Opinion
24992/2013
08-12-2019
THE BANK OF NEW YORK MELLON f/k/a The Bank of New York as Trustee for the Certificateholders of the CWALT, Inc., Alternative Loan Trust 2005-9CB. Mortgage Pass-Through Certificates, Series 2005-9CB, Plaintiff, v. Shamail A. SHAMEEM, Huma Shamail, Midland Funding LLC d/b/a in New York as Midland Funding of Delaware, LLC Clerk of the Suffolk County District Court, Clerk of the Suffolk County Traffic & Parking Violations Agency, Defendant(s).
DRUCKMAN LAW GROUP, PLLC, Attorneys for Plaintiff By: Maria Sideris. Esq., 242 Drexel Avenue, Westbury, NY 11590 RONALD D.WEISS, P.C., Attorney for Defendant Shamail A. Shameem, 734 Walt Whitman Road, Ste. 203, Melville, NY 11747
DRUCKMAN LAW GROUP, PLLC, Attorneys for Plaintiff By: Maria Sideris. Esq., 242 Drexel Avenue, Westbury, NY 11590
RONALD D.WEISS, P.C., Attorney for Defendant Shamail A. Shameem, 734 Walt Whitman Road, Ste. 203, Melville, NY 11747
Robert F. Quinlan, J.
Upon the following papers read on this motion to confirm referee's report and for judgment of foreclosure and sale ; Notice of Motion dated March 25, 2019 and supporting papers (Doc #119-152); Notice of Cross-Motion dated April 25, 2019 and supporting papers (Doc #146-157); Affirmation in opposition to Cross Motion and in further support (Doc #158-161) Replying Affidavit and supporting papers ______; it is,
ORDERED that plaintiff's application for an order confirming the referee's report and for judgment of foreclosure and sale (Seq. #006) is granted; and it is further
ORDERED that defendant Shamail A. Shameem's application for an order for reduction of interest and fees and to schedule a settlement conference (#007) is denied; and it is further
ORDERED that plaintiff's proposed order of judgment of foreclosure and sale, as modified by the court, is signed contemporaneously herewith; and it is further
ORDERED that plaintiff shall serve the notice of the foreclosure sale and any adjournments upon the Supreme Court Calendar Clerk; and it is further
ORDERED that the referee complete and file the Suffolk County Foreclosure Action Surplus Monies form with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the foreclosure sale; and it is further
ORDERED that the referee submit proof of deposit of any surplus monies with the Suffolk County Comptroller with the Supreme Court Calendar Clerk and the Suffolk County Clerk within thirty (30) days of the date of closing of title; and it is further
ORDERED that the referee may make an application for additional fees, by letter to the court, as a result of any adjournments of the sale, providing proof of compliance with 22 NYCRR Part 36 including the filing of USC Forms 872 and 875; and it is further
ORDERED that pursuant to RPAPL 1351(1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order; and it is further
ORDERED that if the referee does not conduct the sale within 90 days of the date of the judgment, in accordance with CPLR 2004, the time fixed by RPAPL § 1351(1) is extended for the referee to conduct the sale as soon as reasonably practicable.
The prior history of this action to forecloseva mortgage upon residential real property located at 3 Sterling Circle, Dix Hills, Suffolk County, New York is set forth in the decision of the court placed on the record after oral argument on June 17, 2017 granting plaintiff partial summary judgment (Seq. #001) and denied defendant Shamail A. Shameem's ("defendant") cross motion for summary judgment dismissing the action and for related relief (Seq. #002). By order dated February 4, 2019 the court granted plaintiff's successive motion for summary judgment (Seq. #003) striking the answer of defendant and appointing a referee to compute pursuant to RPAPL § 1321 and denied defendant's cross-motion to dismiss (Seq. #004). Defendant's application to reargue that cross motion was denied on May 15, 2019 (Seq. #005).
Plaintiff now moves for judgment of foreclosure and sale (Seq. #006) and confirmation of the referee's report. Defendant opposes plaintiff's motion and cross-moves for an order for reduction of interest and fees and to schedule a settlement conference (Seq. #007). In support of his cross-motion defendant argues among other things that plaintiff has not applied mortgage payments correctly and therefore a recalculation is required. Further defendant rejects the referee's report and requests a referee hearing and finally that defendant is entitled to settlement options prior to granting judgment of foreclosure and sale. Plaintiff submits an affirmation in opposition to the cross-motion and in further support of its motion arguing by not submit objections to the referee's oath and report in accordance with the court's order he has waived any objection.
Under the circumstances of this case, despite defendant's contentions, the referee was not required to hold a hearing or serve a notice of computation before issuing his report (see Deutsche Bank National Trust Co. v. Jackson , 68 AD3d 805 [2d Dept 2009] ; Deutsche Bank National Trust Co. v. Zlotoff , 77 Ad3d 702 [2d Dept 2010] ; Deutsche Bank National Trust Co. v. Williams, 134 AD3d 981 [2d Dept 2015] ; Citimortgage, Inc. v. Kidd, 148 AD3d 767 [2d Dept 2017] ; Bank of NY Mellon v. Hoshmand , 158 AD3d 600 [2d Dept 2018] ). The February 4, 2019 order granting summary judgment and appointment of a referee to compute contained the following directives:
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order (plaintiff's "submissions"); defendant(s) may submit written objections and proof in support thereof (defendant's "objections") to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if the objections by defendant(s) raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant(s) has submitted objections and proof to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit the objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
In opposition to the cross-motion plaintiff submits a cover letter establishing that the oath and report were sent to defendant's counsel by letter dated March 6, 2019. Neither defendant's counsel, nor defendant, deny receiving the oath and report, yet defendant did not submit any objections to the referee, or to the court as required by the February 4, 2019 order. Although given ample opportunity to raise any insufficiencies or errors in the submissions by plaintiff to the referee and the court, defendant has provided no substantive claim of error or insufficiency warranting denial of the application (see Deutsche Bank National Trust Co. v. Zlotoff , 77 AD3d 702 [2d Dept. 2010] ). Failing to do so he has waived such objections and establish that there has been no prejudice to defendant. The court has reviewed the referee's report and the documentary evidence upon which the report is based, and concludes that the referee's finding is supported by the record, the affirmation of counsel in opposition to the motion is unsupported by any evidence and is insufficient to defeat the motion.
That part of defendant's cross-motion for an order scheduling a settlement conference is denied as court records indicate settlement conferences were held on September 25, 2015 and December 1, 2015 in the Foreclosure Settlement Conference Part, a settlement was not reached and the action was released to an IAS part, thus there has been compliance with CPLR 3408.
The court has considered defendant's remaining contentions and finds them to be without merit.
Accordingly on the papers submitted plaintiff has established its entitlement to a judgment of foreclosure and sale on its submissions in support of the motion, including the referee's findings and report (see HSBC Bank USA, N.A. v. Simmons , 125 AD3d 930 [2d Dept. 2015] ; US Bank N.A. v. Saraceno , 147 AD3d 1005 [2d Dept. 2017] ; Bank of New York Mellon Trust Company v. Loodus , 160 AD3d 797 [2d Dept 2018] ).
Plaintiff's proposed order, as modified by the court, is signed contemporaneously herewith.
This constitutes the Order and decision of the court.