[*1] Decided on December 1, 2010

Supreme Court, Suffolk County

2007-30481Adam M. Marshall Esq.Cullen & Dykman LLPAttorneys for Plaintiff 100 Quentin Roosevelt BoulevardGarden City, New York 11530Rosicki, Rosicki & Associates P.C.Former Attorneys for Plaintiff 51 East Bethpage RoadPlainview, New York 11803Sheila MathonHank Mathon

U.S. Bank Natl. Assn. v Mathon

2010 NY Slip Op 52082(U)Decided on December 1, 2010Supreme Court, Suffolk CountySpinner, J.Published by New York State Law Reporting Bureaupursuant to Judiciary Law §431.This opinion is uncorrected and will not be published in the printed OfficialReports.

U.S. Bank National Association, Plaintiff againstSheila Mathon, Hank Mathon, Mortgage ElectronicRegistration Systems Inc. as Nominee and Mortgagee of Record, WMC Mortgage Corp., the Law Offices of JosephD'Elia, Key Bank of Long Island n/k/a Washington MutualBank, Commissioner of Taxation and Finance, United States of America-Internal Revenue Service and Shore Park EstatesHomeowners Association Inc., Defendants

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Defendants Pro Se815 Anthony DriveLindenhurst, New York 11757Jeffrey Arlen Spinner, J.

ORDER ON MOTION

Mot. Seq. 004-MotDOriginal Return Date: September 15, 2010Final Submit Date: November 17, 2010

Premises

815 Anthony DriveLindenhurst, New York 11757District0103Section025.00Block02.00Lot049.008

This is an action wherein the Plaintiff claims foreclosure of a mortgage dated September 28, 2006 in the original principal amount of $486,400.00 recorded with the Clerk of Suffolk County, New York on October 16, 2006 in Liber 21401 of Mortgages at Page 349. Themortgage secures a note of the same amount and encumbers real property commonly knownas 815 Anthony Drive, Lindenhurst, Town of Babylon, New York and described as District0103 Section 025.00 Block 02.00 Lot 049.008 on the Tax Map of Suffolk County. Plaintiff commenced this action by filing a Summons, Verified Complaint and Notice of Pendency onSeptember 26, 2007. Following the interposition of an Answer by Defendants then-counsel,summary judgment was granted by Order dated April 14, 2008 and a Referee was appointedto compute in accordance with RPAPL § 1321. Thereafter, by Order dated January 30, 2009,a Substitute Referee was appointed. On July 12, 2010, Plaintiff moved for a Judgment of Foreclosure & Sale and, following the interposition of opposition by Defendants together with the present Order To Show Cause, the application was voluntarily withdrawn.Defendants SHEILA MATHON and HANK MATHON ("The Mathons") have moved

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pro se

, by Order To Show Cause dated August 12, 2010, for a stay of all proceedingsunder this index number. Their application recites a number of grounds for the relief demanded including the pendency of a lawsuit in the United States District Court for theEastern District of New York brought by the Mathons as plaintiffs under docket no. 10-CV-3664, the failure of Plaintiff's counsel to serve notice of proceedings upon Defendants'counsel and finally, that Plaintiff's offer of a loan modification should have operated as a stayof this action.As to the claim involving the federal action, this cannot constitute a legally cognizantground for relief in the instant matter. In order for such injunctive relief to lie, the competingactions must have full and complete identity of claims, parties and the relief demanded,

Green Tree Fin. Servicing Corp. v. Lewis 280 AD2d 642, 720 NYS2d 843 [2nd Dept. 2001]

.In the federal action, there is a lack of identity of the parties in that the Mathons haveimpleaded sixteen individuals and entities who are not parties to the instant action. Moreover,the federal action has been brought under the federal Racketeer Influenced and CorruptOrganizations Act ("RICO"), 18 USC § 1961 et. seq. which is not a subject of the instantaction. Since there exists such a dissimilarity of both parties and claims between the state andfederal actions, this Court cannot grant injunctive relief under this theory.Turning next to the claim of a lack of notice to counsel, Plaintiff asserts that since theMathons[*2]sought this relief by Order To Show Cause, it has withdrawn its motion for udgment, thus rendering the application to be academic. Defendants claim that Plaintiff failed to serve their counsel Adam Gomerman Esq. with notice of their intent to seek udgment. They rely upon this Court's Order of April 14, 2008 which directs, in pertinent part, that

"ORDERED that the answer interposed by defendants SHEILA MATHON and HANK MATHON is hereby stricken and deemed converted to an appearance and demand inoreclosure, requiring service of all future papers, including but not limited to Notice of Sale, Notice of Proceedings for Surplus Monies and Notice of Discontinuance of Action upon said defendants..."

It is clear from the language thereof that service is to be made upon Defendantsand not necessarily their attorney. Moreover, Defendants had discharged their counsel prior to the date of the application, thus rendering this claim to be academic. It must be stated here,however, that this Court takes a very dim view of the tactic of withdrawal of an application asa way in which to deprive an adverse litigant of his or her day in court. That being said, theCourt finds that this claim for relief is devoid of legal and factual efficacy and likewise must be denied.The issue of the claim of the forbearance/modification agreement, however, is anentirely different situation, one that is considerably troubling to this Court. Defendants assert(and Plaintiff does not in any way controvert) that on April 17, 2009, without the benefit of counsel, they executed a three page document entitled

"Home Affordable Modification Trial Period Plan"

which was propounded to them by Plaintiff. Indeed, a copy of the same isappended as Exhibit C to the Affidavit of Thomas E. Reardon. According to Defendants (andagain, not controverted by Plaintiff), they timely remitted to Plaintiff the three payments of $1,736.00 required thereunder and in compliance therewith, followed with nine more monthly payments in the same amount. According to Defendants (and once again, not controverted by

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