Opinion
608220-2016
03-15-2019
U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee on Behalf of and with Respect to Ajax Mortgage Loan Trust 2015-B, Mortgage-Backed Notes, Series 2015, Plaintiff, v. Joseph P. DALY Jr. a/k/a Joseph P. Daly, Suzanne Daly a/k/a Suzanne Lamanitia, Mers Inc., as Nominee for Countrywide Home Loans Incs., New York State Department of Taxation and Finance, Town Supervisor of Town of Smithtown, LVNV Funding LLC, All Pro Fire Protection, Midland Funding, LLC, Town Supervisor of Town of Huntington, Capital One Bank USA, N.A., Clerk of the Suffolk County Traffic and Parking Violations Agency, American Express, Target National Bank, Equable Ascent Financial LLC, People of the State of New York Cohalan Court Complex, Clerk of the Suffolk County Traffic and Parking Violations Agency, Cach, LLC, Defendants.
Vincent P. Surico, Esq., DEROSE & SURICO, Attorneys for Plaintiff, 213-44 38th Avenue, Bayside, New York 11361 Charles Fine, Esq., Attorney for Defendants, Joseph P. Daly Jr. & Suzanne Daly, 1111 Broadhollow Road, Suite 224, Farmingdale, New York 11735
Vincent P. Surico, Esq., DEROSE & SURICO, Attorneys for Plaintiff, 213-44 38th Avenue, Bayside, New York 11361
Charles Fine, Esq., Attorney for Defendants, Joseph P. Daly Jr. & Suzanne Daly, 1111 Broadhollow Road, Suite 224, Farmingdale, New York 11735
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting judgment of foreclosure and sale ; Notice of Motion dated July 12, 2018 and supporting papers Doc # 30 ; Answering Affidavits and supporting papers Doc # 32-36 ; Replying Affidavits and supporting papers Doc # 39 ; it is
ORDERED that plaintiff's motion for judgment of foreclosure and sale is granted.
This is an action to foreclose a mortgage on a premises known as 4 Lamplight Lane, Dix Hills, Suffolk County, New York. By order dated March 28, 2018 this court granted plaintiff's unopposed motion for summary judgment and order of reference (# 001) striking the answer of defendants Joseph P. Daly Jr. a/k/a Joseph P. Daly and Suzanne Daly a/k/a Suzanne Lamanitia. ("defendants"). Plaintiff now moves for judgment of foreclosure and sale and defendants oppose the motion arguing for the first time plaintiff's failed to comply with RPAPL § 1304.
Defendants' opposition is not considered by the court as defendants defaulted in opposing plaintiff's motion for summary judgment, and have not moved to vacate their default and to amend their answer to raise the affirmative defense of plaintiff's alleged failure to comply with the requirements of RPAPL § 1304. In order to vacate a default in opposing a motion pursuant to CPLR 5015 (a) (1) 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] ). Here defendants' opposition never attempts to address their default in opposing the motion for summary judgment, instead they offer the affidavit of Joseph P. Daly whose only argument is that he denies receiving the RPAPL § 1304 notice. Under these circumstances, the court will not consider defendants' opposition.
Contrary to defendants' contentions the defense of failure to comply with RPAPL § 1304 cannot be raised at any time. Defense counsel's oft-repeated phrase, cited initially in First National Bank of Chicago v. Silver, 73 AD3d 162 (2d Dept 2010), subsequently in Aurora Loan Services v. Weisblum, 85 AD3d 95 (2d Dept 2011) and CitiMortgage, Inc. v. Espinal, 134 AD3d 876 (2d Dept 2015), that an RPAPL 1304 defense "can be raised at any time" does not accurately and fully state law. There are limits to its applicability. A defendant cannot raise it for the first time on appeal (see FNMA v. Cappelli, 120 AD3d 621 [2d Dept 2014]; PHH Mortgage Corporation v. Celestin, 130 AD3d 703 [2d Dept 2015] ; Emigrant Bank v. Marando, 143 AD3d 856 [2d Dept 2016] ; Bank of America v. Barton, 149 AD3d 676 [2d Dept 2017] ; US Bank. N.A. v. Mezrahi , ––– AD3d ––––, 2019 NY Slip Op 01249 [2d Dept 2019] ). A defaulting defendant may not raise it either in opposition to a default judgment motion, or in opposing a motion for a judgment of foreclosure and sale without providing a reasonable excuse as a basis to vacate the default (see Flagstar Bank v. Jambelli, 140 AD3d 829 [2d Dept 2016] ; HSBC Bank USA, N.A. v. Clayton, 146 AD3d 942 [2d Dept., 2017] ; Bank of America v. Agarwal, 150 AD3d 651 [2d Dept 2017] ). Even if defendants had not defaulted in opposing the summary judgment motion, unlike the trial court in Emigrant Mortgage Co., Inc v. Lifshitz, 143 Ad3d 755 (2d Dept 2016), this court would have declined to exercise its discretion to consider the newly raised RPAPL § 1304 claims.
Accordingly plaintiff's submissions having provided the necessary basis to warrant a judgment of foreclosure and sale, that application is granted (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] ).
This constitutes the decision and order of the court.