Recitation in accordance with CPLR 2219(a) of the papers considered on plaintiff's motion for an order, among other things, vacating a prior order of this Court and restoring the matter to the calender.-Notice of Motion to vacate the order dated April 16, 2012

-Affirmation in Support of an Order of Reference

-Exhibits A-I

-Reply Affirmation.

By notice of motion filed on July 20, 2012 under motion sequence number three, plaintiff has moved for an order (1) vacating an order of this Court issued April 16, 2012 pursuant to CPLR 5015, and (2) extending its time to comply with an order of this Court issued January 30, 2012 pursuant to CPLR 2005; or in the alternative, (3) vacating the January 30, 2012 order as moot. Defendant Matthew Bowen has opposed the motion.

BACKGROUND

On May 1, 2009, plaintiff commenced the instant action to foreclose upon real property located at 2077 A Fulton Street, Brooklyn, New York, Block 1524, Lot 6 (the subject property) by filing a summons, complaint and notice of pendency with the Kings County Clerk's office (KCCO). Defendant Matthew Bowen (hereinafter Bowen) has answered the complaint. Plaintiff [*2]and Bowen entered into settlement negotiations with the aid of a special referee under the rubric of CPLR 3408. The matter was referred to the Court from the settlement part to conduct a hearing to determine if the parties had engaged in "bad faith," in contravention to CPLR 3408 during the settlement negotiations.

On January 30, 2012, this Court issued an order requiring the plaintiff to comply with Administrative Order 548/10 within 60 days or the action would be dismissed (hereinafter "the compliance order"). The plaintiff did not do so. On February 6, 2012, the compliance order was entered with the KCCO.

On February 12, 2012, this Court issued an order by which plaintiff withdrew a pending motion for an order of reference and consented to defendant Bowen's motion for leave to amend his answer. On April 16, 2012, this Court issued an order dismissing the complaint (hereinafter the dismissal order) without prejudice due to plaintiff's failure to comply with the compliance order. On April 19, 2012 the dismissal order was entered with the KCCO.

LAW AND APPLICATION

Administrative Order 548/10 (hereinafter the Administrative Order), which has since been replaced by Administrative Order 431/11, requires the plaintiff's counsel in a residential mortgage foreclosure action to file with the court an affirmation confirming the accuracy of the plaintiff's pleadings. In cases pending on the effective date of the Administrative Order, where no judgment of foreclosure has been entered, the attorney affirmation is required to be filed at the time of filing of either the proposed order of reference or the proposed judgment of foreclosure (US Bank, NA v. Boyce, 93 AD3d 782 [2nd Dept 2012]).

CPLR 5015(a)(1) provides relief from judgment or order on a motion upon the ground of excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry. A party seeking to vacate an order pursuant to CPLR 5015(a)(1) must demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense (Orange County Dept. of Social Services ex rel. Misty F.-R. v. Germel Y., —- NYS2d ——, 2012 WL 6604524, 2012 NY Slip Op 08746 [2nd Dept 2012]). Furthermore, a motion pursuant to CPLR 5015(a)(1) should be made by order to show cause and not by notice of motion (see Smith v Smith, 291 AD2d 828 [4th Dept 2002]).

Plaintiff has brought the instant motion using the wrong procedural vehicle. The Court will nevertheless address the merits of plaintiff's motion because Bowen did submit opposition to the motion and the Court sees no prejudice to Bowen by doing so.In support of the instant motion the plaintiff submitted the affidavit of Terry Brown, it's senior asset manager, (Brown) and the affirmation of Andrew J. Leffler, its counsel (Leffler). Brown contends that the plaintiff's voluntary withdrawal of it's motion for an order of reference rendered the compliance order moot. He also contends that the plaintiff would be extremely prejudiced if the action were dismissed. Brown did not offer an explanation for the three month delay in making the instant motion after the dismissal order.

Leffler states that he did not receive the compliance order and was unaware of its entry with the KCCO despite periodic and diligent checking of the Kings County Clerk's file. Leffler also offered no explanation for the delay in making the instant motion. [*3]

Bowen is defending himself pro se and stated in opposition to plaintiff's motion that he had no trouble finding the compliance order. Bowen opined that if he, without any legal training, and without the benefit of counsel or paralegal or court services could locate the order, then there is no valid excuse for plaintiff's failure to find the compliance order.

There is no dispute that compliance order was entered with the KCCO on February 6, 2012 and the dismissal order was entered on April 19, 2012. Plaintiff annexed as exhibit E an order of this Court dated February 12, 2012, by which it withdrew it motion for an order of reference and consented to defendant Bowen's motion for leave to amend his answer. That order was entered with the KCCO on February 15, 2012, nine days after entry of the compliance order. Plaintiff also annexed as exhibit G, this Court's order dated March 9, 2012, by which plaintiff accepted service of Bowen's amended answer. The order contained the KCCO stamp and date of entry on March 13, 2012, twenty-six days after entry of the compliance order.

It is inconceivable that plaintiff would be aware of the February 12, 2012 order, would also have notice of entry of the March 9, 2012 order, and yet still be unaware of the earlier entry of the compliance order. Plaintiff's claim of not receiving or being unaware of the compliance order is not plausible and does not provide a reasonable excuse for not complying with same. The plaintiff is charged with a duty to check the KCCO on a pending action for any orders filed by the Court.

Furthermore, plaintiff annexed as exhibit H this Court's order of dismissal of the complaint dated April 16, 2012, with notice of its of entry on April 19, 2012. Plaintiff offered no explanation for waiting three months from the dismissal order and nearly six months from the compliance order to make the instant motion.

In its reply to Bowen's opposition papers, plaintiff submitted an affidavit of Candace Verderosa (Venderosa), a Court Service Team Leader at ProVest LLC, a service process management company which provides court running services. Venderosa attests that there was basically a mix up with her office and plaintiff's counsel. Bowen did not object to the inclusion of an additional affidavit in plaintiff's reply papers. The Court considered Venderosa' affidavit and finds that it does not change the analysis and does not excuse plaintiff's failure to obey with the compliance order. The Court does not accept the plaintiff's claim of law office failure to excuse the default in providing the requisite attorney affirmation. In the absence of a reasonable excuse, the Court need not determine whether the plaintiff has a meritorious defense (see Herrera v MTA Bus Co., 100 AD3d 962 [2nd Dept 2012]).

The Court is mindful of the recent holding of the Appellate Division Second Department in the matter of Aurora Loan Services, LLC v Sobanke, —- NYS2d ——, 2012 WL 6684686, 2012 NY Slip Op 09017 [2nd Dept 2012]). The Appellate Division reversed the dismissal of a foreclosure action under circumstances similar to the case at bar. The Appellate Court stated:

A court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal" ( U.S. Bank, N.A. v Emmanuel, 83 AD3d 1047, 1048). Here, there were no extraordinary circumstances warranting dismissal of the complaint with prejudice and the cancellation of the notice of pendency" (Id.)

In particular, the plaintiff has not complied with RPAPL 1304. That statute provides:

Such notice shall be sent by such lender, assignee or mortgage loan servicer to the borrower, by registered or certified mail and also by first-class mail to the last known address of the borrower, and if different, to the residence that is the subject of the mortgage. Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mailing or notice. Notice is considered given as of the date it is mailed. The notice shall contain a list of at least five housing counseling agencies as designated by the division of housing and community renewal, that serve the region where the borrower resides. The list shall include the counseling agencies' last known addresses and telephone numbers. The department of financial services and the division of housing and community renewal shall make available on their respective websites a listing, by region, of such agencies. The lender, assignee or mortgage loan servicer shall use either of these lists to meet the requirements of this section. RPAPL 1304 (2) (emphasis added)

In the instant action the plaintiff failed to provide the required list of counseling agencies. At issue here is the requirement added to foreclosure proceedings by RPAPL 1304 which requires specific pre-commencement notices that are condition precedents to foreclose. The underlying purpose of HETPA was to afford greater protections to homeowners confronted with foreclosure (First Nat. Bank of Chicago v Silver, 73 AD3d 162 [2nd Dept. 2010] quoting Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7—9; Countrywide Home Loans, Inc. v Taylor, 17 Misc 3d 595, 843 NYS2d 495). The foreclosing party has the burden of showing compliance with the notice requirements. If the foreclosing party fails to establish that the statutory notices were satisfied the foreclosure action will be dismissed (First Nat. Bank of Chicago, 73 AD3d 162 [2nd Dept. 2010]). Furthermore, failure to comply with the notice requirements are not required to be plead as affirmative defenses in an answer (Id). In sum, the plaintiff did not obey the Court's compliance order and has not complied with the statutory notice requirements of RPAPL 1304. It would be pointless to extend the time for the plaintiff to obey the compliance order when the action must be dismissed.

Accordingly, the plaintiff's motion to vacate the dismissal order is denied. The plaintiff's motion to extend the time to obey the compliance order or to vacate the compliance order is also denied.

The foregoing constitutes the decision and order of this Court.