By Notice of Motion dated March 3, 2023, Plaintiff U.S. Bank National Association ("U.S. Bank" or the "Plaintiff") seeks to vacate the Court's Conditional Order and Judgment of Dismissal (Doc. No. 89). This is not the first nor second, but the third time Plaintiff has had its complaint dismissed for failure to comply with Court-ordered deadlines. On December 6, 2011, Plaintiff filed a summons and complaint under Index No. SU-2011-7222 seeking to foreclose upon a certain mortgage filed at Book 14839, Page 54 (the "Mortgage") due to the failure by Defendant Francis X. Sommers ("Sommer" or the "Defendant") to make the $378.64 payment due on December 1, 2010 (see Complaint, Index No. SU-2011-7222, ¶7). The Plaintiff declared the full amount due, thus accelerating the loan (ibid, ¶8). The Honorable James P. Murphy, J.S.C. signed an order dated March 19, 2013 noting that the mandatory settlement conference was concluded on January 15, 2013 and ordered that Plaintiff file an appropriate application for an Order of Reference on or before May 28, 2013 (see Order, Index No. SU-2011-7222). Plaintiff failed to timely file the appropriate application and on June 3, 2013, Justice Murphy signed an order and judgment of dismissal (see Order and Judgment of Dismissal, Index No. SU-[*2]2011-7222).

On December 8, 2015, Plaintiff filed a summons and complaint seeking to foreclose upon the Mortgage, alleging that Defendant defaulted by failing to make the monthly payment due December 1, 2010 and further stating "plaintiff has heretofore elected and by these presents hereby elects to accelerate the entire unpaid principal balance of $48,371.14 to be immediately due and payable under the mortgage herein foreclosed" (see Complaint, Index No. SU-2015-1603, ¶11). Plaintiff noted that "a prior action was commenced but has been discontinued" (ibid, ¶14). On May 23, 2016, Plaintiff filed a Request for Judicial Intervention ("RJI"), but failed to identify the previous matter in the section labeled "Related Cases" (see RJI, Index No. SU-2015-1603). On July 7, 2016, Justice Murphy signed an Order of Reference which required, inter alia, Plaintiff to submit an appropriate application for Judgment of Foreclosure and Sale by November 30, 2016 (see Order of Reference, Index No. SU-2015-1603). Plaintiff failed to timely file an appropriate application for Judgment of Foreclosure and Sale and on February 24, 2017, Justice Murphy signed a Conditional Order and Judgment of Dismissal requiring Plaintiff to file an appropriate application for Judgment of Foreclosure and Sale by April 10, 2017 or else the matter be dismissed for failing to comply with a second Court-ordered deadline (see Conditional Order and Judgment of Dismissal, Index No. SU-2015-1603). On September 5, 2018, Justice Murphy denied Plaintiff's motion to vacate the Conditional Order and Judgment of Dismissal (see Decision and Order dated 09/05/2018, Index No. SU-2015-1603, attached and incorporated herein as "Exhibit A"). Justice Murphy recited Plaintiff's claimed basis for relief (ibid). Justice Murphy then stated:

"At no time did the Plaintiff notify the Court of any of the difficulties it was having with respect to meeting the Court's deadline due to communications issues with the Court-appointed Referee and request a substitution of the Court-appointed Referee or an extension of the deadlines set forth in the Court's Order. The Plaintiff instead chose to ignore both the Court's Order of Reference dated July 7, 2016 (by not requesting an extension of time) and the Court's Conditional Order and Judgment of Dismissal dated February 24, 2017 (by not requesting a further extension of time). The Plaintiff ignored its responsibility to comply with Order of Reference over a period of seventeen (17) months without ever advising the Court of the difficulties it was having with the Court-appointed Referee or seeking the Court's assistance with the same" (ibid).

Justice Murphy found Plaintiff provided no reasonable excuse or explanation for its failure to comply with Court-ordered deadlines and denied Plaintiff's motion to vacate (ibid).

On March 19, 2020, Plaintiff commenced the instant action by filing a summons and complaint (the "Complaint", Doc. No. 1). The Complaint alleges that Defendant defaulted on the Mortgage by failing to make the payment due on December 1, 2010 (ibid, ¶14). The Complaint further states: "As of March 11, 2020, said default has not been cured. There is now the amount of $48,371.14, plus interest, taxes, assessments, leasehold payments or ground rents (if any), together with hazard and mortgage insurance, if applicable, due and owing to Plaintiff" (ibid). The Complaint goes on: "That by reason of the aforementioned default(s), Plaintiff hereby declares the balance of the principal indebtedness to be immediately due and owing" (ibid, ¶17). The Complaint then states:

"That Plaintiff further alleges that no other proceedings have resulting in the collection of any part of the mortgaged debt or if any such action is pending, a final judgment was not [*3]rendered in favor of Plaintiff and such action is intended to be discontinued" (ibid, ¶24).

On August 21, 2020, Plaintiff filed an RJI in connection with its motion for order of reference and again failed to note any related cases (Doc. No. 27). On December 9, 2021, the Court granted the motion and the Order of Reference required Plaintiff to move for Judgment of Foreclosure and Sale on or before March 4, 2022 (Doc. No. 59). The Order of Reference provided that if Plaintiff failed to meet the deadline, "the Court may either (1) strike all interest accruing on the loan as of the subject date together with any and all late fees, penalties, property inspection fees and preservation costs; or (2) dismiss the action for Plaintiff's failure to comply with the Court's deadline" (ibid). Plaintiff did not file notice of entry until March 24, 2022 (Doc. No. 60)! On March 31, 2022, the Court filed a Conditional Order and Judgment of Dismissal granting four additional weeks, or until April 27, 2022, to file its application for Judgment of Foreclosure and Sale (Doc. No. 62). Plaintiff failed to timely file its application and the matter was dismissed for the third time.

On December 5, 2022, Plaintiff filed a Notice of Motion seeking Judgment of Foreclosure and Sale (Doc. No. 64). On February 10, 2023, the Court filed a letter reciting the recent procedural history of the instant matter, including Plaintiff's failure to observe the deadlines set forth in the Order of Reference and Conditional Order and Judgment of Dismissal (Doc. No. 88). The Court further provided that the motion for Judgment of Foreclosure and Sale would be held in abeyance pending Plaintiff's filing of a motion to vacate (ibid). Seemingly for the first time in over ten years, Plaintiff finally complied with a Court-ordered deadline and timely filed the instant motion to vacate (see Notice of Motion, Doc. No. 89). Perhaps this is because the affirmation in support of the motion largely mirrors Plaintiff's 2018 affirmation in support of the motion to vacate the dismissal in case under Index No. SU-2015-001603. Plaintiff again blamed the failure of the Court-appointed Referee to timely complete his duties (see Affirmation, Doc. No. 91, ¶¶13-19; compare with Affirmation dated June 15, 2018, Index No. SU-2015-1603, ¶¶17-30, 48-62). Justice Murphy's words from 2018 are just as applicable, if not more so, today as they were then: "At no time did the Plaintiff notify the Court of any of the difficulties it was having with respect to meeting the Court's deadline due to communication issues with the Court-appointed Referee and request a substitution of the Court-appointed Referee or an extension of the deadlines set forth in the Court's Order" (see Decision dated 09/05/2018, Index No. SU-2015-1603). Plaintiff's pattern of disregard of Court-ordered deadlines since Defendant's alleged default on the loan in 2010 leave room for only one conclusion: Plaintiff's motion to vacate the March 29, 2022 Conditional Order and Judgment of Dismissal is DENIED.

NOW, THEREFORE, upon reading and filing the papers with respect to the motion and due deliberation having been had thereon, it is hereby

ORDERED, that Plaintiff's motion to vacate the March 29, 2022 Conditional Order and Judgment of Dismissal is DENIED; and it is further

ORDERED, that the Notices of Pendency filed on March 19, 2020 and December 3, 2020, and indexed against the premises known as 133 Jasper Street, Syracuse, New York 13203, bearing tax designation: Section 015, Block 12, and Lot 51.0, be vacated of record; and it is further

ORDERED, that George Raus, Esq. the Referee appointed by this Court, is hereby relieved of all duties; and it is further

ORDERED, that Plaintiff shall cause Defendant Francis X. Sommers to be served two [*4]copies of this Decision and Order by mailing one copy via USPS First-Class mail and one copy via USPS Certified mail to Defendant at 412 Roxford Road S, Syracuse, New York 13208.