Opinion
INDEX No. 35483/12
09-02-2020
US BANK NATIONAL ASSOCIATION, as Trustee Successor in Interest to Bank of America National Association, as Trustee Successor by merger to LaSalle Bank National Association as Trustee for Washington Mutual Mortgage Pass-Through Certificates WMAL1 Series 2006-6, Plaintiff, v. JENNIFER KONTZAMANYS, CHRISTOPHER MARCHELL, CITIBANK SOUTH DAKOTA, NA, FIA CARD SERVICES NA, MIDLAND FUNDING LLC, JPMORGAN CHASE BANK, NA, CHRISTINE McSWEENEY, PATRICIA E. WORTHINGTON, and "JOHN DOES" and "JANE DOES", said names being fictitious, it being the intention of plaintiff to designate any and all occupants, tenants, persons or corporations, if any, having or claiming an interest in or lien upon the premises being foreclosed herein, Defendants.
BONCHONSKY & ZAINO, LLP Attys. For Plaintiff 226 Seventh St. Garden City, NY 11530 LAWRENCE & WALSH, PC Attys. For Defendant Kontzamanys 215 Hilton Ave. Hempstead, NY 11550
MEMO DECISION & ORDER
COPY
PRESENT: Hon. THOMAS F. WHELAN Justice of the Supreme Court MOTION DATE 3/4/20
SUBMIT DATE 7/31/20
Mot Seq. # 001 - MG
Mot. Seq. # 002 - XMD
CDISP Y___ N X BONCHONSKY & ZAINO, LLP
Attys. For Plaintiff
226 Seventh St.
Garden City, NY 11530 LAWRENCE & WALSH, PC
Attys. For Defendant Kontzamanys
215 Hilton Ave.
Hempstead, NY 11550
Upon the following papers numbered 1 to 8 read on this motion to appoint a referee to compute among other things and cross motion to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1 -5; Notice of Cross Motion and supporting papers: 6-7; Opposing papers; __________; Reply papers 8; Other __________; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this (#001) by the plaintiff for, among other things, summary judgment, amendment of the caption and the appointment of a referee to compute, is granted in its entirety; and it is further
ORDERED that the cross motion (#002) by defendant, Jennifer Kontzamanys, for dismissal, is denied; and it is further
ORDERED that the proposed Order submitted by plaintiff, as modified by the Court, is signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR §202.5-b(h)(2).
This an action for foreclosure on property situated in Medford. In essence, on June 7, 2006, defendant Jennifer Kontzamanys borrowed $300,000.00 from the plaintiff's predecessor in interest and executed a note and, together with Christopher Marchell, a mortgage. Since June 1, 2010 the defendant has failed to pay the monthly installments due and owing. This action was therefore commenced by filing on November 21, 2012. Pursuant to CPLR 3408, a foreclosure settlement conferences was held on May 2, 2018 and adjourned for further conferencing to take place on June 6, 2018. During this time, on June 1, 2018, defendant Jennifer Kontzamanys, through counsel, filed an answer containing twelve affirmative defenses and six counterclaims. At the conference on June 6, 2018, the matter was marked "not settled" and plaintiff was directed to proceed with the foreclosure action.
On October 3, 2019, the Court issued an Order (Hinrichs, J.) directing the parties to appear before a judicial hearing officer on October 25, 2019 for the purpose of plaintiff demonstrating why the instant action should not be dismissed pursuant to CPLR 3215(c). The parties appeared on that date and, according to plaintiff's counsel, plaintiff provided the Court with a copy of defendant's answer. Defendant's counsel asserted that the action should be dismissed, however, the judicial hearing officer did not issue a recommendation of such and instead, adjourned the matter to February 7, 2020 as a deadline for plaintiff to file a motion or for the parties to engage in further settlement discussions. The instant motion by plaintiff for summary judgment, default judgment against the non-answering defendants, and the appointment of a referee to compute was thereafter filed on February 6, 2020. Defendant, Jennifer Kontzamanys, opposed the motion and cross moved (#002) for dismissal of the complaint. The matter was thereafter assigned from the foreclosure department to this Part in February, 2020.
Defendant's counsel makes no reference to October 3, 2019 Order or to the appearance held on October 25, 2019.
The Court will first consider the cross motion (#002) by the defendant, as determination thereof may render determination of the plaintiff's motion, academic. The Court notes, the defendant's reply papers have been disregarded, as a reply is not permitted pursuant to CPLR 2214, 2215.
Initially, it is noted that defendant's submission is based entirely on an attorney's affirmation, which is without evidentiary value and is insufficient to raise a triable issue of fact, as the attorney has no personal knowledge of the facts (see Zuckerman v City of New York , 49 NY2d 557, 427 NYS2d 595 [1980]; see also Bank of New York Mellon v Aiello , 164 AD3d 632, 83 NYS3d 135 [2d Dept 2018]).
Nevertheless, dismissal is sought on the basis that plaintiff failed to comply with CPLR §3215(c), which provides that "[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court shall not enter judgment but shall dismiss the complaint as abandoned . . . unless sufficient cause is shown why the complaint should not be dismissed" (CPLR §3215[c] [emphasis added]; HSBC Bank USA , N.A. v Hasis , 154 AD3d 832, 833, 62 NYS3d 467 [2d Dept 2017], citing Wells Fargo Bank , NA v Bonanno , 146 AD3d 844, 45 NYS3d 173 [2d Dept 2017]). A defendant may waive the right to seek relief under CPLR §3215(c) by serving an answer or taking "any other steps which may be viewed as a formal or informal appearance" ( HSBC Bank USA , Natl. Assn. v Grella , 145 AD3d 669, 44 NYS3d 56 [2d Dept 2016] quoting Meyers v Slusky , 139 AD2d 709, 527 NYS3d 464 [2d Dept 1988]; see DeLourdes Torres v Jones , 26 NY3d 742, 772, 27 NYS3d 468 [2016]; HSBC Bank USA v Lugo , 127 AD3d 502, 503, 9 NYS3d 6 [2d Dept 2015]; Hodson v Vinnie's Farm Mkt., 103 AD3d 549, 959 NYS2d 440 [2d Dept 2013]; Gilmore v Gilmore , 286 AD2d 416, 730 NYS2d 239 [2d Dept 2001]). The Second Department recently reaffirmed the rule that a defendant may waive the right to seek relief under CPLR §3215(c) by his or her conduct (see US Bank N.A. v Gustavia Home , LLC , 156 AD3d 843, 844, 67 NYS3d 242 [2d Dept 2017]; Bank of America , N.A. v Rice , 155 AD3d 593, 63 NYS3d 486 [2d Dept 2017]).
As noted above, defendant filed an answer through counsel on June 1, 2018. Therefore, the defendant has waived her right to seek a dismissal pursuant to CPLR §3215(c) (see US Bank N .A. v Gustavia Home , LLC , 156 AD3d at 844, supra, citing CPLR §320[a]; Bank of Am., NA v Rice , 155 AD3d at 593, supra, Myers v Slutsky , 139 AD2d 709, 710, 527 NYS2d 464 [2d Dept 1988]; cf. HSBC Bank USA , N.A. v. Grella , 145 AD3d 669, 670, 44 NYS3d 56 [2d Dept 2016]). The Court, therefore, denies the defendant's application to dismiss the complaint pursuant to CPLR §3215(c) .
Turning then to plaintiff's motion, the Court finds that plaintiff addressed its burden of proof and adequately refutes the affirmative defenses and counterclaims of the answer. The plaintiff submits the affidavit of Patrick Riquelme, Document Control Officer for Select Portfolio Servicing, Inc. ("SPS"), servicer and attorney in fact for the plaintiff herein, sworn to on December 13, 2018. Mr. Riquelme notes that he has knowledge of SPS's records and record making procedures, including how such records are created and maintained. He avers that the records are made at or near the time of the event by persons with knowledge, and are kept in the course of SPS's ordinarily conducted business. Additionally, he avers that it is the regular practice of SPS to make such records. The Court finds that the plaintiff has demonstrated, by due proof in admissible form, its prima facie burden on this summary judgment motion (see HSBC Bank USA , Natl. Assn. v Espinal , 137 AD3d 1079, 28 NYS3d 107 [2d Dept 2016]; U.S. Bank Natl. Assn. v Cox , 148 AD3d 692, 49 NYS3d 527 [2d Dept 2017]).
The burden then shifts to the defendant (see Bank of America , N.A. v DeNardo , 151 AD3d 1008, 58 NYS3d 469 [2d Dept 2017]) and it was incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses asserted in the answer or otherwise available to them (see Flagstar Bank v Bellafiore , 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla , 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank v O'Connor , 63 AD3d 832,880 NYS2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank , NA v Agnello , 62 AD3d 662, 878 NYS2d 397 [2d Dept 2009]; Aames Funding Corp. v Houston , 44 AD3d 692, 843 NYS2d 660 [2d Dept 2007]). Notably, affirmative defenses predicated upon legal conclusions that are not substantiated with allegations of fact are subject to dismissal (see CPLR §§3013, 3018[b]; Katz v Miller , 120 AD3d 768, 991 NYS2d 346 [2d Dept 2014]; Becher v Feller , 64 AD3 672, 677, 884 NYS2d 83 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 AD3d 619, 858 NYS2d 260 [2d Dept 2008]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel , Inc. v Baiden , 36 NY2d 539, 369 NYS2d 667 [1975]; see also Madeline D'Anthony Enter ., Inc. v Sokolowsky , 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana , 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J . Realty F Rockaway , Ltd., 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013]; Starkman v City of Long Beach , 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013]).
As noted above, defendant's submission was based entirely on the erroneous basis that plaintiff did not timely seek a default judgment. Thus, all other affirmative defenses and claims raised in the answer and not addressed in the opposition are dismissed as abandoned (see JPMorgan Chase Bank , Natl. Assn. v Cao , 160 AD3d 821, 76 NYS3d 82 [2d Dept 2018]).
The plaintiff's moving papers have established all of the elements necessary for the fixation of the remaining defendants' defaults in answering and the appointment of a referee to compute amounts due under the subject note and mortgage as contemplated by RPAPL §1321 (see CPLR §3215; RPAPL §1321; Todd v Green , 122 AD3d 831, 832, 997 NYS2d 155 [2d Dept 2014]; US Bank v Razon , 115 AD3d 739, 740, 981 NYS2d 583 [2d Dept 2014]). The moving papers further established the plaintiff's entitlement to an order amending the caption (see CPLR §1024; Deutsche Bank Natl. Trust Co. v Islar , 122 AD3d 566, 996 NYS2d 130 [2d Dept 2014]; Flagstar Bank v Bellafiore , 94 AD3d at 1044, 1046, 943 NYS2d 551, [2d Dept 2012]; Neighborhood Hous. Servs. of NY City , Inc. v Meltzer , 67 AD3d 872, 873-874 [2009]).
Accordingly, plaintiff's motion (#001) is granted and defendant's cross motion (#002) is denied. The proposed order of reference, as modified by the court, has been signed simultaneously with this memorandum decision and order. DATED: 9/2/20
/s/_________
THOMAS F. WHELAN, J.S.C.