MORTGAGE FORECLOSURE - FORUM SHOPPING?

By staying out of state courts, the foreclosure process can be accelerated. Here, the bank made the choice in the middle of the state court litigation - and it was allowed.

Onewest Bank, FSB v Jach, 2020 NY Slip Op 01357, Decided on February 26, 2020 ,Appellate Division, Second Department:

"In July 2007, the defendant Adam Jach executed a note in the sum of $346,200, secured by a mortgage on real property located in Staten Island. In June 2010, the plaintiff, as the alleged holder of the note and successor in interest to the mortgagee, commenced this action to foreclose the mortgage, alleging that Jach had defaulted in making a payment due on February 1, 2010. In December 2012, upon denying the plaintiff's motion for summary judgment and granting Jach's cross motion for summary judgment dismissing the complaint insofar as asserted against him, the Supreme Court directed dismissal of the complaint, without prejudice, based on lack of standing.

Thereafter, in February 2014, the plaintiff commenced this action, again seeking to foreclose the subject mortgage. After interposing an answer, in which he alleged lack of standing as an affirmative defense, Jach moved for summary judgment dismissing the complaint insofar as asserted against him, and the plaintiff cross-moved, inter alia, for summary judgment on the complaint. The Supreme Court referred the action to a referee to hear and report on the issue of standing. After conducting a hearing, the referee issued a report finding, in effect, that the plaintiff had failed to establish its standing for purposes of its cross motion for summary judgment on the complaint.

In October 2015, with this action still pending and the referee's report not yet confirmed, the plaintiff commenced an action in federal court seeking to foreclose the subject mortgage. Subsequently, in August 2016, the plaintiff moved before the Supreme Court, among other things, for leave to discontinue the action without prejudice, which Jach opposed.

In the order appealed from, the Supreme Court, inter alia, in effect, upon granting that branch of the plaintiff's motion which was for leave to discontinue the action, did so with prejudice. The plaintiff appeals.

The Supreme Court, in granting that branch of the plaintiff's motion which was for leave to discontinue the action, should have done so without prejudice. Pursuant to CPLR 3217(b), "an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper." As a general rule, "a plaintiff should be permitted to discontinue an action without prejudice unless the defendant would be prejudiced thereby" (America's Residential Props., LLC v Lema, 118 AD3d 735, 736; see Wells Fargo Bank, N.A. v Fisch, 103 AD3d 622, 622-623; Urbonowicz v Yarinsky, 290 AD2d 922, 923). Here, there was no evidence that Jach would be prejudiced by a discontinuance (see America's Residential Props., LLC v Lema, 118 AD3d at 736; cf. Kaplan v Village of Ossining, 35 AD3d 816, 817; DuBray v Warner Bros. Records, 236 AD2d 312, 314). Also, contrary to Jach's contention, the parties were not required, under the circumstances of this case, to stipulate to the discontinuance of the action (see CPLR 3217[b]; Mahaffey v Mahaffey, 52 AD2d 1039, 1040)."

MORTGAGE FORECLOSURE- SUMMARY JUDGMENT DENIED

Reviewing this case on e courts, this foreclosure has been through several litigated motions. And even while the appeal of the 2017 decision was pending, the bank, in August 2019, applied for an order of reference and the homeowner cross-moved for a stay pending the appeal. Both motions were eventually withdrawn.

Wells Fargo Bank, N.A. v Bakth, 2020 NY Slip Op 01382, Decided on February 26, 2020, Appellate Division, Second Department:

"On its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Achwad Bakth (hereinafter the defendant) and for an order of reference, the plaintiff, to establish its standing to commence this mortgage foreclosure action, submitted an affirmation of Amber A. Jurek, a lawyer with Gross Polowy, LLC (hereinafter Gross Polowy), the plaintiff's counsel. Jurek stated that she was familiar with Gross Polowy's records and record-keeping practices. Jurek stated that on January 28, 2015, Gross Polowy received the plaintiff's file, which included the original endorsed note. Gross Polowy commenced this action on the plaintiff's behalf on February 26, 2015. According to Jurek, "[o]n that date, Gross Polowy, on behalf of Plaintiff, remained in physical possession of the collateral file, including the original endorsed Note dated March 20, 2012." The plaintiff also submitted the note, which bore an undated endorsement to the plaintiff. However, Jurek did not set forth any facts based on her personal knowledge to support her statement that the note in the plaintiff's file was the original endorsed note. Further, the plaintiff failed to attach the business records upon which Jurek relied in her affirmation, and since Jurek did not state that she personally witnessed Gross Polowy receive the plaintiff's file, her statement is inadmissible hearsay (see Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139; cf. Wells Fargo Bank, N.A. v Gonzalez, 174 AD3d 555; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 206-207).

The plaintiff also submitted an affidavit of April H. Hatfield, vice president of loan documentation for the plaintiff. Hatfield stated that she was familiar with the plaintiff's records and record-keeping practices. Although Hatfield attached the records upon which she relied, she did not [*2]state that the plaintiff had possession of the endorsed note at the time the action was commenced. Rather, she relied on Jurek's affidavit for that fact. Accordingly, Hatfield's affidavit was also insufficient to establish the plaintiff's standing.

Finally, the plaintiff did not attach a copy of the note to the complaint when commencing this action. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence this action, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference should have been denied."

POST - DIVORCE: DEFAULT CURED ONLY AFTER MOTION MADE REQUIRED PAYMENT OF EXPENSES AS PER AGREEMENT

A contract is a contract.

Tara W. v. Yitzchok W., NYLJ February 24, 2020,  Date filed: 2020-02-18, Court: Supreme Court, Kings, Judge: Justice Delores Thomas:

"As to that branch of plaintiff’s motion which seeks an order directing defendant to pay her $2,500 which she paid to Mr. Berfas in connection with preparing the instant motion, it is well established that “[w]here the parties have agreed to provisions in a settlement agreement that govern the award of attorney’s fees, the agreement’s provisions, rather than statutory provisions, control” (Roth v. Roth, 116 AD3d 833, 834 [2d Dept 2014]; see also Fenster v. Fenster, 107 AD3d 933, 933 [2d Dept 2013]; Sweeney v. Sweeney, 71 AD3d 989, 992 [2d Dept 2010]; Rubio v. Rubio, 70 AD3d 805, 806 [2d Dept 2010]; Matter of Berns v. Halberstam, 46 AD3d 808, 809 [2d Dept 2007]; Arato v. Arato, 15 AD3d 511, 512 [2d Dept 2005]). Here, article 15 of the settlement agreement expressly obligated a party who defaulted with respect to any obligation set forth therein to pay the other party his or her reasonable attorney’s fees and related expenses and costs incurred in commencing and maintaining an action or proceeding to enforce such obligation.

It has been established that defendant defaulted with respect to: (1) his obligation under article 35 of the settlement agreement to execute the deed to the marital residence and all ancillary recording documents; (2) his obligation under article 36 of the settlement agreement to pay $3,000 to plaintiff as his share of the water bills; and (3) his obligation under article 29 of the settlement agreement to provide proof that he maintained a life insurance policy of $1,000,000 to secure his support obligations. It was only after plaintiff filed her motion that defendant agreed to cure these defaults by him. Thus, pursuant to article 15 of the settlement agreement, defendant, as the defaulting party, was contractually obligated to pay plaintiff such reasonable attorney’s fees and related expenses or costs incurred by plaintiff in bringing this motion to enforce these articles of the settlement agreement (see Fackelman v. Fackelman, 71 AD3d 724, 726 [2d Dept 2010]; Leiderman v. Leiderman, 50 AD3d 644, 644-645 [2d Dept 2008]; Sieratzki v. Sieratzki, 8 AD3d 552, 554 [2d Dept 2004]).

While plaintiff gave defendant written notice of his default by email, rather than by certified mail, return receipt requested, or by overnight delivery service to defendant, as set forth in article 15 of the settlement agreement, plaintiff’s failure to strictly comply with this notice requirement is not fatal to plaintiff’s request for attorney’s fees and related expenses or costs because defendant does not dispute that he received actual notice of his defaults, and he was not, in any way, prejudiced as a result of this minimal deviation (see Suarez v. Ingalls, 282 AD2d 599, 600 [2d Dept 2001]). Rather, defendant had actual notice of plaintiff’s numerous requests for compliance with the terms of the settlement agreement, but he refused these requests, necessitating plaintiff’s filing of this motion (see id.; Dellicarri v. Hirschfeld, 210 AD2d 584, 585 [3d Dept 1994]; Heischober v. Heischober, 53 Misc 3d 146[A], 2016 NY Slip Op 51600[U], *1-2 [App Term, 2d Dept, 9th & 10th Jud Dists 2016]).
Defendant argues that plaintiff is not entitled to attorney’s fees because she did not provide a statement of net worth or an affidavit detailing her financial ability to pay such fees. Such argument is rejected since plaintiff’s request for fees is based on article 15 of the settlement agreement, rather than Domestic Relations Law §237 (see Garcia v. Garcia, 104 AD3d 806, 807 [2d Dept 2013]; Matter of Milark v. Meigher, 56 AD3d 1018, 1021 [3d Dept 2008]). Defendant also argues that plaintiff did not provide a cancelled check or a paid receipt for funds allegedly expended. Plaintiff, however, as noted above, provided the retainer agreement and Mr. Berfas’ affirmation, showing the amount paid by her.

In addition, it is noted that plaintiff does not characterize her request as seeking attorney’s fees, and states that she retained Mr. Berfas’ law firm and its associates as “consultants” to prepare her instant order to show cause based on defendant’s failure to adhere to the settlement agreement. Plaintiff refers to Mr. Berfas’ fees as being for “legal consulting and document preparation” and as “consulting fees,” and states that she is representing herself pro se. However, article 15 of the settlement agreement broadly encompasses “reasonable attorney’s fees and related expenses or costs” in connection with enforcing the settlement agreement. The court finds that the $2,500 sought by plaintiff falls within the ambit of this article. Plaintiff incurred these fees due to defendant’s refusal to comply with the settlement agreement and the need for court intervention before obtaining his cooperation. Defendant did not agree to sign the deed or pay the $3,000 until after this motion was brought.

Defendant asserts that “one might ask how it is reasonable to expend $2500.00 [to Mr. Berfas] to recoup $3,000.” Plaintiff, however, was not merely seeking $3,000, but also for defendant to sign the deed transferring the marital residence, which defendant had refused to do for approximately one year. Defendant did not request a hearing on the issue of the reasonableness of the amount of the fees to be awarded, and did not object to the resolution of the issue based on written submissions. Thus, defendant waived the right to a hearing on this issue (see Rosner v. Rosner, 143 AD3d 884, 885 [2d Dept 2016]). Consequently, under the circumstances of this case, where plaintiff was compelled to bring a motion to enforce the terms of the settlement agreement, the court finds that pursuant to article 15 of the settlement agreement, defendant must be required to pay plaintiff the reasonable amount of $2,500 as expenses incurred by her in enforcing defendant’s obligations under the settlement agreement (see Mollah, 136 AD3d at 994; Martin v. Martin, 92 AD3d 646, 646 [2d Dept 2012])."

COUPLE'S ESTATE ATTORNEY CAUGHT IN DIVORCE

A question of ethics may also exist if the 2016 services affected a mutual estate plan of the 2013 services...would the attorney have the obligation to tell the wife in 2016 that her husband changed the estate plan they both created jointly in 2013?

Feighan v Feighan, 2020 NY Slip Op 01146, Decided on February 19, 2020, Appellate Division, Second Department:

"In 2013, the parties retained Eugenia M. Vecchio, Esq., to create certain estate planning documents, including the 2013 Robert E. Feighan Revocable Trust. In 2016, prior to the commencement of this action for a divorce and ancillary relief, the defendant retained Vecchio to create the 2016 Robert E. Feighan Revocable Trust, a trust funded by assets previously held in the 2013 Robert E. Feighan Revocable Trust. The Supreme Court, inter alia, in effect, granted that branch of the plaintiff's motion which was for the issuance of a subpoena to Vecchio for copies of the complete files of the plaintiff and the defendant relating to the 2013 Robert E. Feighan Revocable Trust and the 2016 Robert E. Feighan Revocable Trust. The defendant appeals.

"The attorney-client privilege shields from disclosure any confidential communications between an attorney and his or her client made for the purpose of obtaining or facilitating legal advice in the course of a professional relationship" (Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616, 623; see CPLR 4503[a][1]). Since this privilege shields pertinent information from disclosure, it must be narrowly construed (see Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d at 624). "The party asserting the privilege bears the burden of establishing its entitlement to protection by showing that the communication at issue [*2]was between an attorney and a client for the purpose of facilitating the rendition of legal advice or services, in the course of a professional relationship,' that the communication is predominantly of a legal character, that the communication was confidential and that the privilege was not waived" (id., quoting Rossi v Blue Cross & Blue Shield of Greater N.Y., 73 NY2d 588, 593-594).

Generally, when an attorney represents two or more parties with respect to the same matter, the attorney-client privilege may not be invoked to protect confidential communications concerning the joint matter in subsequent adverse proceedings between the clients (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 137; Wallace v Wallace, 216 NY 28, 35; Matter of McCormick, 287 AD2d 457, 457). Here, Vecchio's joint representation of the parties in 2013 with respect to the preparation of estate planning documents, including 2013 revocable trusts executed by each of them, constituted representation with respect to the same matter, and we agree with the Supreme Court's determination that the attorney-client privilege could not be invoked to protect confidential communications concerning Vecchio's representation of the parties with regard to the defendant's 2013 revocable trust (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 137; Wallace v Wallace, 216 NY at 35; Matter of McCormick, 287 AD2d at 457-458). However, contrary to the court's determination, the attorney-client privilege could be invoked to protect confidential communications concerning Vecchio's representation of the defendant with regard to the 2016 revocable trust, as Vecchio's representation of the plaintiff ended in 2013, and the services provided to the defendant in 2016 did not constitute the same matter as the services provided to the parties in 2013."

ANOTHER UNLICENSED CONTRACTOR CASE

Gomez v. Ralph, NYLJ February 20, 2020, Date filed: 2020-02-04, Court: Civil Court, Bronx Judge: Judge Bianka Perez, Case Number: CV-022411-19/BX:

"FINDINGS OF FACT
As per the plaintiff’s testimony, the plaintiff is an unlicensed contractor who was contracted to do work at the defendant’s premises. Plaintiff testified the defendant asked him to remove and replace shingles and to remove and replace the gutters. Plaintiff stated he did 95 percent of the work. The contract price per the Plaintiff was $17,000.00. Plaintiff states he was only paid $5,000.00. Plaintiff admits not having a license to do the work. He said he has worked on many projects for the defendant. Receipts for supplies were admitted into evidence as Plaintiff’s 1-5. Plaintiff did not have a copy of the contract.

Defendant states the contract price was $12,000.00 and he paid plaintiff $10,500.00. He states he has used the plaintiff for many jobs for over 20 years. Defendant produced his copy of the contract in evidence as Defendant’s A.

The defendant states he paid plaintiff $10,500.00 for the work performed and has submitted in evidence as Defendant’s A the receipts for payments received, Deposit of $2,000.00 on 9/9/19, payment of $2,000.00 on 9/10/19, payment of $1,000.00 on 9/16/19, payment of $2,000.00 on 9/20/19, $950.00 for materials, $850.00 for garbage disposal, and $1,650.00 for gutter on 10/4/19.
Defendant states that the plaintiff started the work but did not finish because he wanted more money. Defendant states that after a month of calling the plaintiff to finish the work he hired another contractor to finish the job and paid $7,000.00, receipt in evidence as Defendant’s B.

According to the plaintiff, the defendant told him not to come to work during the Jewish holidays and when he returned to finish the work, he was told not to do any further work by defendant’s daughter. Seven photographs of the work were marked as Plaintiff’s 6.

The plaintiff seeks a money judgment for the balance due for work performed in the amount of $12,000.00.

DISCUSSION
CPLR 3015(e) requires a home improvement contractor to be duly licensed prior to commencing a cause of action against a consumer for payment for services rendered. This regulatory scheme protects homeowners from abuses and fraudulent practices by persons engaged in the home improvement business (see, Millington v. Rapoport, 98 A.D.2d 765, 469 N.Y.S.2d 787).

CPLR 3015(e) states as follows:

“License to do business. Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of a business which is required by state or local law to be licensed by the department of consumer affairs of the city of New York….., the complaint shall allege, as part of the cause of action, that plaintiff was duly licensed at the time of services rendered and shall contain the name and number, if any, of such license and the governmental agency which issued such license. The failure of the plaintiff to comply with this subdivision will permit the defendant to move for dismissal pursuant to paragraph seven of subdivision (a) of rule thirty-two hundred eleven of this chapter.”

The failure to comply with the statute can lead to draconian results, such as a subcontractor being precluded from receiving payment for a job well done. As stated in Kristeel, Inc. v. Seaview Development Corporation, 165 A.D.3d 1243, 87 N.Y.S.3d 600 (2d Dept 2018), where the Second Department revered supreme court and granted defendants’ motion to dismiss the complaint.
Thus, as the plaintiff has failed to properly plead his complaint and the plaintiff has admittedly performed work without a license. The matter is hereby dismissed."

THE IMPORTANCE OF THE NOTICE OF ENTRY

Receiving a favorable order still requires a notice of entry. A party must serve a copy of an order or judgment "and written notice of its entry" (CPLR 5513[b]) to start the time limit for moving for leave to appeal from that order or judgment. But it also starts the time limit for other procedures, like in CPLR 3211 (f).

Citibank, N.A. v Brook, 2020 NY Slip Op 01142, Decided on February 19, 2020, Appellate Division, Second Department:

"In March 2016, the plaintiff commenced this action against, among others, the defendants Jacqueline Brooks and Glen F. Brooks (hereinafter together the defendants) to foreclose a mortgage executed by them. The defendants moved to dismiss the complaint insofar as asserted against them, and the motion was denied in an order dated December 16, 2016 (see Citibank, N.A. v Brooks, ___ AD3d ___ [Appellate Division Docket No. 2017-04077; decided herewith]). By notice of motion dated August 14, 2017, the plaintiff moved, inter alia, for leave to enter a default judgment and for an order of reference, asserting that the defendants had defaulted in responding to the summons and complaint. The attorney affirmation submitted in support of the motion did not, in its discussion of the procedural history, disclose the prior motion practice. It did not mention the December 2016 order and did not assert that such order had been served with notice of entry, even though such service was necessary in order to trigger the running of the defendants' time to respond to the complaint (see CPLR 3211[f]). The Supreme Court granted the plaintiff's motion. Jacqueline Brooks (hereinafter the appellant) appeals.

In order to obtain a default judgment against the appellant and an order of reference, the plaintiff was required to submit evidence of service of a copy of the summons and complaint, evidence of the facts constituting the cause of action to foreclose the mortgage, and evidence that the appellant failed to appear or answer within the time allowed (see RPAPL 1321[1]; CPLR 3215[f]; JPMorgan Chase Bank, N.A. v Grinkorn, 172 AD3d 1183, 1185; Aurora Loan Servs., LLC v Movtady, 165 AD3d 1025, 1026; 21st Mtge. Corp. v Palazzotto, 164 AD3d 1293, 1294). While the defendants did not submit an answer to the complaint, the plaintiff failed to establish that the defendants were in default in responding to the complaint in that the plaintiff did not assert that the [*2]plaintiff served the order denying the defendants' motion to dismiss with notice of entry. Without service of the order with notice of its entry, the time within which the defendants were required to answer the complaint did not begin to run (see CPLR 3211[f]). Accordingly, the Supreme Court should have denied those branches of the plaintiff's motion were for leave to enter a default judgment against the appellant and for an order of reference."

NEW YORK COURTS EMERGENCY ALERTS

New York Court Emergency Alerts provides users with critical, emergency related information and notifications such as court closings, delayed openings, or other emergency conditions. Effective on or about March 15, 2020, the court system will no longer use Twitter to send out emergency notices.

So to sign up for the new system, see this link: http://www.nycourts.gov/notice/emergency-alerts.shtml

DIY ANSWER IN MORTGAGE FORECLOSURE

Even to this day, with the foreclosure crisis still hitting homeowners hard in Long Island and elsewhere in New York, I consult with clients who never filed an Answer to their action and thus are technically in default.

In June 2019, the New York court system launched an online Do-It-Yourself program to generate an Answer form. Not perfect but here is the link:

https://www.nycourts.gov/CourtHelp/DIY/foreclosureAnswer.shtml

A GUIDE TO NY EVIDENCE

Its object is to "bring together in one document, for the benefit of the bench and bar, New York's existing rules of evidence, setting forth each rule with a note on the sources for that rule" and it can be found on the New York Courts website at https://www.nycourts.gov/judges/evidence/

WHEN THE DOWNSTAIRS TENANT CREATES A NUISANCE

If your upstairs neighbor is noisy, there are ways to deal with it. In this case, the defendant, the downstairs neighbor, may not have handled it properly. This is not just an L&T summary proceeding. This landlord went to Supreme Court and also sought and received an injunction.

25 CPW City Views LLC v. Cohen, NYLJ February 13, 2020, Date filed: 2020-01-22, Court: Supreme Court, New York, Judge: Justice James D'Auguste, Case Number: 152876/2018:

"On a preliminary injunction motion, the movant must show a probability of success on the merits, irreparable injury absent the grant of the relief, and a balance of equities in the movant’s favor (CPLR 6301; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]). “Proof establishing these elements must be by affidavit and other competent proof, with evidentiary detail” (Scotto v. Mei, 219 AD2d 181, 182 [1st Dept 1996]; see CPLR 6312 [a]). The determination of such a motion lies within the sound discretion of the trial court (see Ciminello Property Assocs. v. New 970 Colgate Ave. Corp., 173 AD3d 447, 448 [1st Dept 2019]; Scialdone v. Stepping Stones Assoc., L.P., 148 AD3d 950, 952 [2d Dept 2017]).

An injunction may be granted even where there are factual questions for trial, so long as the movant can demonstrate a probability of success on the merits (CPLR 6312 [c]; see 1234 Broadway LLC v. West Side SRO Law Project, Goddard Riverside Community Ctr., 86 AD3d 18, 23 [1st Dept 2011] [movant "need not tender conclusive proof beyond any factual dispute establishing ultimate success in the underlying action," just a clear right to the relief]; Ying Fung Moy v. Hohi Umeki, 10 AD3d 604, 605 [2d Dept 2004] [conclusive proof not necessary; likelihood of success may be found even when disputed facts]; Four Times Sq. Assoc. v. Cigna Invs., 306 AD2d 4, 5 [1st Dept 2003] ["likelihood of success on the merits may be sufficiently established even where the facts are in dispute and the evidence is inconclusive"]). This Court finds that while the parties have submitted conflicting affidavits, injunctive relief in plaintiffs’ favor should be granted.

To assert a claim for private nuisance, the plaintiff must establish the following elements: “(1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act” (Copart Indus. v. Consolidated Edison Co. of N.Y., 41 NY2d 564, 570 [1977]; see also Domen Holding Co. v. Aranovich, 1 NY3d 117, 124 [2003] [nuisance is implicated by a pattern of continuity or recurrence of objectionable conduct]; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d 38, 41 [1st Dept 2011]; 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d 330, 334 [1st Dept 2010], affd as modified 16 NY3d 822 [2011]). Conduct in this context is intentional when the defendant acts with the purpose of causing the invasion, knows that it will result, or is substantially certain it will result, from his or her conduct (Copart Indus. v. Consolidated Edison Co. of N.Y., 41 NY2d at 571; see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d at 334-335; Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 AD3d at 43). However, not every intrusion will constitute a nuisance, the issue is “whether a defendant’s use of his or her property constitutes an unreasonable and ‘continuous invasion of [the plaintiff's property] rights’” (Ewen v. Maccherone, 32 Misc 3d 12, 14 [App Term 1st Dept 2011], quoting Domen Holding Co. v. Aranovich, 1 NY3d at 124; see also Golub v. Simon, 28 AD3d 359, 360 [1st Dept 2006]; Rodriguez-Nunci v. Clinton Hous. & Dev. Co., 241 AD2d 339, 340 [1st Dept 1997]).

Here, through the affidavits of Stempler, the Prior Tenants, Lowenkron, as well as the affidavits of the resident property managers, Lyons and Quinn, and of Friedman, the property manager for 25 CPW, plaintiffs demonstrated a pattern of recurring objectionable conduct, and that Cohen’s interference was substantial. These affidavits show that Cohen was repeatedly and significantly disturbing Stempler’s right to use and enjoy 18H by not only banging on Stempler’s floors at all hours of the day and night, but by confronting Stempler at her apartment door, throwing garlic powder at her, banging on her door, yelling and shouting at her not only during the day, but late at night; insisting that the front desk knock on Stempler’s door, waking her up in the middle of the night; calling the police; and repeatedly attaching on or slipping under her door threatening, insulting, and degrading notes. Plaintiffs submitted copies of Cohen’s notes to her, as well as emails Cohen sent to the property managers constantly complaining about Stempler. Cohen’s behavior began when Stempler moved in, and apparently has escalated to physical confrontations.

Plaintiffs submitted the Prior Tenants’ affidavits as proof that Cohen made similar unfounded noise complaints against them, and that they refused to renew their lease because of it. Similarly, Lowenkron, the owner of apartment 17I, adjacent to Cohen’s apartment, attested that Cohen made the identical claims against tenants in 17I for noises they were making in simply using the apartment in a normal manner, such as taking a morning shower, flushing the toilet, or using the kitchen in the evening, and Cohen sent emails and left notes for those tenants (NYSCEF Doc. Nos. 48-49). 25 CPW submits proof that it expended over $4,000.00 in soundproofing 18H in August and September 2016, and that the installations met or exceeded New York City Code requirements, falling within the “Superior Soundproofing Category” for the flooring in 18H (NYSCEF Doc. Nos. 54-57).

Plaintiffs also demonstrated that Cohen’s disturbances of plaintiffs were intentional. Cohen, herself, admits that she purposely engaged in this behavior. The repeated nature of Cohen’s acts and the fact that they occurred at all hours of the day and night, often deliberately waking Stempler, establishes the third and fourth elements of the nuisance claim, that the interference was unreasonable and affected Stempler’s and 25 CPW’s rights to use and enjoy the apartment (see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d at 334).

In opposition, Cohen offered nothing but her own affidavit, claiming that her admitted intrusions were warranted in response to noise Stempler was making in moving around in 18H. Her complaints about Stempler’s noises, however, are not corroborated by other evidence, or even any factual detail. Indeed, her assertions that Stempler was dropping bowling balls or other heavy objects are somewhat incredible given that Stempler is elderly, has MS, and walks with a cane. The only other proof she submits, a purported audio recording of noises coming from Stempler’s apartment on June 28, 2018, as well as a video of Stempler taking cell phone photos of Cohen in the building lobby on June 9, 2018, are inadmissible because they are unauthenticated, lack any foundation and were provided only with an apparent link to a Dropbox account. In addition, it is unclear how Stempler’s actions in taking a photo of Cohen was causing her various complaints against Stempler. Lyons and Quinn, the resident property managers for the building, attested that Cohen’s complaints about Stempler lacked merit, and that she made the same unsubstantiated noise complaints about the Prior Tenants, and the neighboring tenants in both 17I and 17G, even when the apartments were vacant (NYSCEF Doc. Nos. 50-53). In fact, Lyons unequivocally stated that Cohen made numerous noise complaints, and that “in no instance were any of Cohen’s noise complaints found to have any merit whatsoever,” and that no other tenant or occupant complained of the noise that Cohen alleged was occurring (NYSCEF Doc. No. 50, Lyons aff, 8). Even if Cohen’s affidavit raised a factual issue as to whether Stempler had been making noises that were disturbing Cohen, this factual issue does not subvert plaintiffs’ establishment of a clear right to relief (see Matter of Advanced Digital Sec. Solutions, Inc. v. Samsung Techwin Co., Ltd., 53 AD3d 612, 612 [2d Dept 2008] [existence of fact issue alone does not justify denial of motion]; Sau Thi Ma v. Xuan T. Lien, 198 AD2d 186, 187 [1st Dept 1993] ["even when facts are in dispute, the nisi prius court can find that a plaintiff has a likelihood of success on the merits, from the evidence presented, though such evidence may not be 'conclusive'"] [citation omitted]).

Plaintiffs have also demonstrated irreparable injury. An injury is irreparable when it cannot be adequately compensated by money damages, or when there is no pecuniary standard to measure damages (see 67 NY Jur 2d Injunctions section 17, citing Poling Transp. Corp. v. A & P Tanker Corp., 84 AD2d 796, 797 [2d Dept 1981]; see also Di Fabio v. Omnipoint Communications, Inc., 66 AD3d 635, 636-637 [2d Dept 2009]). The movant must show that the injury is threatened and imminent (Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 AD3d 738, 739 [2d Dept 2010]), and what constitutes such injury depends not only on the facts but upon the discretion of the court (see Matter of Samuelsen v. Yassky, 29 Misc 3d 840, 848 [Sup Ct, NY County 2010] [Singh, J.]). Stempler is elderly and has MS, and attests that she is afraid of Cohen, afraid to leave her apartment, and fears that with the clear escalation of the conduct, Cohen may throw something more dangerous than garlic powder on her. She details the nightly assault on her quiet enjoyment of her apartment. She asserts that the constant stress Cohen has inflicted upon her has exacerbated her many serious MS symptoms (see NYSCEF Doc. No. 79, attending physician statement). This is sufficient to demonstrate irreparable injury under the circumstances of Cohen’s escalating harassment to warrant injunctive relief (see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 AD3d at 335; Parkmed. Co. v. Pro-Life Counselling, 91 AD2d 551, 552-553 [1st Dept 1982] [preliminary injunction issued to prevent screaming, shouting, physical and verbal threats, assault harassment, abuse and intimidation]).

As to the balance of the equities, they clearly tip in favor of granting relief to plaintiffs. The potential harm to Stempler’s health and well-being if an injunction is not issued has been demonstrated. Cohen’s harassment is persistent, disruptive, escalating and frightening Stempler in her own home. There is no apparent harm to Cohen by prohibiting her from contacting, appearing at Stempler’s door or on the 18th floor of the building, or from shouting or screaming at her, or engaging in verbal or written threats or intimidating her.

Cohen’s argument that this Court lacks jurisdiction to issue the preliminary injunction, because the relief sought is a criminal protective order, is rejected. Plaintiffs are not seeking a criminal protective order; rather, they are seeking to enjoin Cohen’s harassing behavior which is affecting plaintiffs’ enjoyment of their property in 18H. The case upon which Cohen relies, People ex rel. Bennett v. Laman (277 NY 368, 376 [1938]) is not to the contrary. The Court of Appeals in that case stated that while a court of equity will not enjoin the commission of a crime, “the criminal nature of an act will not deprive equity of the jurisdiction that would otherwise attach” so long as it seeks to protect some proper interest (id. at 376). Here, plaintiffs seek to enjoin a private nuisance that is interfering with their property rights, and not to punish Cohen for her past acts, whether criminal or not. This clearly falls within the equity jurisdiction of this Court. Thus, plaintiffs satisfy the requirements for a preliminary injunction, and their motion is granted.

Cohen’s motion for preliminary injunctive relief, however, fails to meet such requirements. Cohen fails to demonstrate a likelihood of success on the merits of her claims. In her answer, she purports to assert counterclaims for nuisance, harassment, stalking, menacing, and intentional infliction of emotional distress. She fails to make any showing that she will succeed on the merits of any of these counterclaims; in fact, she does not mention any of her claims. She asserts only that Stempler is the aggressor, and has banged on the floor of her apartment, and scraped chairs and furniture, solely to harass Cohen (NYSCEF Doc. No. 28, answering affidavit of Linda Cohen, 7). At the same time, however, she admits to her confrontations with Stempler, and that she authored and delivered the various notes to Stempler. This proof falls woefully short of her burden in seeking injunctive relief. “Conclusory statements lacking factual evidentiary detail warrant denial of a motion seeking a preliminary injunction” (1234 Broadway LLC v. W. Side SRO Law Project, Goddard Riverside Community Ctr., 86 AD3d at 23). Cohen’s attempt, in her reply papers, to submit what she claims is video proof that Stempler was stalking her, and audio proof of Stempler’s noises, fails to save her application. As discussed above, the video and audio recordings are not authenticated, provided only by an apparent link to DropBox, and lacking any foundation for the submission of such proof.

The court further notes that plaintiffs recently responded to Cohen’s apartment from June 4, 2019 through September 23, 2019. They submit a noise monitoring report for the period of June 4, 2019 to July 8, 2019, and an affidavit from an engineer, James W. Pugh, PhD, P.E. (Dr. Pugh), who states that he has expertise in evaluating the measurement of levels of sound intensity through decibel readings as indicated in the noise monitoring report (NYSCEF Doc. Nos. 76-77, 80). Dr. Pugh states that, in his opinion to a reasonable degree of scientific certainty, there is no correlation between the sound complaints from Cohen’s apartment (17H) and an increased sound decibel level in the apartment except for one instance, and, in that one instance, the elevated decibel level was minimal (NYSCEF Doc. No. 80, affidavit of James Pugh, PhD, P.E., 3). He concluded that there is a lack of acceptable correlation between Cohen’s complaints and any increased decibel readings. Even without this additional proof by plaintiffs, as discussed above, Cohen failed to demonstrate a likelihood of success on the merits of her counterclaims. Therefore, her application for injunctive relief is denied."

THE FORECLOSURE PROCESS - ANOTHER CHART

ERPO

An Extreme Risk Protection Order (ERPO) is a court order issued when a person may be dangerous to themselves or others. An ERPO prohibits a person from purchasing or possessing guns and requires the person to surrender any guns they already own or possess. An ERPO can also direct the police to search a person, premises or a vehicle for guns and remove them. An ERPO case may be started by a district attorney, a police officer, a school official, or a member of the person’s family or household. It is a civil case. ERPO cases have no criminal charges or penalties.

The petitioner is the person filing the ERPO application with the court. The respondent is the person you are asking the Court to issue an ERPO against. The petitioner can be a district attorney, a police officer, a school official, or a member of the respondent’s family or household. Here is a recent example.

Nassau Cnty. Police Dep't v. M.B., NYLJ February 10, 2020,  Date filed: 2020-01-06,  Court: Supreme Court, Queens, Judge: Justice Elisa Koenderman,  Case Number: 6077/2019:

"....
Based upon all the foregoing, the court finds clear and convincing evidence that Respondent is likely to engage in conduct that would result in serious harm to himself or others (see CPLR 6343[2]). Respondent suffers from a mental illness that causes him to act unpredictably and potentially dangerously. He experiences delusions, including those of persecution by authority, which excessively preoccupy him and motivate his actions. His behavior which led to the issuance of the TERPO objectively was both reckless and menacing. Respondent previously has had conflicts with the law, including for alleged assault and criminal contempt. Significantly, Respondent could not control himself inside or outside the court during the hearing, as evidenced by his statements on the record as well as his voicemail messages to Deputy County Attorney Curran. It also appears that Respondent not only is noncompliant with his medications but that he might be misusing prescribed controlled substances, i.e. Xanax or Oxycodone.

Accordingly, the court grants Petitioner’s application and issues a one year Extreme Risk Protection Order. Petitioner shall effectuate service of such order in compliance with CPLR 308. Pursuant to CPLR 308(4), “where service under paragraphs one and two cannot be made with due diligence,” Petitioner shall serve Respondent “by affixing the summons to the door of…[the] dwelling place or usual place of abode within the state of [Respondent] and by…mailing the [order] to [Respondent] at his…last known residence.”"

THE FORECLOSURE PROCESS - Legal Assistance of Western New York, Inc.

FUTURE LAWYERS

This afternoon, I will be one of the attorneys who will be presiding as a judge at Nassau Supreme Court for a preliminary round for Nassau County High School students participating in The New York State High School Mock Trial Program. The state finals are in May.

"The New York State High School Mock Trial Program is a joint venture of The New York Bar Foundation, the New York State Bar Association, and the Law, Youth and Citizenship Program. In this educational program, high school students have the opportunity to gain first-hand knowledge of civil/criminal law and courtroom procedures. Thousands of students participate each year. Objectives of the tournament are to: Teach students ethics, civility and professionalism; further students’ understanding of the law, court procedures and the legal system; improve proficiency in basic life skills, such as listening, speaking, reading and reasoning; promote better communication and cooperation among the school community, teachers and students and members of the legal profession, and heighten appreciation for academic studies and stimulate interest in law-related careers."

To learn more, see https://www.nysba.org/NYSMockTrial/

QPRI EXCLUSION

Normally, debt forgiven is income to the debtor. The Further Consolidated Appropriations Act, 2020, signed on December 20, 2019, extends the Qualified Principal Residence Indebtedness (QPRI) exclusion. This allows homeowners after a foreclosure, loan modification, short sale, or deed in lieu of foreclosure to exclude the forgiven amount from their income for tax purposes. 

In such circumstances, the homeowner will receive a 1099-C (Cancellation of Debt) form from their bank. If the QPRI exclusion applies, the forgiven amount is not considered income. This will apply to debts forgiven in tax years 2018 through 2020.

FREE MORTGAGE FORECLOSURE CLINIC TODAY

→ Reservations are required by calling the Bar Association at 516-747-4070. Please bring any documents. Attorneys fluent in other languages are available upon request when reserving.

All clinics are 3-6 p.m. and are held at the Nassau County Bar Association in Mineola twice a month. Call to make an appointment for the next scheduled clinic.

→Please call NCBA for the scheduled dates for Free Legal Consultation

A COURT REVIEWS SOCIAL SECURITY FINDING IN DISABILITY CASE

Judicial review of disability benefit determinations is governed by 42 U.S.C. §§421(d) and 1383(c)(3), which expressly incorporates the standards established by 42 U.S.C. §405(g). In relevant part, §405(g) adopts the familiar administrative law review standard of “substantial evidence,” i.e., that “[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive.” Thus, if the Commissioner’s decision is supported by “substantial evidence” and there are no other legal or procedural deficiencies, his decision must be affirmed.

Barrere v. Comm'r of Social Security, NYLJ February 04, 2020, Date filed: 2020-01-28, Court: U.S. District Court for the Eastern District of New York, U.S. - EDN,  Judge: District Judge Brian Cogan, Case Number: 18-cv-5854

In this case, the claimant alleged that he became disabled after a car accident in 2011 left him with significant behavioral changes and a traumatic brain injury. However, the court also noted:

"On July 2014, plaintiff obtained a perfect score on a Mini-Mental State Examination, demonstrating normal cognition and average intellectual functioning, and his Full-Scale IQ score placed him in the “high average range” of intellectual functioning. Moreover, an MRI of his brain from July 2014 showed “no abnormal enhancement” that would suggest any aggressive process, and a CT span resulted in normal findings in February 2016. Based on plaintiff’s daily activities and accomplishments, the ALJ could also reasonably conclude that he maintained certain cognitive ability to perform work with certain non-exertional limitations. After his car accident, plaintiff obtained a black belt in martial arts in 2016 and was actively pursuing the discipline of Brazilian Jiu-Jitsu, even working as a karate instructor for several hours a week without any negative behavioral incidents. In addition, he demonstrated “above average” academic achievement after his accident: he obtained an 1180 on his college admissions exam (“the SATs”); completed an associate’s degree in Criminal Justice with a 3.5 grade point average; passed biology and anatomy college classes; and pursued a physician’s assistant program (although he failed due to focusing on collegiate wrestling — not due to any cognitive or behavioral impairments). This further demonstrates plaintiff did not have a disabling mental condition. In sum, the record reflects that plaintiff could function in a low stress environment, such as teaching karate since March 2015 or regularly attending college classes — without any negative behavior incidents. If plaintiff’s symptoms did not severely limit his ability to obtain a “perfect score” on a medical evaluation, pursue multiple belts in martial arts, or obtain an impressive 3.5 GPA (which all certainly require a level of discipline, memory, and perseverance), then the ALJ could reasonably find that plaintiff maintained the capability to perform work with certain non-exertional limitations."

MODIFYING AN ARTICLE 17-A GUARDIANSHIP

Things change - something we must always keep in mind - and this case has a nice story to it.

Matter of Jacob A.B., NYLJ  January 31, 2020, Date filed: 2020-01-24,  Court: Surrogate's Court, Westchester, Judge: Surrogate Brandon Sall, Case Number: 2010-2501/G:

"In this uncontested proceeding pursuant to SCPA 1755 and 1759, the petitioners, as guardians of the person and property of Jacob A. B. (Jacob), seek to modify the order of guardianship in order to dissolve the property guardianship. The petitioners are Jacob’s parents. Jacob is 27 years old. The court appointed Mental Hygiene Legal Service (MHLS) as guardian ad litem to protect Jacob’s interests. In support of their original petition for guardianship of Jacob’s person and property, the petitioners submitted certifications from two doctors. Dr. Mathew Dugan affirmed that Jacob has “mild to moderate, global” cerebral palsy and “cognitive delay” and that he was “unable to perform activities of daily living reliably without supervision.” Dr. Ronald Jacobson affirmed that Jacob has Asperger’s Syndrome with “social/cognitive/and neurological impairment” and “limited interests, narrow range of social functioning eg talks about his one area of interest — computers.”

In a decision dated January 24, 2011, the court determined that Jacob is a person with a developmental disability within the provisions of SCPA article 17-A and issued a decree appointing the petitioners as co-guardians of Jacob’s person and property, Marc S. as standby guardian and Joel B. as first alternate standby guardian.

The petitioners now assert that circumstances have changed and that the property guardianship should be terminated because Jacob can make decisions for himself regarding his property. They further assert that Jacob continues to need a guardian of his person because he does not understand the implications of his personal care and medical decisions. With respect to healthcare, the petitioners state that Jacob does not seek medical assistance on his own, cannot follow doctors’ advice and “does not understand the cause and effect of his medical care even when they are explained to him.”
SCPA 1759 authorizes a guardian to file a petition to modify, dissolve or otherwise amend a guardianship order (see SCPA 1759 [2]). In addition, SCPA 1755 gives the court discretion to modify a guardianship order and directs that the court “shall so modify the guardianship order if in its judgment…the interests of justice will be best served” (SCPA 1755). On an application to revoke guardianship letters, the petitioners bear the burden of proving that the guardianship is not in the ward’s best interest (see Matter of Capurso, 63 Misc 3d 725, 728 [Sur Ct, Westchester County, 2019]; Matter of Michael J.N., 58 Misc 3d 1204 [A] [Sur Ct, Erie County, 2017]).

There are relatively few reported cases dissolving 17-A guardianships (see e.g. Matter of Capurso, 63 Misc 3d 725; Matter of Michael J.N., 58 Misc 3d 1204 [A]; Matter of Dameris L., 38 Misc. 3d 570 [Sur Ct, N.Y. County, 2012]; Matter of Guglielmo, NYLJ, Nov. 13, 2006, at 23, col. 1[Sur Ct, Suffolk County]). As stated in Matter of Dameris L., the “legal remedy of guardianship should be the last resort for addressing an individual’s needs because it deprives the person of so much power and control over his or her life” (Matter of Dameris L., 38 Misc.3d at 577). Before a guardianship decree will issue under SCPA 17-A in the first instance, the court must determine that the respondent has a disability with the provisions of the statute, and must be satisfied that the “best interests of the person who is intellectually disabled or…developmentally disabled will be promoted by the appointment of a guardian…” (see SCPA 1750-a [2] and 1754 [5]). The test in assessing whether a guardianship or continuation of a guardianship is in the person’s best interest should include an assessment of the ward’s “functional capacity” and what he can and cannot do in managing daily affairs (see Capurso, 63 Misc at 729 [citing Matter of Michael J.N., 58 Misc 3d 1204 [A]]; see also Matter of Hytham M.G., 52 Misc 3d 1211 [A] [Sur Ct, Kings County 2016]).

By all accounts, with the support of the petitioners and others, Jacob has made excellent progress in his development since the court issued the original letters of guardianship of his person and property. He attended a boarding school for special needs students and after graduation, he completed a two-year post-high school transitional program and then transitioned to a program which enabled him to further develop his independent living skills. Significantly for the current petition, that program also provided healthcare oversight.

In light of Jacob’s current functional capacity as demonstrated on the record before the court, and the recent caselaw’s developing emphasis on the least restrictive alternatives to plenary guardianship, the court requested that the petitioners submit an updated physician’s evaluation to address Jacob’s neurobehavioral function and whether he continued to need a plenary guardianship. The court also asked the guardian ad litem to address not only whether termination of the property guardianship is warranted, but also whether dissolution of the guardianship in its entirety might be in Jacob’s best interest.
The petitioners submitted an updated evaluation from Dr. Jacobson to address Jacob’s neurobehavioral function. Dr. Jacobson, who has treated Jacob since he was seven years old, reiterates Jacob’s diagnoses, including “autistic spectrum disorder,” “anxiety” and “some learning disabilities.” Reviewing Jacob’s continuing development and acquisition of skills in certain areas, he notes that Jacob “has gone from being overly focused on the trivial to being very focused” on the details of managing his family’s rental properties and handling his financial affairs. With respect to issues relating to guardianship of the person, however, Dr. Jacobson opined that Jacob still needs a guardian because he “has trouble managing his own health.”

In his report, the guardian ad litem states that Jacob wishes to end the property guardianship but wants the guardianship of his person to continue because he becomes frozen around certain issues, including, especially, his healthcare. The guardian ad litem supports the relief requested by the petitioners.

After careful consideration, in light of the demonstrated improvement in Jacob’s functional capacity as it relates to financial matters, the court finds that a property guardianship is no longer warranted. Therefore, the property guardianship is dissolved, and the letters of guardianship are revoked to the extent of the property guardianship.

With respect to maintaining the guardianship insofar as it relates to Jacob’s person, the court notes that the petitioners — Jacob’s parents — have been instrumental in finding and providing supports to enable and empower Jacob to achieve independence. Indeed, they filed this proceeding in order to restore his right to manage his own property and financial affairs. The petitioners, Dr. Jacobson, the guardian ad litem and Jacob all believe that Jacob still needs a plenary guardian, particularly for healthcare and medical decision making. On this record, and in light of the scattered skill sets associated with autism,1 the court is not inclined to substitute its judgment for theirs. The court is confident that the petitioners will return to dissolve the guardianship of Jacob’s person at such time as he feels able to manage his personal and healthcare needs with supports short of a plenary guardianship of the person. Accordingly, the guardianship of Jacob’s person shall remain in place.
The petition is granted. The letters of guardianship shall be modified to revoke the property guardianship."

SUMMARY JUDGMENT AND NOTE OF ISSUE

How many summary judgment motions can be made in a foreclosure action?

Wells Fargo Bank, NA v Madlen Apt, 2020 NY Slip Op 00640, Decided on January 29, 2020, Appellate Division, Second Department:

"On or about May 24, 2012, the plaintiff commenced this mortgage foreclosure action alleging that it was the holder of the subject note and mortgage, and that the defendant Madlen Apt (hereinafter the defendant) had defaulted upon her payment obligations. In an amended answer, the defendant alleged, inter alia, lack of standing as an affirmative defense. A note of issue was filed on or about July 26, 2013. In February 2014, almost seven months after the note of issue was filed, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and to appoint a referee to compute the sums due and owing under the note and mortgage (hereinafter the 2014 motion). In an order dated September 29, 2014 (hereinafter the September 2014 order), the Supreme Court denied the 2014 motion, determining, among other things, that the motion was untimely.

Thereafter, on October 15, 2014, the note of issue was vacated on consent of the parties. In 2016, the plaintiff, inter alia, again moved for summary judgment on the complaint [*2]insofar as asserted against the defendant (hereinafter the 2016 motion). In an order entered October 6, 2016 (hereinafter the October 2016 order), the Supreme Court described the 2016 motion as being "in essence a motion to reargue the [September 2014 order]," and denied that motion. The plaintiff appeals from so much of the September 2014 order and October 2016 order, respectively, as denied those branches of its motions which were for summary judgment on the complaint insofar as asserted against the defendant.

We agree with the Supreme Court's determination denying the branch of the plaintiff's 2014 motion as untimely on the ground that the plaintiff failed to demonstrate good cause for the delay in making its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Miller v Ball, 165 AD3d 920). CPLR 3212(a) provides that "[i]f no such date is set by the court, [a motion for summary judgment] shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" (see Brill v City of New York, 2 NY3d at 651). Here, the 2014 motion was filed approximately seven months after the note of issue was filed and approximately 80 days after the deadline for making a motion for summary judgment. The plaintiff's failure to apply for leave to file the 2014 motion and failure to establish good cause for its delay warranted denial of the 2014 motion without consideration of its merits (see Arcamone-Makinano v Britton Prop., Inc., 156 AD3d 669; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869).

However, we do not agree with the Supreme Court's determination denying the plaintiff's 2016 motion. The plaintiff's motion did not violate the rule against successive motions for summary judgment. While the plaintiff had previously moved for summary judgment following the filing of a note of issue, and its motion was denied on the ground that it had not been made within the time allowed by CPLR 3212(a), the note of issue was subsequently vacated. The vacatur of the note of issue returned the case to its pre-note of issue status (see Montalvo v Episcopal Health Servs., Inc., 172 AD3d 1357, 1358; Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045, 1046), and the plaintiff could again seek summary judgment (see Farrington v Heidkamp, 26 AD3d 459, 460)."