The following papers numbered 1 to 14 were read on this motion

by defendant, CECILIA MURRAY, for an order pursuant to CPLR 5015(a) vacating the order of reference entered on default; for an order dismissing the plaintiff's complaint for lack of personal jurisdiction; or in the alternative for an order pursuant to CPLR 3012(d) granting defendant leave to serve a late answer with affirmative defenses:

Papers

Numbered



Defendant's Motion-Affirmation-Exhibits................ 1 - 6

Plaintiff's Affirmation in Opposition-Exhibits..........7 - 11Reply Affirmation......................................12 - 14

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In this mortgage foreclosure action, the defendant, Cecilia Murray, moves by notice of motion for an order pursuant to CPLR 5015(a)(1) vacating an order of reference entered on default; for an order dismissing the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction, or in the alternative for an order [*2]pursuant to CPLR 3012(d) granting defendant leave to serve a late answer with affirmative defenses:

This is an action to foreclose a mortgage covering premises known as 487 Beach 44th Street, Far Rockaway, New York, 11691. The summons and verified complaint were filed in this action on April 9, 2010. An affidavit of personal service was filed indicating that the defendant was personally served with a copy of the summons and complaint on April 14, 2010. The affidavit executed by process server Joseph Leggio, dated April 16, 2010, states that he served the defendant personally at the subject property on April 14, 2010.

On June 24, 2010, a foreclosure settlement conference was held in the Queens County Supreme Court Residential Foreclosure Part. Defendant was represented at the conference by counsel, Charles S. Spinardi, Esq., who filed a notice of appearance. After the settlement conference, Court Attorney/Referee Florio entered an order dated June 24, 2010, stating that the matter could not be settled because Ms. Murray's gross income was insufficient to sustain a modified loan.

Thereafter, the plaintiff moved for summary judgment and for an order appointing a referee to ascertain and compute the amount due to the plaintiff. An affidavit of service annexed to the motion for an order of reference indicates that it was served on Mr. Spinardi's law office. The defendant did not oppose the motion and the motion was granted without opposition (see memorandum decision of this Court dated September 9, 2010). Subsequently, the plaintiff submitted a proposed Judgment of Foreclosure and Order of Reference. However, this court held the proposed order in abeyance pending receipt of an attorney affidavit from plaintiff's counsel stating that he has reviewed all of the papers in accordance with the administrative order of the court dated October 20, 2010 (see order of this court dated December 15, 2010).

In November 2010, the plaintiff moved, pro se, by order to show cause for an order vacating the order of reference entered on default and for leave to serve a late answer on the ground that she was never served with the summons and complaint. By decision dated January 31, 2011, this court held that by appearing by counsel at the foreclosure counsel and thereafter not moving to contest personal jurisdiction "the defendant waived her claim that the Court lacked personal jurisdiction over her (see Countrywide Home Loans Servicing, LP v. Albert, 78 AD3d 983[2d Dept. 2010]. " An appearance by a defendant in an action is deemed to be the equivalent of personal service of a summons [*3]upon him [or her], and therefore confers personal jurisdiction over him [or her], unless he asserts an objection to jurisdiction either by way of motion or in his [or her] answer'" (Ohio Sav. Bank v Munsey, 34 AD3d 659 [2d Dept. 2006] quoting Skyline Agency v Coppotelli, Inc., 117 AD2d 135)."

In March 2012, the plaintiff submitted an order of reference with the appropriate attorney affidavit. The Order of reference, appointing John O'Leary as Referee, was signed by this Court on March 6, 2012 and entered on March 15, 2012. In May 2012 the Referee rendered his report and in June 2012 the plaintiff moved for a judgment of foreclosure and sale. The motion was served on the Law Office of Charles Spinelli who did not oppose the motion. By memorandum decision dated June 19, 2012 the motion for a judgment of foreclosure was granted without opposition.

The defendant retained new counsel, Kelly Snitkin, Esq. in June 2012. Ms. Snitkin now moves in the instant motion to vacate the order of reference, based upon the alleged ineffective and negligent actions of prior counsel. Counsel states that although Mr. Spinardi filed an appearance on behalf of the plaintiff at the settlement conference, he failed to file a timely answer on behalf of Ms. Murray. It is alleged that there was a breakdown in the attorney-client relationship and counsel refused to cooperate with Ms. Murray and thereafter took no actions to oppose the motion for an order of reference.

Defendant now argues that pursuant to CPLR 5015(a) the court may vacate a default judgment where a party asserts a reasonable excuse for default and raises a potentially meritorious defense. With respect to a meritorious defense, counsel alleges that neither the plaintiff nor her prior attorney were served with the motion for an order of reference and therefore could not oppose it. Counsel also asserts that Mr. Spinardi failed to take any appropriate action on behalf of the defendant. Defendant's counsel also asserts that defendant has meritorious defenses including lack of personal jurisdiction, failure to state a cause of action in the complaint, failure to comply with RPAPL § 1304's pre-foreclosure notice requirements, failure to comply with the terms of the mortgage, fraud, lack of standing, failure to comply with New York State Banking Laws and estoppel. In addition, counsel alleges that Ms. Murray was not properly served and therefore the court lacks personal jurisdiction. Defendant claims that she was working on the date she was purportedly served and was not home to accept service. Counsel also moves for an order extending defendant's time to answer as there was a reasonable excuse for the default. Counsel claims that in evaluating the reasonableness of the defendant's excuse, the court should [*4]consider that the ineffectiveness and inadequacy of her prior attorney has substantially prejudiced the defendant.

In opposition, plaintiff alleges that the defendant is collaterally estopped from bringing the instant motion as the issues sought to be litigated are identical to the issues which were litigated before this Court at the time the defendant brought her first motion to vacate the order of reference and for leave to serve a late answer. Counsel states that collateral estoppel applies as the same issues regarding lack of personal jurisdiction and excusable default were raised in the prior motion and the defendant had a full and fair opportunity to contest the issues determined in the prior decision. In addition, plaintiff asserts that this court also determined in the prior motion that the defendant did not present a reasonable excuse for her default or a meritorious defense. Lastly, plaintiff contends that the defendant has offered no factual support for any of the purported meritorious defenses recited by the defendant such that vacating the default judgment would be warranted,

Upon review of the papers submitted herein, this court finds that the defendant's motion for an order vacating the order of reference and for an order granting defendant leave to serve a late answer is denied.

This Court finds that the same issues raised by the defendant in this motion have previously been determined by this Court in prior orders. The defendant previously moved for an order vacating her default and dismissing the plaintiff's complaint for lack of personal jurisdiction. The court determined in its prior decision that because the plaintiff appeared in the action by counsel and failed to move to dismiss for lack of personal jurisdiction that said defense was waived. Defendant had a full and fair opportunity to contest the issues in the prior motion and therefore the prior decision of this court is determinative. In addition, the defendant has also not shown that this court overlooked or misapprehended matters of fact or law in the prior decision.

With respect to defendant's default in opposing the order of reference this court finds that the defendant has failed to set forth a reasonable excuse or a meritorious defense. A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action in moving to extend the time to answer or to compel the acceptance of an untimely answer (see Moriano v Provident NY Bancorp, 71 AD3d 747 [2d Dept. 2010]; Baldwin v Mateogarcia, 57 AD3d 594 [2d Dept. 2008]; CPLR [*5]5015[a][1]). Here, the motion for an order of reference was served upon the defendant's prior counsel. Although the defendant alleges that prior counsel was ineffective for failing to file a timely answer to the complaint or to oppose the motion for an order of reference, the Second Department has held that "in the context of civil litigation, an attorney's errors or omissions are binding on the client and, absent extraordinary circumstances, a claim of ineffective assistance of counsel will not be entertained" (Eastern Capital Group, LLC v 26 Realty Bldrs. USA, Inc., 81 AD3d 686 [2d Dept. 2011][leave to vacate default judgment denied in mortgage foreclosure action wherein defendant alleged ineffective assistance of counsel]; also see Mendoza v Plaza Homes, LLC, 55 AD3d 692 [2d Dept.2008]; McVeigh v Curry, 74 AD3d 915 [2d Dept. 2010]; Galil, LLC v Scott, 61 AD3d 820 [2d Dept. 2009]). This court finds that the defendant has failed to establish extraordinary circumstances and, in addition, although the defendant has enumerated certain affirmative defenses, no evidence, documentary or otherwise was submitted to support any of the purported meritorious defenses.

Accordingly, for all of the above-stated reasons the defendant's motion to dismiss the complaint or for an order compelling the plaintiff to accept a late answer is denied.

Dated: January 4, 2013

Long Island City, NY

______________________________

ROBERT J. McDONALD

J.S.C.