The following numbered papers EF35-65 read on this motion by plaintiff Citimortgage, Inc. (Citimortgage), for an Order: (1) granting summary judgment, an Order of Reference, and related relief. Defendant Liza Wong (Wong) cross-moves for an Order: denying the motion by Citimortgage; (2) vacating the Residential Foreclosure Conference Order dated February 26, 2020, pursuant to CPLR §321(c); and (3) remanding the matter for a further settlement conference. Papers Numbered Notice of Motion — Affs-Exhs E35-E52 Notice of Cross-Motion — Affs-Exhs E56-E62 Reply Aff E63-E651 Upon the foregoing papers, it is ordered that this motion by plaintiff Citimortgage, Inc. (Citimortgage), and cross motion by defendant (Wong) are determined as follows: This is a foreclosure action pertaining to certain premises located at 95-09 69th Avenue, Forest Hills, New York 11375. On or about June 12, 2006, defendant Wong and defendant Andy S. Oh, (Oh), executed a Note and Mortgage borrowing the sum of $664,000 from Citimortgage. In support of its motion for summary judgment, Citimortgage submits the Affidavit of one Jason Webb (Webb), Vice President of Document Execution of CENLAR, FSB, the loan servicer for Citimortgage, who avers that Wong and Oh defaulted in payment on or about July 1, 2018. The instant action was commenced on September 4, 2019. Wong and Oh interposed an Answer with Affirmative Defenses on December 20, 2019. Defendant Oh, the co-mortgagor and husband of Wong, was also serving as Wong’s counsel in defense of the foreclosure action. Oh died on January 14, 2020. At the first conference held in the Residential Foreclosure Settlement Conference Part on February 26, 2020, neither defendant appeared, and a default Order was issued permitting litigation to proceed. Given the relief requested therein, the Court will first consider the cross-motion wherein Wong seeks vacatur of the Order, dated February 26, 2020, on grounds that, due to Oh’s death as her counsel, the action should have been automatically stayed pursuant CPLR §321(c). Pursuant thereto, “if an attorney dies…at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs.” (CPLR §321(c)). Here, it is undisputed that plaintiff did not serve the 30-day Notice as required by CPLR §321(c), but nevertheless proceeded with a motion for summary judgment. In opposition to the cross-motion, Citimortgage relies on the authority of Wells Fargo Bank, N.A. v. Kurian (197 AD3d 173 [2021]), wherein the plaintiff bank similarly failed to file the requisite CPLR §321(c) notice before moving for summary judgment. The Court considered the protective provisions of the 30-day stay pursuant CPLR §321(c), but determined that the stay “may be lifted if the party that lost its counsel retains new counsel at its own initiative” (id. at 177). In that case, defendant appeared by counsel in opposition to the motion for summary judgment and cross-moved for dismissal of the Complaint. The Court deemed the action by defendant and her new counsel in opposing the motion and seeking affirmative relief to be a waiver of the protection of the statutory stay (id. at 178-179). Citimortgage argues that Wong has similarly waived the protection of the stay. However, in Kurian, the Court specifically noted that the defendant’s new counsel sought the affirmative relief in the form of a motion to dismiss and did not seek relief pursuant to CPLR §321(c) to vacate the stay. This factor renders Kurian distinguishable inasmuch as Wong is now moving to vacate her default pursuant to CPLR §321(c). It follows that this case is more closely aligned with JPMorgan Chase Bank, National Association v. Simonsen (208 AD3d 1167 [2022]), wherein the Court found that the automatic stay was not lifted until the defendant mortgagor moved to vacate an Order issued upon their default (see, id. at 1169, citing Moray v. Koven & Krause, Esq., 15 NY2d 384 [2010]). As the Court of Appeals reasoned in Moray, “[t]he stay is meant to ‘afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action’” (id. at 984). Here, this Court notes that Wong defaulted at the first settlement conference which was held shortly after the death or her co-mortgagor husband and attorney. Insofar as there was no compliance with Notice requirements of CPLR §321 (c), and the record demonstrates that Wong did not retain counsel until May 23, 2022, the automatic stay was in effect when the Order, dated February 26, 2020, was issued, thereby rendering the Order subject to vacatur (Simonsen 208 AD3d at 1169; Desidero v. Wilgosz, 220 AD3d 924 [2023]; Soldoviere v. Flack, 106 AD3d 717 [2013]). Moreover, similar to the facts in Simonsen, Wong, after obtaining counsel, sought only to vacate the default Order in her cross-motion of October 31, 2022. Wong has not cross-moved for affirmative relief dismissing the action, rendering Kurian inapposite (see, Simonsen, 208 AD3d at 1169; Duandre Corp. v. Golden Crust Caribbean Bakery & Grill, 140 AD3d 481 [2016]). As such, the cross-motion is granted in that Citimortgage’s motion is denied, that the Order, dated February 26, 2020, is vacated and that the is matter remanded to the Residential Foreclosure Part for a further settlement conference. Accordingly, the motion for summary judgment and all related relief is denied, and the cross-motion is granted. Dated: July 2, 2024
