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[*1]
YCTL 2008-A Trust v Estate of Holas
2011 NY Slip Op 50191(U)
Decided on February 17, 2011
Supreme Court, Kings County
Schack, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law §
431.
This opinion is uncorrected and will not be published in the printed Official Reports.
against
10815/09
Plaintiff
Josef Abt
NY, NY
Arthur M. Schack, J.
In this tax lien certificate foreclosure action, plaintiffs, NYCTL 1998-1 TRUST AND THE
BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN (THE TRUST),
moved on September 9, 2009 for an order of reference and related relief for the premises located
at 856 Hancock Street, Brooklyn, New York (Block 1490, Lot 33, County of Kings). In my May
3, 2010 decision and order, with respect to the motion for an order of reference and related
relief, I held:
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application, within sixty (60) days of this decision and order, for an
plaintiffs' presentation to the Court of its compliance with the statutory requirements
of CPLR § 3215 (f), with "an affidavit of facts" executed
Further, I noted that the affidavit of merit was submitted by one Hillary Leonard, who stated that
"I am the Authorized Signatory of PLYMOUTH PARK TAX SERVICES, LLC, servicing agent
for plaintiffs in the within action." Plaintiffs failed to provide the Court with any "power of
attorney authorizing PLYMOUTH PARK TAX SERVICES, LLC to go forward with the instant
foreclosure action. Therefore, the proposed order for the appointment of a referee to compute
and amend the caption must be denied without prejudice."
the facts constituting the claim, the default and the amount due
the claim and the amount due; in such case, an affidavit as to the
added].
Plaintiffs' counsel, Windels Marx Lane & Mittendorf, LLP, never submitted a
renewed motion for an order of reference to the Court. Then, on February 14, 2011, the Court
received a letter, dated February 9, 2011, from Windels Marx Lane & Mittendorf, LLP, in which
plaintiffs' counsel stated that the September 9, 2009 motion "for the appointment of a Referee to
compute was submitted to the Court and is currently pending before your Honor for
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Today is two hundred and ninety (290) days, more than three-quarters of a year, since I
issued my May 3, 2010 order giving Windels Marx Lane & Mittendorf, LLP sixty (60) days to
renew their motion for an order of reference and related relief. I have not yet received a renewed
motion for an order of reference with the requested affidavit of merit "by someone who is an
officer of THE TRUST or someone who has a valid power of attorney from THE TRUST."
Discussion
The failure of plaintiffs' counsel, Windels Marx Lane & Mittendorf, LLP, to comply
[*3]with my May 3, 2010 order demonstrates delinquent conduct by Windels Marx Lane &
Mittendorf, LLP. 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,
in Gibbs v St. Barnabas Hosp. (16 NY3d 74; 2010 NY Slip Op 09198), instructed, at *5:
proper practice (see e.g. Brill v City of ew York, 2 NY3d 748 [2004];
deadlines not only impairs the efficient functioning of the courts and
breeds disrespect for the dictates of the Civil Practice Law and Rules
and a culture in which cases can linger for years without resolution.
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with practice rules are also effectively penalized because they must
"[i]f the credibility of court orders and the integrity of our judicial
"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 NY3d 725 [2004]; Brill v City of
ew York, 2 NY3d 748 [2004]; Kihl v Pfeffer, 94 NY2d 118 [1999]) [Emphasis added]."
(Andrea v Arnone, Hedin, Casker, Kennedy and Drake, Architects and Landscape Architects,
P.C., 5 NY3d 514, 521 [2005]). "As we made clear in Brill, and underscore here, statutory time
frames —like court-order time frames (see Kihl v Pfeffer, 94 NY2d 118 [1999]) — are not
options, they are requirements, to be taken seriously by the parties. Too many pages of the
Reports, and hours of the courts,
are taken up with deadlines that are simply ignored [Emphasis added]." (Miceli, 3 NY3d at
726-726). [*4]
Further, the dismissal of the instant foreclosure action requires the cancellation of the
notice of pendency. CPLR § 6501 provides that the filing of a notice of pendency against a
property is to give constructive notice to any purchaser of real property or encumbrancer against
real property of an action that "would affect the title to, or the possession, use or enjoyment of
real property, except in a summary proceeding brought to recover the possession of real
property." The Court of Appeals, in 5308 Realty Corp. v O & Y Equity Corp. (64 NY2d 313,
319 [1984]), commented that "[t]he purpose of the doctrine was to assure that a court retained
its ability to effect justice by preserving its power over the property, regardless of whether a
purchaser had any notice of the pending suit," and, at 320, that "the statutory scheme permits a
party to effectively retard the alienability of real property without any prior judicial review."
CPLR § 6514 (a) provides for the mandatory cancellation of a notice of pendency by:
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within the time limited by section 6512; or if the action has been
final judgment against the plaintiff has not been stayed pursuant
The plain meaning of the word "abated," as used in CPLR § 6514 (a) is the ending of an
action. "Abatement" is defined as "the act of eliminating or nullifying." (Black's Law Dictionary
3 [7th ed 1999]). "An action which has been abated is dead, and any further enforcement of the
cause of action requires the bringing of a new action, provided that a cause of action remains (2A
Carmody-Wait 2d § 11.1)." ( astasi v astasi, 26 AD3d 32, 40 [2d Dept 2005]). Further,
astasi at 36, held that the "[c]ancellation of a notice of pendency can be granted in the
exercise of the inherent power of the court where its filing fails to comply with CPLR § 6501
(see 5303 Realty Corp. v O & Y Equity Corp., supra at 320-321; Rose v Montt Assets, 250
AD2d 451, 451-452 [1d Dept 1998]; Siegel, NY Prac § 336 [4th ed])." Thus, the dismissal of
the instant complaint must result in the mandatory cancellation of plaintiffs' notice of pendency
against the subject property "in the exercise of the inherent power of the court."
Conclusion
Accordingly, it is
ORDERED, that the instant action, Index Number 10815/09, is dismissed with
ORDERED that the Notice of Pendency in this action, filed with the Kings
County Clerk on May 1, 2009, by plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF
NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, to foreclose on a tax lien
certificate for real property located at 856 Hancock Street, Brooklyn, New York (Block 1490,
Lot 33, County of Kings), is cancelled and discharged.
ENTER
J. S. C.
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