Decided on December 12, 2011
Supreme Court, Kings County
U.S. Bank, N.A., Plaintiff,
Wayne Ramjit et al., Defendants.
Arthur M. Schack, J.
In this foreclosure action, plaintiff, U.S. BANK N.A. (U.S. BANK), moved for an order of reference and related relief for the premises located at 1485 Sutter Avenue, Brooklyn, New York (Block 4259, Lot 22, County of Kings). For the Court to consider the motion for an order of reference, I ordered plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., on July 29, 2011, to comply with the October 20, 2010 Administrative Order of then Chief Administrative Judge Ann T. Pfau, as revised on March 2, 2011, and concluded that:
Accordingly, it is
ORDERED, that plaintiff U.S. BANK N. A.’s motion for an
order of reference and related relief for the premises located at 1485
Sutter Avenue, Brooklyn, New York (Block 4259, Lot 22, County of
Kings) and the instant foreclosure action will be dismissed with
prejudice, unless, within sixty (60) days from this decision and order,
counsel for plaintiff, U.S. BANK N.A., complies with the new Rule,
promulgated by the Chief Administrative Judge Ann T. Pfau on
October 20, 2010, as revised on March 2, 2011, by submitting an
affirmation, to my Chambers (not the Foreclosure Department), [*2]
360 Adams Street, Room 478, Brooklyn, NY 11201, using the new
standard Court form, pursuant to CPLR Rule 2106 and under the
penalties of perjury, that counsel for plaintiff, U.S. BANK N.A., has
“based upon my communications [with named representative or
representatives of plaintiff], as well as upon my own inspection and
reasonable inquiry under the circumstances . . . that to the best of
my knowledge, information and belief, the Summons, Complaint and
other papers filed or submitted to the Court in this matter contain no
false statements of fact or law”, and is “aware of my obligations under
New York Rules of Professional Conduct (22 NYCRR Part 1200) and
22 NYCRR Part 130.”
On September 23, 2011, plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., filed with the Court the instant motion, requesting an extension of thirty (30) days, up to and including October 26, 2011, to submit the required attorney’s affirmation.
According to ¶ 15 of the affirmation in support of the motion, by Timothy Menasco, Esq., of Rosicki, Rosicki & Associates, P.C., “plaintiff and plaintiff’s counsel has been actively reviewing the file in order to properly abide by said Administrative Order creating the delay in submission of the affirmation.” Mr. Menasco then states, in ¶ 16 of his affirmation, “[i]t is unduly harsh and inappropriate to dismiss this action, on the basis of a delay in submitting an affirmation to the court.”
Plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., continued, for reasons unknown and not satisfactorily explained to the Court, to not comply with the Administrative Order of the Chief Administrative Judge and my July 28, 2011 order. I have not received the affirmation from plaintiff’s counsel, as ordered by the Chief Administrative Judge’s Administrative Order and my previous order.
Today, plaintiff U.S. BANK’S instant motion to extend the time to file the required attorney’s affirmation, appeared on my motion calendar. It is one hundred thirty-seven (137) days since I issued my July 28, 2011 order and four hundred eighteen (418) days since the Chief Administrative Judge issued her Administrative Order. Therefore, for violation of these orders, the instant foreclosure action is dismissed with prejudice and the notice of pendency is cancelled and discharged.
The Office of Court Administration issued a press release on October 20, 2010 explaining the reasons for the Administrative Ordered issued that day by Chief Administrative Judge Pfau. It stated:
The New York State court system has instituted a new filing
requirement in residential foreclosure cases to protect the integrity
of the foreclosure process and prevent wrongful foreclosures. Chief
Judge Jonathan Lippman today announced that plaintiff’s counsel in
foreclosure actions will be required to file an affirmation certifying
that counsel has taken reasonable steps — including inquiry to banks
and lenders and careful review of the papers filed in the case — to
verify the accuracy of documents filed in support of residential [*3]
foreclosures. The new filing requirement was introduced by the
Chief Judge in response to recent disclosures by major mortgage
lenders of significant insufficiencies — including widespread deficiencies
in notarization and “robosigning” of supporting documents — in
residential foreclosure filings in courts nationwide. The new requirement
is effective immediately and was created with the approval of the
Presiding Justices of all four Judicial Departments.
Chief Judge Lippman said, “We cannot allow the courts in
New York State to stand by idly and be party to what we now know
is a deeply flawed process, especially when that process involves
basic human needs — such as a family home — during this period of
economic crisis. This new filing requirement will play a vital role in
ensuring that the documents judges rely on will be thoroughly examined,
accurate, and error-free before any judge is asked to take the drastic step
of foreclosure.” [Emphasis added]
(See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).
The failure of plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., to comply with two court orders, my July 28, 2011 and Chief Administrative Judge Pfau’s October 20, 2010 order, as revised on March 2, 2011, demonstrates delinquent conduct by Rosicki, Rosicki & Associates, P.C. This mandates the dismissal with prejudice of the instant action. Failure to comply with court-ordered time frames must be taken seriously. It cannot be ignored. There are consequences for ignoring court orders. Recently, on December 16, 2010, the Court of Appeals, in Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 , instructed:
As this Court has repeatedly emphasized, our court system is
dependent on all parties engaged in litigation abiding by the rules of
proper practice (see e.g. Brill v City of New York, 2 NY3d 748 ;
Kihl v Pfeffer, 94 NY2d 118 ). The failure to comply with
deadlines not only impairs the efficient functioning of the courts and
the adjudication of claims, but it places jurists unnecessarily in the
position of having to order enforcement remedies to respond to the
delinquent conduct of members of the bar, often to the detriment of
the litigants they represent. Chronic noncompliance with deadlines
breeds disrespect for the dictates of the Civil Practice Law and Rules
and a culture in which cases can linger for years without resolution.
Furthermore, those lawyers who engage their best efforts to comply
with practice rules are also effectively penalized because they must
somehow explain to their clients why they cannot secure timely [*4]
responses from recalcitrant adversaries, which leads to the erosion
of their attorney-client relationships as well. For these reasons, it
is important to adhere to the position we declared a decade ago that
“[i]f the credibility of court orders and the integrity of our judicial
system are to be maintained, a litigant cannot ignore court orders
with impunity [Emphasis added].” (Kihl, 94 NY2d at 123).
Despite Mr. Menasco’s assertion, it is not unduly harsh and inappropriate to
dismiss the instant action because of the delay by plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C. to submit the required affirmation. “Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725 ; Brill v City of New York, 2 NY3d 748 ; Kihl v Pfeffer, 94 NY2d 118 ) [Emphasis added].” (Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects, P.C., 5 NY3d 514, 521 ). “As we made clear in Brill, and underscore here, statutory time frames —like court-order time frames (see Kihl v Pfeffer, 94 NY2d 118 ) — are not options, they are requirements, to be taken seriously by the parties. Too many pages of the Reports, and hours of the courts, are taken up with deadlines that are simply ignored [Emphasis added].” (Miceli, 3 NY3d at 726-726). The Court cannot wait for plaintiff’s counsel, Rosicki, Rosicki & Associates, P.C., to take its time in complying with court mandates.
Moreover, even if plaintiff U.S. BANK’s counsel complied in a timely manner
with my July 28, 2011 order and the order of the Chief Administrative Judge, plaintiff U.S. BANK would have to address its use, in the instant action, of conflicted robosigner Kim Stewart. The instant mortgage and note, were executed on October 11, 2007 and recorded on December 10, 2007, by MORTGAGE ELECTRONIC REGISTRATIONS SYSTEM, INC. (MERS), “acting solely as a nominee for Lender [U.S. BANK]” and “FOR PURPOSES OF RECORDING THIS MORTGAGE, MERS IS THE MORTGAGEE OF RECORD,” in the Office of the City Register of the City of New York, at City Register File Number (CRFN) 2007000605594. Then on May 23, 2008, MERS assigned the instant mortgage and note back to U.S. BANK. This was recorded on July 24, 2008. in the Office of the City Register of the City of New York, at CRFN 2008000294495.
The assignment was executed for MERS, in Owensboro, Kentucky, by Kim Stewart, Assistant Secretary of MERS, as assignor. The very same Kim Stewart, as Assistant Vice President of assignee U.S. BANK, on April 13, 2009, also in Owensboro, Kentucky, executed the affidavit of merit for an order of reference in the instant action.She signed the affidavit of merit as Assistant Vice President of plaintiff U.S. BANK. However, in ¶ 1 of her affidavit of merit, Ms. Stewart alleges to “a Vice President of U.S. BANK, N.A., the plaintiff.”
Perhaps, plaintiff U.S. BANK and its counsel, Rosicki, Rosicki & Associates, P.C., do not want the Court to confront the conflicted Ms. Stewart? This would certainly contradict the disingenuous opening statement by Richard K. Davis, Chairman, President and Chief Executive [*5]Officer of U.S. BANCORP, (U.S. BANK’s parent corporation), in his cover letter to the 2010 Annual Report of U.S. BANCORP, sent to U.S BANCORP’s shareholders. Mr. Davis stated that “[t]hroughout its history, U.S. Bancorp has operated with a tradition of uncompromising honesty and integrity.”
Further, 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 ), 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
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 plaintiff U.S. BANK’s notice of pendency against the subject property “in the exercise of the inherent power of the court.”
Accordingly, it is
ORDERED, that the instant action, Index Number 17027/08, is dismissed with
prejudice; and it is further
ORDERED that the Notice of Pendency in this action, filed with the Kings
County Clerk on June 16, 2008, by plaintiff, U.S. BANK, N.A., to foreclose on a mortgage for real property located at 1485 Sutter Avenue, Brooklyn, New York (Block 4259, Lot 22, County [*6]of Kings), is cancelled and discharged.
This constitutes the Decision and Order of the Court.
________________________________HON. ARTHUR M. SCHACK
J. S. C.