Plaintiffs move, in this action for the foreclosure of a tax lien certificate for the premises located at 5808 Fort Hamilton Parkway, Brooklyn, New York, for an order to amend the judgment of foreclosure and sale, signed by Justice Melvin Barasch on March 23, 2001 and entered on April 17, 2001, to substitute the appointment of Edward Reich, as Referee, to conduct the sale of the premises. Counsel for plaintiffs states in paragraph 4 of her affirmation in support of the motion that "I have been advised that Edward Reich, Esq., appointed as Referee in said Judgment of Foreclosure and Sale has been incarcerated." Mr. Reich's conviction and sentencing for bribery, as a court-appointed referee, was widely reported in the press, including an article by Daniel Wise in the July 6, 2005 New Law Journal.

The Court cannot understand why plaintiffs' counsel waited almost two years subsequent to Mr. Reich's conviction to make the instant motion. Further, plaintiffs' counsel failed to inform the Court why she failed to enforce a judgment that is almost six years old. To assist the Court in deciding this motion, the Court requested counsel to submit a supplemental affirmation to explain why there was a delay in seeking to substitute for Mr. Reich as referee and a lag in enforcing the March 23, 2001 judgment of [*2]foreclosure and sale.

Plaintiffs' counsel's supplemental affirmation is silent as to the delay in seeking the substitution of Mr. Reich as Referee. With respect to the delay in enforcing the judgment, plaintiffs' counsel claims in the supplemental affirmation that plaintiffs instructed counsel to place a hold on the file, after cancelling a December 11, 2002 sale. The cancellation occurred because of discussions and research regarding alleged payments of real estate taxes by the homeowner, dating back to 1976. Counsel claims that after four years the New York City Department of Finance (DOF) determined that the homeowner did not make the required real estate tax payments, and DOF instructed counsel on February 9, 2007 to proceed with the foreclosure sale.

While this matter was on hold by DOF, plaintiffs' counsel could have saved plaintiffs time by moving to substitute for Mr. Reich as referee. This undue delay appears to border on laches. However, laches is defined in Skrodelis v Norbergs, 272 AD2d 316 (2d Dept 2000) as "an equitable doctrine which bars the enforcement of a right where

there has been an unreasonable and inexcusable delay that results in prejudice to a party (see, Matter of Barabash, 31 NY2d 76; Dante v 310 Assoc., 121 AD2d 332)." In the instant action, the delay may be undue and/or unreasonable, but the prejudice, if there be any, has been suffered by plaintiffs, not defendants.

As a result of plaintiffs' undue delay in moving to replace Mr. Reich as Referee, the Court deems it just and proper for sufficient reason to vacate the March 23, 2001 judgment of foreclosure and sale, without prejudice. The court must examine the reasons for the undue delay by plaintiffs' counsel to seek a substitute for Mr. Reich as referee. Since plaintiffs' counsel is experienced in foreclosure matter, the Court must determine why there has been such a lengthy delay in applying to substitute the referee. Therefore, plaintiffs' counsel is granted leave to submit a proposed order for a judgment of foreclosure and sale of the subject premises to the Court, with a satisfactory explanation as to why there was undue delay in proceeding to move for the substitution of Mr. Reich as referee.

The court, independent of the provisions contained in CPLR Rule 5015, has

inherent power to vacate a judgment for sufficient reason and in the interests of substantial justice. Ruben v American and Foreign Ins. Co., 185 AD2d 63, 67 (4th Dept 1992). The Court of Appeals, in Woodson v Mendon Leasing Corp. 100 NY2d 62, 68 (2003), instructed that:

In addition to the grounds set forth in section 5015 (a), a

court may vacate its own judgment for sufficient reason and in

the interests of substantial justice (see Ladd v Stevenson, 112 NY

325, 332 [1889]; see generally 10 Weinstein-Korn-Miller, NYCiv [*3]

Prac ¶ 5015.01, at 50-299; ¶ 5015.12, at 50- 338 [2002]). As one

commentator has noted, "It might have been more elegant to add

an additional paragraph [to CPLR 5015 (a)] as a kind of catchall

category, . . . but the intent seems clear enough without it" (Siegel,

Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,

CPLR C5015:11, at 476-477).

In citing Woodson, the Appellate Division, Third Department, held in In re Estate of Culberson, 11 AD3d 859, 861 (2004), that "a court is vested with the inherent power to vacate its own judgment for sufficient reason and in the interests of substantial justice' (Woodson v Mendon Leasing Corp., supra at 68)." See Pelaez v Westchester Medical Center, 15 AD3d 375, 376 (2d Dept 2005); Boyd v Town of North Elba, 28 AD3d 929 (4th Dept 2006).

Accordingly, it is

ORDERED, that plaintiffs' motion, in this action for the foreclosure of a tax lien certificate for the premises located at 5808 Fort Hamilton Parkway, Brooklyn, New York, for an order to amend the judgment of foreclosure and sale, signed by Justice Melvin Barasch on March 23, 2001 and entered on April 17, 2001, to substitute the appointment of Edward Reich, as referee, to conduct the sale of the premises, is denied, without prejudice; and it is further

ORDERED, that in this action for the foreclosure of a tax lien certificate for the premises located at 5808 Fort Hamilton Parkway, Brooklyn, New York, the judgment of foreclosure and sale, signed by Justice Melvin Barasch on March 23, 2001 and entered on April 17, 2001, is vacated without prejudice; and it is further

ORDERED, that plaintiffs' counsel is granted leave to submit a proposed order for a judgment of foreclosure and sale of the premises, located at 5808 Fort Hamilton Parkway, Brooklyn, New York, to this Court, with a satisfactory explanation as to why there was undue delay in proceeding to move for the substitution of Mr. Reich as Referee.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.