Opinion
609631/2015
06-13-2019
HSBC BANK USA, N.A., Plaintiff, v. Kimberly A. CARFERO; Bank of America, NA Successor By Merger to Fleet National Bank; "John Does" and "Jane Does", said names being fictitious parties intended being possible tenants or occupants of premises and corporations, other entities or persons who have, claim, or may claim, a lien, or other interest in, the premises, Defendants.
RAS BORISKIN, LLC, Attorneys for Plaintiff, 900 Merchants Concourse, Westbury, NY 11590 Kimberly Carfero, Defendant Pro Se, 690 Old Country Road, Dix Hills, NY 11746
RAS BORISKIN, LLC, Attorneys for Plaintiff, 900 Merchants Concourse, Westbury, NY 11590
Kimberly Carfero, Defendant Pro Se, 690 Old Country Road, Dix Hills, NY 11746
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting summary judgment and order of reference ; Notice of Motion and supporting papers (Doc # 51-69); Notice of Cross Motion and supporting papers (Doc #70-76); and Affirmation in Opposition to Cross Motion and in Further Support of Motion (Doc #77-79); it is
ORDERED that this motion by plaintiff HSBC Bank USA, N.A. for an order striking the answer and affirmative defenses of the defendant Kimberly A. Carfero, awarding it summary judgment, appointing a referee to compute, granting default judgment against the non-appearing and non-answering defendants, and amending the caption, is granted in part and denied in part as set forth below; and it is further
ORDERED that plaintiff is granted partial summary judgment pursuant to CPLR 3212 (e) as to defendant Kimberly A. Carfero, dismissing her first, second and fourth through thirteenth affirmative defenses raised in her answer; and it is further
ORDERED that upon the proof submitted plaintiff's application to amend the caption to substitute MTGLQ Investors, LP in place of HSBC Bank USA, N.A. and to sever and remove defendants "JOHN DOES" and "JANE DOES" from the caption and to discontinue the action against the same is granted; and it is further
ORDERED that the caption shall now appear as follows:
MTGLQ INVESTORS, LP,
Plaintiff,
against
KIMBERLY A. CARFERO; BANK OF AMERICA,
NA SUCCESSOR BY MERGER TO FLEET
NATIONAL BANK
Defendants.
and it is further
ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further
ORDERED that the default of the non-appearing and non-answering defendants are fixed and set; and it is further
ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL§ 1321 is denied and its proposed order submitted with this motion is marked "Not Signed"; and it is further
ORDERED that defendant's cross-motion to dismiss is denied; and it is further
ORDERED that to facilitate the trial the court directs discovery on the limited issues set by this order; and it is further
ORDERED that all discovery demands shall be served within 45 days of the date of this order, and all discovery is to be completed within 120 days of the date of this order; and it is further
ORDERED that a certification conference is scheduled for Monday, October 21, 2019 at 9:30 AM in Part 27 at which time the court will direct the filing of a note of issue and schedule a pre-trial conference to determine a trial date; and it is further
ORDERED that upon completion of discovery and filing of the note of issue the court grants the parties the right to file successive motions for summary judgment but in no case will such a summary judgment motion be entertained more than 60 days after the filing of the note of issue.
This is an action to foreclose a mortgage on residential real property known as 690 Old Country Road, Dix Hills, Suffolk County, New York given by defendant Kimberly A. Carfero ("defendant") to HSBC Mortgage Corporation in the amount of $373,000.00 dated April 29, 2002, to secure a note given by defendant the same day. Plaintiff HSBC Bank USA, N.A. ("plaintiff") commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk on September 8, 2015. Defendant interposed an answer dated October 29, 2015 consisting of general denials and thirteen affirmative defenses including plaintiff's lack of standing to sue (first affirmative defense) and failure to comply with RPAPL 1304 (third affirmative defense). None of the remaining defendants answered or appeared and are in default.
According to court records foreclosure settlement conferences were held December 8, 2015 and February 4, 2016 at which time the action was released to an IAS Part, thus there has been compliance with CPLR 3408. This action was transferred to the general inventory of Part 27 on April 26, 2017 and plaintiff's first motion for summary judgment (#001) was withdrawn by order dated May 22, 2017.
Plaintiff now moves (Seq. #002) for an order striking the answer and affirmative defenses of defendant, granting summary judgment, amending the caption, fixing the default as against the non-appearing defendants and for an order of reference appointing a referee to compute pursuant to RPAPL § 1321. Defendant, appearing pro se, opposes the motion and cross moves (Seq. #003) to dismiss arguing that plaintiff failed to establish proper mailing of the notices required by RPAPL § 1304, lacks standing to commence the action, and the complaint fails to state a cause of action upon which relief can be granted.
SUMMARY JUDGMENT
Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage, the unpaid note, and evidence of default in payment (see Wells Fargo Bank, N.A. v. DeSouza , 126 AD3d 965 [2d Dept 2015] ; Wells Fargo, NA v. Erobobo , 127 AD3d 1176 [2d Dept 2015] ; Wells Fargo Bank, NA v. Morgan , 139 AD3d 1046 [2d Dept 2016] ). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment ( CPLR 3212 ; RPAPL § 1321 ; see Federal Home Loan Mtge. Corp. v. Karastathis , 237 AD2d 558 [2d Dept 1997] ). The burden then shifts to defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense (see Capstone Bus. Credit, LLC v. Imperia Family Realty, LLC , 70 AD3d 882 [2d Dept 2010], Zanfini v. Chandler, 79 AD3d 1031 [2d Dept 2010] ; Citibank, NA v. Van Brunt Properties, LCC , 95 AD3d 1158 [2d Dept 2012] ). Defendant must then produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v. Valencia , 92 AD3d 774 [2d Dept 2012] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ). Defendant's answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see , Flagstar Bank v. Bellafiore , 94 AD3d 1044 [2d Dept 2012] ). In deciding the motion the court is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v. Restani Corp. , 18 NY3d 499 [2012] ).
Where plaintiff's standing has been placed in issue by defendant's answer, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor , 25 NY3d 355 [2015] ; US Bank, NA v. Richard , 151 AD3d 1001 [2d Dept 2017] ; Nationstar Mtge., LLC v. Laporte , 162 AD3d 784 [2d Dept 2018] ; Bank of New York Mellon v. Suhku , 163 AD3d 748 [2d Dept 2018] ; Wells Fargo Bank, N.A. v. Inigo , 164 AD3d 545[2d Dept 2018] ). In addition where plaintiff alleges in its complaint that it served notices required by RPAPL § 1304, and the allegations have been denied by defendant by an affirmative defense in her answer, then in support of its motion for summary judgment, plaintiff must prove its strict compliance with RPAPL § 1304 by tendering sufficient evidence to demonstrate absence of any material issues (see Aurora Loan Svcs v. Wesiblum , 85 AD3d 95, 106 [2d Dept 2011] ; Bank of NY Mellon v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; JPMorgan Chase Bank, N.A. v. Kutch , 142 AD3d 536 [2d Dept 2016] ; M & T Bank v. Joseph , 152 AD3d 579 [2d Dept 2017] ; Bank of New York Mellon v. Zavolunov , 157 AD3d 754 [2d Dept 2018] ).
STANDING ESTABLISHED
Plaintiff in a residential foreclosure action has standing if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v. Larizza , 129 AD3d 904 [2d Dept 2015] ; M & T Bank v. Cliffside Prop. Mgt., LLC , 137 AD3d 876 [2d Dept 2016] ). Here plaintiff demonstrated its standing as holder of the note by establishing that it had been assigned to it prior to the commencement of the action by attaching a copy of the indorsed note, to the complaint at the time the action was commenced, (see Nationstar Mortg., LLC v. Catizone, 127 AD3d 1151 [2d Dept 2015] ; Nationstar Mortg., LLC v. Weisblum , 143 AD3d 866 [2d Dept 2016] ; Deutsche Bank Natl Trust Co. v. Carlin , 152 AD3d 491[2d Dept 2017] ; Bank of America, NA v. Wheatley , 158 AD3d 736 [2d Dept 2018] ; U.S. Bank National Association v. Fisher , 169 AD3d 1089 [2d Dept 2019] ). Defendant's first affirmative defense is dismissed.
MAILING OF RPAPL § 1304 NOTICES NOT ESTABLISHED
Plaintiff attempts to establish the mailing of the RPAPL § 1304 notices through the affidavit of TiShaya K. Gleaton, an assistant vice president of PHH Mortgage Corporation ("PHH"), plaintiff's prior servicer. Ms. Gleaton's affidavit establishes her ability to testify to her employer's (PHH) business records pursuant to CPLR 4518, but that alone is insufficient to establish the mailing of the notices. Due proof of the mailing of the notices is established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v. Persad, 117 AD3d 676 [2d Dept 2014] ; Bank of NY Mellon v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept 2017] ; Investors Savings Bank v. Salas , 152 AD3d 752 [2d Dept 2017] ), an affidavit of mailing (see JPMorgan Chase Bank, NA v. Schott, 130 AD3d 875 [2d Dept 2015] ; Wells Fargo v. Moza, 129 AD3d 946 [2d Dept 2015] ), or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Vivane Etienne Med. Care, P.C. v. Country Wide Ins. Co. , 25 NY3d 498 [2015] ; Residential Holding Corp. v. Scottsdale Ins. Co. , 286 AD2d 679 [2d Dept 2001] ); Citimortgage v. Banks , 155 AD3d 936 [2d Dept 2017] ; US Bank, N.A. v. Cope , 167 AD3d 965 [2d Dept 2018] ; Wells Fargo Bank, N. A. v. Heiney , 168 AD3d 1126 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Taylor , 170 AD3d 921 [2d Dept 2019] ; Bank of New York Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019] ; LNV Corp. v. Sofer , 171 AD3d 1033 [2d Dept 2019] ).
Even if an affiant establishes the ability to testify as to the business records pursuant to CPLR 4518, if the affiant merely states a review of the records establishes the notices were mailed by both regular and certified mail on a certain date, such statements are unsubstantiated, conclusory and insufficient to establish the mailing required by RPAPL § 1304 (see JPMorgan Chase Bank, N.A. v. Kutch, 142 AD3d 536 [2d Dept 2016] ; Cenlar FSB v. Censor , 139 AD3d 781 [2d Dept 2016] ; US Bank, NA v. Henderson , 163 AD3d 601[ 2d Dept 2018] ). The affiant must show his or her familiarity with office practices and procedures to insure proper addressing and mailing (see Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept 2017] ; Wells Fargo Bank, N.A. v. Moran , 168 AD3d 1128 [2d Dept 2019] ; Fifth Third Mtge. Co. v. Seminario , 168 AD3d 1041 [2d Dept 2019] ; Wells Fargo Bank, N.A. v. Taylor , supra ; Bank of New York Mellon v. Gordon, supra ). Since plaintiff failed to provide proof of the actual mailing, or proof of a standard office mailing procedure designed to ensure that items are properly addressed and mailed, sworn to by someone with personal knowledge of the procedure, and failed to attach copies of United States Postal Service documents indicating that the notices were sent by registered or certified mail, plaintiff's proof was insufficient to establish the mailings (see CitiBank, N.A. v. Conti-Scheurer , ––– AD3d ––––, 2019 NY Slip Op. 02846 [2d Dept 2019] ). Further although the affiant avers that she is "personally familiar with PHH's regular office practices with regards to mailing," by failing to set forth those office practices and procedures, proper addressing and mailing of the RPAPL § 1304 notices has not been established (see LNV Corp. v. Sofer , supra ).
That portion of plaintiff's motion seeking to establish the mailing of the RPAPL § 1304 notices and dismissing defendant's third affirmative defense must be denied, as is that portion of plaintiff's motion seeking judgment and the appointment of a referee to compute pursuant to RPAPL § 1321.
REMAINING AFFIRMATIVE DEFENSES DEEMED ABANDONED
As to defendant's remaining affirmative defenses, the failure to raise and support pleaded affirmative defenses and in opposition to a motion for summary judgment renders them abandoned and subject to dismissal (see Kuehne & Nagel Inc. v. Baiden , 36 NY2d 539 [1975] ; Kronick v. L. P. Therault Co., Inc. , 70 AD3d 648 [2d Dept 2010] ; New York Commercial Bank v. J. Realty F. Rockaway, Ltd. , 108 AD3d 756 [2d Dept 2013] ; Starkman v. City of Long Beach , 106 AD3d 1076 [2d Dept 2013] ; Katz v. Miller , 120 AD3d 768 [2d Dept 2014] ). Defendant's second and fourth through thirteenth affirmative defenses are dismissed as abandoned.
DISMISSAL FOR FAILURE TO COMPLY WITH MAILING OF RPAPL § 1304 NOTICES DENIED
A defendant who moves for summary judgment dismissing the complaint for failure of plaintiff to comply with the mailing requirements of RPAPL § 1304, just as any movant for summary judgment, has the burden to establish plaintiff's failure to comply as a matter of law (see LGF Holdings, LLC v. Skydel, 139 AD3d 814 [2d Dept 2016] ; MLB Sub I, LLC v. Bains , 148 AD3d 881 [2d Dept 2017] ). The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to establish the absence of any material issues of fact, failure to do so requires the motion to be denied regardless of the sufficiency of the opposition (see Jacobsen v. New York City Health & Hospitals Corp. , 22 NY3d 824 [2014] ; William J Jenack Estate Appraiser and Auctioneers v. Rabizadeh , 22 NY3d 470 [2013] ). "[T]he summary judgment movant bears the heavy burden of establishing ‘a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact’ " (see Deleon v. NY City Sanitation Dept. , 25 NY3d 1102, 1106 [2015] ). As with standing, the burden is not on plaintiff to establish compliance with the mailings for defendant's motion to be denied, it is sufficient if its raises questions of fact (see HSBC Bank USA v. Lewis, 134 AD3d 764 [2d Dept 2015] ; U. S. Bank, Nat. Assoc. v. Noble , 144 AD3d 786 [2d Dept 2016] ; Aurora Loan Servs, LLC v. Komarvsky , 151 AD3d 924 [2d Dept 2017] ). If defendant fails to establish plaintiff's lack of mailing, its motion is to be denied (see Flagstar Bank, FSB v. Campbell , 137 AD3d 853 [2d Dept 2016] ; US Bank N.A. v. Weinman , 123 AD3d 1108 [2d Dept 2014] ). A simple denial of receipt, without more, is insufficient to establish a prima facie entitlement to judgment as a matter of law dismissing the complaint for failure to comply with the requirements of RPAPL 1304 (see Wells Fargo Bank, N.A. v. Moran , supra ; Wells Fargo Bank, N.A. v. Taylor , supra ; US Bank N.A. v. Lawson , 170 AD3d 1068 [2d Dept 2019] ; CitiBank, N.A. v. Conti-Scheurer , supra ; LNV Corp. v. Sofer , supra).
Accordingly, that portion of defendant's cross-motion seeking dismissal of the action for failure to comply with the mailing of the notices required by RPAPL § 1304 is denied.
The court has considered defendant's remaining arguments and found them to be without merit or unnecessary to the determination of this motion.
SUCCESSIVE SUMMARY JUDGMENT MOTIONS ALLOWED
Although multiple summary judgment motions are discouraged without a showing of newly discovered evidence or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources (see Detko v. McDonald's Restaurants of New York, Inc , 198 Ad2d 208 [2d Dept 1993] ; Valley National Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012] ; Kolel Damsek Eliezer, Inc. v. Schlesinger , 139 AD3d 810 [2d Dept 2016] ). It is clearly appropriate to consider a second summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few, or where such a motion would correct a simple defect, eliminating the burden on judicial resources which would otherwise require a trial (see Rose v. Horton Med. Ctr. , 29 AD3d 977 [2d Dept 2006] ; Landmark Capital Investments, Inc. v. Li-Shan Wang , 94 AD3d 418 [1st Dept 2012] ). The denial of a subsequent summary judgment motion which could be dispositive for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v. Siben & Ferber , 152 AD3d 641 [2d Dept 2017] ). Therefore, the court grants the parties 120 days to complete discovery, and will entertain successive motions for summary judgment on the issues related to compliance with the mailing of the notices required pursuant to RPAPL 1304, within 60 days of the filing of the note of issue.
Plaintiff's proposed order is marked "not signed."
To monitor the progress of this action, a certification conference is scheduled in this part for Monday, October 21, 2019 at 9:30 AM. If a successive summary judgment motion is filed before that date no appearance is necessary.
This constitutes the Order and decision of the Court.