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NY Judge Schack Delivers Another Beat Down With Prejudice | NYCTL 2005-A Trust, BONY v Arias

NY Judge Schack Delivers Another Beat Down With Prejudice | NYCTL 2005-A Trust, BONY v Arias


Supreme Court, Kings County

NYCTL 2005-A Trust AND THE BANK OF NEW YORK, AS COLLATERAL AGENT AND CUSTODIAN, Plaintiff,

against

Dionisio Arias, et al., Defendants.

23043/06

Plaintiff

Philips Lytle, LLP

Rochester NY

Defendant

No Appearance

Arthur M. Schack, J.

In this tax lien certificate foreclosure action, plaintiff, NYCTL 2005-A TRUST AND THE BANK OF NEW YORK, AS COLLATERAL AGENT AND CUSTODIAN (THE TRUST), moved for a judgment of foreclosure and sale for the premises located at 199 Troutman Street, Brooklyn, New York (Block 3173, Lot 37, County of Kings). On March 4, 2011, the Court received from the Kings County Supreme Court Foreclosure Department a notice of withdrawal of the instant motion, dated February 16, 2011, from plaintiff’s counsel, Phillips Lytle LLP. The notice of withdrawal did not state any reason for the request.

Then, on May 23, 2011, plaintiff’s counsel faxed to me a “second request” to withdraw [*2]the instant motion for a judgment of foreclosure and sale. Again, no reason for the request was articulated. Further, at the bottom of the May 23, 2011-letter to me, it states “THIS LAW FIRM IS ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.” Since this statement is in a cover letter addressed to me and does not appear to be preprinted on the letterhead of the Phillips Lytle firm, the Court would like to know what debt I personally owe to the Phillips Lytle firm or THE TRUST. This statement borders upon frivolous conduct, in violation of 22 NYCRR § 130-1.1. Was it made to cause annoyance or alarm to the Court? Was it made to waste judicial resources? Rather than answer the above rhetorical questions, counsel for plaintiff is directed never to place such a foolish statement in a cover letter to this Court. If this occurs again, the firm of Phillips Lytle LLP is on notice that this Court will have the firm appear to explain why the firm should not be sanctioned for frivolous conduct.

With respect to the request of plaintiff’s counsel to withdraw the instant motion for a judgment of foreclosure and sale, the Court grants the request to withdraw the motion. However, since plaintiff, THE TRUST, is not discontinuing the instant foreclosure action, the Court, to prevent the waste of judicial resources, for procedural reasons and not upon the merits, dismisses the instant foreclosure action with prejudice.

Discussion

Real Property Actions and Proceedings Law (RPAPL) § 1321 allows the Court in a foreclosure action, upon the default of the defendant or defendant’s admission of mortgage payment arrears, to appoint a referee “to compute the amount due to the plaintiff.” In the instant action, the referee computed the amount due. Then, plaintiff, THE TRUST, moved, as required, to obtain a default judgment of foreclosure and sale against defendant ARIAS. Subsequently, plaintiff requested that the Court allow it to withdraw its motion for a judgment of foreclosure and sale. The Court grants plaintiff’s request to withdraw its motion for a judgment of foreclosure and sale. However, to allow the instant action to continue without seeking the ultimate purpose of a foreclosure action, to obtain a judgment of foreclosure and sale, without any valid reason, is a mockery and waste of judicial resources. Continuing the instant action without moving for a judgment of foreclosure and sale is the judicial equivalent of a “timeout,” and granting a “timeout” to plaintiff, THE TRUST, is a waste of judicial resources. Therefore, the instant action, for these procedural reasons, is dismissed with prejudice.

Moreover, the dismissal of the instant foreclosure action requires the cancellation of the notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a property is to give constructive notice to any purchaser of real property or encumbrancer against real property of an action that “would affect the title to, or the possession, use or enjoyment of real property, except in a summary proceeding brought to recover the possession of real property.” The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313, 319 [1984]), commented that “[t]he purpose of the doctrine was to assure that a court retained its ability to effect justice by preserving its power over the property, regardless of whether a purchaser had any notice of the pending suit,” and, at 320, that “the statutory scheme permits a party to effectively retard the alienability of real property without any prior judicial review.”

CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:

The Court,upon motion of any person aggrieved and upon such [*3]

notice as it may require, shall direct any county clerk to cancel

a notice of pendency, if service of a summons has not been completed

within the time limited by section 6512; or if the action has been

settled, discontinued or abated; or if the time to appeal from a final

judgment against the plaintiff has expired; or if enforcement of a

final judgment against the plaintiff has not been stayed pursuant

to section 551. [emphasis added]

The plain meaning of the word “abated,” as used in CPLR § 6514 (a) is the ending of an action. “Abatement” is defined as “the act of eliminating or nullifying.” (Black’s Law Dictionary 3 [7th ed 1999]). “An action which has been abated is dead, and any further enforcement of the cause of action requires the bringing of a new action, provided that a cause of action remains (2A Carmody-Wait 2d § 11.1).” (Nastasi v Nastasi, 26 AD3d 32, 40 [2d Dept 2005]). Further, Nastasi at 36, held that the “[c]ancellation of a notice of pendency can be granted in the exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501 (see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250 AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed]).” Thus, the dismissal of the instant complaint must result in the mandatory cancellation of THE TRUST’s notices of pendency against the subject property “in the exercise of the inherent power of the court.”

Conclusion

Accordingly, it is

ORDERED, that the request of plaintiff, NYCTL 2005-A TRUST AND THE BANK OF NEW YORK, AS COLLATERAL AGENT AND CUSTODIAN, to withdraw its motion for a judgment of foreclosure and sale, for the premises located at 199 Troutman Street, Brooklyn, New York (Block 3173, Lot 37, County of Kings), is granted; and it is further

ORDERED, that the instant action, Index Number 23043/06, is dismissed with prejudice; and it is further

ORDERED, that the notices of pendency in the instant action, filed with the Kings County Clerk on August 2, 2006 and July 16, 2009, by plaintiff, NYCTL 2005-A TRUST AND THE BANK OF NEW YORK, AS COLLATERAL AGENT AND CUSTODIAN, to foreclose on a tax lien certificate for real property located at 199 Troutman Street, Brooklyn, New York (Block 3173, Lot 37, County of Kings), is cancelled and discharged; and it is further

ORDERED, that Phillips Lytle, LLP is on notice that if any of attorneys or staff sends any communication to this Court stating “THIS LAW FIRM IS ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE,” it may be subject to civil contempt and/or sanctions for frivolous conduct, pursuant to 22 NYCRR § 130-1.1.

This constitutes the Decision and Order of the Court.

ENTER [*4]

________________________________HON. ARTHUR M. SCHACK

J. S. C.

Dated: May 24, 2011

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