Adam Leitman Bailey, P.C. Obtains Judgment for Foreclosing Plaintiff and Defeats Motion to Renew, Vacate, and Dismiss
Supreme Court – State of New York
IAS Part 18 – Suffolk County
Present: Hon. Howard H. Heckman Jr., J.S.C.
Ventures Trust 2013-I-H-R BY MCM CAPITAL PARTNERS, LLP FKA MCM CAPITAL PARTNERS, LLC, ITS TRUSTEE,
Plaintiffs,
-against-
KATTY TOMALA A/K/A KATTY L. TOMALA, LUIS YANZA A/K/A LUIS O. YANZA, et.al,
Defendants
Upon the following papers numbered 1 to 22 read on this motion; Notice of Motion/Order to Show Cause and supporting papers 1-10; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 11-17; Replying Affidavits and supporting papers 18-22; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion by plaintiff Ventures Trust 2013-I-H-R by MCM Capital Partners, LLLP FKA MCM Capital Partners, LLC, IT’S Trustee for an order confirming the referee’s report of sale dated October 3, 2017 and for a judgment of foreclosure and sale is granted; and it is further
ORDERED that the motion by defendant Luis Yanza seeking an order pursurant to CPLR 2221(e), 3212 & 5015 granting renewal of plaintiff’s summary judgment motion and the Order thereon dated April 13, 2017 granting plaintiff summary judgment and, upon such renewal, vacating the prior Order and dismissing plaintiff’s complaint or, in the alternative, tolling any late fees and interest due the plaintiff which has accrued from August 11, 2014 through March 3, 2017 based upon plaintiff’s alleged intentional delay in prosecuting this action is denied.
Plaintiff’s action seeks to foreclose a mortgage in the original sum of $319,550.00 executed by defendants Katty Tomala and Luis Yanza on March 27, 2006. Defendants defaulted in making payments since July 1, 2008 and the default has continued to date. Mortgage lender JPMorgan Chase Bank, N.A. commenced this action by filing a notice of pendency, summons and complaint in the Suffolk County Clerk’s Office on September 19, 2013. Defendants Tomala and Yanza served a timely answer dated November 6, 2013. By Order dated April 13, 2017, plaintiff’s unopposed motion for an order granting summary judgment and for the appointment of a referee was granted. Plaintiff’s motion seeks an order confirming the referee’s report and for a judgment of foreclosure and sale. Defendant Yanza’s motion seeks an order granting leave to renew plaintiff’s prior motion and this Court’s Order dated April 13, 2017 and, upon renewal, vacating the order and dismissing plaintiff’s complaint or, in the alternative, tolling interest and late fees sought by plaintiff based upon the mortgage lender’s alleged intentional delay in prosecuting this action.
Among the claims raised by the defendant in opposition to plaintiff’s motion and in support of Yanza’s motion are: 1) plaintiff’s failure to timely submit a summary judgment motion caused confusion among the three attorneys who represented defendant Yanza which in turn caused none of the attorneys to submit opposition to plaintiff’s original motion: 2) plaintiff’s motion seeking summary judgment should have been, and should be, denied based upon plaintiff’s failure to prove standing and therefore the complaint must be denied based upon plaintiff’s unexplained failure to prosecute this action for approximately three years since it was remanded from the court settlement part on August 11, 2014.
With respect to defendant’s application seeking leave to renew, CPLR 2221(e) provides:
(e) A motion for leave to renew:
1. shall be identified as such
2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination;
3. shall contain reasonable justification for the failure to present such facts on the prior motion.
The record is clear and defense counsel does not dispute that plaintiff served its summary judgment motion which was received by the clerk on March 3, 2017, entered on March 9, 2017, and was made original returnable on March 23, 2017. Court records indicate that motion was thereafter adjourned for submission on this Court’s motion calendar on April 11, 2017 and was decided by this Court two days later on April 13, 2017. Defense counsel offers no excuse for defendant’s failure to submit timely opposition to plaintiff’s summary judgment motion. In fact the only reference defense counsel makes to this pivotal issue is that there was some sort of “confusion” among attorneys “currently representing defendant”. It is black letter law that absent any reasonable explanation for a party’s default in appearing or answering in an action or motion, no legal basis exists to vacate an order since the criteria for such vacatur requires a reasonable excuse for a default and demonstration of an arguably meritorious defense (see Eugen DiLorenzo, Inc. v. A.C. Dutton Lbr., Co., 67 NY2d 138, 501 NYS2d 8 (1986)’ Deutsche Bank National Trust Co. v. Gutierrez, 102 AD3d 825, 958 NS2d 472 (2nd Dept., 2013)). Clearly defendant has failed to submit any reasonable excuse for his default in serving opposition to plaintiff’s original summary judgment motion.