Deutsche Bank Nat'l Trust Co. v. Baquero

• Decision Date: 03 March 2021
• Docket Number: 2019–02823,Index No. 713058/17
• Citation: Deutsche Bank Nat'l Trust Co. v. Baquero, 192 A.D.3d 660, 143 N.Y.S.3d 400 (N.Y. App. Div. 2021)
• Parties: DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Emigdio BAQUERO, etc., appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 660

143 N.Y.S.3d 400

DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent,

v.Emigdio BAQUERO, etc., appellant, et al., defendants.

2019–02823

Index No. 713058/17

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

Submitted—February 27, 2020

March 3, 2021

DECISION & ORDER

In an action to foreclose a mortgage, the defendantEmigdio Baquero appeals from an order of the Supreme Court, Queens County(Kevin J. Kerrigan, J.), entered January 17, 2019.The order, insofar as appealed from, denied the motion of the defendantEmigdio Baquero for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaims, inter alia, pursuant to RPAPL article 15 to cancel and discharge of record the subject mortgage, and granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendantEmigdio Baquero, to strike that defendant's answer and counterclaims, and for an order of reference.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On April 28, 2006, the defendantEmigdio Baquero(hereinafter the defendant) executed a note and, thereafter, gave a mortgage to the plaintiff's predecessor in interest on certain real property located in Queens.

On November 8, 2007, the plaintiff commenced an action against, among others, the defendant to foreclose the mortgage (hereinafter the 2007 action).On or about August 4, 2010, the Supreme Court granted the plaintiff's motion to voluntarily discontinue the 2007 action.

On June 9, 2010, the plaintiff commenced a second action against, among others, the defendant to foreclose the mortgage (hereinafter the 2010 action).In an order dated April 6, 2017, the Supreme Court dismissed the 2010 action "without prejudice" based on a Court Attorney Referee's finding that the plaintiff had failed to file an order of reference, as directed by two court orders.

On September 20, 2017, the plaintiff commenced the instant action against, among others, the defendant to foreclose the mortgage.

In an order entered January 17, 2019, the Supreme Court, inter alia, denied the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him as time-barred and for summary judgment on his counterclaims, inter alia, pursuant to RPAPL article 15 to cancel and discharge of record the mortgage, and granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and counterclaims, and for an order of reference.The defendant appeals.

In moving for summary judgment, the defendant established, prima facie, that the mortgage debt was accelerated when the plaintiff commenced the 2010 action and elected in the complaint to call due the entire amount secured by the mortgage (seeFreedom Mtge. Corp. v. Engel,––– N.Y.3d ––––, ––– N.Y.S.3d ––––, ––– N.E.3d ––––, 2021 N.Y. Slip Op. 01090 ).The defendant further demonstrated that this action was commenced on September 20, 2017, more than six years later (seeCPLR 213[4];Deutsche Bank Natl. Trust Co. v. Gordon,179 A.D.3d 770, 117 N.Y.S.3d 688 ).

However, in opposition to the defendant's prima facie showing and in support of its own cross motion, the plaintiff established that this action was timely commenced based upon the savings provision of CPLR 205(a).Specifically, this action was commenced within six months of the entry of the order dated April 6, 2017, which dismissed the 2010 action.Contrary to the defendant's contention and the finding of our dissenting colleague, the 2010 action was not dismissed for neglect to prosecute, a category of dismissal that renders CPLR 205(a) inapplicable."Where a dismissal is one for neglect to prosecute the action ..., the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation"( CPLR 205[a] ).Here, the order dated April 6, 2017, "did not include any findings of specific conduct demonstrating ‘a general pattern of delay in proceeding’ "( Wells Fargo Bank, N.A. v. Eitani,148 A.D.3d 193, 198, 47 N.Y.S.3d 80, quotingCPLR 205[a];seeSokoloff v. Schor,176 A.D.3d 120, 128, 109 N.Y.S.3d 58 ).Moreover, by dismissing the 2010 action without prejudice, the Supreme Court"permitted the plaintiff to avail itself of CPLR 205(a) to recommence the foreclosure action"( Wells Fargo Bank, N.A. v. Eitani,148 A.D.3d at 199, 47 N.Y.S.3d 80 ).

The parties’ remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaims, and granting those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and counterclaims, and for an order of reference.

RIVERA, J.P., LASALLE and IANNACCI, JJ., concur.

BARROS, J., dissents, and votes to reverse the order insofar as appealed from, on the law, grant the motion of the defendantEmigdio Baquero for summary judgment dismissing the complaint insofar as asserted against him and on his counterclaims, inter alia, pursuant to RPAPL article 15 to cancel and discharge of record the subject mortgage, and deny those branches of the plaintiff's cross motion which were for summary judgment on the complaint insofar as asserted against the defendantEmigdio Baquero, to strike that defendant's answer and counterclaims, and for an order of reference, with the following memorandum:

In an order dated April 6, 2017, the Supreme Court dismissed the plaintiff's second foreclosure action, which had been pending for more than six years, on the ground that the plaintiff failed, without good cause shown, to comply with two prior court orders directing the plaintiff, inter alia, to file both an application for an order of reference and an attorney's certificate of merit.For the reasons set forth herein, this was a dismissal for a "neglect to prosecute" within the meaning of CPLR 205(a), and therefore, the plaintiff's third foreclosure action, which was commenced well after the expiration of the six-year limitations period, was time-barred.

" CPLR 205(a) provides that when an action is dismissed on grounds other than voluntary discontinuance, lack of personal jurisdiction, neglect to prosecute, or a final judgment on the merits, the plaintiff may bring a new action within six months of the dismissal, even though the action would otherwise be barred by the statute of limitations"( Marrero v. Crystal Nails,114 A.D.3d 101, 103, 978 N.Y.S.2d 257[emphasis added];seeRoss v. Jamaica Hosp. Med. Ctr.,122 A.D.3d 607, 607–608, 996 N.Y.S.2d 118 ).The statute"serves the salutary purpose of preventing a Statute of Limitations from barring recovery where the action, at first timely commenced, had been dismissed due to a technical defect which can be remedied in a new action"( United States Fid. & Guar. Co. v. Smith Co.,46 N.Y.2d 498, 505, 414 N.Y.S.2d 672, 387 N.E.2d 604[emphasis added];seeSokoloff v. Schor,176 A.D.3d 120, 127, 109 N.Y.S.3d 58;Hyowon Kim v. Cruz,94 A.D.3d 820, 821, 941 N.Y.S.2d 869 ).Here, the order of dismissal did not refer to any technical defect that could be remedied in a new action, but rather referred to the plaintiff's repeated violation of court orders.

"The plain purpose of excluding actions dismissed for neglect to prosecute from those that can be, in substance, revived by a new filing under CPLR 205(a) was to assure that a dismissal for neglect to prosecute would be a serious sanction, not just a bump in the road"( Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.],5 N.Y.3d 514, 521, 806 N.Y.S.2d 453, 840 N.E.2d 565 ).

"Where a dismissal is one for neglect to prosecute the action made pursuant to [ CPLR 3216 ] or otherwise, the judge shall set forth on the record the specific conduct constituting the neglect, which conduct shall demonstrate a general pattern of delay in proceeding with the litigation"( CPLR 205[a];seeWells Fargo Bank, N.A. v. Eitani,148 A.D.3d 193, 198, 47 N.Y.S.3d 80;Marrero v. Crystal Nails,114 A.D.3d 101, 978 N.Y.S.2d 257 )."[T]he ‘neglect to prosecute’ exception in CPLR 205(a) applies not only where the dismissal of the prior action is for ‘[w]ant of prosecution’ pursuant to CPLR 3216, but whenever neglect to prosecute is in fact the basis for dismissal"( Andrea v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. [Habiterra Assoc.],5 N.Y.3d at 520, 806 N.Y.S.2d 453, 840 N.E.2d 565 ).Where the record makes clear the basis for the prior dismissal, the question of whether it was a dismissal for neglect to prosecute is a question of law (seeid. at 520–521, 806 N.Y.S.2d 453, 840 N.E.2d 565 ).

Here, contrary to the determination of my colleagues in the majority, the order of dismissal set forth the specific conduct constituting the neglect.The Court Attorney Referee's report, which was incorporated by reference and attached to the order of dismissal, stated, "...