Opinion
605751-2015
08-13-2019
U.S. BANK NATIONAL ASSOCIATION, Plaintiff, v. Yunior ALVAREZ, Jorge Corrales a/k/a Jorge Corales, Secretary of Housing and Urban Development, Town Supervisor Town of Babylon, Christian Cruz, Emilio Hernandez, Carmen Rodriquez, Fiordaliza Rodriquez, Defendants.
RAS BORISKIN, LLC, 900 Merchants Concourse, Suite 310, Westbury, NY 11590, Attorney for Plaintiffs RONALD D. WEISS, 734 Walt Whitman Road, Suite 203, Melville, NY 11747, Attorney for Defendant-YUNIOR ALVAREZ, JORGE CORRALES A/K/A JORGE CORALES
RAS BORISKIN, LLC, 900 Merchants Concourse, Suite 310, Westbury, NY 11590, Attorney for Plaintiffs
RONALD D. WEISS, 734 Walt Whitman Road, Suite 203, Melville, NY 11747, Attorney for Defendant-YUNIOR ALVAREZ, JORGE CORRALES A/K/A JORGE CORALES
Robert F. Quinlan, J.
Upon the following papers read on plaintiff's application for an order confirming the referee's oath and report and for judgment of foreclosure and sale and defendants' cross-motion to dismiss the action and in opposition : plaintiff's notice of motion and supporting papers (NYSCEF Docs # 86-109); defendants' notice of cross-motion to dismiss, opposition and supporting papers (NYSCEF Docs # 112-117); and plaintiff's papers in opposition and reply (NYSCEF Docs # 118-119); it is
ORDERED that plaintiff U.S. Bank National Association's application for an order confirming the referee's oath and report and for judgment of foreclosure and sale (Mot. Seq. #004) is granted; and it is further
ORDERED that plaintiff's proposed judgment of foreclosure and sale, as modified by the court, is signed contemporaneously with this order; and it is further
ORDERED that defendants Yunior Alvarez and Jorge Corrales' cross-motion to dismiss the action for plaintiff's failure to comply with the mailing of the notices required by the mortgage and RPAPL § 1304 (Mot. Seq. #005) is denied.
PRIOR PROCEEDINGS
This is an action to foreclose a mortgage on residential real property known as 7 Cedar Road, Amityville, Suffolk County, New York given by defendants Yunior Alvarez and Jorge Corrales ("defendants") to plaintiff U.S. Bank National Association ("plaintiff"). The prior history of this action is set forth in the court's decision and order placed on the record on September 11, 2017 after oral argument of plaintiff's motion for summary judgment, appointment of a referee to compute pursuant to RPAPL § 1321 and other associated relief (Mot. Seq. #001) and defendants' cross-motion to compel discovery (Mot. Seq. #002), which granted plaintiff's partial summary judgment dismissing all of defendants' affirmative defenses except their 11th affirmative defense which raised issues of compliance with the mailing of the notices required by RPAPL § 1304 and the mortgage, setting those issues for a limited issue trial pursuant to CPLR3212 (g), granted plaintiff's application to amend the caption and substitute certain defendants, set and fixed the default of the non-appearing, non-answering defendants, denied the appointment of a referee, allowed for a limited period of discovery, directed the filing of a note of issue, and authorized successive summary judgment motions within thirty days of the filing of the note of issue; as well as the court's decision of July 6, 2018 granting plaintiff's unopposed successive summary judgment motion (Mot. Seq. #003), dismissed defendants' 11th affirmative defense, struck defendants' answer and appointed a referee to compute.
JUDGMENT OF FORECLOSURE GRANTED
The order of July 6, 2018 granting summary judgment and the 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 compliance with the order of July 6, 2018, plaintiff now moves for a judgment of foreclosure and sale, which is opposed by defendants, along with their cross-motion. Other than defendants' cross-motion to dismiss, which is discussed below, defendants grounds for objecting to the granting of a judgment of foreclosure are that the affirmation of plaintiff's counsel in support of the application is vague and defective, as is the attorney's affirmation is support of the law firms' application for fees, and that the application is defective in other ways, including that plaintiff's counsel failed to include a copy of the referee's report with the submission.
The court finds the objection to both attorney's affirmations to be without merit. The court further notes that the affirmation which requests fees of $870.00 for the law firm, which was an agreed upon "flat fee" between plaintiff and its counsel, to be justified by the submission and that fee is ratified and approved by the court in this decision.
The court's order of July 6, 2018, and the order of reference of the same date, contained specific language and direction as to how the order of reference was to proceed, as well as setting the authority and duties of the referee. The orders set up a schedule for the submission of the order of reference, and the submission of objections by defendants to plaintiff's submissions to the referee; it also limited the authority of the referee to report, and required that defendants submit their objections to the referee and that upon the motion for a judgment of foreclosure and sale they were to submit those same objections to the court to allow the court to make a determination as to their validity. The order provided that failure of defendants to submit objections to the referee would be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale and that failure to raise and submit defendants' objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale would also constitute a waiver of those objections before the court on the motion.
Defendants' counsel makes no claim of not having received a copy of the decision of July 6, 2018, the order of reference, or the submissions made by plaintiff to the referee. The court notes that the order of reference and the decision of July 6, 2018 are contained in NYSCEF as Docs. #82 and 83. There is no proof that defendants complied with the directives of those orders to submit objections to the referee. Defendants had ample opportunity to raise any insufficiencies or errors in the submissions by plaintiff to the referee in compliance with the procedures set forth in the orders, instead defendants raise non-specific objections for the first time in their cross-motion and opposition. Pursuant to the terms of the order of reference, they have waived their claims, if they had any valid specific claims. Under the circumstances of this case the referee was not required to hold a hearing 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] ; Bank of NY Mellon v. Hoshmand , 158 AD3d 600 [2d Dept 2018] ). Where the computation consists solely of determining the amount of interest due, a hearing before the referee is not required (see Blueberry Invs. Co. v. Ilana Realty , 184 AD2d 906 [3rd Dept 1992] cited with approval in LBV Props. v. Greenport Dev. Co. , 188 AD2d 588 [2d Dept 1992] ; Capital One, N.A. v. Knollwood Properties II, LLC , 98 AD3d 707 [2d Dept 2012] ; Wachovia Mtg. Corp. v. Lopa , 129 AD3d 830 [2d Dept 2015] ).
Further, although defendants' counsel correctly points out that plaintiff failed to submit a copy of the referee's report (Exhibit "O") with plaintiff's motion, and goes to the pain of printing out as Exhibit "A" to defendants' cross-motion and opposition a copy of the list of documents filed in NYSCEF system under this docket number, both counsel fail to fully review those filings. Although this motion (NYSCEF Docs # 86-109) fails to contain the referee's report, defendant and plaintiff, seem to miss the fact that plaintiff had filed the executed referee's report in NYSCEF on September 27, 2018 (NYSCEF Doc. # 85), forty-six (46) days before this motion was filed. The court has reviewed that filing and finds that it is the same document as the original submitted by plaintiff in reply, along with counsel's mea culpa for failing to submit it along with the other twenty exhibits attached thereto. As argued by plaintiff this was an obvious oversight or error by plaintiff's law firm, which in the opinion of the court may have been otherwise fatal to the motion for a judgment of foreclosure, but for the NYSCEF filing of Doc # 85. Absent the application of e-filing to this case, the court may have been compelled to apply the general principle that a party cannot make-up the deficiency in what should have been originally submitted in a reply (see Duran v. Milord , 126 AD3d 932 [2d Dept 2015] ; Bank of America, N.A. v. Moody , 147 AD3d 712 [2d Dept 2017] ; Wells Fargo Bank, N.A. v. Osias , 156 AD3d 942 [2d Dept 2017] ; U.S. Bank N.A. v. Laino , 172 AD3d 947 [2d Dept 2019] ). But here, as it is clear by the filing of NYSCEF Doc. # 85, that plaintiff had the referee's report, had filed it with the court and that an administrative error occurred in compiling the 21 documents that should have been submitted in support of the motion, the court can apply the saving provisions of CPLR 2001. CPLR 2001 allows a court, at any stage, to disregard a party's mistake, omission, defect or irregularity if a substantial right of a party is not prejudiced, (see U.S. Bank, N.A. v. Eaddy , 109 AD3d 908 [2d Dept 2013] ; Deutsche Bank National Trust Company v. Lawson , 134 AD3d 760 [2d Dept 2015] ). The court will exercise the discretion given to it by CPLR 2001, and ignore the apparently unintentional error of plaintiff to attach the referee's report which it had already filed with the court, as no substantial right of defendants has been prejudiced. To hold otherwise would to put form over substance, as defendants and their counsel had access to the referee's report through the NYSCEF system which defendants' counsel referenced.
Accordingly, 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.
DEFENDANTS' CROSS-MOTION DENIED
Defendants' defaulted in opposing plaintiff's authorized successive motion for summary judgment dismissing their 11th affirmative defense, which defense raised compliance with the mailing requirements of a notice of default in the mortgage and the notices required by RPAPL § 1304 (Mot. Seq. # 003). Although unopposed, in the decision of July 6, 2018 the court found that plaintiff's submissions has established proof of mailing and dismissed that remaining affirmative defense, granting summary judgment and the appointment of a referee.
Without vacating their default in opposing plaintiff's motion, defendants have no ability to now argue against what has been established as the "law of the case" by the decision of July 6, 2018. In order to vacate a default in opposing a motion the defendants are required to demonstrate a reasonable excuse for their default and a potential meritorious defense (see Aurora Loan Services v. Ahmed , 122 AD3d 557 [2d Dept 2014] ; New Century Mtge. Corp v. Chimmiri , 146 AD3d 893 [2d Dept 2017] ; Hudson City Sav. Bank v. Bomba , 149 AD3d 704 [2d Dept 2017] ; Bank of New York Mellon v. Sukhu ; 163 AD3d 748 [2d Dept 2018] ; Nationstar Mtg, LLC v. Rodriguez , 166 AD3d 990 [2d Dept 2018] ; Bank of New York Mellon v. Ruci , 168 AD3d 799 [2d Dept 2019] ). Defendants make no effort to provide a detailed, credible account as to why they defaulted in opposing the motion (see Aurora Loan Services v. Ahmed , supra ), merely acting as is they could move as of right to dismiss. As they have not established a reasonable excuse for their default, as with any other discretionary vacatur, where there is failure to provide a reasonable excuse, the court need not consider claims of meritorious defenses (see HSBC Bank USA v. Miller , 121 AD3d 1044 [2d Dept 2014] ; One W. Bank FSB v. Valdez , 128 AD3d 655 [2d Dept, 2015] ).
In any event, defendants raise no meritorious defenses. Even if the arguments defendants present had been timely submitted as a cross-motion to dismiss to Mot. Seq. #003, they in and of themselves would be insufficient to grant such motion. Their counsel's claims of defects in the RPAPL § 1304 notices themselves are without merit, as can be seen from a review of his own submissions. The only other basis for dismissal is the affidavit of one defendant, Yunior Alvarez, who merely states that she did not receive the notices by mail; such a claim is insufficient to require dismissal (see LNV Corp. v. Sofer , 171 AD3d 1033 [2d Dept 2019] ; Deutsche Bank Natl. Trust Co. v. Starr , 173 AD3d 836 [2d Dept 2019] ). Further, as set forth in the decision of July 6, 2018, plaintiff's proof had established mailing of the notices.
Defendants' cross-motion and opposition appear to be meritless attempts to forestall the foreclosure, conduct which parties and their counsel are cautioned from repeating.
Defendants' cross-motion is denied.
This constitutes the Order and decision of the Court.