Plaintiff's counsel: Ras Boriskin, LLC by Austin T.
Defendants' Counsel: D'Angelica & Bilski by
Christopher P. Bilski, Esq.
Lizbeth González, J.S.C.
letter dated 9/29/10, defendant George Rodriguez was notified
that his mortgage loan for the subject premises known as 2735
Hering Place in Bronx County was in serious default; a total
amount of $22, 065.22 was due for outstanding monthly
payments, late charges and fees. On 6/21/11, plaintiff
commenced a foreclosure action under Index No. 380677/2011.
Plaintiff filed an RJI to discontinue that action on 7/18/12.
underlying foreclosure action was commenced on 12/3/12 under
Index No. 35153/2012e. The basis for the discontinuance and
the delay in filing the second action are unexplained.
filed an RJI on 6/14/13 requesting a residential foreclosure
settlement conference. At the settlement conference
subsequently held on 12/11/13, defendants Rodriguez and Joyce
D. Spann-Moot were denied a modification. By Order dated
12/11/13, the Hon. Robert E Torres dismissed their appeal,
directed plaintiff to proceed with the foreclosure and issued
a 45-day stay. On 12/21/15, plaintiff moved for an order
granting summary judgment, striking the answer, awarding a
default judgment and appointing a Referee.
Decision dated 5/24/16, this court denied summary judgment on
the ground that plaintiff's proffered indorsement was
placed not on the note itself but rather on a separate piece
of paper, thus creating a triable issue as to who held the
note at the time that the action was commenced. The court
additionally held that by waiting more than three years to
file an RJI after the defendants' alleged default,
plaintiff violated the "good faith" requirements of
CPLR § 3408. After careful consideration, the court
referred the parties to the Foreclosure Settlement Part for a
review of the accrued interest and penalties and for possible
of appearing in the Foreclosure Settlement Part, plaintiff
moves to reargue its earlier application for summary
judgment. Defendants Rodriguez and Joyce D. Spann-Moot oppose
the motion on several grounds.
motion to reargue must be made within 30 days after service
of a copy of the order determining the prior motion and
written notice of its entry (CPLR 2221[d]). On 6/2/16,
defendants e-filed a copy of the 5/24/16 Order with Notice of
Entry. Plaintiff e-filed a motion for reargument on 7/5/16.
Defendants contend that plaintiff's summary judgment is
untimely because its 30-day period for argument expired on
7/2/16. Plaintiff contends that the 30-day period was
extended pursuant to General Construction Law § 20-a
because 7/2/16 was a Saturday, and the following Monday was
July 4th, a holiday.
Construction Law § 20-a (1) provides that when any
period of time falls on a Saturday, Sunday or public holiday,
such act may be done on the next succeeding business day.
Defendants argue that no such extension is available since
Uniform Rule 202.5(d)(3)(i) provides that electronically
filed documents may be transmitted at any time of night or
day to the NYCEF site. No citation is proffered to buttress
their argument. The court accordingly declines to adopt
defendants' narrow construct. Plaintiff's motion to
reargue is deemed timely filed.
motion to reargue this court's 5/24/16 Decision is
granted to the following extent. This court in its prior
decision determined that plaintiff lacked standing to sue to
the extent that the indorsement appeared on a separate piece
of paper and not on the note itself (see U.S. Bank, N.A.
v Faraque,120 A.D.3d 575');">120 A.D.3d 575 [2d Dept 2014]; U.S. Bank,
N.A. v Collymore,68 A.D.3d 752');">68 A.D.3d 752 [2d Dept 2009]; see
also MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Avenue
Development, LLC,116 A.D.3d 745');">116 A.D.3d 745 [2d Dept 2015]). In a
supporting affirmation, plaintiff's counsel establishes
that the mirror image of the original stamped indorsement
bled through and appears in reverse on the note's
signature page. Counsel superimposes side-by-side images on
his affirmation to establish that ...