The following papers numbered 1 to 4 read on this motion by plaintiff for leave to reargue and renew a portion of the prior motion brought by order to show cause dated May 19, 2008, of defendant Marie M. Septimus to stay the foreclosure sale scheduled for February 6, 2009.

Papers Numbered

Notice of Motion - Affidavits - Exhibits ............................................. 1-4

Defendant Septimus, while appearing pro se, obtained an order to show cause, dated February 4, 2009, seeking to stay the foreclosure sale scheduled for February 6, 2009. She asserted that she resides with her "small" children and disabled son in the mortgaged premises as her principal residence, and had not been served with any notice of sale. Defendant Septimus also asserted that the "bank" was reviewing her file for the purpose of determining whether she could be approved for a loan modification, or forbearance plan.

Plaintiff opposed the motion, asserting, among other things that (1) defendant Septimus had failed to establish any basis for vacatur, and (2) it served a notice of sale upon defendant Septimus on December 31, 2008. In reply to the opposition papers, counsel appeared for defendant Septimus and submitted an affirmation wherein counsel indicated, among other things, [*2]that defendant Septimus had both a reasonable excuse for failing to answer the complaint and a meritorious defense.

By order dated June 12, 2009, the motion was granted to the extent of granting a stay and preliminary injunction barring the sale pending further order of the Court. The Court indicated that counsel for defendant Septimus had identified certain deficiencies in the papers submitted by plaintiff in connection with the obtaining of the judgment of foreclosure and sale.

Defendant Septimus has not appeared in opposition to this motion.

On a motion for leave to reargue, the movant must demonstrate matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion (CPLR 2221[d][2]). Upon the foregoing papers, that branch of the motion by plaintiff for leave to reargue is granted. The Court overlooked that the judgment of foreclosure and sale had been entered against defendant Septimus on her default in appearing or answering, and that she did not seek, by means of the order to show cause, to vacate the default judgment obtained against her. The Court, in addition, should have required the filing of an undertaking with the granting of the preliminary injunction (CPLR 6312[b]).

With respect to the motion by defendant Septimus for a stay of the foreclosure sale pursuant to CPLR 2201, defendant Septimus, in her reply papers, asserts for the first time, various defenses to the foreclosure action as a basis for a stay of the foreclosure sale. Defendant Septimus, however, may not be heard as to these defenses because the judgment of foreclosure and sale was obtained against her upon default, and she does not seek to vacate the judgment.

In any event, she is not entitled to vacate the judgment since she has failed to present a reasonable excuse for her default in answering the complaint (see, Development Strategies Co., LLC v Astoria Equities, Inc., 71 AD3d 628 [2nd Dept.], leave to appeal dismissed in part and denied in part, 15 NY3d 888 [2010]). Her counsel merely asserts, in a reply affirmation, that defendant Septimus had been "uncertain as to why Plaintiff, who [sic] was not her mortgage holder of record was commencing an action against her." Such reply affirmation is not based upon the attorney's personal knowledge of the facts, and therefore, is insufficient to establish a ground for vacating the default judgment as against defendant Septimus (see, ABS 1200, LLC v Kudriashova, 60 AD3d 1164 [3rd Dept. 2009]). The Court, therefore, need not consider whether defendant Septimus has demonstrated a meritorious defense (see, Development Strategies Co., LLC v Astoria Equities, Inc., 71 AD3d 628, supra; Young Chen v Ruihua Li, 67 AD3d 905 [2nd Dept. 2009], leave to appeal dismissed, 15 NY3d 874 [2010]; Cooper v Cooper, 55 AD3d 866 [2nd Dept. 2008]).

In addition, to the extent that defendant Septimus claims that the foreclosure sale should be stayed because she was not given notice of the sale scheduled for February 6, 2009, plaintiff has demonstrated, by virtue of the affidavit of service by mail, dated December 31, 2008, that it provided notice of sale to defendant Septimus. Defendant Septimus's bare denial of service of [*3]the notice of sale is insufficient to dispute the veracity and contents of the affidavit (see, Chemical Bank v Darnley, 300 AD2d 613 [2nd Dept. 2002], leave to appeal dismissed, 1 NY3d 593 [2004]).

To the extent that defendant Septimus moves for a stay pending the outcome of a review by the bank of her request for a loan modification, she has failed to produce any evidence that, under the terms of the mortgage, plaintiff is obligated, at this post-judgment juncture, to enter into a forbearance or modification agreement with her or to reinstate the loan. In addition, she has failed to demonstrate that she has made any written application for such modification or is entitled to a settlement conference pursuant to CPLR 3408. The judgment of foreclosure and sale was obtained prior to August 5, 2008, the effective date of CPLR 3408 (see, L 2008, ch 472, § 3), and as a consequence, defendant Septimus was not entitled to a settlement conference prior to the entry of judgment (see, LaSalle Bank Nat. Assn. v Novetti, 24 Misc 3d 1206[A], 2009 WL 1810511, 2009 NY Slip Op 51285[U] [Sup Ct Suffolk County 2009]). In addition, to the extent that CPLR 3408 was amended as of December 1, 2009, to expand its scope (see, L 2009, ch 507, § 9), defendant Septimus is not entitled to a mandatory settlement conference where, as here, the property already would have been sold at foreclosure, but for the stay provided in the order to show cause dated February 4, 2009, and the stay and preliminary injunction provided for in the June 12, 2009 order.

Under these circumstances, the motion for a stay or a preliminary injunction is denied. Plaintiff shall serve defendant Septimus with a copy of a notice of any rescheduled sale, and all other papers and notices of all other proceedings subsequent to judgment (see, Home Sav. Bank v Chiola, 203 AD2d 525 [2nd Dept. 1994], leave to appeal denied, 84 NY2d 813 [1995]).

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: June 6, 2011

J.S.C.