Bank of Am., N.A. v. Nicolosi

200 A.D.3d 1018

161 N.Y.S.3d 204

BANK OF AMERICA, N.A., respondent,

v.Antonina NICOLOSI, et al., defendants,Joan Franzese, appellant.

2017–06151, 2019–12261

Index No. 12572/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 21, 2021

December 29, 2021

Richard J. Sullivan, Port Jefferson, NY, for appellant.

Roach & Lin, Syosset, N.Y. (Michael C. Manniello of counsel), for respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Joan Franzese appeals from (1) an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered April 28, 2017, and (2) an order and judgment of foreclosure and sale (one paper) of the same court entered August 27, 2019. The order, insofar as appealed from, (a) denied the motion of the defendant Joan Franzese pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against her for failure to prosecute, (b) granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendant Joan Franzese, to strike that defendant's answer and affirmative defenses, and for an order of reference, and (c) denied that defendant's cross motion pursuant to RPAPL 1301(3) to dismiss the complaint insofar as asserted against her. The order and judgment of foreclosure and sale, upon the order, among other things, directed the sale of the subject property.

By order to show cause dated February 19, 2021, the parties to the appeal were directed to show cause before this Court why an order should or should not be made and entered dismissing the appeal from the order entered April 28, 2017, on the ground that the right of direct appeal therefrom terminated upon entry of the order and judgment of foreclosure and sale. By decision and order on motion of this Court dated April 19, 2021, the motion to dismiss the appeal from the order was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Now, upon the order to show cause and the papers filed in response thereto, and upon the argument of the appeals, it is

ORDERED that the motion to dismiss the appeal from the order entered April 28, 2017, is granted; and it is further,

ORDERED that the appeal from the order entered April 28, 2017, is dismissed; and it is further,

ORDERED that the order and judgment of foreclosure and sale is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The appeal from the order entered April 28, 2017, must be dismissed, because the right of direct appeal therefrom terminated with the entry of the order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (see CPLR 5501[a][1] ; Matter of Aho, 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ).

In July 2007, as security for a promissory note in the principal amount of $415,000, the defendants Antonina Nicolosi and Sebastian Nicolosi (hereinafter together the borrowers) executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Countrywide Home Loans, Inc., encumbering real property located in West Hempstead (hereinafter the subject property). In October 2007, the borrowers transferred their interest in the subject property to the defendant Joan Franzese. On October 16, 2013, the plaintiff, Bank of America, N.A., as successor by merger to BAC Home Loans Servicing, L.P., formerly known as Countrywide Home Loans Servicing, L.P., commenced this action to foreclose the mortgage. Franzese interposed an answer and asserted various affirmative defenses, including that the plaintiff lacked standing and that another action to foreclose the subject mortgage was pending at the time of commencement of the instant action.

On August 29, 2016, Franzese served the plaintiff pursuant to CPLR 3216 with a demand to resume prosecution. By notice of motion dated December 21, 2016, Franzese moved pursuant to CPLR 3216 to dismiss the complaint insofar as asserted against her for failure to prosecute, alleging that the plaintiff had failed to file a note of issue within 90 days of her service of the demand to resume prosecution. In January 2017, the plaintiff opposed the motion and moved, inter alia, for summary judgment on the complaint insofar as asserted against Franzese, to dismiss her answer and affirmative defenses, and for an order of reference. Franzese cross-moved pursuant to RPAPL 1301(3) to dismiss the complaint insofar as asserted against her, and opposed the plaintiff's motion for summary judgment on the ground that the plaintiff lacked standing to commence the action.

By order entered April 28, 2017, the Supreme Court, among other things, granted those branches of the plaintiff's motion, and denied Franzese's motion and cross-motion to dismiss the complaint insofar as asserted against her. On August 27, 2019, an order and judgment of foreclosure and sale was entered. Franzese appeals.

CPLR 3216 permits a court to dismiss a complaint for want of prosecution after the court or the defendant has served the plaintiff with a written notice demanding that the plaintiff resume prosecution of the action and serve and file a note of issue within 90 days after receipt of the demand, and stating that the failure to comply with the demand will serve as the basis for a motion to dismiss the action (see CPLR 3216[a], [b][3] ; JPMorgan Chase Bank, N.A. v. Eze, 188 A.D.3d 1173, 1173, 132 N.Y.S.3d 862 ). In the event that the party upon whom the demand is served fails to serve and file a note of issue within 90 days, "the court may take such initiative or grant such motion unless the said party shows justifiable excuse for the delay and a good and meritorious cause of action" ( CPLR 3216[e] ). " CPLR 3216 is ‘extremely forgiving’ " ( Altman v. Donnenfeld, 119 A.D.3d 828, 828, 990 N.Y.S.2d 542, quoting Baczkowski v. Collins Constr. Co., 89 N.Y.2d 499, 503, 655 N.Y.S.2d 848, 678 N.E.2d 460 ) "in that it ‘never requires, but merely authorizes, the Supreme Court to dismiss a plaintiff's action based on the plaintiff's unreasonable neglect to proceed’ " ( Altman v. Donnenfeld, 119 A.D.3d at 828, 990 N.Y.S.2d 542, quoting Davis v. Goodsell, 6 A.D.3d 382, 383, 774 N.Y.S.2d 568 ; see Western Union N. Am. v. Chang, 176 A.D.3d 1138, 1139, 108 N.Y.S.3d 868 ).

Here, the record establishes that in response to Franzese's demand to resume prosecution, the plaintiff attempted to file a note of issue, which was rejected by the Clerk of the Supreme Court on December 10, 2016, as there had been no court order directing the filing of a note of issue. In opposition to Franzese's motion to dismiss, the plaintiff established that the delay in filing the note of issue was caused by, among other reasons, a change of the loan servicer and an attempt to negotiate a loan modification with the borrowers. Under these circumstances, where there is no evidence that Franzese was prejudiced by any delay caused by the plaintiff, or that the plaintiff engaged in a pattern of persistent neglect and delay in prosecuting the action, or that the plaintiff intended to abandon the action, the Supreme Court providently exercised its discretion in excusing the plaintiff's failure to meet Franzese's deadline for filing the note of issue (see Western Union N. Am. v. Chang, 176 A.D.3d at 1139, 108 N.Y.S.3d 868 ; Schimoler v. Newman, 175 A.D.3d 740, 742–743, 107 N.Y.S.3d 111 ).

" RPAPL 1301(3) provides that while a foreclosure action is pending, no other action shall be commenced or maintained to recover any part of...