One West Bank, F.S.B. v Corrar | NYSC -- plaintiff failed to move for a default judgment within a year after defendant's default and, therefore, pursuant to CPLR §3215(c)

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One West Bank, F.S.B. v Corrar | NYSC — plaintiff failed to move for a default judgment within a year after defendant’s default and, therefore, pursuant to CPLR §3215(c)

One West Bank, F.S.B. v Corrar | NYSC — plaintiff failed to move for a default judgment within a year after defendant’s default and, therefore, pursuant to CPLR §3215(c)

Decided on May 30, 2014
Supreme Court, Kings County

One West Bank, F.S.B., Plaintiff, – against-

against

Daniel Corrar a/k/a DANIEL CARRAZ a/k/a DANIEL COKRAR a/k/a DANIEL E. CORRAR, City of New York Environmental Control Board, Sea Gate Association, Manhattan Beer Distributors, “JOHN DOE”, “RICHARD ROE”, “JANE DOE”, “CORA COE”, “DICK MOE” and “RUBY POE”, the six, defendants last named in quotation marks being intended to designate tenants or occupants in possession of the herein described premises or portions thereof, if any there be, said names being fictitious, their true names being unknown to the plaintiff, Defendants.

19614/09

Attorney for Defendant Daniel Corrar
Baum & Bailey, P.C.
48 Wall Street, 11th Fl
New York, NY 10005

Attorney for Plaintiff
Stein, Weiner & Roth, LLP
One Old Country Road, Suite 113
Carle Place, NY 11514

Attorney for Defendant Sea Gate Association
Alan J. Wohlberg, Esq.
2805 Avenue N
Brooklyn, NY 11210

Attorney for Plaintiff
Ras Boriskin, LLC
900 Merchants Concourse, Suite LL-13
Westbury, NY 11590
Donald Scott Kurtz, J.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of these motions:

PapersNumbered

Notice of Motion/Cross Motion/Attorneys’ affirmations

supplementing the motions……………………………………….1,2

Answering Affidavits/Affirmations……………………………3

Reply Affidavits/Affirmations/Memoranda of Law…….4Referee’s Report……………………………………………………….

Upon the foregoing cited papers, plaintiff’s motion for an Order of Reference and defendant Corrar’s cross-motion to dismiss plaintiff’s complaint pursuant to CPLR §3215(c), is decided as follows:

Plaintiff commenced this foreclosure action by the filing of a Summons and Verified Complaint on August 3, 2009. Defendant Daniel Corrar a/k/a Daniel Carraz a/k/a Daniel Cokrar a/k/a Daniel E. Corrar (hereinafter “defendant”) was allegedly served pursuant to CPLR §308(2) by delivery of the Summons and Verified Complaint to a co-tenant on August 6, 2009 and by the required mailing on August 11, 2009. Defendant failed to answer. A proposed Order of Reference was received by the Court on September 23, 2009. By letter dated October 13, 2010, plaintiff withdrew its proposed Order of Reference. On January 17, 2013, plaintiff filed a motion [*2]for an Order of Reference, noticed for February 6, 2013. On February 6, 2013, both plaintiff and defendant failed to appear and said motion was marked off. On September 27, 2013, plaintiff filed its second motion for an Order of Reference. On the return date, defendant appeared pro-se and the case was adjourned at his request to retain counsel. On January 29, 2014, defendant cross-moved for an order dismissing the complaint pursuant to CPLR §3215(c); cancelling any accrued interest from the date of defendant’s default including all fees and penalties; and, in the alternative, granting him an extension of time to serve an answer.Defendant maintains he never received the Summons and Verified Complaint. He submits an affidavit wherein he states he completed a trial modification in October 2008, prior to the action’s commencement. Thereafter, he was informed that IndyMac was no longer servicing his loan and he was unable to ascertain the identity of the new servicer. He maintains he does not know the co-tenant who was allegedly served with the Summons and Verified Complaint and that the first he learned of this action was when he received plaintiff’s second motion for an Order of Reference on September 24, 2013. Defendant argues that plaintiff failed to move for a default judgment within a year after defendant’s default and, therefore, pursuant to CPLR §3215(c), the action should be dismissed.

In opposition to defendant’s cross-motion, plaintiff argues that it made an application for entry of a default judgment within a year of defendant’s default, despite the application having been withdrawn. Plaintiff maintains that the threshold for satisfying CPLR §3215(c) is very low and merely an application for a default judgment is enough. Moreover, it argues that settlement discussions can constitute a reasonable excuse for plaintiff’s delay in entering a judgment and notes that on May 18, 2010, the case was calendered for a foreclosure pre-settlement conference.

CPLR §3215(c) states, in pertinent part, that if a plaintiff “fails to take proceedings for the entry of judgment within one year after the default, the Court shall…dismiss the complaint as abandoned, without costs, upon its own initiative or on motion, unless sufficient cause is shown why the complaint should not be dismissed.” This section “prevents a plaintiff from taking advantage of a defendant’s default where the plaintiff has also been guilty of inaction.” Myers v. Slutsky, 139 AD2d 709, 710 (2d Dept 1988). The legislative intent underlying CPLR §3215(c) was to “prevent the plaintiffs from unreasonably delaying the determination of an action…” and “to avoid inquests on stale claims (citations omitted).” Id., Giglio v. NTIMP, Inc., 86 AD3d 301, 307 (2d Dept 2011).

The Court does not agree with plaintiff’s contention that it made an application for entry of a default judgment within one year of defendant’s default. In fact, upon review of the papers, it is noted that plaintiff submitted an ex-parte application for an Order of Reference only, which was submitted directly to the court clerk. Therefore, this “application” could not have been a motion for a default judgment pursuant to CPLR §3215. Moreover, even if the Court considered plaintiff’s application to be a motion pursuant to CPLR §3215, said application or motion was withdrawn by plaintiff. “The effect of a withdrawal of a motion is to leave the record as it stood prior to its filing as though it had not been made.” Stoute v. City of New York, 91 AD2d 1043, [*3]app dismissed 59 NY2d 602, lv to app dismissed 59 NY2d 762 (1983). On January 17, 2013, approximately two and a half years after defendant’s alleged default, plaintiff filed its first motion for an Order of Reference. The Notice of Motion did not state plaintiff was seeking a default judgment. The motion was marked off on February 6, 2013. Plaintiff now makes its second motion for an Order of Reference. Again, upon review of the Notice of Motion, it still does not seek a default judgment, even though defendant’s alleged default occurred almost four years ago.

The Court finds plaintiff’s remaining argument that the May 18, 2010 foreclosure pre-settlement conference constitutes a reasonable excuse for plaintiff’s delay in entering a judgment to be without merit. Defendant did not appear and no conference was held. Moreover, the case was in that part only once, and after that one appearance, the case was immediately released to the IAS part for plaintiff to proceed.

In view of the foregoing, plaintiff’s application for an Order of Reference is hereby denied and defendant’s cross-motion to dismiss pursuant to CPLR §3215(c) is hereby granted.The foregoing shall constitute the Decision and Order of the Court.

DONALD SCOTT KURTZ
Justice, Supreme Court

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