United States District Court, E.D. New York
For Plaintiff: Jerold C. Feuerstein, Esq., Of Counsel, Kriss & Feuerstein, LLP, New York, NY.
For John N. Moore, Jr., and John N. Moore Funeral Home, Defendants: Scott S. Markowitz, Esq., Of Counsel, Tarter, Krinsky & Drogin, New York, NY.
NO APPEARANCE: JST Capital, Inc., South Nassau Communities Hospital.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On March 28, 2012, the Plaintiff Eastern Savings Bank, FSB (the " Plaintiff" ) commenced this action against John N. Moore, Jr. (" Moore" ); JST Capital, Inc. (" JST Capital" ); South Nassau Communities Hospital (" South Nassau" ) and John Does #1-6. Pursuant to the New York Real Property Actions and Proceedings Law (" NYRPAPL" ) Section 1301, et seq., the Plaintiff seeks to foreclose a mortgage
upon real property located at 150 Nassau Road in Roosevelt, New York (the " Subject Property" ). In this regard, the Plaintiff alleges that Moore has failed to make monthly payments on a commercial loan he borrowed from the Plaintiff in the principal amount of $400,000. This loan was secured by a mortgage on the Subject Property executed on or about May 11, 2007.
On May 12, 2012, the Court " so ordered" a stipulation entered into by the Plaintiff and Moore to extend Moore's time to answer the Complaint. Thereafter, on May 17, 2012, the Plaintiff moved to amend the caption in this case so that (1) John N. Moore Funeral Home (the " Funeral Home" ) would be substituted in place and stead of John Doe #1 and (2) John Does #2-6 would be dismissed from the case. In addition, the Plaintiff requested a certificate of default be entered against JST Capital, South Nassau and the Funeral Home (together with Moore, the " Defendants" ). On July 10, 2012, the Clerk of the Court noted the default of JST Capital, South Nassau and the Funeral Home.
Following the Court's May 12, 2012 Order extending Moore's time to answer the Complaint, Moore received further extensions of time to answer. Finally, on October 17, 2012, Moore, together with the Funeral Home, filed an Answer. In the Answer, Moore and the Funeral Home noted that the Funeral Home was improperly captioned as " John N. Moore Funeral Home," as its name is actually " John Moore Funeral Home, Inc."
An initial conference was scheduled before United States Magistrate Judge Gary R. Brown for November 26, 2012. At this conference, a settlement conference was set by Judge Brown for January 15, 2013.
During the January 15, 2013 settlement conference before Judge Brown, the parties agreed to a settlement, which was placed on the record. One month later, on February 26, 2013, the parties filed a stipulation of settlement with a dismissal without prejudice, which they had actually signed more than a week earlier, on February 14, 2013 (the " stipulation of settlement" or " settlement agreement" ). As such, on February 28, 2013, the Court closed this case subject to the terms of the settlement agreement.
Approximately eight months later, on December 13, 2013, the Plaintiff filed the present action, (1) seeking to reopen this case; (2) pursuant to Federal Rule of Civil Procedure (" Fed. R. Civ. P." ) 55(c), for an order setting aside the July 10, 2012 Certificate of Default against the Funeral Home because the Funeral Home participated in the settlement conferences before Judge Brown and signed the stipulation of settlement; and (3) for a Judgment of Foreclosure and Sale. The Plaintiff claims that Moore and the Funeral Home have defaulted in their obligations under the settlement agreement.
For the reasons that follow, the Court grants the Plaintiff's motion in its entirety. The Court notes that the request by the Plaintiff to set aside the July 10, 2012 Certificate of Default against the Funeral Home is unopposed. Accordingly, the Court grants the Plaintiff's request, particularly because, as the Plaintiff points out, the Funeral Home ...