Submitted - August 23, 2017
Solomon Rosengarten, Brooklyn, NY, for appellant.
Lovells U.S. LLP, New York, NY (David Dunn, Chava Brandriss,
and Ryan Sirianni of counsel), for respondent.
REINALDO E. RIVERA, J.P. ROBERT J. MILLER JOSEPH J. MALTESE
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
from an order of the Supreme Court, Kings County (Kathy J.
King, J.), dated July 31, 2015. The order denied, without a
hearing, the motion of the defendant Leeroy Whitter to vacate
a judgment of foreclosure and sale of the same court dated
February 5, 2015, and to dismiss the complaint insofar as
asserted against him.
that the order is affirmed, with costs.
November 7, 2005, the defendant Leeroy Whitter (hereinafter
the defendant) executed a note promising to repay the
principal sum of $484, 000. As security for the loan, the
defendant executed and delivered a mortgage encumbering
residential property in Canarsie, Brooklyn. The mortgage was
subsequently assigned to the plaintiff.
defendant defaulted on the loan by failing to make the
payment due on July 1, 2008. In October 2008, the plaintiff
commenced this mortgage foreclosure action against the
defendant and others.
upon the defendant was accomplished pursuant to CPLR 308(2).
The plaintiffs process server averred that, on October 15,
2008, he delivered the summons, complaint, and notice
required by RPAPL 1303 to ''Veronica Cobourn (Family
Member), '' a person of suitable age and discretion
at the subject property, "[s]aid premises being the
defendant's dwelling place within the State of New
York." The process server further averred that, on
October 20, 2008, he mailed those documents to the defendant
at the address of the subject property "by depositing a
true copy of the same in a postpaid, properly addressed
envelope in an official depository under the exclusive care
and custody of the United States post office."
defendant did not answer the complaint or timely appear in
about February 18, 2009, the plaintiffs prior counsel, Steven
J. Baum, P.C., moved for leave to enter a default judgment
and for an order of reference. However, Administrative Order
548/10 of the Chief Administrative Judge of the Courts went
into effect on October 20, 2010, imposing a requirement that
a plaintiffs attorney in certain mortgage foreclosure actions
submit an affirmation confirming the factual accuracy and the
accuracy of notarizations of all filings in support of
foreclosure (see Bank of N.Y. Mellon v Izmirligil,
144 A.D.3d 1063, 1065). Consequently, the 2009 motion for a
default judgment and an order of reference was withdrawn on
December 2, 2010, in order to comply with the requirements of
Administrative Order 548/10. During that time period, the
defendant did not appear for settlement conferences held on
April 8, 2010, and May 6, 2010.
about December 27, 2011, the law firm of Frenkel, Lambert,
Weiss, Weisman & Gordon LLP was substituted as counsel
for the plaintiff, and the plaintiff filed a second motion
for leave to enter a default judgment and for an order of
reference. On April 29, 2013, the Supreme Court granted the
motion and appointed a referee to compute the amount due and
owing. In that order, the court stated, among other things,
that the defendant "defaulted in pleading and no answer
to the motion directed to the sufficiency of the complaint
has been interposed by the [defendant] though the time to do
so has expired."
November 3, 2014, approximately 18 months after the Supreme
Court directed the matter to a referee, the defendant's
counsel filed a notice of appearance. On November 18, 2014,
upon the return of the referee's oath and report, the
plaintiff moved for a judgment of foreclosure and sale. This
motion was made on notice to the defendant's counsel, but
he did not submit ...