Indymac Bank, F.S.B. v. Baroi
2023 N.Y. Slip Op. 1142
(N.Y. App. Div. 2023)
MAR 2, 2023 | REPUBLISHED BY LIT: SEP 10, 2023
No. 17437 Index No. 381386/08 Case No. 2019-03985
Indymac Bank, F.S.B., Plaintiff-Appellant, v. Albert S. Baroi, et al., Defendants, Birchall Ave, LLC, Proposed Intervenor-Respondent.
Goodwin Procter LLP, New York (Allison M. Funk of counsel), for appellant.
Shiryak, Bowman, Anderson, Gill & Kadochnikov LLP, Kew Gardens (Matthew J. Routh of counsel), for respondent.
Before: Renwick, J.P., Friedman, Gesmer, Singh, Higgitt, JJ.
Order, Supreme Court, Bronx County (Doris Gonzalez, J.) entered on or about July 16, 2019, which denied the motion of Federal National Mortgage Association (Fannie Mae), as successor in interest to plaintiff Indymac Bank, F.S.B. (collectively plaintiff), to vacate the dismissal of the action, restore the matter to the court’s active calendar, substitute Fannie Mae as plaintiff, and amend the caption, unanimously affirmed, without costs.
Plaintiff argues that because proposed intervenor Birchall Ave, LLC is not a party and did not appeal the motion court’s denial of its motion to intervene, we should disregard Birchall’s arguments and strike its brief.
We decline to consider plaintiff’s argument, which it raises for the first time in its reply brief.
Plaintiff knew before the filing of its reply brief that that Birchall intended to participate in the appeal, and indeed, included Birchall’s name as a respondent (see Simon v FrancInvest, S.A., 192 A.D.3d 565, 569 [1st Dept 2021], appeal dismissed, 37 N.Y.3d 1005 ).
As to the merits of the appeal, Supreme Court providently exercised its discretion in denying the motion, as plaintiff submitted no competent evidence showing either a reasonable excuse for its failure to appear at a mandatory court conference or a meritorious cause of action (see Mediavilla v Gurman, 272 A.D.2d 146, 148 [1st Dept 2000]).
Even had plaintiff provided a reasonable excuse for its failure to appear – and it did not – it failed to demonstrate whether the mortgagor defaulted on its loan; not only is that matter central to the merit of plaintiff’s case, but plaintiff should readily have been able to provide evidence of it (see John Harris P.C. v Krauss, 87 A.D.3d 469, 469 [1st Dept 2011]).
Motion to Restore Denied
Upon the foregoing papers, it is ordered that this motion is denied.
Although this motion is not predicated on a general failure to prosecute this action, the file reveals one motion in this uncontested foreclosure in the span of more than 10 years.
This was a motion to direct the County Clerk to accept a duplicate assignment of mortgage, which was denied based on plaintiff’s failure to appear.
Even now, plaintiff states that it cannot proceed as an uncontested companion action to clean title, pending since 2015, is unresolved.
Further, “upon information and belief, Fannie Mae is in the process of acquiring the necessary documents…to submit a motion for default judgment.”.
This case was dismissed on 9/9/16 pursuant to 22 NYCRR 202.27 based on plaintiff’s failure to appear. Aside from stating that the default was inadvertant, no facts are alleged, nor is the two-year delay in seeking relief explained.
There is no showing of a meritorious action. The cross-motion is denied as academic.
This is the Order of the Court.
Hon. Doriz Gonzalez
July 12, 2019