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NYSCEF DOC. NO. 330 RECEIVED NYSCEF: 08/25/2023
Exhibit 1
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
JPMORGAN CHASE BANK, N.A.,
Plaintiff, Index No. 66892/2016
-against- AFFIRMATION OPPOSING
DEFENDANTS' CROSS-MOTION
MARIANA NEHORAYOFF A/K/A MARIANA TO DISMISS, OR FOR HEARING,
E. NEHORAYOFF A/K/A MARIANA STEINER; AND TO VACATE AND FURTHER
ANDRE NEHORAYOFF, et al., SUPPORTING MOTION FOR A
DEFAULT JUDGMENT AND
Defendants. ORDER OF REFERENCE
Motion Sequence Nos. 8 & 9
Return Date: April 19, 2019
Erica R. S. Goldman, pursuant to CPLR 2106 and under the penalties of perjury, affirms as
follows:
I. INTRODUCTION
1. I am an attorney at law, and partner in Akerman LLP, the attorneys of record for
the plaintiff, JPMorgan Chase Bank, N.A., in this foreclosure action and am admitted to practice
law in the State of New York. I have reviewed relevant parts of the loan and litigation files and
am fully familiar with the facts of this case, and submit this affirmation to argue certain points of
law. I also submit this affirmation opposing defendants Mariana and Andre Nehorayoff's cross-
motion to dismiss the action, or for an evidentiary hearing and to vacate their default. The cross-
motion is a belated and improper attempt to reargue and collaterally attack this court's January
15, 2019 Decision and Order striking the Nehorayoffs' answer and affirmative defenses. Their
time to do so has passed and the Decision and Order is law of the case. The cross-motion to
dismiss should be denied. Their affirmative defenses were stricken and all allegations in the
Complaint deemed admitted. Neither the concept of waiver nor an evidentiary hearing change
that result. Further, as the Court already held, the Nehorayoffs are not entitled to vacatur of their
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default because they have not and cannot demonstrate a reasonable excuse for their delay in
complying with discovery obligations nor any meritorious defense. The Cross-Motion should be
denied in its entirety. I also submit this affirmation further supporting Chase's motion for a
default judgment and an order of reference. Chase demonstrated its entitlement to relief. Chase's
motion for a default judgment and an order of reference should be granted. As the Court said: "It
is time for this foreclosure action to advance to its inevitable conclusion."
II. PROCEDURAL SETTING
2. This action was commenced to foreclose a mortgage on the real property
commonly known as 10 Cooper Road, Scarsdale, New York 10583 (the Property). The
Summons, Complaint and Notice of Pendency all were electronically filed on November 10,
2016, in the Office of the Clerk of the County of Westchester, that being the county in which the
mortgaged premises is located. [Dkt. nos. 1-2.]1 Chase filed an Amended Summons, Complaint,
and Notice of Pendency on November 14, 2017. [Dkt. nos. 5-7.]
3. Defendants Mariana and Andre Nehorayoff served and filed an Amended Answer
with Counterclaims on January 24, 2017. [Dkt. no. 27.] Chase served and filed its Reply to
Counterclaims on June 22, 2017. [Dkt. no. 31.]
4. On or about July 21, 2017, Chase served its First Set of Interrogatories and First
Notice to Produce Documents (Demands). A copy of the Demands were annexed as Exhibits H
and I to counsel's affirmation supporting Chase's first Motion to Strike Defendants' Amended
Answer with Counterclaims, dated January 25, 2018. [Dkt. no. 36, Exhs. H & I.]
1
Pursuant to CPLR 2214(c), electronically accessible documents are referenced by docket number on the
NYSCEF system for this case. This Court also can take judicial notice of pleadings and motions, and their
supporting affidavits, already filed in this case. See Allen v. Strough, 301 A.D.2d 11, 18 (2d Dep't 2002)
("In New York, courts may take judicial notice of a record in the same court of either the pending matter
or of some other action" (quoting Sam & Mary Hous. Corp. v. Jo/Sal Mkt. Corp., 100 A.D.2d 901, 903
(2d Dep't 1984), aff'd, 64 N.Y.2d 1107 (1985))).
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5. On or about October 27, 2017, Chase served a CPLR 3124 "good faith" letter
requesting the Nehorayoffs respond to the outstanding Demands. [Dkt. no. 36, Exh. J.]
6. Also on or about October 27, 2017, Chase served its Notice of Deposition to
Defendants Mariana Nehorayoff and Andre Nehorayoff scheduling the Nehorayoffs' depositions
for November 29, 2017. [Dkt. no. 36, Exh. K.] The Nehorayoffs failed to appear. Chase served a
Second Notice of Deposition on December 7, 2017, scheduling the Nehorayoffs' depositions on
January 3, 2018. [Dkt. no. 36, Exh. L.] The Nehorayoffs again failed to appear.
7. Chase filed its first Motion to Strike Defendants' Amended Answer with
Counterclaims on January 25, 2018 (motion seq. no. 1). [Dkt. no. 35.] The Motion to Strike was
initially returnable February 23, 2018, but adjourned by the Court to May 18, 2018. A printout of
the New York State Unified Court System e-Courts Appearance Detail for this action is attached
as Exhibit A.
8. Chase also moved to compel payment of property taxes on February 13, 2018
(motion seq. no. 2). [Dkt. no. 51.] The motion to compel initially was returnable March 9, 2018,
but also adjourned by the Court to May 18, 2018. See Exhibit A.
9. By order to show cause on March 1, 2018, counsel for the Nehorayoffs, Mr. Carl
Person, sought leave to withdraw as counsel (motion seq. no. 3), [dkt. no. 67], which he later
withdrew on April 8, 2018. [Dkt. no. 73.]
10. On May 1, 2018, the Nehorayoffs filed two Cross-Motions to Vacate Default and
to Supplement the Record (motion seq. nos. 4 and 5), asking the Court to permit them to submit
late opposition to Chase's long-pending Motion to Strike Defendants' Amended Answer with
Counterclaims and Motion to Compel Payment of Taxes. [Dkt. nos. 82, 84.] Chase opposed,
[dkt. nos. 87, 90].
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11. By Decision and Order dated July 11, 2018, the Court denied the Nehorayoffs'
motions, and denied in part and granted in part Chase's Motion to Strike Defendants' Amended
Answer with Counterclaims, reasoning:
In this matter, the parties have willfully failed to disclose such information.
Rather than strike the answer and counterclaims, however, which is an extreme
measure . . . the Court instead orders defendants to respond to plaintiff's
document demands within 20 days of receipt of this Decision and Order.
Defendants shall also appear for their depositions within 20 days thereafter . . .
Should defendants fail to comply with these orders, plaintiff may make an
appropriate motion.
[Dkt. no. 100 at 3.] The Court continued:
With respect to defendants' motions seeking to vacate their defaults on plaintiffs'
motion, and to be permitted to submit belated opposition thereto, these motions
are meritless. A motion to vacate a default must demonstrate both a "reasonable
excuse for the default and the existence of a potentially meritorious cause of
action or defense." . . . Plaintiff's motions were returnable on February 21, and
March 9, 2018. Defendants' sole excuse is that there was law office failure, . . .
This argument makes no sense; counsel's motion to withdraw was filed many
weeks after plaintiff's motions had been fully submitted, unopposed. This is
simply not a reasonable excuse. . . . "Since the appellants failed to offer a
reasonable excuse, it is unnecessary to consider whether they sufficiently
demonstrated the existence of a potentially meritorious defense." Both motions
filed by defendants are denied.
(Id. at 3-4) (emphasis in original.) Chase served notice of entry of the Decision and Order on
July 16, 2018. [Dkt. no. 101.]
12. The Nehorayoffs did not respond to discovery within 20 days from entry of the
Decision and Order nor did they sit for depositions within 20 days thereafter. Chase counsel sent
a letter pursuant to CPLR 3126, dated August 9, 2018, reminding the Nehorayoffs of their
discovery obligations and attaching another copy of the Decision and Order. [Dkt. no. 118.] No
response was received.
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13. On August 28, 2018, Chase filed its second motion to strike defendants' amended
answer with counterclaims (motion seq. no. 6), which was served on the Nehorayoffs' counsel by
electronic filing and FedEx the same day. [Dkt. nos. 103, 120.]
14. The Nehorayoffs did not oppose the motion to strike, and it was marked "Fully
Submitted – No Opposition" on September 21, 2018, see Exhibit A.
15. Undersigned counsel substituted in as counsel of record by filing a Consent to
Change of Attorneys Form with the Court on September 20, 2018, and serving the parties with a
copy of the substitution, [dkt. no. 121].
16. Without any explanation, on October 8, 2018, the Nehorayoffs improperly
electronically filed their belated and still-deficient discovery responses on the Court's docket.
[Dkt. nos. 122, 124, 126-127.]
17. Undersigned counsel sent a letter to the Court on October 9, 2018, objecting to the
Nehorayoffs' electronically filed discovery responses. [Dkt. no. 130.] On October 31, 2018, and
November 7, 2018, the Nehorayoffs improperly filed two self-styled "Notice of Compliance"
letters informing the Court they responded to discovery and intended to sit for depositions, [dkt.
nos. 132, 140], to which undersigned counsel responded, [dkt. nos. 133, 146].
18. The Nehorayoffs filed a cross-motion to supplement the record on October 10,
2018 (motion seq. no. 7), which they noticed for November 9, 2018. [Dkt. no. 128.] Chase
opposed the cross-motion as untimely and improper, and because the Nehorayoffs provided no
grounds to vacate their default in opposing Chase's second Motion to Strike. [Dkt. nos. 134-139,
142-145.] The Nehorayoffs did not file any reply.
19. By Decision and Order dated January 15, 2019, and filed January 17, 2019
(Decision and Order), the Court denied the Nehorayoffs' cross-motion in its entirety noting as
to the motion seeking to file opposition belatedly "defendants did not offer any excuse for their
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default, or even attempt to allege that they have a potentially meritorious defense . . . It is time
for this foreclosure action to advance to its inevitable conclusion[.]" [Dkt. No. 147 at 4.] The
Court pointed out "defendants' failure to comply with the Court's [discovery] order is willful and
contumacious. Indeed, defendants have not even deigned to bother submitting an excuse for their
blatant disregard of the Court's order." Id. at 3. In denying the cross-motion the Court
acknowledged the Nehorayoffs' belated attempt to respond to outstanding discovery. Id. at 2. A
true copy of the Decision and Order is attached as Exhibit B.
20. The Decision and Order also granted Chase's second Motion to Strike in its
entirety and "strikes defendants' answer with counterclaims, with prejudice. 'A defendant whose
answer is stricken as a result of a default admits all traversable allegations in the complaint,
including the basic allegation of liability, but does not admit the plaintiff's conclusion as to
damages" and directed Chase to "take all steps necessary to enable [the referral to a referee to
calculate damages] to proceed immediately." Id. at 3-4.
21. Chase served notice of entry of the Decision and Order on January 17, 2019, [dkt.
no. 148], and the matter was transferred back to foreclosure counsel, Fein, Such & Crane, LLP,
on February 8, 2019, [dkt. no. 149], to quickly proceed with foreclosure as expressly directed by
the Court. The Nehorayoffs neither moved to reargue nor appealed. See Exhibit A.
22. Chase filed the instant motion for an order of reference and default judgment on
March 20, 2019 (motion seq. no. 8) (Motion), returnable on April 19, 2019. [Dkt. no. 151.] The
Nehorayoffs filed the instant cross-motion (motion seq. no. 9) on April 10, 2019 (Cross-
Motion). [Dkt. no. 173.]
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III. ARGUMENT
A. THE CROSS-MOTION SHOULD BE DENIED IN ITS ENTIRETY.
23. The Decision and Order granted in its entirety Chase's Motion to Strike the
Nehorayoffs' answer with counterclaims with prejudice. [Dkt. no. 147.] "A defendant whose
answer is stricken as a result of a default admits all traversable allegations in the complaint,
including the basic allegation of liability[.]" Id. at 3-4. Chase served and filed notice of entry of
the Decision and Order on January 17, 2019. [Dkt. no. 148.] The Nehorayoffs neither timely
moved to reargue their cross-motion to supplement (motion seq. no. 7), nor timely filed a notice
of appeal. Their time to do so has expired. See CPLR 2221(d)(3); 5513(a).
24. The Nehorayoffs instead seek improper and untimely retroactive relief from the
Decision and Order through the instant motion (motion seq. no. 9). The Nehorayoffs' game
playing and exploitation of judicial resources is not new. It continues a demonstrable pattern of
blatant disregard for the Court and its rules. When Chase first moved to strike the Nehorayoffs'
pleading as a discovery sanction (motion seq. no. 3), [dkt. no. 35], they did not timely oppose.
After the return date, they cross-moved to vacate their default and file belated opposition, and
cross-moved to supplement the record (motion seq. nos. 4 & 5). [Dkt. nos. 82, 84.] They were
denied. [Dkt. no. 100.] Chase again moved to strike the Nehorayoffs' pleading for their continued
failure to comply with discovery (motion seq. no. 6). [Dkt. no. 104.] It was marked fully
submitted, unopposed. The Nehorayoffs again filed a late and improper cross-motion to vacate
and supplement the record, [dkt. no. 128]. The Court likewise denied their cross-motion,
explicitly calling attention to the Nehorayoffs' behavior: "defendants' failure to comply with the
Court's [discovery] order is willful and contumacious. Indeed, defendants have not even deigned
to bother submitting an excuse for their blatant disregard of the Court's order." Decision and
Order at 3. The Court directed Chase to proceed to an order of reference "immediately." It did.
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25. The Nehorayoffs have again cross-moved ostensibly to dismiss relying on
affirmative defenses already stricken by the court and citing dubious grounds for vacating their
default in the alternative. Despite how it is styled, the cross-motion seeks reargument of the
Court's Decision and Order. This Cross-Motion should be denied in its entirety and Chase's
motion for an order of reference and fixing defendants' default should be granted.
a. The Nehorayoffs are in Default.
26. The Cross-Motion purports to seek dismissal on grounds Chase failed to comply
with certain conditions precedent to foreclosure of sending them contractual and statutorily
required notices. (Memo of Law at 2-9.) By virtue of the Decision and Order, the Nehorayoffs'
answer, affirmative defenses, and counterclaims all were stricken and dismissed with prejudice;
they cannot now be asserted as grounds on which to seek relief from the Court. This is because
the practical effect of the Decision and Order is all allegations in Chase's complaint are deemed
admitted, including liability. See Decision and Order at 3-4. The Nehorayoffs did not timely
challenge that finding through proper channels. They are precluded from doing so now.
27. That the Nehorayoffs' defenses and counterclaims are stricken and dismissed with
prejudice is law of the case and cannot be revisited. See Kaminsky v. Wilson, 150 A.D.3d 1094,
1095-96 (2d Dep't 2017) ("The doctrine of law of the case seeks to prevent relitigation of issues
already determined at an earlier stage of the action, and thus applies to bind courts of co-ordinate
jurisdiction to determinations which previously resolved such issues on the merits."); Capital
One, N.A. v. Karp, 2017 N.Y. Slip Op. 27209, at *2 (Sup. Ct. Westchester Cnty. June 22, 2017)
("Initially, this Court previously found that plaintiff made the necessary initial showing with its
submission of 'the mortgage, the unpaid note, and evidence of the mortgagor's default,' and
rejecting as a matter of law, as unsubstantiated and conclusory, Karp's asserted affirmative
defenses. That determination is the law of the case and Karp's re-asserted affirmative defenses
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will not be revisited here." (internal citation omitted)). The parties here already litigated in
multiple rounds of motion practice the issue of whether the Nehorayoffs' answer—including all
affirmative defenses—should have been stricken. The Court answered in the affirmative.
28. Even if law of the case did not bar the Nehorayoffs from seeking dismissal for
Chase's alleged failure to comply with conditions precedent, their argument still fails. The
Nehorayoffs claim Chase did not comply with paragraph 21(B) of their mortgage nor with Real
Property Actions and Proceedings Law § 1304. (Memo of Law at 2-9.) They are mistaken.
29. As an initial matter, the Nehorayoffs appear confused as to which notice is which,
arguing language in the RPAPL § 1304 notice is actually the Paragraph 21(B) notice. (Id. at 2-3.)
The Affidavit of Holly Freedman, Vice President, JPMorgan Chase Bank, dated March 14, 2019,
attests to Ms. Freedman's personal knowledge of and familiarity with Chase's record-keeping
practices. (Freedman Aff. ⁋ 4). Ms. Freedman further attests to the mailing of a notice of default
dated August 8, 2016, to the Nehorayoffs at the property address, where they still reside. (Id. ⁋
8.) Ms. Freedman then attests to mailing the 90-day pre-foreclosure notices pursuant to RPAPL §
1304, to the Nehorayoffs at the property address by certified and regular mail. (Id. ⁋ 9.) Copies
of the 90-day notices are attached to Ms. Freedman's affidavit. (Id., Ex. A.)
30. The Nehorayoffs suggest their RPAPL § 1304 defense is a "super defense" that
can be raised at any time in the litigation, and presumably here, despite the Court's holding their
answer and defenses stricken. The case relied upon by the Nehorayoffs to support this theory
actually states the opposite. In CitiMortgage, Inc. v. Pembleton, 39 Misc. 3d 454, 462 (Sup. Ct.
Suffolk Cnty. 2013), the Supreme Court clarified "a party who has timely appeared may raise the
absence of or defective notice defense on motion, even though it was not included in an answer
nor made the subject of a pre-answer motion to dismiss. Since the notice defense remains viable
during the pendency of the action it may be raised by a non-defaulting party any time prior to
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judgment." (Id.) (emphasis added). The Nehorayoffs are in default; all allegations contained in
Chase's complaint—including compliance will all conditions precedent, see Compl. ⁋ 9,—have
been deemed admitted.
b. No Grounds Exist to Vacate the Nehorayoffs' Default.
31. The notice of motion purports to seek relief under CPLR 5015(a)(1), (3), (b) on
grounds no default existed under a "waiver" theory—Chase allegedly waived any default two
months before the Court issued its Decision and Order. (Notice of Motion at 2.) As an initial
matter, the Nehorayoffs' memo of law does not support or even address the CPLR 5015 relief.
i. There Was No Waiver.
32. Relying on decades-old case law, the Nehorayoffs argue the common law concept
of waiver somehow entitles them to relief from their self-imposed default. (Cross-Motion at 9-
11.) The cases they rely on are ancient and inapposite. In A.B. Murray Co. v. Lidgerwood Mfg.
Co., 241 N.Y. 455 (1926), and Bernhardt Lumber Co. v. Metzloff, 113 Misc. 288 (Erie Cnty.
1920), those courts held one party's breach or failure to perform under a contract could be
"waived" by the other party's action (or inaction). Id.
33. Here, there was no contract, only the Nehorayoffs' belated and improper motions
and noncompliance with discovery rules and orders. The Nehorayoffs appear to argue because
the parties were discussing potential settlement and future deposition dates Chase waived the
Nehorayoffs' discovery default. (Person Aff. at 11-12; Memo of Law at 9-11.) But Chase was in
no position to waive anything—the default was court-ordered. The Court ordered the
Nehorayoffs to comply with outstanding discovery by a date certain, dkt. no. 100. They did not.
Chase renewed its motion to strike their answer as a discovery sanction. That renewed motion
was marked fully submitted, no opposition. Before the Court could decide the motion, however,
the Nehorayoffs improperly filed a cross-motion to vacate their default and supplement the
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record with discovery responses they impermissibly e-filed to moot Chase's fully submitted
motion. The Court denied the cross-motion and granted Chase's motion and issued the January
15, 2019 Decision and Order.
34. The Nehorayoffs' counsel intimates Chase's attorneys, and undersigned counsel
specifically, concealed from the Court and foreclosure counsel, Fein Such, that the Nehorayoffs
had belatedly produced documents and were working to set depositions dates. (Person Aff. at 16-
19.) Owing to the Nehorayoffs' improper e-filing of various self-styled letters, informational
statements, notices of compliance, and discovery responses, the Nehorayoffs' attempt at
compliance with production and deposition testimony was public record. [See dkt. nos. 122-127,
131-132, 104-141.]
35. The Person Affirmation then draws the unsubstantiated conclusion had the
Nehorayoffs managed to sit for depositions between the time Chase's motion to strike was fully
submitted without opposition, but before the Court rendered its Decision and Order, their default
would have been cured: "Defendants had done all they could do by November 20, 2018, and had
thereby cured their discovery default on such date." This is not true. The Nehorayoffs had many
opportunities to comply with discovery rules and even a court order. The Nehorayoffs repeatedly
ignored them all. Only after they failed to oppose Chase's second motion to strike in October
2019, and with the specter of discovery sanctions looming, did the Nehorayoffs suddenly feel
like playing by the rules.
36. The Court had access to the Nehorayoffs' e-filed discovery responses and also two
"notices of compliance" and an "information statement" before issuing the Decision and Order.
In denying the Nehorayoffs' last cross-motion (motion seq. no. 7), the Court acknowledged the
Nehorayoffs "purported to respond to some of the discovery demands and suggest deposition
dates in October and November 2018[,]" id. at 2. It was irrelevant, because the Court found
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"defendants did not offer any excuse for their default, or even attempt to allege that they have a
potentially meritorious defense . . . defendants' failure to comply with the Court's [discovery]
order is willful and contumacious. Indeed, defendants have not even deigned to bother
submitting an excuse for their blatant disregard of the Court's order." Id. at 3-4. The Court further
found the Nehorayoffs "did not offer any excuse for their default, or even attempt to allege that
they have a potentially meritorious defense." Decision and Order at 4.
37. The Nehorayoffs' also argue the substitution of counsel after the Decision and
Order issued was done to conceal the so-called "waiver" or because undersigned counsel could
not in good faith make that motion; this is nonsense. Once the Court struck the Nehorayoffs'
answer and dismissed the counterclaims, the matter was referred back to Fein, Such to proceed in
obtaining the order of reference and final judgment, as is customary in foreclosure matters. Fein
Such substituted in as counsel of record for Chase and filed the instant Motion. There is nothing
nefarious about substituting counsel; any suggestion otherwise is disingenuous at best.2
38. For these reasons, relief pursuant to a "waiver" theory under CPLR 5015(a)(1) or
(3) should be denied. Under CPLR 5015(b), a Court can grant relief from judgment or order on
the basis of a "stipulation of consent to such vacatur by the parties" but no stipulation exists here.
ii. An Evidentiary Hearing is Unwarranted.
39. To prove their "waiver" theory, the Nehorayoffs seek an evidentiary hearing to
call witnesses to "testify on facts showing that the Defendants were not in default as of the date
of the Decision and Order[.]" (Notice of Motion at 2.) The Person Affirmation explains
"Defendants seek an evidentiary hearing on the issue of the existence of the Waiver, and whether
2
22 NYCRR 130-1.1 provides the court may impose sanctions where a party engages in "frivolous
conduct." The statute defines frivolous conduct: "(1) it is completely without merit in law and cannot be
supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is
undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously
injure another; or (3) it asserts material factual statements that are false." (emphasis added.)
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information about the Waiver was intentionally kept away from Fein, Such[.]" (Person Aff. ¶
20.) All the alleged facts in the Person Affirmation regarding the Nehorayoffs' alleged
compliance with discovery post-date the submission of Chase's unopposed second motion to
strike. The memo of law does not mention this relief, see Memo of Law, so it is impossible to tell
on what legal grounds the Nehorayoffs would be entitled to such relief.
40. In its Decision and Order, the Court already considered whether the Nehorayoffs'
belated attempt to moot Chase's second motion to strike through its cross-motion to supplement
with late discovery responses was relevant. The Court held it was not, and should likewise rule
now. Instead of allowing this matter to "advance to its inevitable conclusion" as is the Court's
wont (Decision and Order at 4), the Nehorayoffs ask the Court to expend still more judicial
resources conducting an evidentiary hearing because they decided—once more—to blatantly
disregard filing appropriate avenues for relief. No evidence or testimony can change that fact.
iii. The Nehorayoffs' Default Is Not Excusable.
1. There is No Reasonable Excuse for Delay.
41. The Nehorayoffs alternatively seek relief under CPLR 5015(a)(1), (3), to vacate
the Decision and Order itself and dismiss under CPLR 3211(a)(5) on grounds the statute of
limitations ran. A party seeking to vacate its default under CPLR 5015 (a)(1) must demonstrate
both: (1) a reasonable excuse for their delay; and (2) a meritorious cause of action or defense.
Thomas v. Avalon Gardens Rehab. & Health Care Ctr., 107 A.D.3d 694 (2d Dep't 2013).
42. As an initial matter the Court already ruled in the Decision and Order the
Nehorayoffs failed to provide a reasonable excuse for their delay, Decision and Order at 4. The
Nehorayoffs did not move to reargue or appeal. The Court's holding is law of the case and cannot
be revisted. See Kaminsky v. Wilson, 150 A.D.3d at 1095-96 Capital One, N.A. v. Karp, 2017
N.Y. Slip Op. 27209, at *2. This is dispositive and the Court need look no further.
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43. Should the Court nevertheless consider anew whether the Nehorayoffs have
demonstrated a reasonable excuse for their delay, the procedural history is instructive. On their
first cross-motion for leave to file belated opposition to Chase's first motion to strike, the
Nehorayoffs attempted to justify their delay by arguing generic law firm failure. [Dkt. no. 83 ⁋
3.] In an order granting, in part, Chase's first motion to compel, the Court explained their "sole
excuse is that there was law office failure, 'because of a delay in making a motion to withdraw as
counsel, which motion (by way of order to show cause returnable on April 9, 2018) was
withdrawn on April 10, 2018 . . .' This argument makes no sense; counsel's motion to withdraw
was filed may weeks after plaintiff's motions has been fully submitted, unopposed. This is
simply not a reasonable excuse." [Dkt. no. 100 at 4.]
44. On the next cross-motion (motion seq. no. 6), the Nehorayoffs offered nothing.
[Dkt. no. 128.] The Nehorayoffs were served with the second motion to strike electronically and
by overnight mail. At no point did they seek additional time to respond. They did not claim non-
receipt of the papers or that they otherwise were unable to oppose the motion due to law office
failure or even just plain inadvertence. The Decision and Order held "defendants did not offer
any excuse for their default, or even attempt to allege that they have a potentially meritorious
defense . . . It is time for this foreclosure action to advance to its inevitable conclusion[.]" [Dkt.
No. 147 at 4.] The Court pointed out "defendants' failure to comply with the Court's [discovery]
order is willful and contumacious. Indeed, defendants have not even deigned to both submitting
an excuse for their blatant disregard of the Court's order." Id. at 3.
45. This Cross-Motion—like the last two—is devoid of any excuse for their delay in
complying with discovery obligations, which led to their default. Because the Nehorayoffs fail to
offer a reasonable excuse for their failure to timely comply with the court's order compelling
discovery, which led to their default, the Court need look no further; the Cross-Motion under
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CPLR 5015(a)(1) should be denied. HSBC Bank USA, Nat. Ass'n. v. Lafazan, 115 A.D.3d 647,
648 (2d Dep't 2014) (holding because defendants "failed to offer a reasonable excuse, it is
unnecessary to consider whether they sufficiently demonstrated the existence of a potentially
meritorious defense."); U.S. Bank, N.A. v. Stewart, 97 A.D.3d 740 (2d Dep't 2012) ("Since the
defendants failed to demonstrate a reasonable excuse for their default, it was unnecessary to
determine whether they demonstrated the existence of a potentially meritorious defense") (citing
Tribeca Lending Corp. v. Correa, 92 AD 3d 770, 771 (2d Dep't 2012); Wells Fargo Bank, N.A.
v. Cervini, 84 AD 3d 789, 790 (2d Dep't 2011).)
2. There is No Meritorious Defense.
46. The Nehorayoffs have not demonstrated the existence of a meritorious defense.
Here—just as on their last cross-motion, [dkt. no. 128]—, the Nehorayoffs argue the statute of
limitations is a meritorious defense barring Chase's foreclosure action. Chase addressed the
merits of the Nehorayoffs' statute of limitations defense already, [dkt. nos. 134-139, 142-145],
and incorporates by reference those arguments as if fully set forth herein.3
iv. There Was No Fraud.
47. The Nehorayoffs also seek relief under CPLR 5015(a)(3). This provision provides
relief from judgment or order due to "fraud, misrepresentation, or other misconduct of an adverse
party." CPLR 5015(3). The Nehorayoffs appear to argue Chase counsel's actions detailed above,
Section III.A.b.i, constitute a fraud such that they are entitled to relief from the Decision and
3
In opposition to the Nehorayoffs' cross-motion to supplement the record, [dkt. no. 128], Chase argued
the six-year statute of limitations on foreclosure could not have run because Chase revoked any
acceleration through service on the Nehorayoffs of a de-acceleration letter on January 21, 2016. [Dkt. no.
134, ⁋⁋ 34-36, Ex. E; dkt. no. 142-143, Exs. A-B.] Nowhere in the instant Cross-Motion do the
Nehorayoffs even address this argument despite it being part of the record. Even if the Court were to
somehow find the Nehorayoffs demonstrated a reasonable excuse for their delay, and a meritorious
defense, at a bare minimum, the de-acceleration letter would create and issue of fact precluding dismissal
on this motion.
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Order. The Nehorayoffs have not alleged whether the supposed fraud is "intrinsic" or "extrinsic."
See Oppenheimer v. Westcott, 47 N.Y.2d 595, 603 (1979).
48. Extrinsic fraud is "a fraud practiced in obtaining a judgment such that a party may
have been prevented from fully and fairly litigating the matter." Bank of N.Y. v. Lagakos, 27
A.D.3d 678, 679 (2d Dep't 2006) (quoting Shaw v. Shaw, 97 A.D.2d 403 (2d Dep't 1983)).
Whereas intrinsic fraud essentially means the allegations are false. E.g., Bank of N.Y. v.
Stradford, 55 A.D.3d 765, 766 (2d Dep't 2008).
49. Assuming for purposes of this motion the Nehorayoffs mean to allege "extrinsic"
fraud, it is unpersuasive. To succeed on a CPLR 5015(a)(3) motion based on extrinsic fraud, a
movant must show something was done that prevented the movant from having a full trial, such
as a false representation the action was discontinued or that certain relief would not be certain in
reliance upon which a defendant defaults. See Siegel & Gleason, PRACTICE COMMENTARIES,
MCKINNEY'S CONS LAWS OF NEW YORK, Book 7B, CPLR 5015:8 (2007). The Nehorayoffs
present nothing of the sort. The Nehorayoffs and their counsel alone caused their default by
repeatedly refusing to comply with discovery or timely oppose motions seeking discovery
sanctions. They then availed themselves of the court's e-file system to alert the Court to the very
behavior they now claim supports relief under Section 5015(a)(3). The Cross-Motion should be
denied in its entirety with prejudice.
B. A DEFAULT JUDGMENT AND ORDER OF REFERENCE SHOULD ISSUE.
50. Attached to the Affirmation of Mehmet Basoglu of Fein, Such & Crane, LLP, are
Exhibits A through Q, consisting of the Certificate of Merit, Note, Mortgage, Assignments,
Notice of Default, RPAPL § 1304 90-Day Notice, the pleadings, affidavits of service on
defendants, including the affidavit of service by mail pursuant to CPLR 3215(g), Chase's
affidavit of merit, an affirmation of regularity, and the Court's Decision and Order striking the
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Nehorayoffs' answer and dismissing the counterclaims with prejudice. [Dkt. nos. 151-172.]
Chase has submitted all required proofs and demonstrated its entitlement to a default judgment
and an order of reference. Its motion should be granted in its entirety.
51. The Nehorayoffs purport to oppose Chase's motion but it is unclear how. See
Memo of Law. There are no grounds on which they can oppose. Any attempt to now assert the
affirmative defenses of Chase's failure to comply with a condition precedent, see supra Section
III.A.a, necessarily fails. As explained above, the Nehorayoffs are in default; the Court struck
their affirmative defenses and dismissed their counterclaims with prejudice. This means all the
allegations in the Complaint are deemed admitted. See Compl. ⁋ 9 (alleging "Plaintiff has
complied with all applicable provisions of the RPAPL Section 1304".)
52. In PHH Mortg. Corp. v. Celestin, 130 A.D.3d 703 (2d Dep't 2015), the Appellate
Division, Second Department held defendant was precluded from raising the issue of plaintiff's
compliance with RPAPL § 1304 because defendant was in default and that branch of his cross-
motion under CPLR 5015(a) to vacate the default was denied and he did not appeal. "Since the
defendant has failed to establish that he is entitled
Preview
FILED: WESTCHESTER COUNTY CLERK 08/25/2023 01:56 PM INDEX NO. 66892/2016 NYSCEF DOC. NO. 330 RECEIVED NYSCEF: 08/25/2023 Exhibit 1 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER JPMORGAN CHASE BANK, N.A., Plaintiff, Index No. 66892/2016 -against- AFFIRMATION OPPOSING DEFENDANTS' CROSS-MOTION MARIANA NEHORAYOFF A/K/A MARIANA TO DISMISS, OR FOR HEARING, E. NEHORAYOFF A/K/A MARIANA STEINER; AND TO VACATE AND FURTHER ANDRE NEHORAYOFF, et al., SUPPORTING MOTION FOR A DEFAULT JUDGMENT AND Defendants. ORDER OF REFERENCE Motion Sequence Nos. 8 & 9 Return Date: April 19, 2019 Erica R. S. Goldman, pursuant to CPLR 2106 and under the penalties of perjury, affirms as follows: I. INTRODUCTION 1. I am an attorney at law, and partner in Akerman LLP, the attorneys of record for the plaintiff, JPMorgan Chase Bank, N.A., in this foreclosure action and am admitted to practice law in the State of New York. I have reviewed relevant parts of the loan and litigation files and am fully familiar with the facts of this case, and submit this affirmation to argue certain points of law. I also submit this affirmation opposing defendants Mariana and Andre Nehorayoff's cross- motion to dismiss the action, or for an evidentiary hearing and to vacate their default. The cross- motion is a belated and improper attempt to reargue and collaterally attack this court's January 15, 2019 Decision and Order striking the Nehorayoffs' answer and affirmative defenses. Their time to do so has passed and the Decision and Order is law of the case. The cross-motion to dismiss should be denied. Their affirmative defenses were stricken and all allegations in the Complaint deemed admitted. Neither the concept of waiver nor an evidentiary hearing change that result. Further, as the Court already held, the Nehorayoffs are not entitled to vacatur of their 1 48645354;1 1 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 default because they have not and cannot demonstrate a reasonable excuse for their delay in complying with discovery obligations nor any meritorious defense. The Cross-Motion should be denied in its entirety. I also submit this affirmation further supporting Chase's motion for a default judgment and an order of reference. Chase demonstrated its entitlement to relief. Chase's motion for a default judgment and an order of reference should be granted. As the Court said: "It is time for this foreclosure action to advance to its inevitable conclusion." II. PROCEDURAL SETTING 2. This action was commenced to foreclose a mortgage on the real property commonly known as 10 Cooper Road, Scarsdale, New York 10583 (the Property). The Summons, Complaint and Notice of Pendency all were electronically filed on November 10, 2016, in the Office of the Clerk of the County of Westchester, that being the county in which the mortgaged premises is located. [Dkt. nos. 1-2.]1 Chase filed an Amended Summons, Complaint, and Notice of Pendency on November 14, 2017. [Dkt. nos. 5-7.] 3. Defendants Mariana and Andre Nehorayoff served and filed an Amended Answer with Counterclaims on January 24, 2017. [Dkt. no. 27.] Chase served and filed its Reply to Counterclaims on June 22, 2017. [Dkt. no. 31.] 4. On or about July 21, 2017, Chase served its First Set of Interrogatories and First Notice to Produce Documents (Demands). A copy of the Demands were annexed as Exhibits H and I to counsel's affirmation supporting Chase's first Motion to Strike Defendants' Amended Answer with Counterclaims, dated January 25, 2018. [Dkt. no. 36, Exhs. H & I.] 1 Pursuant to CPLR 2214(c), electronically accessible documents are referenced by docket number on the NYSCEF system for this case. This Court also can take judicial notice of pleadings and motions, and their supporting affidavits, already filed in this case. See Allen v. Strough, 301 A.D.2d 11, 18 (2d Dep't 2002) ("In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action" (quoting Sam & Mary Hous. Corp. v. Jo/Sal Mkt. Corp., 100 A.D.2d 901, 903 (2d Dep't 1984), aff'd, 64 N.Y.2d 1107 (1985))). 2 48645354;1 2 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 5. On or about October 27, 2017, Chase served a CPLR 3124 "good faith" letter requesting the Nehorayoffs respond to the outstanding Demands. [Dkt. no. 36, Exh. J.] 6. Also on or about October 27, 2017, Chase served its Notice of Deposition to Defendants Mariana Nehorayoff and Andre Nehorayoff scheduling the Nehorayoffs' depositions for November 29, 2017. [Dkt. no. 36, Exh. K.] The Nehorayoffs failed to appear. Chase served a Second Notice of Deposition on December 7, 2017, scheduling the Nehorayoffs' depositions on January 3, 2018. [Dkt. no. 36, Exh. L.] The Nehorayoffs again failed to appear. 7. Chase filed its first Motion to Strike Defendants' Amended Answer with Counterclaims on January 25, 2018 (motion seq. no. 1). [Dkt. no. 35.] The Motion to Strike was initially returnable February 23, 2018, but adjourned by the Court to May 18, 2018. A printout of the New York State Unified Court System e-Courts Appearance Detail for this action is attached as Exhibit A. 8. Chase also moved to compel payment of property taxes on February 13, 2018 (motion seq. no. 2). [Dkt. no. 51.] The motion to compel initially was returnable March 9, 2018, but also adjourned by the Court to May 18, 2018. See Exhibit A. 9. By order to show cause on March 1, 2018, counsel for the Nehorayoffs, Mr. Carl Person, sought leave to withdraw as counsel (motion seq. no. 3), [dkt. no. 67], which he later withdrew on April 8, 2018. [Dkt. no. 73.] 10. On May 1, 2018, the Nehorayoffs filed two Cross-Motions to Vacate Default and to Supplement the Record (motion seq. nos. 4 and 5), asking the Court to permit them to submit late opposition to Chase's long-pending Motion to Strike Defendants' Amended Answer with Counterclaims and Motion to Compel Payment of Taxes. [Dkt. nos. 82, 84.] Chase opposed, [dkt. nos. 87, 90]. 3 48645354;1 3 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 11. By Decision and Order dated July 11, 2018, the Court denied the Nehorayoffs' motions, and denied in part and granted in part Chase's Motion to Strike Defendants' Amended Answer with Counterclaims, reasoning: In this matter, the parties have willfully failed to disclose such information. Rather than strike the answer and counterclaims, however, which is an extreme measure . . . the Court instead orders defendants to respond to plaintiff's document demands within 20 days of receipt of this Decision and Order. Defendants shall also appear for their depositions within 20 days thereafter . . . Should defendants fail to comply with these orders, plaintiff may make an appropriate motion. [Dkt. no. 100 at 3.] The Court continued: With respect to defendants' motions seeking to vacate their defaults on plaintiffs' motion, and to be permitted to submit belated opposition thereto, these motions are meritless. A motion to vacate a default must demonstrate both a "reasonable excuse for the default and the existence of a potentially meritorious cause of action or defense." . . . Plaintiff's motions were returnable on February 21, and March 9, 2018. Defendants' sole excuse is that there was law office failure, . . . This argument makes no sense; counsel's motion to withdraw was filed many weeks after plaintiff's motions had been fully submitted, unopposed. This is simply not a reasonable excuse. . . . "Since the appellants failed to offer a reasonable excuse, it is unnecessary to consider whether they sufficiently demonstrated the existence of a potentially meritorious defense." Both motions filed by defendants are denied. (Id. at 3-4) (emphasis in original.) Chase served notice of entry of the Decision and Order on July 16, 2018. [Dkt. no. 101.] 12. The Nehorayoffs did not respond to discovery within 20 days from entry of the Decision and Order nor did they sit for depositions within 20 days thereafter. Chase counsel sent a letter pursuant to CPLR 3126, dated August 9, 2018, reminding the Nehorayoffs of their discovery obligations and attaching another copy of the Decision and Order. [Dkt. no. 118.] No response was received. 4 48645354;1 4 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 13. On August 28, 2018, Chase filed its second motion to strike defendants' amended answer with counterclaims (motion seq. no. 6), which was served on the Nehorayoffs' counsel by electronic filing and FedEx the same day. [Dkt. nos. 103, 120.] 14. The Nehorayoffs did not oppose the motion to strike, and it was marked "Fully Submitted – No Opposition" on September 21, 2018, see Exhibit A. 15. Undersigned counsel substituted in as counsel of record by filing a Consent to Change of Attorneys Form with the Court on September 20, 2018, and serving the parties with a copy of the substitution, [dkt. no. 121]. 16. Without any explanation, on October 8, 2018, the Nehorayoffs improperly electronically filed their belated and still-deficient discovery responses on the Court's docket. [Dkt. nos. 122, 124, 126-127.] 17. Undersigned counsel sent a letter to the Court on October 9, 2018, objecting to the Nehorayoffs' electronically filed discovery responses. [Dkt. no. 130.] On October 31, 2018, and November 7, 2018, the Nehorayoffs improperly filed two self-styled "Notice of Compliance" letters informing the Court they responded to discovery and intended to sit for depositions, [dkt. nos. 132, 140], to which undersigned counsel responded, [dkt. nos. 133, 146]. 18. The Nehorayoffs filed a cross-motion to supplement the record on October 10, 2018 (motion seq. no. 7), which they noticed for November 9, 2018. [Dkt. no. 128.] Chase opposed the cross-motion as untimely and improper, and because the Nehorayoffs provided no grounds to vacate their default in opposing Chase's second Motion to Strike. [Dkt. nos. 134-139, 142-145.] The Nehorayoffs did not file any reply. 19. By Decision and Order dated January 15, 2019, and filed January 17, 2019 (Decision and Order), the Court denied the Nehorayoffs' cross-motion in its entirety noting as to the motion seeking to file opposition belatedly "defendants did not offer any excuse for their 5 48645354;1 5 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 default, or even attempt to allege that they have a potentially meritorious defense . . . It is time for this foreclosure action to advance to its inevitable conclusion[.]" [Dkt. No. 147 at 4.] The Court pointed out "defendants' failure to comply with the Court's [discovery] order is willful and contumacious. Indeed, defendants have not even deigned to bother submitting an excuse for their blatant disregard of the Court's order." Id. at 3. In denying the cross-motion the Court acknowledged the Nehorayoffs' belated attempt to respond to outstanding discovery. Id. at 2. A true copy of the Decision and Order is attached as Exhibit B. 20. The Decision and Order also granted Chase's second Motion to Strike in its entirety and "strikes defendants' answer with counterclaims, with prejudice. 'A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff's conclusion as to damages" and directed Chase to "take all steps necessary to enable [the referral to a referee to calculate damages] to proceed immediately." Id. at 3-4. 21. Chase served notice of entry of the Decision and Order on January 17, 2019, [dkt. no. 148], and the matter was transferred back to foreclosure counsel, Fein, Such & Crane, LLP, on February 8, 2019, [dkt. no. 149], to quickly proceed with foreclosure as expressly directed by the Court. The Nehorayoffs neither moved to reargue nor appealed. See Exhibit A. 22. Chase filed the instant motion for an order of reference and default judgment on March 20, 2019 (motion seq. no. 8) (Motion), returnable on April 19, 2019. [Dkt. no. 151.] The Nehorayoffs filed the instant cross-motion (motion seq. no. 9) on April 10, 2019 (Cross- Motion). [Dkt. no. 173.] 6 48645354;1 6 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 III. ARGUMENT A. THE CROSS-MOTION SHOULD BE DENIED IN ITS ENTIRETY. 23. The Decision and Order granted in its entirety Chase's Motion to Strike the Nehorayoffs' answer with counterclaims with prejudice. [Dkt. no. 147.] "A defendant whose answer is stricken as a result of a default admits all traversable allegations in the complaint, including the basic allegation of liability[.]" Id. at 3-4. Chase served and filed notice of entry of the Decision and Order on January 17, 2019. [Dkt. no. 148.] The Nehorayoffs neither timely moved to reargue their cross-motion to supplement (motion seq. no. 7), nor timely filed a notice of appeal. Their time to do so has expired. See CPLR 2221(d)(3); 5513(a). 24. The Nehorayoffs instead seek improper and untimely retroactive relief from the Decision and Order through the instant motion (motion seq. no. 9). The Nehorayoffs' game playing and exploitation of judicial resources is not new. It continues a demonstrable pattern of blatant disregard for the Court and its rules. When Chase first moved to strike the Nehorayoffs' pleading as a discovery sanction (motion seq. no. 3), [dkt. no. 35], they did not timely oppose. After the return date, they cross-moved to vacate their default and file belated opposition, and cross-moved to supplement the record (motion seq. nos. 4 & 5). [Dkt. nos. 82, 84.] They were denied. [Dkt. no. 100.] Chase again moved to strike the Nehorayoffs' pleading for their continued failure to comply with discovery (motion seq. no. 6). [Dkt. no. 104.] It was marked fully submitted, unopposed. The Nehorayoffs again filed a late and improper cross-motion to vacate and supplement the record, [dkt. no. 128]. The Court likewise denied their cross-motion, explicitly calling attention to the Nehorayoffs' behavior: "defendants' failure to comply with the Court's [discovery] order is willful and contumacious. Indeed, defendants have not even deigned to bother submitting an excuse for their blatant disregard of the Court's order." Decision and Order at 3. The Court directed Chase to proceed to an order of reference "immediately." It did. 7 48645354;1 7 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 25. The Nehorayoffs have again cross-moved ostensibly to dismiss relying on affirmative defenses already stricken by the court and citing dubious grounds for vacating their default in the alternative. Despite how it is styled, the cross-motion seeks reargument of the Court's Decision and Order. This Cross-Motion should be denied in its entirety and Chase's motion for an order of reference and fixing defendants' default should be granted. a. The Nehorayoffs are in Default. 26. The Cross-Motion purports to seek dismissal on grounds Chase failed to comply with certain conditions precedent to foreclosure of sending them contractual and statutorily required notices. (Memo of Law at 2-9.) By virtue of the Decision and Order, the Nehorayoffs' answer, affirmative defenses, and counterclaims all were stricken and dismissed with prejudice; they cannot now be asserted as grounds on which to seek relief from the Court. This is because the practical effect of the Decision and Order is all allegations in Chase's complaint are deemed admitted, including liability. See Decision and Order at 3-4. The Nehorayoffs did not timely challenge that finding through proper channels. They are precluded from doing so now. 27. That the Nehorayoffs' defenses and counterclaims are stricken and dismissed with prejudice is law of the case and cannot be revisited. See Kaminsky v. Wilson, 150 A.D.3d 1094, 1095-96 (2d Dep't 2017) ("The doctrine of law of the case seeks to prevent relitigation of issues already determined at an earlier stage of the action, and thus applies to bind courts of co-ordinate jurisdiction to determinations which previously resolved such issues on the merits."); Capital One, N.A. v. Karp, 2017 N.Y. Slip Op. 27209, at *2 (Sup. Ct. Westchester Cnty. June 22, 2017) ("Initially, this Court previously found that plaintiff made the necessary initial showing with its submission of 'the mortgage, the unpaid note, and evidence of the mortgagor's default,' and rejecting as a matter of law, as unsubstantiated and conclusory, Karp's asserted affirmative defenses. That determination is the law of the case and Karp's re-asserted affirmative defenses 8 48645354;1 8 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 will not be revisited here." (internal citation omitted)). The parties here already litigated in multiple rounds of motion practice the issue of whether the Nehorayoffs' answer—including all affirmative defenses—should have been stricken. The Court answered in the affirmative. 28. Even if law of the case did not bar the Nehorayoffs from seeking dismissal for Chase's alleged failure to comply with conditions precedent, their argument still fails. The Nehorayoffs claim Chase did not comply with paragraph 21(B) of their mortgage nor with Real Property Actions and Proceedings Law § 1304. (Memo of Law at 2-9.) They are mistaken. 29. As an initial matter, the Nehorayoffs appear confused as to which notice is which, arguing language in the RPAPL § 1304 notice is actually the Paragraph 21(B) notice. (Id. at 2-3.) The Affidavit of Holly Freedman, Vice President, JPMorgan Chase Bank, dated March 14, 2019, attests to Ms. Freedman's personal knowledge of and familiarity with Chase's record-keeping practices. (Freedman Aff. ⁋ 4). Ms. Freedman further attests to the mailing of a notice of default dated August 8, 2016, to the Nehorayoffs at the property address, where they still reside. (Id. ⁋ 8.) Ms. Freedman then attests to mailing the 90-day pre-foreclosure notices pursuant to RPAPL § 1304, to the Nehorayoffs at the property address by certified and regular mail. (Id. ⁋ 9.) Copies of the 90-day notices are attached to Ms. Freedman's affidavit. (Id., Ex. A.) 30. The Nehorayoffs suggest their RPAPL § 1304 defense is a "super defense" that can be raised at any time in the litigation, and presumably here, despite the Court's holding their answer and defenses stricken. The case relied upon by the Nehorayoffs to support this theory actually states the opposite. In CitiMortgage, Inc. v. Pembleton, 39 Misc. 3d 454, 462 (Sup. Ct. Suffolk Cnty. 2013), the Supreme Court clarified "a party who has timely appeared may raise the absence of or defective notice defense on motion, even though it was not included in an answer nor made the subject of a pre-answer motion to dismiss. Since the notice defense remains viable during the pendency of the action it may be raised by a non-defaulting party any time prior to 9 48645354;1 9 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 judgment." (Id.) (emphasis added). The Nehorayoffs are in default; all allegations contained in Chase's complaint—including compliance will all conditions precedent, see Compl. ⁋ 9,—have been deemed admitted. b. No Grounds Exist to Vacate the Nehorayoffs' Default. 31. The notice of motion purports to seek relief under CPLR 5015(a)(1), (3), (b) on grounds no default existed under a "waiver" theory—Chase allegedly waived any default two months before the Court issued its Decision and Order. (Notice of Motion at 2.) As an initial matter, the Nehorayoffs' memo of law does not support or even address the CPLR 5015 relief. i. There Was No Waiver. 32. Relying on decades-old case law, the Nehorayoffs argue the common law concept of waiver somehow entitles them to relief from their self-imposed default. (Cross-Motion at 9- 11.) The cases they rely on are ancient and inapposite. In A.B. Murray Co. v. Lidgerwood Mfg. Co., 241 N.Y. 455 (1926), and Bernhardt Lumber Co. v. Metzloff, 113 Misc. 288 (Erie Cnty. 1920), those courts held one party's breach or failure to perform under a contract could be "waived" by the other party's action (or inaction). Id. 33. Here, there was no contract, only the Nehorayoffs' belated and improper motions and noncompliance with discovery rules and orders. The Nehorayoffs appear to argue because the parties were discussing potential settlement and future deposition dates Chase waived the Nehorayoffs' discovery default. (Person Aff. at 11-12; Memo of Law at 9-11.) But Chase was in no position to waive anything—the default was court-ordered. The Court ordered the Nehorayoffs to comply with outstanding discovery by a date certain, dkt. no. 100. They did not. Chase renewed its motion to strike their answer as a discovery sanction. That renewed motion was marked fully submitted, no opposition. Before the Court could decide the motion, however, the Nehorayoffs improperly filed a cross-motion to vacate their default and supplement the 10 48645354;1 10 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 record with discovery responses they impermissibly e-filed to moot Chase's fully submitted motion. The Court denied the cross-motion and granted Chase's motion and issued the January 15, 2019 Decision and Order. 34. The Nehorayoffs' counsel intimates Chase's attorneys, and undersigned counsel specifically, concealed from the Court and foreclosure counsel, Fein Such, that the Nehorayoffs had belatedly produced documents and were working to set depositions dates. (Person Aff. at 16- 19.) Owing to the Nehorayoffs' improper e-filing of various self-styled letters, informational statements, notices of compliance, and discovery responses, the Nehorayoffs' attempt at compliance with production and deposition testimony was public record. [See dkt. nos. 122-127, 131-132, 104-141.] 35. The Person Affirmation then draws the unsubstantiated conclusion had the Nehorayoffs managed to sit for depositions between the time Chase's motion to strike was fully submitted without opposition, but before the Court rendered its Decision and Order, their default would have been cured: "Defendants had done all they could do by November 20, 2018, and had thereby cured their discovery default on such date." This is not true. The Nehorayoffs had many opportunities to comply with discovery rules and even a court order. The Nehorayoffs repeatedly ignored them all. Only after they failed to oppose Chase's second motion to strike in October 2019, and with the specter of discovery sanctions looming, did the Nehorayoffs suddenly feel like playing by the rules. 36. The Court had access to the Nehorayoffs' e-filed discovery responses and also two "notices of compliance" and an "information statement" before issuing the Decision and Order. In denying the Nehorayoffs' last cross-motion (motion seq. no. 7), the Court acknowledged the Nehorayoffs "purported to respond to some of the discovery demands and suggest deposition dates in October and November 2018[,]" id. at 2. It was irrelevant, because the Court found 11 48645354;1 11 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 "defendants did not offer any excuse for their default, or even attempt to allege that they have a potentially meritorious defense . . . defendants' failure to comply with the Court's [discovery] order is willful and contumacious. Indeed, defendants have not even deigned to bother submitting an excuse for their blatant disregard of the Court's order." Id. at 3-4. The Court further found the Nehorayoffs "did not offer any excuse for their default, or even attempt to allege that they have a potentially meritorious defense." Decision and Order at 4. 37. The Nehorayoffs' also argue the substitution of counsel after the Decision and Order issued was done to conceal the so-called "waiver" or because undersigned counsel could not in good faith make that motion; this is nonsense. Once the Court struck the Nehorayoffs' answer and dismissed the counterclaims, the matter was referred back to Fein, Such to proceed in obtaining the order of reference and final judgment, as is customary in foreclosure matters. Fein Such substituted in as counsel of record for Chase and filed the instant Motion. There is nothing nefarious about substituting counsel; any suggestion otherwise is disingenuous at best.2 38. For these reasons, relief pursuant to a "waiver" theory under CPLR 5015(a)(1) or (3) should be denied. Under CPLR 5015(b), a Court can grant relief from judgment or order on the basis of a "stipulation of consent to such vacatur by the parties" but no stipulation exists here. ii. An Evidentiary Hearing is Unwarranted. 39. To prove their "waiver" theory, the Nehorayoffs seek an evidentiary hearing to call witnesses to "testify on facts showing that the Defendants were not in default as of the date of the Decision and Order[.]" (Notice of Motion at 2.) The Person Affirmation explains "Defendants seek an evidentiary hearing on the issue of the existence of the Waiver, and whether 2 22 NYCRR 130-1.1 provides the court may impose sanctions where a party engages in "frivolous conduct." The statute defines frivolous conduct: "(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false." (emphasis added.) 12 48645354;1 12 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 information about the Waiver was intentionally kept away from Fein, Such[.]" (Person Aff. ¶ 20.) All the alleged facts in the Person Affirmation regarding the Nehorayoffs' alleged compliance with discovery post-date the submission of Chase's unopposed second motion to strike. The memo of law does not mention this relief, see Memo of Law, so it is impossible to tell on what legal grounds the Nehorayoffs would be entitled to such relief. 40. In its Decision and Order, the Court already considered whether the Nehorayoffs' belated attempt to moot Chase's second motion to strike through its cross-motion to supplement with late discovery responses was relevant. The Court held it was not, and should likewise rule now. Instead of allowing this matter to "advance to its inevitable conclusion" as is the Court's wont (Decision and Order at 4), the Nehorayoffs ask the Court to expend still more judicial resources conducting an evidentiary hearing because they decided—once more—to blatantly disregard filing appropriate avenues for relief. No evidence or testimony can change that fact. iii. The Nehorayoffs' Default Is Not Excusable. 1. There is No Reasonable Excuse for Delay. 41. The Nehorayoffs alternatively seek relief under CPLR 5015(a)(1), (3), to vacate the Decision and Order itself and dismiss under CPLR 3211(a)(5) on grounds the statute of limitations ran. A party seeking to vacate its default under CPLR 5015 (a)(1) must demonstrate both: (1) a reasonable excuse for their delay; and (2) a meritorious cause of action or defense. Thomas v. Avalon Gardens Rehab. & Health Care Ctr., 107 A.D.3d 694 (2d Dep't 2013). 42. As an initial matter the Court already ruled in the Decision and Order the Nehorayoffs failed to provide a reasonable excuse for their delay, Decision and Order at 4. The Nehorayoffs did not move to reargue or appeal. The Court's holding is law of the case and cannot be revisted. See Kaminsky v. Wilson, 150 A.D.3d at 1095-96 Capital One, N.A. v. Karp, 2017 N.Y. Slip Op. 27209, at *2. This is dispositive and the Court need look no further. 13 48645354;1 13 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 43. Should the Court nevertheless consider anew whether the Nehorayoffs have demonstrated a reasonable excuse for their delay, the procedural history is instructive. On their first cross-motion for leave to file belated opposition to Chase's first motion to strike, the Nehorayoffs attempted to justify their delay by arguing generic law firm failure. [Dkt. no. 83 ⁋ 3.] In an order granting, in part, Chase's first motion to compel, the Court explained their "sole excuse is that there was law office failure, 'because of a delay in making a motion to withdraw as counsel, which motion (by way of order to show cause returnable on April 9, 2018) was withdrawn on April 10, 2018 . . .' This argument makes no sense; counsel's motion to withdraw was filed may weeks after plaintiff's motions has been fully submitted, unopposed. This is simply not a reasonable excuse." [Dkt. no. 100 at 4.] 44. On the next cross-motion (motion seq. no. 6), the Nehorayoffs offered nothing. [Dkt. no. 128.] The Nehorayoffs were served with the second motion to strike electronically and by overnight mail. At no point did they seek additional time to respond. They did not claim non- receipt of the papers or that they otherwise were unable to oppose the motion due to law office failure or even just plain inadvertence. The Decision and Order held "defendants did not offer any excuse for their default, or even attempt to allege that they have a potentially meritorious defense . . . It is time for this foreclosure action to advance to its inevitable conclusion[.]" [Dkt. No. 147 at 4.] The Court pointed out "defendants' failure to comply with the Court's [discovery] order is willful and contumacious. Indeed, defendants have not even deigned to both submitting an excuse for their blatant disregard of the Court's order." Id. at 3. 45. This Cross-Motion—like the last two—is devoid of any excuse for their delay in complying with discovery obligations, which led to their default. Because the Nehorayoffs fail to offer a reasonable excuse for their failure to timely comply with the court's order compelling discovery, which led to their default, the Court need look no further; the Cross-Motion under 14 48645354;1 14 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 CPLR 5015(a)(1) should be denied. HSBC Bank USA, Nat. Ass'n. v. Lafazan, 115 A.D.3d 647, 648 (2d Dep't 2014) (holding because defendants "failed to offer a reasonable excuse, it is unnecessary to consider whether they sufficiently demonstrated the existence of a potentially meritorious defense."); U.S. Bank, N.A. v. Stewart, 97 A.D.3d 740 (2d Dep't 2012) ("Since the defendants failed to demonstrate a reasonable excuse for their default, it was unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense") (citing Tribeca Lending Corp. v. Correa, 92 AD 3d 770, 771 (2d Dep't 2012); Wells Fargo Bank, N.A. v. Cervini, 84 AD 3d 789, 790 (2d Dep't 2011).) 2. There is No Meritorious Defense. 46. The Nehorayoffs have not demonstrated the existence of a meritorious defense. Here—just as on their last cross-motion, [dkt. no. 128]—, the Nehorayoffs argue the statute of limitations is a meritorious defense barring Chase's foreclosure action. Chase addressed the merits of the Nehorayoffs' statute of limitations defense already, [dkt. nos. 134-139, 142-145], and incorporates by reference those arguments as if fully set forth herein.3 iv. There Was No Fraud. 47. The Nehorayoffs also seek relief under CPLR 5015(a)(3). This provision provides relief from judgment or order due to "fraud, misrepresentation, or other misconduct of an adverse party." CPLR 5015(3). The Nehorayoffs appear to argue Chase counsel's actions detailed above, Section III.A.b.i, constitute a fraud such that they are entitled to relief from the Decision and 3 In opposition to the Nehorayoffs' cross-motion to supplement the record, [dkt. no. 128], Chase argued the six-year statute of limitations on foreclosure could not have run because Chase revoked any acceleration through service on the Nehorayoffs of a de-acceleration letter on January 21, 2016. [Dkt. no. 134, ⁋⁋ 34-36, Ex. E; dkt. no. 142-143, Exs. A-B.] Nowhere in the instant Cross-Motion do the Nehorayoffs even address this argument despite it being part of the record. Even if the Court were to somehow find the Nehorayoffs demonstrated a reasonable excuse for their delay, and a meritorious defense, at a bare minimum, the de-acceleration letter would create and issue of fact precluding dismissal on this motion. 15 48645354;1 15 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 Order. The Nehorayoffs have not alleged whether the supposed fraud is "intrinsic" or "extrinsic." See Oppenheimer v. Westcott, 47 N.Y.2d 595, 603 (1979). 48. Extrinsic fraud is "a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter." Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 679 (2d Dep't 2006) (quoting Shaw v. Shaw, 97 A.D.2d 403 (2d Dep't 1983)). Whereas intrinsic fraud essentially means the allegations are false. E.g., Bank of N.Y. v. Stradford, 55 A.D.3d 765, 766 (2d Dep't 2008). 49. Assuming for purposes of this motion the Nehorayoffs mean to allege "extrinsic" fraud, it is unpersuasive. To succeed on a CPLR 5015(a)(3) motion based on extrinsic fraud, a movant must show something was done that prevented the movant from having a full trial, such as a false representation the action was discontinued or that certain relief would not be certain in reliance upon which a defendant defaults. See Siegel & Gleason, PRACTICE COMMENTARIES, MCKINNEY'S CONS LAWS OF NEW YORK, Book 7B, CPLR 5015:8 (2007). The Nehorayoffs present nothing of the sort. The Nehorayoffs and their counsel alone caused their default by repeatedly refusing to comply with discovery or timely oppose motions seeking discovery sanctions. They then availed themselves of the court's e-file system to alert the Court to the very behavior they now claim supports relief under Section 5015(a)(3). The Cross-Motion should be denied in its entirety with prejudice. B. A DEFAULT JUDGMENT AND ORDER OF REFERENCE SHOULD ISSUE. 50. Attached to the Affirmation of Mehmet Basoglu of Fein, Such & Crane, LLP, are Exhibits A through Q, consisting of the Certificate of Merit, Note, Mortgage, Assignments, Notice of Default, RPAPL § 1304 90-Day Notice, the pleadings, affidavits of service on defendants, including the affidavit of service by mail pursuant to CPLR 3215(g), Chase's affidavit of merit, an affirmation of regularity, and the Court's Decision and Order striking the 16 48645354;1 16 of 18 04/18/2019 01:56 FILED: WESTCHESTER COUNTY CLERK 08/25/2023 05:32 PM INDEX NO. 66892/2016 210 NYSCEF DOC. NO. 330 04/18/2019 RECEIVED NYSCEF: 08/25/2023 Nehorayoffs' answer and dismissing the counterclaims with prejudice. [Dkt. nos. 151-172.] Chase has submitted all required proofs and demonstrated its entitlement to a default judgment and an order of reference. Its motion should be granted in its entirety. 51. The Nehorayoffs purport to oppose Chase's motion but it is unclear how. See Memo of Law. There are no grounds on which they can oppose. Any attempt to now assert the affirmative defenses of Chase's failure to comply with a condition precedent, see supra Section III.A.a, necessarily fails. As explained above, the Nehorayoffs are in default; the Court struck their affirmative defenses and dismissed their counterclaims with prejudice. This means all the allegations in the Complaint are deemed admitted. See Compl. ⁋ 9 (alleging "Plaintiff has complied with all applicable provisions of the RPAPL Section 1304".) 52. In PHH Mortg. Corp. v. Celestin, 130 A.D.3d 703 (2d Dep't 2015), the Appellate Division, Second Department held defendant was precluded from raising the issue of plaintiff's compliance with RPAPL § 1304 because defendant was in default and that branch of his cross- motion under CPLR 5015(a) to vacate the default was denied and he did not appeal. "Since the defendant has failed to establish that he is entitled