDER This is an action to foreclose on a mortgage encumbering the residential real property known as 200 Eldert Street in Brooklyn, New York, owned by defendant-borrower Horace Lindsay. Plaintiff now moves, inter alia, for summary judgment on the complaint, alleging that Lindsay defaulted under the terms of the parties’ loan modification agreement by failing to make the monthly payment due on April 1, 2011, and all monthly payments due thereafter. Defendants oppose, inter alia, on the ground that the motion is untimely. FACTUAL AND PROCEDURAL HISTORY On or about July 31, 2006, Plaintiff’s predecessor-in-interest executed a note with defendant-borrower Horace Lindsay, in the amount of $385,000, secured by a mortgage against the subject premises, and this principal loan amount was allegedly increased to $392,227.46 pursuant to a loan modification agreement entered into on or about August 14, 2008. On or about September 13, 2007, Lindsay executed with defendant Toiny LLC’s predecessor-in-interest a home equity line of credit agreement (“HELOC”), wherein Lindsay was advanced $150,000, and for which the subject premises also served as security. In its complaint, Plaintiff alleges that the 2007 mortgage securing Toiny LLC’s HELOC is subordinate to the 2006 mortgage securing Plaintiff’s note. On November 22, 2018, Lindsay answered the complaint, asserting various defenses including, inter alia, standing, the statute of limitations, failure to comply with the notice requirements pursuant to the terms of the mortgage and RPAPL §1304. On August 30, 2018, Toiny LLC also answered and asserted several defenses and related counterclaims, including, inter alia, standing, the statute of limitations, and that the mortgage securing Plaintiff’s note should be subordinated, in whole or in part, to the mortgage securing Toiny LLC’s HELOC. Plaintiff e-filed the note of issue on January 31, 2020. By notice of motion dated and e-filed September 24, 2021, Plaintiff made the instant motion for summary judgment. Defendants Lindsay and Miami Home LLC (Toiny LLC’s assignee) separately oppose the motion, with each arguing that it is untimely. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT As the parties do not seriously dispute that Plaintiff’s motion for summary judgment was made well after the governing deadline, the dispositive issue before this Court is whether there is good cause to entertain the motion despite its untimeliness. “Pursuant to CPLR 3212(a), unless the court directs otherwise, a motion for summary judgment shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause. Absent a satisfactory explanation for the untimeliness, constituting good cause for the delay, an untimely summary judgment motion must be denied without consideration of the merits” (Navarro v. Damac Realty, LLC, 202 AD3d 1100, 1101 [2d Dept 2022] [internal quotation marks and citations omitted], citing, inter alia, Brill v. City of NY, 2 NY3d 648, 652 [2004]). “Further, a court has broad discretion in determining whether the moving party has established good cause for the delay, and its determination will not be overturned unless it is improvident” (Lewis v. Rutkovsky, 153 AD3d 450, 453 [1st Dept 2017, citing Gonzalez v. 98 Mag Leasing Corp., 95 NY2d 124, 129 [2000]; see also Demacopoulos v. City of New York, 73 AD3d 842, 842 [2d Dept 2010]). “In Kings County, a party is required to make its motion for summary judgment no more than 60 days after the note of issue is filed” (Munoz v. Agenus, Inc., 207 AD3d 643, 644 [2d Dept 2022] [internal quotation marks]). Here, as the note of issue was filed on January 31, 2020, the initial deadline to move for summary judgment was March 31, 2020. Plaintiff made the instant motion on September 24, 2021. At the outset, it is noted that Plaintiff does not even discuss this subject in its moving papers-in-chief, much less proffer good cause for the delay. This is reason enough to summarily deny the motion. However, in response to the opposing defendants’ arguments, Plaintiff argues that the delays caused by the COVID-19 pandemic excuse the motion’s untimeliness. On March 20, 2020, in response to the pandemic, Governor Cuomo issued Executive Order No. 202.8 (9 NYCRR §8.202.8), which effectively tolled “any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to the [CPLR],…or by any other statute, local law, ordinance, order, rule, or regulation, or part thereof,….” The Governor subsequently issued a series of nine subsequent executive orders, culminating in Executive Order No. 202.72 (9 NYCRR §8.202.72), which extended the toll through November 3, 2020 (see Brash v. Richards, 195 AD3d 582, 584-585 [2d Dept 2021]). The Kings County rule setting the 60-day summary judgment deadline fell within the ambit of the Governor’s executive orders, and, thus, was subject to the resultant toll. “A toll suspends the running of the applicable period of limitation for a finite time period, and ‘the period of the toll is excluded from the calculation of the relevant time period’” (id. at 582 [alterations omitted], quoting Chavez v. Occidental Chem. Corp., 35 NY3d 492, 505, n 8 [2020]). When the toll imposed by the executive orders commenced on March 20, 2020, there were, at most, 11 days left in the 60-day period in which to move for summary judgment. Since the toll ceased on November 3, 2020, the new deadline was November 14, 2020. Yet, as noted, Plaintiff made the instant motion more than 10 months thereafter, on September 24, 2021. That the court system’s own moratorium affecting foreclosure matters was not fully lifted until January of 2022 is of no moment because Plaintiff made this motion several months earlier, thus, demonstrating that the moratorium did not prevent it from doing so before. Plaintiff’s invocation of the Chief Administrative Judge’s administrative order AO/157/2020 is unavailing for the same reason, as its requirement to hold additional status conferences also ceased in January of 2022, and it did not prohibit making motions for summary judgment. In any event, AO/232/2020, issued on October 22, 2020, and effective the next day, directed that all residential, commercial and in rem foreclosure matters resume, subject only to conditions which are not relevant to the case at bar. Plaintiff’s counsel states in his Reply that his firm’s own file “was still on an internal COVID-19 hold by Plaintiff’s loan servicer,” but he provides absolutely no explanation of what that means, or why a decision by the servicer would have had any bearing on the significance of legal deadlines set pursuant to court rule and statute. Nor does Plaintiff proffer an affidavit or any documentation from the servicer substantiating this assertion. Moreover, counsel states that he made this representation to the Court during an appearance in the non-jury trial readiness part on or after June 29, 2021. That the case was in this part only underscores that the matter was proceeding steadily towards trial, regardless of whatever internal holds Plaintiff’s servicer may have implemented for its own administrative convenience. Tellingly, Plaintiff has not articulated how the pandemic actually prevented it or its counsel from timely making the instant motion (cf. Porter v. Guardsman El. Co., Inc., 2021 NY Slip Op 31170(U), 3 [Supreme Court (Kings County) 2021] [good cause found where movant detailed the "extraordinary circumstances" during the pandemic which prevented counsel from making a timely motion, including his medical conditions and limited office resources]). Nor can the Court overlook that at no point did Plaintiff move for leave to extend the summary judgment deadline. To the contrary, Plaintiff made the instant motion without even acknowledging this issue until forced to do so in response to arguments set forth in its adversaries’ opposing papers (cf. Munoz v. Agenus, Inc., 207 AD3d 643, 644 [2d Dept 2022] [good cause found where the note of issue was filed while significant discovery essential to the motion was outstanding, and the motion was made just one week after the discovery was completed]). Additionally, by proffering an explanation for the first time in its Reply papers, Plaintiff deprived its adversaries of the opportunity to respond to its arguments. For the foregoing reasons, the Court concludes that Plaintiff’s explanation for its delay in making the instant motion is conclusory and does not constitute good cause. Therefore, the motion must be summarily denied (see Brill, 2 NY3d at 652; Navarro, 202 AD3d at 1101). This conclusion renders it unnecessary to wrestle with the opposing defendants’ alternative arguments that Plaintiff’s moving papers are defective because they violate the provisions of Part 202 of the Uniform Civil Rules for the Supreme Court and the County Court pertaining to the length of motion papers and additional requirements on motions for summary judgment (see 22 NYCRR §§202.8-b and 202.8-g). The Court did not consider the additional documents filed by Plaintiff in an apparent attempt to rectify these procedural defects (see NYSCEF doc. nos. 96-98), as they were not part of Plaintiff’s Reply papers, having been filed separately, weeks earlier and without leave of court. Accordingly, the above-referenced motion by Plaintiff for, inter alia, summary judgment on the complaint and an order of reference is DENIED in its entirety. The foregoing constitutes the Decision and Order of this Court. Dated: February 21, 2024
