MOTION TO REARGUE

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF XXX

Index No. XXX

XXXX

 

RESPONSE TO PLAINTIFF’S AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO REARGUE

 

 

…………………………………………………X

XXX MORTGAGE, LLC.

 

Plaintiff

 

-against-

 

XXX, et al.,

 

Defendants

………………………………………………………………….X

 

Defendant XXX hereby files this Response to Plaintiff’s Affirmation in Opposition to Defendant’s Motion to Reargue. In response thereof, Defendant asserts as follows:

  1. The interest of judicial economy is better served by addressing the merits of the motion

In their Affirmation, Plaintiff cites XXX, and argues that Defendant’s motion is defective because it failed to include the underlying papers. However, the Plaintiff failed to acknowledge that the court went ahead to state that although the motion may be denied for the said procedural defect alone, the interest of judicial economy is better served by addressing the merits.

In this case, to the extent that the Court finds that the motion is procedurally defective; Plaintiff avers that the Court should exercise its sound discretion and, in the interest of judicial economy, consider Defendant’s motion.

  1. The Court already has a full record

Even if the instant motion is procedurally defective, the Court overlooks any defect because it has a full record. See CPLR 2001. Accordingly, “a procedure defect may be overlooked if the record is `sufficiently complete'” XXX.

Defendant asserts that the Court already has a full record of the actions herein. For this reason, any defect arising from the failing to provide records as argued by Plaintiff, is not genuine and is ill-intended.

  • The court overlooked and/or misapprehend both facts and law.

Plaintiff argues that Defendant failed to show how the Court ignored and/or misapprehended facts. It is on that vein that Plaintiff avers that Defendant did not establish reasonable cause(s) for her default.

Contrary to Plaintiff’s averments, Defendant duly provided the reason for her default. Notably, Defendant stated that she had health issues, which impeded her prosecution of the case. This amounts to a fair and/or reasonable justification.

Next, Plaintiff claims that Defendant sought to add new arguments and new facts. This argument is untrue. Defendant challenges Plaintiff’s assertions by stating that first, the motion raised no new facts. The court was duly informed of all the facts in this case, which facts were canvassed in Defendant’s prior filings. Next, Defendant asserts that nothing bars her from citing a new law that has come into existence, especially if the law seeks to protect the victims of illegal foreclosures.

Plaintiff also argues that Defendant failed to show that she is not a vexatious litigant. Conduct is “frivolous” if, “it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;” if “it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another;” or, if “it asserts material factual statements that are false.” XXX. It is Defendant’s contention that she is wrongly and unjustly being called a vexatious litigant. Defendant has never made any filing either to harass or maliciously injure Plaintiff.

WHEREFORE, Plaintiff respectfully requests this Court to deny Plaintiff’s Affirmation in Opposition to Motion to Reargue. Lastly, Plaintiff prays for any other Order this Court deems just.

 

 

Dated: _______________

___________________________

XXX

 

 

 

 

 

 

 

 

 

CERTIFICATE OF SERVICE

I certify that a copy of this foregoing MOTION TO LEAVE TO REARGUE document will be served electronically mail on March 25, 2023 via USPS First Class Mail on March 26, XXX to the following:

 

 

XXX

XXX

XXX

XXX

XXX

 

Patricia M. XXX

XXX

XXX

XXX

XXX

 

XXX

XXX

XXX

XXX

XXX

 

XXX

XXX

XXX

XXX

XXX

 

XXX

XXX

XXX

XXX

XXX

 

XXX

XXX

XXX

XXX

XXX

XXX

 

 

 

 

——————————–                                                       —————————————

Date                                                                                 XXX

 

 

 

 

 

 

 

 

 

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