| Freedom Mtge. Corp. v Akther |
| 2013 NY Slip Op 51954(U) |
| Decided on November 19, 2013 |
| Supreme Court, Queens County |
| McDonald, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Freedom Mortgage Corp., Plaintiff,
against Rima Akther, if living or if either or all be dead, their wives, husbands, heirs-at law, next of kin, distributees, executors, administrators, assignees, lienors and generally all persons having or claiming under, by or through said RIMA AKTHER by purchase, inheritance, lien or otherwise, of any right, title or interest in and to the premises described in the complaint herein, and the respective husbands, wives, widow or widowers of them, if any, all of whose names are unknown to plaintiff; MOHAMMED HOSSAIN, if living, or if either or all be dead, their wives, husbands, heirs-at-law, next of kin, distributees, executors, administrators, assignees, lienors and generally all persons having or claiming under by or through said MOHAMMED HOSSAIN by purchase, inheritance, lien or otherwise, of any right, title or interest in and to the premises described in the complaint herein, and the respective husbands, wives, widow or widowers of them, if any, all of whose names are unknown to plaintiff; MOHAMMED K. ALAM, if living, or if either or all be dead, their wives, husbands, heirs-at-law, next of kin, distributees, executors, administrators, assignees, lienors and generally all persons having or claiming under by or through said MOHAMMED K. ALAM, by purchase, inheritance, lien or otherwise, of any right, title or interest in and to the premises described in the complaint herein, and the respective husbands, wives, widow or widowers of them, if any, all of whose names are unknown to plaintiff; RIMA AKTHER; MOHAMMED HOSSAIN; MOHAMMED K. ALAM; AMERICAN EXPRESS; AMERICAN EXPRESS CENTURION BANK; ASAP EXPEDITING CORP.; CADLEROCK JOINT VENTURE LP; CAPITAL ONE BANK; CARD SERVICES INC.; CHASE BANK USA, N.A.; ERIN CAPITAL MANAGEMENT LLC; ERIN SERVICES CO., LLC; FAIRMONT FUNDING LTD; FCC NATIONAL BANK; FORMA GLASS CORP.; GREAT SENECA FINANCIAL CORP.; HERITAGE ASSET MGT., INC; HSBC BANK NEVADA N.A.; JP MORGAN CHASE BANK NA; LVNV FUNDING LLC; MELROSE CREDIT UNION; MIDLAND CREDIT MANAGEMENT INC; MIDLAND FUNDING LLC; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE AND MORTGAGEE OF RECORD; MRC RECEIVABLES CORP; PALISADES COLLECTION LLC; PORTFOLIO RECOVERY ASSOCIATES, LLC; PRIME TIME TRANSPORTATION INC; RAB PERFORMANCE RECOVERIES LLC; RETAILERS NATIONAL BANK/TARGET VISA; S & P CAPITAL INVESTMENTS INC., ETC; SARASOTA, CCM, INC.; UNIFUND CCR PARTNERS A/O FIRST USA BANK; VELOCITY INVESTMENT, LLC; VICKY GROCERY INC.; WORLDWIDE ASSET PURCHASING, LLC; CRIMINAL COURT OF THE CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF FINANCE; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; UNITED STATES OF AMERICA - INTERNAL REVENUE SERVICE; WORKERS COMPENSATION BOARD OF NEW YORK STATE; STATE OF NEW YORK; UNITED STATES OF AMERICA; HECTOR ORTIZ, MARIA ORTIZ and CENTURIAN CAPITAL CORPORATION, Defendants. |
The following papers numbered 1 to 14 were read on this motion by plaintiff, FREEDOM MORTGAGE CORP., for an order pursuant to CPLR 2221(d) granting limited reargument of the order of this Court dated June 27, 2013 which dismissed the action against the non-answering defendants pursuant to CPLR 3215(c) for failure to move for a default judgment within one year, and upon reargument denying dismissal of the action as against Erin Capital Management LLC; Erin Services Co., LLC; Forma Glass Corp; Mohammed K. Alam; Prime Time Transportation Inc.; Rima Akther and Workers Compensation Board of New York State:Papers
Numbered
Notice of Motion-Affirmation-Exhibits............ ....1 - 7
Affirmation in Opposition ............................8 - 11
Reply Affirmation-Exhibits...........................12 - 14
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This foreclosure action pertains to the property located at 37-03 63rd Street, Woodside, New York. The action was commenced by the filing of a summons and complaint and notice of pendency [*2]on June 24, 2008. A supplemental summons and amended complaint and amended notice of pendency were filed with the Queens County Clerk on September 25, 2009.
By notice of motion dated January 4, 2013, plaintiff moved for an order striking the answer and granting summary judgment against the answering defendant MOHAMMED HOSSAIN and awarding plaintiff a default judgment against all remaining non-answering and non-appearing defendants. Defendant MOHAMMED ALAM cross-moved for an order pursuant to CPLR 3215(c) dismissing the plaintiff's complaint on the ground that the plaintiff failed to take proceedings for the entry of judgment within one year after defendant ALAM's default. Plaintiff alleged that all defendants were in default except ERIN CAPITAL MANAGEMENT LLC; FORMA GLASS CORP; ERIN SERVICES CO., LLC; WORKERS COMPENSATION BOARD OF THE STATE OF NEW YORK who appeared by their attorney and waived notice of further applications. Defendant, MOHAMMED HOSSAIN, submitted an answer through his attorney consisting only of general denials. The guardian ad litem, Dominic A. Villoni, Esq., appointed for RIMA AKTHER, MOHAMMED HOSSAIN, and MOHAMMED K. ALAM submitted a report dated June 27, 2010 in which he states that "there is no question that the plaintiff is entitled to bring the instant action to foreclose its mortgage and that defendants RIMA AKTHER, MOHAMMED HOSSAIN, and MOHAMMED K. ALAM would have no defense to the action." He states that he has no objection to the appointment of a referee to compute the sums due and owing and for entry of a final judgment of foreclosure and waives notice of all papers and pleadings except a copy of the signed Judgment of Foreclosure and Sale, and Notice of Sale.
Counsel for defendants, Mohammed Alam and Mohammed Hossain submitted an affirmation in opposition to the plaintiff's motion for summary judgment and cross-moved on behalf of defendant Alam to dismiss the complaint pursuant to CPLR 3215(c) on the ground that Alam never answered the summons and complaint and was in default and plaintiff did not move for a default judgment or move for an order of reference since the time of the defendant's default more than one year ago. Defendant asserts that pursuant to CPLR 3215(c) the plaintiff's action for foreclosure must be dismissed as abandoned as plaintiff has failed to take proceedings for the entry of a judgment within one year after the defendant's default. Defendant asserted that the plaintiff, in the more than 3 years between Alam's default and the time of the service of this motion in January 2013 did not take any steps to move for a default judgment or order of reference.
By decision dated June 27, 2013, this Court granted defendants' motion for an order dismissing the plaintiff's [*3]complaint against Mohammed Alam and all of the the non-answering defendants as abandoned pursuant to CPLR 3215(c). The Court found that defendant Alam had been in default over two years since the guardian ad litem filed his report in June 2010 and the plaintiff failed to provide a reasonable excuse for its failure to move for a default judgment in that time. The court held that as plaintiff failed to take proceedings for the entry of judgment within one year after the default, the motion by defendant Mohammed Alam to dismiss the plaintiff's complaint as abandoned was granted and the Court denied the motion for a default judgment against the remainder of the defaulting parties.
The Court also granted plaintiff's motion for an order striking the answer of defendant Mohammed Hossain and granted summary judgment in favor of the plaintiff against said defendant.
Plaintiff Freedom Mortgage Corp., now moves for an order pursuant to CPLR 2221(d), granting reargument of that branch of the order of this Court dated June 27, 2013, which dismissed the action as against Erin Capital Management LLC; Erin Services Co., LLC; Forma Glass Corp; Mohammed K. Alam; Prime Time Transportation Inc.; Rima Akther and Workers Compensation Board of New York State for failure to take a default judgment within one year and upon reargument denying dismissal of the complaint against said defendants.
In support of the motion, plaintiff's counsel Andrew Morganstern, Esq. contends that the court's dismissal of the complaint as abandoned as against the above named seven defendants pursuant to CPLR 3215(c) was incorrect as a matter of law because said defendants were not in default and plaintiff could not take a default judgment against them. Counsel argues that because the defendants, Erin Capital Management LLC; Erin Services Co., LLC; Forma Glass Corp; Prime Time Transportation Inc. and Workers Compensation Board of New York State served Notices of Appearance that these defendants are not in default. Counsel also claims that defendants Rima Akther and Mohammed K. Alam were not in default as the court granted service by publication against them and appointed a guardian who appeared on their behalf and served an answer with a waiver which constitutes an appearance in the action. As stated by this court in the prior decision, the guardian ad litem, Dominic A. Villoni, Esq., appointed for RIMA AKTHER, MOHAMMED HOSSAIN, and MOHAMMED K. ALAM submitted a report dated June 27, 2010 in which he stated that "there is no question that the plaintiff is entitled to bring the [*4]instant action to foreclose its mortgage and that defendants RIMA AKTHER, MOHAMMED HOSSAIN, and MOHAMMED K. ALAM would have no defense to the action." He states that he has no objection to the appointment of a referee to compute the sums due and owing and for entry of a final judgment of foreclosure. He did not submit any other responsive pleading on their behalf.
It is well established that motions for reargument are addressed to the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its determination (see McDonald v Strah, 44 AD3d 720 [2d Dept. 2007]; Everhart v County of Nassau, 65 AD3d 1277 [2d Dept. 2009]). CPLR 2221 provides that a motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d][2]). A motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reassert or propound the same arguments previously advanced or which could have been advanced or to present arguments different from those already presented (see Veeraswamy Realty v Yenom Corp. 71 AD3d 875 [2d Dept. 2010]; Woodys Lumber Co., Inc. v Jay Ram Realty Corp., 30 AD3d 590 [2d Dept. 2006]; Williams v Board of Educ. of City School Dist. of New York City, 24 AD3d 458 [2d Dept. 2005]; Simorz v Mekryari, 16 AD3d 543, [2d Dept. 2005]).
Here, this court finds that the plaintiff's moving papers fail to establish that the court overlooked, misapprehended either the facts or law or otherwise mistakenly arrived at its prior determination. This court finds that although defendants Erin Capital Management LLC; Erin Services Co., LLC; Forma Glass Corp; Prime Time Transportation Inc. and Workers Compensation Board of New York State served notices of appearance, the notices of appearance do not constitute an answer or responsive pleading and as such said defendant's were in default. The plaintiff's failure to move for a default judgment or to submit an order of reference for over one year without good cause shown requires the court to dismiss the complaint against them as abandoned (see Giglio v NTIMP, Inc., 86 AD3d 301[2d Dept. 2011][courts shall dismiss claims pursuant to CPLR 3215 [c] for which default judgments are not sought within the requisite one-year period, as those claims are then deemed abandoned]; 115-41 St. Albans Holding Corp. v Estate of Harrison, 71 AD3d 653 [2d Dept. 2010][plaintiffs complaint dismissed as abandoned pursuant to CPLR 3215(c) where defendant served a notice of appearance but [*5]did not serve a responsive pleading]). Similarly with respect to defendants Rima Akther and Mohammed K. Alam, the guardian merely served a report in which he stated he had no contact with the defendants but that the defendants had no defense to the action. This report did not constitute an appearance such that the plaintiff could avoid dismissal by not taking affirmative action to prosecute the case or move for a default judgment over one year after the default.
Accordingly for all of the above-stated reasons, it is hereby,
ORDERED, that the motion by plaintiff FREEDOM MORTGAGE CORP., for an order pursuant to CPLR 2221 granting leave to reargue that portion of this court's prior decision which dismissed the plaintiff's complaint against Erin Capital Management LLC; Erin Services Co., LLC; Forma Glass Corp; Mohammed K. Alam; Prime Time Transportation Inc.; Rima Akther and Workers Compensation Board of New York State pursuant to CPLR 3215(c) is granted and upon reargument the decision of this court dated June 27, 2013 is adhered to in its entirety.
Dated: November 19, 2013
Long Island City, NY
______________________________
ROBERT J. MCDONALD
J.S.C.