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US BANK TRUST v. FELIX A. GOMEZ

Short Form Order

NEW YORK SUPREME COURT QUEENS COUNTY

Present: HONORABLE DENIS J. BUTLER – Justice

IAS Part 12


U.S. Bank Trust, N.A. As Trustee For

LSF9 Master Participation Trust,

Plaintiff,

–Against–

FELIX A. GOMEZ; NEW YORK CITY PARKING

VIOLATIONS BUREAU, NEW YORK CITY TRANSIT

ADJUDICATION BUREAU, FLEET NATIONAL BANK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; ARIEL GOMEZ

Defendant (s)


The following papers were read on this motion by defendant Feliz A. Gomez for an order, pursuant to CPLR 5015 (a) (1) and (3), vacating the judgment of foreclosure and sale; permitting defendant Gomez to interpose a late answer and setting the matter down for a hearing on the allegations regarding, inter alia, the note and/or setting aside the foreclosure sale and compelling plaintiff to accept the certified checks in the amount necessary to satisfy the mortgage; and cross-motion by the proposed intervention/third-party purchaser Kehilas Bais Yisroe for an order, pursuant to CPLR 1012 or 1013 and 1018, granting leave to intervene.

Notice of Motion, Affirmation, Affidavit, Exhibits …8136-144
Affirmation In Opposition, Affidavit, Exhibits. . . . E170-186
Notice of Cross-Motion, Affirmation, Exhibits.. . ..8220-229

Upon the foregoing papers, it is ordered that this motion and cross-motion are determined as follows:

In this action to foreclose upon a residential mortgage defendant Gomez seeks, inter alia, to vacate the judgment of foreclosure and sale. It is uncontroverted that plaintiff commenced this action on November 8,2016, due to defendant Gomez’s default under the mortgage loan on December 14, 2073, and that the foreclosure sale did not occur until October 11, 2019. Counsel for defendant Gomez fails to address the specific procedure. I history of this action, while merely arguing that “so many foreclosures”’ are
being “pushed through so quickly to sale.”

Pursuant to CPLR 5015 (a) (1), in order to vacate a default in appearing or answering, a defendant must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense (see US Bank, N,A. v Samuel, 138 AD3d 1105, 1106 [2016] ; Deutsche Bank Natf. Trust Co. v Gutierrez, 102 AD3d 825, 825 [2013]; U.S. Bank N.A. v Slavinski, 78 AD3d ll-67, 1158 [2010]). Here. defendant Gomez’s ignorance or misunderstanding of the law does not amount to a reasonable excuse (see Dorrer v Berryt 37 AD3d 519, 520 [2d Dept 2001 )). Any dissatisfaction by
defendant Gomez with respect to his representation by prior counsel is also not a reasonable excuse. Moreover, defendant Gomez has not demonstrated that he has a potentially meritorious defense.

Nor is there any evidence that the default was the result of fraud, misrepresentation, or other misconduct by an adverse party that prevented defendant Gomez from fully and fairly litigating this matter and that would permit the court to vacate the judgment and set aside the foreclosure sale, pursuant to CPLR 5015 (a) (3) (see Oppenheimer v Westcott, 47 NY2d 595 [1979] ; Guardian Loan Co. v Early, 47 NY2d 515, 521 [1919); Wells Fargo Bank, N.A. v Carney, 50 AD3d 287 llst Dept 20081; Bank of New York v Sheik, 21 9 AD2d 440, 441″ [2001]; Chenical Bank v Vazquez, 234 AD2d 253 [2d Dept L996); Crossland lItge. Corp. v Frankel, 792 AD zd 517, 512 t19931).

Additionally, a mortgagor or other owner of the equity of redemption has a right to redeem by tendering the fufl sum due at any time before the foreclosure sale (see NyC?-L 7999-7 Tr. v 573 Jackson Ave. Reafty Corp., 13 NY3d 573, 519 120091 ; Mackenna v Fidelity Trust Co. of Buffafo, 184 NY 41.1 , 41.6-4I7 tf906l ; United Capitaf Carp. v 183 Lorraine 5t. Assocs., 251 AD2d 400, 400 [2d Dept 19981). “Genera11y, once the sale takes place, however, the right to redeem is ‘extinguished, as a matter of law”‘ (Norwest Mortq., Inc. v Brownt 35 AD3d 682, 683 [2d Dept 2006], quoting United Capital Corp. | 251 AD2d at- 544), and redemption is not permitted after a foreclosure sale regardless of whether the deed has been delivered to the sale purchaser (see NYCTL 1996-7 Tr. v Moore, 51 AD3d 885. 886 [2d Dept 2008]; GMAC Mortq. Corp. v Tuck, 299 AD2d 315, 316 [2d Dept 2002]). Here, defendant Gomez failed to exercise his right of redemption prior to the actual foreclosure sale of the property.

Accordingly, defendant Gomez’s motion is denied in its entirety.

Turning to the cross-motion, CPLR 1014 mandates that an application for leave to intervene “shall be accompanied by the
proposed pleading setting forth the claim or defense for which intervention is sought”. Proposed intervenor’s submission fails to include the proposed pleadings, as required by statute.Accordingly, the cross-motion is denied in its entirety.

This constitutes the decision and order of the court.

Dated Janurary 22, 2020 Denis J. Butler, J.S.C


Short Form Order

NEW YORK SUPREME COURT – QUEENS COUNTY

Present: HONORABLE DENIS J.BUTLER


US BANK TRUST, N.A., AS TRUSTEE FOR LSF9 MASTER PARTICIPATION TRUST,

Plantiff,

–against–

FELIX A GOMEZ; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU, FLEET NATIONAL BANK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE; ARIEL GOMEZ

Defendant (s).

Index Number: 713441/2016

Motion Date: November 19, 2019

Motion Seq. No: 004


The following papers were read on this application by defendant Feliz A. Gomez for an order, pursuant to CPLR 5240 and 1015 (a) and RPAPL 1341, prohibiting the foreclosure sale from being conducted, enjoining and restraining plaintiff from taking any action to sell, transfer, or encumber any interest in the premises or otherwise interfere with defendant’s possession and quiet enjoyment of the premises; and directing plaintiff to accept payment of all sums due under its mortgage and there after directing plaintiff to file a stipulation discontinuing the action.

Order to Show Cause, Affirmation, Affidavit, Exhibits…..E77-86

Affirmation in Opposition, Affidavit, Exhibit…E150-163

Upon the foregoing papers, it is ordered that this motion is denied as moot, as the foreclosure sale was conducted on October 11, 2019. At the sale, non party Joseph Wartelsky was the successful bidder in the amount of $810,000.00

This constitutes the decision and order of the court.

Dated: December 16, 2019

Denis J. Butler, J.S.C

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