[*1]
| Citibank, N.A. v Sang Chol Lee |
| 2014 NY Slip Op 50018(U) [42 Misc 3d 1210(A)] |
| Decided on January 13, 2014 |
| Supreme Court, Kings County |
| Lewis, 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| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Kings County
Citibank, N.A.,
as Trustee for Wamu Series 2007-HE2 Trust, Plaintiff,
against
Sang Chol Lee a/k/a Samuel Lee a/k/a Samuel S. Lee; Sang
Guk Lee; et al., Defendants.
|
18250/09
Plaintiff:
Anthony W Vaughn Jr
Parker Ibrahim & Berg LLC
Defendants:
David Pyun, Esq
Yvonne Lewis, J.
CITIBANK N.A., as Trustee for WAMU SERIES 2007-HE TRUST
(hereinafter Citibank or "the plaintiff) , has submitted an application for reconsideration
of the Court's March 15, 2013 order dismissing the complaint with prejudice.
Background
On
July 21, 2009, Citibank initiated this foreclosure action on a mortgage securing a note
issued to SANG CHOL LEE (hereinafter "the defendants") in the amount of $592,000.00
on residential property located at 2416 Cropsey Ave., Brooklyn, NY 11214, Block 6927,
Lot 50 (hereinafter "the property"). After The defendants failed to appear, The plaintiff
moved for order of reference and related relief. On March 27, 2012, court issued a
decision and order (the [*2]"March 27, 2012 Order") that
the foreclosure action would be dismissed with prejudice unless the plaintiff provided an
affirmation within 60 days to "Chambers (not the Foreclosure Department)" pursuant to
an October 20, 2010 rule issued by then Chief Administrative Judge Ann T. Pfau, which
requires attorneys to verify that they have reviewed the documents, records, and court
filings related to the case and confirms the factual accuracy of same. (See
Administrative Order 548/10, replaced by Administrative Order 431/11). Counsel for
The plaintiff failed to submit an affirmation in accordance with the March 27, 2012
order.
On March 15, 2013, the parties appeared before this court in connection with
The defendants' Motion to Dismiss. At that appearance, the court issued a short-form
order indicating that the action is dismissed in accordance with the court's March 27,
2012 Order, which dismisses the action with prejudice. The plaintiff subsequently wrote
to the court requesting reconsideration of the March 15, 2013 order citing that it was the
parties' understanding that the action would be dismissed without prejudice. On July 16,
2013, the parties submitted papers briefing the issue of whether the action should be
dismissed with or without prejudice.
The Parties'
Position
Plaintiff
The plaintiff contends that the March 15, 2013 order should be amended
to dismiss the action without prejudice or, alternatively, that the order should be vacated
to litigate issues of standing raised in Defendants' Memorandum of Law in Support of
Order to Dismiss with Prejudice. The plaintiff claims that the March 15, 2013 order does
not reflect the parties' understanding of the outcome of the hearing on that date, namely
that the case would be dismissed without prejudice. (Exs. D and E of Vaughn Aff. in
Support of The plaintiff's Application to Reconsider.) Instead, the short-form order
issued on March 15, 2013 dismisses the action in accordance with the March 27, 2012
order, which dismisses with prejudice.
The plaintiff argues that sua sponte dismissal is warranted only in
"extraordinary circumstances." and that failure to adhere to court-imposed deadlines,
without evidence of a pattern of "willful noncompliance," is not sufficiently
extraordinary circumstances to support sua sponte dismissal. Additionally, The
plaintiff claims that prior counsel submitted the required affidavit along with a copy of
its Notice of Motion for an Order of Reference to the Mortgage Foreclosure Department
on June 18, 2012. The plaintiff argues that although this was not in accordance with the
instructions given in the March 27, 2012 Order, their submission demonstrates a good
faith effort to comply with the order.Further, The plaintiff argues that lack of standing is
not a jurisdictional defect warranting sua sponte dismissal.
Defendants
The defendants contend that failure to comply with court-imposed deadlines
is sufficient grounds for sua sponte dismissal with prejudice. The defendants also
argue that the action should be dismissed with prejudice because The plaintiff lacks
standing and the attorney affirmation submitted by The plaintiff's previous counsel was
flawed and based on inaccurate or [*3]fabricated
documents.
Discussion
"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 [2d Dept. 2011]). Such "extraordinary
circumstances" are satisfied where a party has engaged in "delinquent conduct" or where
there is "evidence of a pattern of willful noncompliance with court-ordered deadlines."
(Aurora Loan Servs., LLC v.
Sobanke, 101 AD3d 1065, 1066 [2d Dept. 2012]). Administrative Order 431/11
requires the party seeking foreclosure to file an attorney affirmation at the time of filing
either the proposed order of reference or the proposed judgment of foreclosure. (See U.S. Bank v. Boyce, 93
AD3d 782 (2d Dept. 2012]). While the court may dismiss cases for the parties'
failure to comply with court-ordered deadlines, (see Kihl v. Pfeffer, 94 NY2d
118 [1999]), failing to submit the attorney affirmation within the 60-day time limit is a
procedural defect and does not support dismissal with prejudice. (See Bank of Am., N.A. v. Bah,
95 AD3d 1150 [2d Dept. 2012] NYCTL 2008-A Trust v. Estate of Locksley Holas, 93 AD3d
650 [2d Dept. 2012] U.S.
Bank, N.A. v. Guichardo, 90 AD3d 1032 [2d Dept. 2011] Eastern Savings
Bank v. Bowen, 38 Misc 3d 1208(A) [Sup Ct, Kings County 2013] [dismissing the
action without prejudice where The plaintiff failed to file the attorney affirmation within
the time limit]).
The defendants rely on Citibank v. Murillo (30 Misc 3d 934 [Sup Ct, Kings
County 2011]) to support his contention that the action should be dismissed with
prejudice. There, the court dismissed the foreclosure action with prejudice for failing to
submit the attorney affirmation within the 60-day time limit. However, The defendants
overlooked the fact that in a subsequent order, Justice Schack clarified that the dismissal
was procedural, not on the merits, and that The plaintiff was free to file a new
foreclosure action on the subject mortgage. (Citibank, N.A. v. Murillo, 2011 WL
8605845 [Sup Ct, Kings County 2011]). In the case at bar, the plaintiff failed to comply
with the March 27, 2012 order by neglecting to or purposely not submitting the attorney
affirmation to Chambers within the requisite time period but did it file the requisite
affirmation. The defendants have not presented evidence of a pattern of willful
noncompliance with court-imposed deadlines in this case. So upon reconsideration, the
plaintiff's request is granted and this action will be dismissed without prejudice.
However, the plaintiff has shown no reason for its failure to be timely nor
given any reason for the failure to submit the affidavit to the Court's Chambers - which
would have significantly reduced the time in which the case would be re-commenced and
the interest that the plaintiff would claim in the new proceeding. The actions of the
plaintiff suggest a high level of disregard for the Court's order, for the ultimate benefit of
the plaintiff, both as to time and place for compliance. As a result of the plaintiff's failure
to adhere to the court's order, the plaintiff could continue to collect interest on the
outstanding amount owed to the plaintiff during any period of its own
tardiness.Therefore, the plaintiff shall cease to assess interest on the outstanding amount
from May 13, 2013 (sixty days after the Court's order) and the date of refiling a new
foreclosure action.
This constitutes the decision and order of this Court.
ENTER
[*4]
January 13, 2014
_______________________________
yvonne lewis, JSC