| Impac Funding Corp. v Guirand |
| 2015 NY Slip Op 50635(U) [47 Misc 3d 1215(A)] |
| Decided on April 27, 2015 |
| Supreme Court, Kings County |
| Rivera, 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Impac
Funding Corporation, Plaintiff,
against Gaetane Guirand, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY ENVIRONMENTAL CONTROL BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., acting solely as nominee for IMPAC FUNDING CORPORATION dba IMPAC LENDING GROUP and "JOHN DOE No.1" through "JOHN DOE #10", the last names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the complaint, Defendants. |
Francois A. Rivera, J.
By a document denominated as a Consent Order of Reference in Mortgage Foreclosure and one annexed exhibit filed on April 14, 2015, plaintiff seeks an order: (1) appointing a referee to compute the amount due on a note and mortgage being foreclosed; (2) granting plaintiff a default judgment; (3) substituting Lisa Noel in place of John Doe # 1 and striking defendants John Doe #2 through John Doe #10; and (4) substituting Deutsche Bank National Trust Company as Indenture Trustee for Impac Real Estate Asset Trust Series 2006-SD1 as plaintiff [FN1] .
The plaintiff's motion papers consists of two documents, namely, a proposed order denominated Consent Order of Reference in Mortgage Foreclosure and a two page stipulation between the plaintiff and defendant Gaetane Guirand (hereinafter Guirand) annexed and labeled as exhibit A. No one has filed opposing or responsive papers to the instant motion. The motion papers do not include an affidavit of service on any defendant.
LAW AND APPLICATIONCPLR 2211 defines a motion as an application for an order. It further provides that a motion on notice is made when a notice of the motion or an order to show cause is served.
22 NYCRR 202.5 provides in pertinent part that in addition to complying with the provisions of CPLR 2101, every paper filed in court shall have annexed thereto appropriate proof of service on all parties where required.
CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved.
CPLR 3215 (g) provides in pertinent part as follows:
Except as otherwise provided with respect to specific actions, whenever application is made to the court or to the clerk, any defendant who has appeared is entitled to at least five days' notice of the time and place of the application, and if more than one year has elapsed since the default any defendant who has not appeared is entitled to the same notice unless the court orders otherwise. The court may dispense with the requirement of notice when a defendant who has appeared has failed to proceed to trial of an action reached and called for trial.
Contrary to the requirements of 22 NYCRR 202.5, plaintiff did not annex proof of service of the instant motion on any defendant. Furthermore, plaintiff did not annex an affirmation or affidavit demonstrating that it intended to move ex parte or offer a factual or legal basis to do so.
In fact, the instant papers do not contain an affirmation or affidavit stating the plaintiff is seeking an order granting any specific relief. The court has presumed that the plaintiff is seeking an order from the language contained in its proposed order.
The annexed purported stipulation between plaintiff and Guirand is not binding on any other named defendant nor does it establish entitlement to all the relief sought either against Guirand or any other defendant. Therefore, plaintiff must proof its entitlement to the relief it seeks and must establish that it served the motion seeking said relief on all named defendants. Furthermore, in accordance with CPLR 2214 (c) plaintiff must include in its motion all papers not already in the possession of the court necessary to the consideration of the questions involved. The papers offer no explanation, no facts, no law and no evidence to support the relief requested. The instant motion is procedurally and substantively deficient nearly to the point of being frivolous within the meaning of 22 NYCRR 130—1.1. In the event the plaintiff moves in the future for similar relief, it is directed to annex the instant decision and order to the motion.
Plaintiff's motion for an order appointing a referee to compute the amount due on a note and mortgage being foreclosed is denied without prejudice.
Plaintiff's motion for an order granting a default judgment against all defendants other than Guirand is denied without prejudice.
Plaintiff's motion for an order substituting Lisa Noel in place of John Doe # 1 and striking defendants John Doe #2 through John Doe #10 from the caption is denied without prejudice.
Plaintiff's motion for an order substituting Deutsche Bank National Trust Company as Indenture Trustee for Impac Real Estate Asset Trust Series 2006-SD1 as plaintiff is denied without prejudice.
The foregoing constitutes the decision and order of this Court.
Enter:J.S.C.