Supreme Court, Suffolk County, September 4, 2018

Leopold & Associates, PLLC, Armonk, for plaintiff.

Shapiro, DiCaro & Barak, LLC, Rochester, for Bank of America, N.A., defendant.

It is ordered that this unopposed motion by plaintiff is denied, without prejudice to renewal within 90 days.

This is an action to foreclose a mortgage on the premises known as 82 Indian Head Road, Kings Park, Suffolk County, NY given by defendant mortgagor Patricia Bouchard (defendant). Plaintiff HSBC Bank, USA, N.A., as Indentured Trustee for the Registered Noteholders of Renaissance Home Equity Loan Trust 2006-2, commenced this action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk (Clerk) on November 11, 2016. The only defendant to appear or answer in the action was Bank of America, N.A., whose counsel filed a notice of appearance and notice of intent to make an application pursuant to RPAPL 1351 (3) and 1354 (3) upon the filing of a judgment of foreclosure and sale by plaintiff; all other defendants are in default.

Pursuant to RPAPL 1321 (1), upon the default of a defendant, a plaintiff may move the court to set the defendant's default and ascertain the amount due, at which time the court will either make the required determinations itself, or appoint a referee to do so. The decision to do the calculations and make the other findings required by RPAPL 1321 or to refer those issues to a referee is within the discretion of the court. Traditionally, courts have most often chosen to appoint a referee to compute, who upon being supplied with the required information, prepares a report which the plaintiff submits to the court for confirmation and acceptance with its motion for a judgment of foreclosure and sale (RPAPL 1351). This two stage process adds many months of delay to what is already a time consuming process to obtain a judgment of foreclosure and sale.

To accelerate this process in cases where a defendant has defaulted and clearly shown no interest in resolving the case by failing to appear at the CPLR 3408 conference in the court's{**61 Misc 3d at 499} Foreclosure Settlement Conference Part, the Suffolk County District Administrative Judge issued Administrative Order 125/17 (AO/125/17), dated November 27, 2017, which authorized plaintiff to file a "combined motion" under RPAPL 1321 and 1351 entitled "Fixing Default and Judgment of Foreclosure and Sale." AO/125/17 directed that any such motions be assigned to this Part 27, and further provided that this Part would promulgate rules for "Expedited Proceedings In Certain Foreclosure Actions," upon approval of such rules by the District Administrative Judge. Those approved rules, also dated November 27, 2017, were published to the 10th Judicial District, Suffolk County's website (Suffolk County Supreme Court Rules, https://www.nycourts.gov/courts/10jd/suffolk/SC_Rules.shtml). The provisions of AO/125/17 were recently superseded by AO/77/18 of the Suffolk County District Administrative Judge (Aug. 30, 2018), which amendment allows combined motions to be heard by any justice of the court, not just Part 27. The provisions of AO/125/17, and this court's rules for filing "Expedited Proceedings In Certain Foreclosure Actions," are still applicable to this action, as plaintiff's motion was filed when AO/125/17 was in effect.

On November 28, 2017, the Chief Administrative Judge of the Courts issued Administrative Order 356/17 (AO/356/17) which promulgated "templates for use in residential mortgage foreclosure proceedings in Supreme Court in cases where a homeowner defendant has defaulted"; copies of the templates were attached to the order. The use of these forms became effective January 1, 2018. Among the templates was one for a "Motion for default judgment, order of reference, and judgment of foreclosure and sale" (id.). This form "combined motion" contains many optional paragraphs which may be inserted "if applicable," either by choice of counsel, by necessity or by court directive.

Although this Part's rules for filing "combined motions" have been available on the court website since the fall of 2017, plaintiff appears to have not read them and merely used the template form provided by AO/356/17 to prepare and submit its "combined motion," using or ignoring the "if applicable" sections contained in the template at will. Paragraph 17 of the template provides "[If applicable] Plaintiff hereby waives any deficiency judgment pursuant to RPAPL § 1371." It appears to the court that plaintiff read the template attached to AO/356/17 as authorization to proceed with a "combined motion" without {**61 Misc 3d at 500}exercising the option therein to waive a deficiency, without reference to this Part's published rules, and as pointed out further below, also without meeting the requirement for a default judgment pursuant to CPLR 3215.

Pursuant to Part 27 rule No. 5 for "Expedited Proceedings In Certain Foreclosure Actions," to be eligible for consideration for the expedited procedure of a combined motion, plaintiff must waive a deficiency judgment. Part 27 rule No. 14 for "Expedited Proceedings In Certain Foreclosure Actions" provides that the preamble of the proposed order must acknowledge that a deficiency judgment is waived. This criterion for eligibility for a "combined motion" was set because it was determined that to balance the benefit of a substantial reduction in the time to obtain a judgment of foreclosure and sale, a concomitant benefit to a defendant of a waiver of a deficiency judgment would be fair and just. There is no right to submit a "combined motion"; it is an exercise of the court's discretion, just as it is a court's decision not to appoint a referee under RPAPL 1321, but to do the calculations and findings itself. If plaintiff has interpreted the "template" as a "right" to make a combined motion, it has done so in error.

This court will exercise its discretion to make the decisions required by RPAPL 1321 itself, and therefore approve a "combined motion" only if a plaintiff waives a deficiency judgment. Plaintiff failed to directly provide that waiver here, but as the motion was submitted while the published rules governing such applications in Suffolk County were in effect, the court believes that it could impose such a condition upon granting the motion. It would do so, if plaintiff's application was otherwise sufficient.

Part 27 rule No. 7 for "Expedited Proceedings In Certain Foreclosure Actions" states the fundamental requirement that an application for a combined motion also provide that all legal requirements applicable to any application to set a default and for an order pursuant to RPAPL 1321, including compliance with CPLR 3215, are met. [*2]CPLR 3215 governs any motion based upon a default, and the fact that there is nothing in the "template" set by AO/356/17 addressing CPLR 3215 (c) is for the obvious reason that the form "template" was intended to be used by plaintiffs looking for swift resolution of the action and therefore would be expected to move within a year period upon the default.

Plaintiff's submissions show that defendant was served outside of New York on November 17, 2016, and that the affidavit{**61 Misc 3d at 501} of this service was filed with the Clerk on November 29, 2016. Plaintiff did not file this motion until June 20, 2018, well over a year after defendant defaulted in answering. Even if the court could somehow calculate the one year requirement to move upon a default set forth in CPLR 3215 (c) from the date of the release from the Foreclosure Settlement Conference Part on March 16, 2017 (a questionable assumption in light of Aurora Loan Servs., LLC v Hiyo [130 AD3d 763 (2d Dept 2015)] and U.S. Bank, N.A. v Dorvelus [140 AD3d 850 (2d Dept 2016)]), the motion was still filed over one year after release from that Part. CPLR 3215 (c) provides a saving provision for such circumstances that would preclude dismissal if sufficient cause is shown why the complaint should not be dismissed. This saving provision has been found when the plaintiff's conduct has shown that there was no intent to abandon the complaint (see LNV Corp. v Forbes, 122 AD3d 805 [2d Dept 2014]; U.S. Bank N.A. v Wolnerman, 135 AD3d 850 [2d Dept 2016]). The determination as to what is a reasonable excuse is committed to the sound discretion of the motion court (see Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC, 138 AD3d 793 [2d Dept 2016]; Golden Eagle Capital Corp. v Paramount Mgt. Corp., 143 AD3d 670 [2d Dept 2016]; Bank of N.Y. Mellon v Adago, 155 AD3d 594 [2d Dept 2017]). Here, plaintiff makes no attempt at providing a reasonable explanation for the delay.

The court denies plaintiff's motion, with leave to renew within 90 days to address the issues raised by the court.