Vanderbilt Mortgage and Finance, Inc. v Henry
Categories
Attorneys and Parties
Brief Summary
Mortgage foreclosure; whether the lender's motion for summary judgment and an order of reference was untimely after the filing of the note of issue.
The Supreme Court, Kings County, granted the plaintiff summary judgment on the amended complaint, issued an order of reference, confirmed the referee's report, and entered an order and judgment of foreclosure and sale.
The Appellate Division reversed the order and judgment of foreclosure and sale, denied the branches of the plaintiff's motion seeking summary judgment and an order of reference, denied the motion to confirm the referee's report and for a judgment of foreclosure and sale, and modified the prior orders accordingly.
Under CPLR 3212(a) [rule giving courts discretion over summary judgment motion deadlines, but requiring such motions no later than 120 days after filing the note of issue unless leave is granted on good cause shown], the plaintiff had to move by June 7, 2018, but did not do so until July 2022. The plaintiff did not obtain leave to make a late motion, and its excuses including the borrower's death, stay, COVID-19 moratoriums, settlement discussions, and outstanding discovery were not good cause.
Background
The plaintiff began this foreclosure action in February 2012 against borrower Gwenette Henry and others concerning Brooklyn property. The borrower answered and asserted affirmative defenses. After motion practice, the plaintiff served an amended complaint, and a note of issue and certificate of readiness were filed on February 7, 2018. The borrower died in June 2018. In February 2019, Farrah N. Henry received letters of administration, and in October 2019 she was substituted into the action as administrator of the estate. Despite the 2018 note of issue, the plaintiff did not move for summary judgment and an order of reference until July 2022.
Lower Court Decision
The Supreme Court granted the plaintiff's motion for summary judgment on the amended complaint and for an order of reference in September 2022, appointed a referee to compute the amount due, and later in May 2023 granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale. The court then entered an order and judgment of foreclosure and sale directing sale of the property.
Appellate Division Reversal
The Appellate Division dismissed the direct appeals from the intermediate orders because entry of the final order and judgment of foreclosure and sale terminated the right to separately appeal those orders, though the issues were reviewable on the appeal from the final order and judgment pursuant to CPLR 5501(a)(1). On the merits, it held that the Supreme Court should not have considered the plaintiff's summary judgment motion because it was made years after the CPLR 3212(a) deadline. Since the motion was untimely and no leave to file late was sought or supported by good cause, the court reversed the foreclosure judgment and denied the related relief.
Legal Significance
This decision reinforces New York's strict application of CPLR 3212(a) in foreclosure cases. Once a note of issue is filed, a party seeking summary judgment must move within 120 days or obtain leave based on a satisfactory showing of good cause for the delay. Procedural complications such as a party's death, temporary stays, pandemic-related moratoriums, settlement efforts, or unresolved discovery do not automatically excuse noncompliance.
A foreclosure plaintiff cannot wait years after filing a note of issue to seek summary judgment. Without timely motion practice or court-approved leave supported by real good cause, the motion must be denied regardless of the merits.