Citibank, N.A. v. Murillo

Decision Date07 January 2011
Citation30 Misc.3d 934,915 N.Y.S.2d 461
PartiesCITIBANK, N.A. As Trustee for Certificateholders of Bear Stearns Asset Backed Securities Trust 2007-SD3, Asset Backed Certificates, Series 2007-SD3, Plaintiff, v. Santiago MURILLO, et. al., Defendants.
CourtNew York Supreme Court

Megan B. Szeliga, Esq. and Jenneifer M. McAnn, Esq., Steven J. Baum, P.C., Amherst, for Plaintiff.

Paul E. Kerson, Esq., Leavitt, Kerson and Duane, Forest Hills, for Defendant.

ARTHUR M. SCHACK, J.

In this foreclosure action, plaintiff, CITIBANK, N.A. AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-SD3, ASSET BACKED CERTIFICATES, SERIES 2007-SD3 (CITI), moved for an order of reference and related relief for the premises located at 41 Hill Street, Brooklyn, New York (Block 4165, Lot 40, County of Kings). For the Court to consider the motion for an order of reference, I ordered plaintiff's counsel, Steven J. Baum, P.C., on November 4, 2010, to comply with the October 20, 2010 Administrative Order of Chief Administrative Judge Ann T. Pfau, and concluded that:

Accordingly, it is
ORDERED, that plaintiff CITIBANK, N.A. AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-SD3, ASSET BACKED CERTIFICATES, SERIES 2007-SD3's motion for an order of reference and related relief for the premises located at 41 Hill Street, Brooklyn, New York (Block 4165, Lot 40, County of Kings) and the instant foreclosure action will be dismissed with prejudice, unless, within sixty (60) days from this decision and order, counsel for plaintiff, CITIBANK, N.A. AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-SD3, ASSET BACKED CERTIFICATES, SERIES 2007-SD3, complies with the new Rule, promulgated by the Chief Administrative Judge Ann T. Pfau on October 20, 2010, by submitting an affirmation, to my Chambers (not the Foreclosure Department), 360 Adams Street, Room 478, Brooklyn, N.Y. 11201, using the new standard Court form, pursuant to CPLR Rule 2106 and under the penaltiesof perjury, that counsel for plaintiff, CITIBANK, N.A. AS TRUSTEE FOR CERTIFICATEHOLDERS OF BEAR STEARNS ASSET BACKED SECURITIES TRUST 2007-SD3, ASSET BACKED CERTIFICATES, SERIES 2007-SD3: has personally reviewed plaintiff's documents and records in the instant action; confirms the factual accuracyof plaintiff's court filings; and, confirms the accuracy of the notarizations in plaintiff's documents.

Today is sixty-four (64) days since I issued my November 4, 2008 order and seventy-nine (79) days since Chief Administrative Judge Pfau issued her Administrative Order with respect to plaintiff's counsel confirming, in foreclosure actions, the factual accuracy of plaintiff's court filings and notarizations. I have not received the twice ordered affirmation from plaintiff's counsel. Therefore, for violation of these orders, the instant foreclosure action is dismissed with prejudice and the notice of pendency is cancelled and discharged.

Moreover, plaintiff's counsel, in a letter dated December 29, 2010, requested "a 60 day extension of the time to submit the newly required Attorney Affirmation." Counsel did not present any reason why it needs more time. With the absence of any reasonable excuse for this request, the Court will not tolerate the disregard of court-ordered deadlines.

Discussion

The Office of Court Administration issued a press release on October 20, 2010 explaining the reasons for the Administrative Ordered issued that day by Chief Administrative Judge Pfau. It stated:

The New York State court system has instituted a new filing requirement in residential foreclosure cases to protect the integrity of the foreclosure process and prevent wrongful foreclosures. Chief Judge Jonathan Lippman today announced that plaintiff's counsel in foreclosure actions will be required to file an affirmation certifying that counsel has taken reasonable steps—including inquiry to banks and lenders and careful review of the papers filed in the case—to verify the accuracy of documents filed in support of residential foreclosures. The new filing requirement was introduced by the Chief Judge in response to recent disclosures by major mortgage lenders of significant insufficiencies—includingwidespread deficiencies in notarization and "robosigning" of supporting documents—in residential foreclosure filings in courts nationwide. The new requirement is effective immediately and was created with the approval of the Presiding Justices of all four Judicial Departments.
Chief Judge Lippman said, " We cannot allow the courts in New York State to stand by idly and be party to what we now know is a deeply flawed process, especially when that process involves basic human needs—such as a family home—during this period of economic crisis. This new filing requirement will play a vital role in ensuring that the documents judges rely on will be thoroughly examined, accurate, and error-free before any judge is asked to take the drastic step of foreclosure." [ Emphasis added ]

( See Gretchen Morgenson and Andrew Martin, Big Legal Clash on Foreclosure is Taking Shape, New York Times, Oct. 21, 2010; Andrew Keshner, New Court Rules Says Attorneys Must Verify Foreclosure Papers, NYLJ, Oct. 21, 2010).

The failure of plaintiff's counsel, Steven J. Baum, P.C., to comply with two court orders, my November 4, 2010 order and Chief Administrative Judge Pfau's October 20, 2010 order, demonstrates delinquent conduct by Steven J. Baum, P.C. This mandates the dismissal with prejudice of the instant action. Failure to comply with court-ordered time frames must be taken seriously. It cannot be ignored. There are consequences for ignoring court orders. Recently, on December 16, 2010, the Court of Appeals, inGibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, instructed, at ----, ---N.Y.S.2d ----, --- N.E.2d ----:

As this Court has repeatedly emphasized, our court system is dependent on all parties engaged in litigation abiding by the rules of proper practice ( see e.g. Brill v. City of New York, 2 N.Y.3d 648 [781 N.Y.S.2d 261, 814 N.E.2d 431] [2004]; Kihl v. Pfeffer, 94 N.Y.2d 118 [700 N.Y.S.2d 87, 722 N.E.2d 55] [1999] ). The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Chronic noncompliance with deadlines breeds disrespectfor the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution.
Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well. For these reasons, it is important to adhere to the position we declared a decade ago that " [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity [ Emphasis added ]." ( Kihl, 94 N.Y.2d at 123, 700 N.Y.S.2d 87, 722 N.E.2d 55).

"Litigation cannot be conducted efficiently if deadlines are not taken seriously, and we make clear again, as we have several times before, that disregard of deadlines should not and will not be tolerated ( see Miceli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 786 N.Y.S.2d 379, 819 N.E.2d 995 [2004]; Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d...

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