Opinion
27483 2007.
Decided October 1, 2010.
Cullen and Dykman, LLP, by Richard F. Komosinski and Teresa Gaffney, Esqs., Garden City, NY, for the Plaintiff.
Macron Cowhey, PC, by John J. Macron, Esq., Roackaway Park, NY, for the Defendant, Eleanora Wiggins.
Plaintiff moves for summary judgment against defendant Eleanora Wiggins, leave to appoint a referee to compute and report the amount due plaintiff, and leave to amend the caption substituting Lemarr Wiggins in place and stead of defendant "John Doe I," and Elma Davis in place and stead of defendant "John Doe II," and deleting the remaining "John Doe" defendants.
Plaintiff has determined the true identity of defendants "John Doe No. I" and "John Doe No. II," are Lemarr Wiggins and Elma Davis and has caused them to be served with a copy of the summons and complaint. Plaintiff did not serve defendants "John Doe No. III" to "John Doe No. XX" with process, insofar as plaintiff has determined they are unnecessary party defendants. Lemarr Wiggins and Elma Davis are in default in answering the complaint. Upon the foregoing papers, that branch of plaintiff's motion for leave to amend the caption as proposed is granted.
With respect to that branch of the motion for summary judgment against defendant Eleanora Wiggins, it is well established that the proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact," ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; accord, Zuckerman v City of New York, 49 NY2d 557). On a motion for summary judgment in a foreclosure action, a plaintiff must make a prima facie showing by producing the mortgage, the unpaid note, bond or obligation, and the evidence of default (see, Daniel Perla Assocs., LP v. 101 Kent Assocs., Inc. , 40 AD3d 677 [2nd Dept. 2009]; EMC Mtge. Corp. v Riverdale Assoc., 291 AD2d 370 [2nd Dept. 2002]; IMC Mtge. Co. v Griggs, 289 AD2d 294 [2nd Dept. 2001]; Paterson v Rodney, 285 AD2d 453 [2nd Dept. 2001]). The failure to make such a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).
In this instance, plaintiff has failed to satisfy its burden of making a prima facie showing of entitlement to judgment as a matter of law. "CPLR 3212 (b) provides that a summary judgment motion shall be supported by affidavit' of a person having knowledge of the facts' as well as other admissible evidence ( see, GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967)" ( JMD Holding Corp. v Congress Fin. Corp. , 4 NY3d 373 , 384-385). Although plaintiff asserts that it has provided a copy of an affidavit of one "Joel Marcano" to the Court to demonstrate defendant Eleanora Wiggins is in default, such affidavit has not been included among the papers submitted herein. A complaint that is verified only by counsel who lacks personal knowledge of the facts does not constitute competent evidence to stand in the place of the missing affidavit of merit ( see, Alvarez v Prospect Hosp., 68 NY2d at 327; accord, Panaccione v. Acher , 30 AD3d 989 , 990 [4th Dept. 2006]; Barnes-Pierce v McDermott, 198 AD2d 635, 636-637 [3rd Dept. 1993]; Elgit v. County of Westchester, 2006 WL 5737673 [Sup. Ct. Westchester County 2006]; see generally Lucido v. Vitolo, 251 AD2d 383 [2nd Dept. 1998]). In the absence of any affidavit by someone with personal knowledge of the relevant facts, the documents relied upon by plaintiff are insufficient to demonstrate a prima facie case.
That branch of the motion for summary judgment against defendant Eleanora Wiggins is denied without prejudice to renewal based upon proper papers. That branch of the motion for leave to appoint a referee is denied at this juncture.