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FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020
NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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WILMINGTON SAVINGS FUND SOCIETY FSB,
D/B/A CHRISTIANA TRUST, AS OWNER TRUSTEE
OF THE RESIDENTIAL CREDIT OPPORTUNITIES Index No.: 704249/2020
TRUST III,
Affirmation in Support of
Plaintiff, Motion for Stay Pending
Appeal and in Opposition to
vs. Plaintiff’s Motion for a
Judgment of Foreclosure and
Sale
CUONG VI CAO; MOBILE ANESTHESIA
ASSOCIATES P.C.; NEW YORK STATE
DEPARTMENT OF FINANCE; SLOMINS INC,;
CAPITAL ONE BANK USA, NA; NEW YORK
STATE DEPARTMENT OF LABOR; WORKERS
COMPENSATION BOARD OF THE STATE OF
NEW YORK; UNITED STATES OF AMERICA
(EASTERN DISTRICT); NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; NEW
YORK CITY PARKING VIOLATIONS BUREAU;
“JOHN DOE” and “JANE DOE”, said names being
fictitious, it being the intention of Plaintiff to designate
any and all occupants of the premises being foreclosed
herein,
Defendant(s)
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I, Henry M. Graham, an attorney duly admitted to practice law before the courts of the
state of New York, affirms pursuant to CPLR § 2106:
1. I am a partner and principal at the Law Office of Henry Graham, PC, the attorneys for the
Defendant Cuong Vi Cao, (hereinafter “Cao”) in the within action. The allegations made herein
are based on conversations with Cao, the records maintained by Cao, this office and the records
of the County Clerk’s Office, and as such I am fully familiar with the facts and circumstances
surrounding this matter.
2. I submit the within affirmation in support of Cao’s Cross-motion to stay this proceeding
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pursuant to CPLR 2201 pending a determination of the Appeal perfected by Cao, together with
such other and further relief as this Court deems just, proper and equitable.
FACTUAL HISTORY
3. Cao is the owner of the property located at 87-30 111th Street, Richmond Hill, NY 11418,
also commonly referred to as Block: 9300 and Lot: 98. (hereinafter “Subject Property”). Copy of
Deed attached hereto as Exhibit A.
4. On or about January 18, 2007, the prior owner of the Subject Property and borrower,
Rukmin Singh (“Borrower”), took out a mortgage with BankUnited, FSB in the amount of
$392,000.00. Which mortgage was recorded on February 5, 2007 in CRFN#: 2007000066478 in
the Office of the Register of the City of New York in the County of Queens. (hereinafter “Subject
Mortgage”). Copy of Mortgage attached hereto as Exhibit B.
5. Upon information and belief, Borrower defaulted on the Subject Mortgage by failing to
make the installment payment for the month of June 1, 2009.
6. That on or about March 23, 2011, Plaintiff’s predecessor in interest, commenced a
foreclosure action under Index#: 7101/2011, by filing a Summons and Complaint in the Supreme
Court of the State of New York, County of Queens, (“First Action”) whereby Plaintiff
accelerated the entire amount due and owing under the loan. Copy of Summons and Complaint
attached hereto as Exhibit C.
7. That Plaintiff accelerated the loan on March 23, 2011 by filing the summons and
complaint.
8. Thereafter, on or about January 31, 2013, Plaintiff or its predecessor in interest
commenced a second foreclosure action, seeking to foreclose on the subject property under
index#: 2047/2013, by filing a summons and complaint, in the Supreme Court of the State of
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New York, County of Queens, whereby the acceleration of the loan continued to be accelerated.
(“Second Action”). Copy of Summons and Complaint attached hereto as Exhibit D.
9. That at the time the Second Action was filed, the First Action remained an active case, as
it was not yet discontinued by Plaintiff or dismissed by the Court.
10. Thereafter on or about August 7, 2014, Plaintiff or its predecessor in interest discontinued
the First Action. Copy of Discontinuance attached hereto as Exhibit E.
11. On February 16, 2016, Plaintiff’s Second action was dismissed by the Court. Copy of
Dismissal attached hereto as Exhibit F.
12. Thereafter, Plaintiff attempted to vacate the dismissal by motion, which motion was
denied by a Court Order dated April 12, 2019. Copy of Court Order Denying Motion to Vacate
attached hereto as Exhibit G.
13. Plaintiff thereafter attempted to reargue the motion, which motion was also denied by
Court Order entered with the clerk’s office on August 27, 2019. Copy of Court Order Denying
Motion to Reargue attached hereto as Exhibit H.
14. Thereafter, Plaintiff commenced the within action by filing a summons and complaint
attempting for a Third time to foreclose on the Subject Mortgage. Copy of Summons and
Complaint attached hereto as Exhibit I.
15. The loan was originally accelerated on March 23, 2011, which would have resulted in the
statute of limitations expiring on March 23, 2017.
16. One March 23, 2017, the Second Action had already been commenced and dismissed and
therefore the statute of limitations expired on March 23, 2017.
17. If the Court looked at the Second Action as the point of acceleration, January 31, 2013,
the Statute of limitations would have expired on January 31, 2019.
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18. That at all times hereinafter mentioned Plaintiff is and has been the sole fee holder of the
Subject Property, by acquiring the Subject Property at a foreclosure auction of a subordinate
mortgage, by referee’s deed which deed was recorded on January 12, 2015 in the New York City
Register’s Office, County of Queens, under CRFN#:2015000013470.Copy of Deed attached
hereto as Exhibit A.
19. Plaintiff failed to commence a third action after the dismissals until filing the instant
action, nearly three (3) years after the statute of limitations expired.
20. After Plaintiff served its complaint, Cao filed an answer with counterclaims. Copy of
Answer attached hereto as Exhibit J.
21. Plaintiff filed a motion for summary/default judgment and appointment of a referee to
compute which was granted on November 30, 2022 and entered in the office of the Clerk on
December 5, 2022. Copy of the order granting summary/default judgment and appointment of a
referee to compute attached hereto as Exhibit K.
22. On December 15, 2022 Defendant, Cao, filed a notice of appeal of that decision/order
and on August 21, 2023 perfected that appeal. See Confirmation of Filing of Cao/Appellant’s
Brief attached hereto as Exhibit L.
ARGUMENT ON APPEAL
23. Defendant, Cao, appeals the Court’s order/decision of the Plaintiff’s motion for
summary/default judgment and appointment of a referee to compute.
24. In the Court’s memo decision of Plaintiff’s motion for summary/default judgment and
appointment of a referee to compute dated November 30, 2022, the Court found that the action
was not time barred since the mortgagor had filed a voluntary petition for bankruptcy on July 9,
2015 seeking a repayment plan that the Court stated served to renew the limitations period. See
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memo decision attached hereto as Exhibit M.
25. My client, Cao, respectfully argues in his appeal that the Court erred 1) by finding that
the subject mortgage was reaffirmed by a mere filing of a voluntary bankruptcy petition which
then restarted the statute of limitations; and 2) by finding there was sufficient evidence offered in
plaintiff’s motion for summary/default judgment and appointment of a referee to compute to
meet the burden of proof required to show that the subject mortgage was reaffirmed as only the
bankruptcy petition itself was provided by Plaintiff.
26. The subject mortgage was accelerated on March 23, 2011 and a six year statute of
limitations applies to this action pursuant to CPLR §213 which provides “action to be
commenced within 6 years which includes; an action upon a bond or note, the payment of which
is secured by a mortgage upon real property.”
27. . On March 23, 2017, there was no action pending regarding the subject mortgage.
Therefore, the statute of limitations had expired and this litigation was time barred.
28. The mere filing of a bankruptcy petition by the mortgagor without a promise to pay or
even a payment plan should not be considered a reaffirmation of the debt.
29. It should be found that the statute of limitations on the subject mortgage expired and the
Plaintiff’s motion for summary/default judgment and appointment of a referee to compute should
have been denied, the action dismissed and the defendant’s first counterclaim declaring the
mortgage unenforceable should have been granted.
30. In significant part Cao’s appeal is based on the fact that this Court held that the borrower,
not Cao, reaffirmed the debt when she filed two separate bankruptcies, and therefore restarted the
statute of limitations. However, while the borrower did in fact file two separate bankruptcies,
Plaintiff failed to include any supporting documentation establishing that the borrower
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completed a bankruptcy plan. Plaintiff did not file any supporting documentation demonstrating
the borrower’s completed bankruptcy filing because it never occurred. The borrower merely filed
a bankruptcy petition, listed the mortgage and then had the proceeding dismissed by the Court
before any substantive action occurred. It was incumbent upon Plaintiff to establish on summary
judgment that not only was there a bankruptcy filed, but the borrower made a clear and
unequivocal statement acknowledging the debt and her intention to repay the debt.
31. This is no different than a mortgagee commencing a foreclosure action, filing a copy of a
note but failing to provide any further information or documentation establishing that it was in
possession of the Note at the commencement of this action.
32. Accordingly, Cao seeks a stay of this action pending the resolution of the Appeal pending
before the Appellate Division, Second Department. If this Court elects to deny Cao’s cross-
motion, and grants Plaintiff a judgment of foreclosure and sale, there is a strong possibility of
inconsistent results if Cao’s Appeal is granted and this Court’s Summary Judgment Order is
reversed. However, at that point the property will likely have been sold prejudicing other third
parties.
ARGUMENT FOR STAY PURSUANT TO CPLR 2201
33. Pursuant to CPLR 2201 “Except where otherwise prescribed by law, the court in which
an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be
just.”
34. Presently, Cao, is asking the Court to stay this litigation pending a determination of the
appeal filed in this action. This is not a situation where Cao is seeking a stay pending the appeal,
but Cao has not yet perfected. Cao did perfected his appeal on August 21, 2023, but Plaintiff has
failed to file its Respondent’s brief.
35. If the appeal is granted the Plaintiff's motion for summary/default judgment and
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appointment of a referee to compute would be denied and Cao’s counterclaim to declare the
subject mortgage unenforceable granted. This makes Plaintiff’s pending motion for a judgment
of foreclosure and sale moot.
36. “A court has broad discretion to grant a stay in order to avoid the risk of inconsistent
adjudications, application of proof and potential waste of judicial resources’ Matter of Hersh,
198 A.D.3d 773, 775, 156 N.Y.S.3d 62, 64 (2021), see also, Chaplin v. National Grid, 171
A.D.3d 691, 692, quoting Matter of Tenenbaum, 81 A.D.3d 738, 739.
37. The Court should grant this order to show cause to stay this litigation in order to avoid
the waste of judicial resources as the pending motion for judgment of foreclosure and sale would
be moot if the appeal were granted.
38. Additionally, it is just for the Court to order the stay, as if the litigation were to proceed
and a sale occur my client, Cao, would be irreparably harmed since he would be subject to the
loss of the investment he has put into the subject property as the record owner.
39. It is also clear from the record that the Plaintiff has been in no rush to proceed with this
litigation from the inception. Therefore, there would be no harm to Plaintiff should the litigation
be stayed pending the outcome of the filed appeal.
40. No prior application for the relief requested herein has been made.
Wherefore, Defendant, Cao, respectfully requests that this action be stayed pursuant to CPLR
2201 until there is a decision of the pending appeal and for such other and further relief as this
Court deems just, proper and equitable.
Dated: October 20, 2023 Law Office of Henry Graham P.C.
Henry M. Graham, Esq.
___________________________
By: Henry M. Graham, Esq
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FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------X WILMINGTON SAVINGS FUND SOCIETY FSB, D/B/A CHRISTIANA TRUST, AS OWNER TRUSTEE OF THE RESIDENTIAL CREDIT OPPORTUNITIES Index No.: 704249/2020 TRUST III, Affirmation in Support of Plaintiff, Motion for Stay Pending Appeal and in Opposition to vs. Plaintiff’s Motion for a Judgment of Foreclosure and Sale CUONG VI CAO; MOBILE ANESTHESIA ASSOCIATES P.C.; NEW YORK STATE DEPARTMENT OF FINANCE; SLOMINS INC,; CAPITAL ONE BANK USA, NA; NEW YORK STATE DEPARTMENT OF LABOR; WORKERS COMPENSATION BOARD OF THE STATE OF NEW YORK; UNITED STATES OF AMERICA (EASTERN DISTRICT); NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; “JOHN DOE” and “JANE DOE”, said names being fictitious, it being the intention of Plaintiff to designate any and all occupants of the premises being foreclosed herein, Defendant(s) -----------------------------------------------------------------X I, Henry M. Graham, an attorney duly admitted to practice law before the courts of the state of New York, affirms pursuant to CPLR § 2106: 1. I am a partner and principal at the Law Office of Henry Graham, PC, the attorneys for the Defendant Cuong Vi Cao, (hereinafter “Cao”) in the within action. The allegations made herein are based on conversations with Cao, the records maintained by Cao, this office and the records of the County Clerk’s Office, and as such I am fully familiar with the facts and circumstances surrounding this matter. 2. I submit the within affirmation in support of Cao’s Cross-motion to stay this proceeding 1 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 pursuant to CPLR 2201 pending a determination of the Appeal perfected by Cao, together with such other and further relief as this Court deems just, proper and equitable. FACTUAL HISTORY 3. Cao is the owner of the property located at 87-30 111th Street, Richmond Hill, NY 11418, also commonly referred to as Block: 9300 and Lot: 98. (hereinafter “Subject Property”). Copy of Deed attached hereto as Exhibit A. 4. On or about January 18, 2007, the prior owner of the Subject Property and borrower, Rukmin Singh (“Borrower”), took out a mortgage with BankUnited, FSB in the amount of $392,000.00. Which mortgage was recorded on February 5, 2007 in CRFN#: 2007000066478 in the Office of the Register of the City of New York in the County of Queens. (hereinafter “Subject Mortgage”). Copy of Mortgage attached hereto as Exhibit B. 5. Upon information and belief, Borrower defaulted on the Subject Mortgage by failing to make the installment payment for the month of June 1, 2009. 6. That on or about March 23, 2011, Plaintiff’s predecessor in interest, commenced a foreclosure action under Index#: 7101/2011, by filing a Summons and Complaint in the Supreme Court of the State of New York, County of Queens, (“First Action”) whereby Plaintiff accelerated the entire amount due and owing under the loan. Copy of Summons and Complaint attached hereto as Exhibit C. 7. That Plaintiff accelerated the loan on March 23, 2011 by filing the summons and complaint. 8. Thereafter, on or about January 31, 2013, Plaintiff or its predecessor in interest commenced a second foreclosure action, seeking to foreclose on the subject property under index#: 2047/2013, by filing a summons and complaint, in the Supreme Court of the State of 2 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 New York, County of Queens, whereby the acceleration of the loan continued to be accelerated. (“Second Action”). Copy of Summons and Complaint attached hereto as Exhibit D. 9. That at the time the Second Action was filed, the First Action remained an active case, as it was not yet discontinued by Plaintiff or dismissed by the Court. 10. Thereafter on or about August 7, 2014, Plaintiff or its predecessor in interest discontinued the First Action. Copy of Discontinuance attached hereto as Exhibit E. 11. On February 16, 2016, Plaintiff’s Second action was dismissed by the Court. Copy of Dismissal attached hereto as Exhibit F. 12. Thereafter, Plaintiff attempted to vacate the dismissal by motion, which motion was denied by a Court Order dated April 12, 2019. Copy of Court Order Denying Motion to Vacate attached hereto as Exhibit G. 13. Plaintiff thereafter attempted to reargue the motion, which motion was also denied by Court Order entered with the clerk’s office on August 27, 2019. Copy of Court Order Denying Motion to Reargue attached hereto as Exhibit H. 14. Thereafter, Plaintiff commenced the within action by filing a summons and complaint attempting for a Third time to foreclose on the Subject Mortgage. Copy of Summons and Complaint attached hereto as Exhibit I. 15. The loan was originally accelerated on March 23, 2011, which would have resulted in the statute of limitations expiring on March 23, 2017. 16. One March 23, 2017, the Second Action had already been commenced and dismissed and therefore the statute of limitations expired on March 23, 2017. 17. If the Court looked at the Second Action as the point of acceleration, January 31, 2013, the Statute of limitations would have expired on January 31, 2019. 3 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 18. That at all times hereinafter mentioned Plaintiff is and has been the sole fee holder of the Subject Property, by acquiring the Subject Property at a foreclosure auction of a subordinate mortgage, by referee’s deed which deed was recorded on January 12, 2015 in the New York City Register’s Office, County of Queens, under CRFN#:2015000013470.Copy of Deed attached hereto as Exhibit A. 19. Plaintiff failed to commence a third action after the dismissals until filing the instant action, nearly three (3) years after the statute of limitations expired. 20. After Plaintiff served its complaint, Cao filed an answer with counterclaims. Copy of Answer attached hereto as Exhibit J. 21. Plaintiff filed a motion for summary/default judgment and appointment of a referee to compute which was granted on November 30, 2022 and entered in the office of the Clerk on December 5, 2022. Copy of the order granting summary/default judgment and appointment of a referee to compute attached hereto as Exhibit K. 22. On December 15, 2022 Defendant, Cao, filed a notice of appeal of that decision/order and on August 21, 2023 perfected that appeal. See Confirmation of Filing of Cao/Appellant’s Brief attached hereto as Exhibit L. ARGUMENT ON APPEAL 23. Defendant, Cao, appeals the Court’s order/decision of the Plaintiff’s motion for summary/default judgment and appointment of a referee to compute. 24. In the Court’s memo decision of Plaintiff’s motion for summary/default judgment and appointment of a referee to compute dated November 30, 2022, the Court found that the action was not time barred since the mortgagor had filed a voluntary petition for bankruptcy on July 9, 2015 seeking a repayment plan that the Court stated served to renew the limitations period. See 4 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 memo decision attached hereto as Exhibit M. 25. My client, Cao, respectfully argues in his appeal that the Court erred 1) by finding that the subject mortgage was reaffirmed by a mere filing of a voluntary bankruptcy petition which then restarted the statute of limitations; and 2) by finding there was sufficient evidence offered in plaintiff’s motion for summary/default judgment and appointment of a referee to compute to meet the burden of proof required to show that the subject mortgage was reaffirmed as only the bankruptcy petition itself was provided by Plaintiff. 26. The subject mortgage was accelerated on March 23, 2011 and a six year statute of limitations applies to this action pursuant to CPLR §213 which provides “action to be commenced within 6 years which includes; an action upon a bond or note, the payment of which is secured by a mortgage upon real property.” 27. . On March 23, 2017, there was no action pending regarding the subject mortgage. Therefore, the statute of limitations had expired and this litigation was time barred. 28. The mere filing of a bankruptcy petition by the mortgagor without a promise to pay or even a payment plan should not be considered a reaffirmation of the debt. 29. It should be found that the statute of limitations on the subject mortgage expired and the Plaintiff’s motion for summary/default judgment and appointment of a referee to compute should have been denied, the action dismissed and the defendant’s first counterclaim declaring the mortgage unenforceable should have been granted. 30. In significant part Cao’s appeal is based on the fact that this Court held that the borrower, not Cao, reaffirmed the debt when she filed two separate bankruptcies, and therefore restarted the statute of limitations. However, while the borrower did in fact file two separate bankruptcies, Plaintiff failed to include any supporting documentation establishing that the borrower 5 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 completed a bankruptcy plan. Plaintiff did not file any supporting documentation demonstrating the borrower’s completed bankruptcy filing because it never occurred. The borrower merely filed a bankruptcy petition, listed the mortgage and then had the proceeding dismissed by the Court before any substantive action occurred. It was incumbent upon Plaintiff to establish on summary judgment that not only was there a bankruptcy filed, but the borrower made a clear and unequivocal statement acknowledging the debt and her intention to repay the debt. 31. This is no different than a mortgagee commencing a foreclosure action, filing a copy of a note but failing to provide any further information or documentation establishing that it was in possession of the Note at the commencement of this action. 32. Accordingly, Cao seeks a stay of this action pending the resolution of the Appeal pending before the Appellate Division, Second Department. If this Court elects to deny Cao’s cross- motion, and grants Plaintiff a judgment of foreclosure and sale, there is a strong possibility of inconsistent results if Cao’s Appeal is granted and this Court’s Summary Judgment Order is reversed. However, at that point the property will likely have been sold prejudicing other third parties. ARGUMENT FOR STAY PURSUANT TO CPLR 2201 33. Pursuant to CPLR 2201 “Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” 34. Presently, Cao, is asking the Court to stay this litigation pending a determination of the appeal filed in this action. This is not a situation where Cao is seeking a stay pending the appeal, but Cao has not yet perfected. Cao did perfected his appeal on August 21, 2023, but Plaintiff has failed to file its Respondent’s brief. 35. If the appeal is granted the Plaintiff's motion for summary/default judgment and 6 of 7 FILED: QUEENS COUNTY CLERK 11/15/2023 02:08 AM INDEX NO. 704249/2020 NYSCEF DOC. NO. 192 RECEIVED NYSCEF: 11/15/2023 appointment of a referee to compute would be denied and Cao’s counterclaim to declare the subject mortgage unenforceable granted. This makes Plaintiff’s pending motion for a judgment of foreclosure and sale moot. 36. “A court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources’ Matter of Hersh, 198 A.D.3d 773, 775, 156 N.Y.S.3d 62, 64 (2021), see also, Chaplin v. National Grid, 171 A.D.3d 691, 692, quoting Matter of Tenenbaum, 81 A.D.3d 738, 739. 37. The Court should grant this order to show cause to stay this litigation in order to avoid the waste of judicial resources as the pending motion for judgment of foreclosure and sale would be moot if the appeal were granted. 38. Additionally, it is just for the Court to order the stay, as if the litigation were to proceed and a sale occur my client, Cao, would be irreparably harmed since he would be subject to the loss of the investment he has put into the subject property as the record owner. 39. It is also clear from the record that the Plaintiff has been in no rush to proceed with this litigation from the inception. Therefore, there would be no harm to Plaintiff should the litigation be stayed pending the outcome of the filed appeal. 40. No prior application for the relief requested herein has been made. Wherefore, Defendant, Cao, respectfully requests that this action be stayed pursuant to CPLR 2201 until there is a decision of the pending appeal and for such other and further relief as this Court deems just, proper and equitable. Dated: October 20, 2023 Law Office of Henry Graham P.C. Henry M. Graham, Esq. ___________________________ By: Henry M. Graham, Esq 7 of 7