Opinion
12751-2013
09-09-2019
BANK OF AMERICA, N.A., Plaintiff, v. Edward S. ADASZEWSKI, Amy Adaszewski and Agnes Adaszewski, Defendants.
FRENKEL, LAMBERT WEISS, WEISMAN & GORDON, LLP, 53 Gibson Street, Bay Shore, NY 11706, Attorneys for Plaintiff BRYAN CAVE LEIGHTON PAISNER, LLP, 1290 Avenue of the Americas, New York, NY 10104, Co-Counsel for Plaintiff FRED M. SCHWARTZ, ESQ., Adaszewski, 317 Middle Country Road, Suite 5, Smithtown, NY 11787, Attorney for Defendants Edward S. and Agnes AMY ADASZEWSKI, Greenlawn, NY 11740, Defendant In Default 21 Shire Court,
FRENKEL, LAMBERT WEISS, WEISMAN & GORDON, LLP, 53 Gibson Street, Bay Shore, NY 11706, Attorneys for Plaintiff
BRYAN CAVE LEIGHTON PAISNER, LLP, 1290 Avenue of the Americas, New York, NY 10104, Co-Counsel for Plaintiff
FRED M. SCHWARTZ, ESQ., Adaszewski, 317 Middle Country Road, Suite 5, Smithtown, NY 11787, Attorney for Defendants Edward S. and Agnes
AMY ADASZEWSKI, Greenlawn, NY 11740, Defendant In Default 21 Shire Court,
Robert F. Quinlan, J.
Upon the following papers numbered 1 to 162 read on this application by plaintiff Bank of America, N.A. for an order for pursuant to CPLR § 1021 dismissing the counterclaim of decedent, CPLR 3211 (b) and 3212 dismissing the affirmative defenses and counterclaims of defendants Edward S and Agnes Adaszewski, for summary judgment against them striking their answer, setting the default of defendant Amy Adaszewski and appointing a referee to compute; Notice of Motion and supporting papers; including proposed order 1-90; Opposition and supporting papers, including Supplemental Affirmation 91-118 ; Reply Affirmation, Reply Affidavit, Reply Memorandum of Law and supporting papers 119-162 ; it is
ORDERED that plaintiff Bank of America, N.A.'s motion pursuant to pursuant to CPLR § 1021 is granted as both the counterclaim of decedent Edward A. Adaszewski and plaintiff's claims against decedent are dismissed; and it is further
ORDERED that plaintiff Bank of America, N.A. is granted partial summary judgment pursuant to CPLR 3212 (g) dismissing and striking all of defendant Edward S. Adaszewski and Agnes Adaszewski's counterclaims and affirmative defenses except their 10th affirmative defense to the extent set forth below; and it is further
ORDERED that the default of defendant Amy Adaszewski is fixed and set; and it is further
ORDERED that plaintiff Bank of America, N.A.'s motion for full summary judgment dismissing and striking defendants Edward S. Adaszewski and Agnes Adaszewski's answer, as well as for the appointment of a referee pursuant to RPAPL § 1321 is denied and its proposed order submitted with the motion is marked "Not Signed"; and it is further
ORDERED that the remaining issue of plaintiff Bank of America, N.A.'s proof of mailing of the RPAPL § 1304 notices raised by defendants Edward S. Adaszewski and Agnes Adaszewski's 10th affirmative defense is set for a limited issue trial pursuant to CPLR 2218 ; and it is further
ORDERED that parties are prohibited from filing further summary judgment motions, except as authorized herein; and it is further
ORDERED that the action is set for a certification conference on Monday, October 7, 2019 at 9:30 AM before this part at which time the court expects the parties to certify the case ready for the limited issue trial set by this order and after which plaintiff is to file a note of issue; and it is further
ORDERED that within 60 days of the filing of the note of issue the parties are authorized to file successive summary judgment motions on the limited issue set for trial; and it is further
ORDERED that to correct a typographical error in the order of February 20, 2018 (Mot. Seq. #002) amending the caption, the caption is corrected to read as below:
X
BANK OF AMERICA, N.A.,
Plaintiff,
against
EDWARD S. ADASZEWSKI, AMY
ADASZEWSKI and AGNES ADASZEWSKI,
Defendants.
X
and that all further proceedings shall be under the corrected caption; and it is further
ORDERED that counsel for plaintiff is directed to serve a copy of this order upon the clerk of the court within thirty (30) days of this order to correct the caption.
This is an action to foreclose a mortgage on a residential property know as 21 Shire Court, Greenlawn, Suffolk County, New York ("the property") given by defendants Edward S. Adaszewski, Amy Adaszewski, Agnes Adaszewski and Edward A. Adaszewski to Lend-Mor Mortgage Banker's Corp. ("Lend-Mor"), a predecessor in interest to plaintiff Bank of America, N. A. ("plaintiff") on January 9, 2010 to secure a note given the same day by all defendants but Amy Adaszewski to Lend-Mor. Subsequently, both the note and mortgage were assigned to plaintiff. Defendants Edward S. Adaszewski, Amy Adaszewski, Agnes Adaszewski and Edward A. Adaszewski allegedly defaulted in their payment obligations pursuant to the note and mortgage and plaintiff commenced this action. Defendants Edward S. Adaszewski, Agnes Adaszewski and Edward A. Adaszewski filed an answer by counsel, while defendant Amy Adaszewski neither answered or appeared and is in default.
The prior history of this action is set forth in the previous orders of the court. The first order, dated March 26, 2016 (Mot. Seq. #001), denied plaintiff's initial motion for summary judgment and appointment of a referee to compute pursuant to RPAPL § 1321 as the death of defendant Edward A. Adaszewski ("decedent") on March 28, 2015, shown by a submitted copy of his death certificate, stayed all proceeding until the appointment and substitution of a representation of his estate, or other disposition of the claim against decedent was had. It appeared at that time that no such estate representative had been appointed.
The second order, dated February 20, 2018 (Mot. Seq. #002), granted plaintiff's application to remove and delete from the caption decedent and/or a representative of his estate. The submissions indicated that no representative of the decedent's estate had been appointed or sought, and that plaintiff wished to move forward without the appointment of a representative as it was willing to waive any claim of a deficiency judgment against decedent's estate and discontinue the action against the decedent. Plaintiff's application was based upon the fact that upon decedent's death his share of the ownership of the property as joint tenant with right of survivorship passed to the other joint tenants, his wife defendant Agnes Adaszewski, their son defendant Edward S. Adaszewski ("defendants") and his son's former wife, defaulting defendant Amy Adaszewski (see Plaintiff's Exhibit "A," deed of 2008). Additionally, upon plaintiff's application, the court also removed the "JOHN DOE" defendants from the caption and action.
This order now corrects a typographical error in the caption as amended by the order of February 20, 2018 which contained the term "et al" in the amended caption, when such was not necessary; additionally the court notes another typographical error in the third paragraph of that decision where Edward A. Adaszewski and Amy Adaszewski are referred to as "husband and wife," when it was in fact Edward S. Adaszewski who was husband to Amy Adaszewski at the time that the transaction was entered into in 2010.
Plaintiff's present application seeks dismissal of the counterclaim of decedent Edward A. Adaszewski pursuant to CPLR § 1021, summary judgment dismissing the affirmative defenses and counterclaims raised in the answer of the defendants, dismissing and striking their answer, setting the default of the non-appearing, non-answering defendant Amy Adaszewski, and for the appointment of a referee to compute pursuant to RPAPL § 1321. Defendants oppose the motion.
The submission of the parties in support of their positions are noted above. As to defendants' counsel's unusual submission of a supplemental affirmation in opposition with an attached exhibit two days after his original submissions in opposition, considering the short period of time between these two submissions and that plaintiff had the opportunity to review the supplemental response before submitting its reply, the court has considered defendants' supplemental affirmation.
CLAIMS AGAINST DECEDENT OR HIS ESTATE ARE DISMISSED, AS IS HIS COUNTERCLAIM
Plaintiff moves to dismiss decedent's counterclaim, which is included in the joint answer filed by all defendants but Amy Adaszewski while he was alive. Plaintiff's application under Mot. Seq. #002 was merely to amend the caption to remove decedent, although the context of the submissions indicated a willingness to discontinue the action against decedent or his estate. In support of that application, which the court granted, plaintiff argued that as it was willing to forego a deficiency judgment against decedent's estate, decedent was no longer a necessary party, the stay imposed by his death could be lifted and the foreclosure action could proceed against the remaining defendants. The argument was supported by case law. Based upon the cases cited by plaintiff, the court granted its application to amend the caption removing decedent therefrom and lifted the stay, but as plaintiff never asked to discontinue its potential claims against decedent or his estate, the court only granted plaintiff the relief it requested, making reference in the decision to the appropriate procedure for appointment of an estate representative by the Surrogate Court.
Plaintiff's present submissions make it clear that it wishes to discontinue any claim it may have against decedent's estate and argues that CPLR § 1021 requires dismissal of decedent's counterclaim. As either plaintiff or defendants could have sought the appointment of an estate representative and moved to substitute that representative, but neither chose to do so, the provisions of CPLR § 1021 apply equally to both. Defendants having had the opportunity to make such applications since March 28, 2015 and plaintiff since the order of March 10, 2016 (Mot. Seq. #001), both plaintiff's claims against decedent in its complaint and that portion of defendants' answer which raises a counterclaim on behalf of decedent are dismissed.
PARTIAL SUMMARY JUDGMENT GRANTED
Summary judgment requires the movant, here plaintiff, to provide affirmative evidence in evidentiary form to establish as a matter of law entitlement to that relief (see Winegrad v. New York University Medical Center , 64 NY2d 851[1985] ; Gilbert Frank Corp. v. Federal Insurance , 70 NY2d 966 [1988] ; Torres v. Industrial Container , 305 AD2d 136 [1st Dept 2003] ). Failure to do so requires the denial of the motion regardless of the sufficiency of the opposition (see William J. Jenack Estate Appraiser and Auctioneers v. Rabizadeh , 22 NY3d 470 [2013] ; Jacobsen v. New York City Health & Hospital Corp. , 22 NY3d 824 [2014] ). It has long been recognized as a general principle of summary judgment that a moving party, as well as an opponent, is required to assemble and lay bare all its proof in support, or opposition, of the motion (see Maurice O'Meara Co. v. National Park Bank of New York , 239 NY 386 [1925] ; Dodwell & Co. I.nc. v. Silverman , 234 AD 362 [1st Dept 1932] ; M & S Mercury Air Conditioning Corp. v. Rodolitz , 24 AD2d 873 [2d Dept 1965] ). Failure to do so is done at the party's risk, as movant bears the heavy burden of establishing a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidentiary proof in admissible form to demonstrate the absence of any material issue of fact (see Deleon v. New York City Sanitation Dept., 25 NY3d 1102 [2015] ). An opponent of summary judgment also has to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see Zuckerman v. City of New York , 49 NY2d 557 [1980] ; Winegrad v. New York Univ. Med. Ctr., supra ). In deciding the motion the court is to determine whether there are bonafide issues of fact and generally is not to delve into or resolve issues of credibility (see Vega v. Restani Corp. , 18 NY3d 499 [2012] ), unless it clearly appears that the issues are not genuine, but feigned (see Curry v. MacKenzie, 239 NY 267 [1925] ; Glick & Dolleck, Inc. v. Tri Pack Export Co. , 22 NY2d 439 [1968] ; Sullivan v. Pilevsky , 281 AD2d 410 [2d Dept 2001] ; Dorazio v. Delbene , 37 AD3d 645 [2d Dept 2007] ; Pryor & Mandelup, LLP v. Sabbeth , 82 AD3d 731[2d Dept 2011] ; Carthen v. Sherman , 169 AD3d 416 [1st Dept 2019] ).
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 by proof submitted in evidentiary form ( CPLR 3212 ; RPAPL § 1321 see Federal Home Loan Mtge. Corp. v. Karastathis , 237 AD2d 558 [2d Dept 1997] ; Wells Fargo, NA v. Erobobo , 127 AD3d 1176 [2d Dept 2015] ; Wells Fargo Bank, NA v. Morgan , 139 AD3d 1046 [2d Dept 2016] ). The burden then shifts to defendants to demonstrate through evidentiary proof in admissible form 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] ; Washington Mut. Bank v. Valencia , 92 AD3d 774 [2d Dept 2012] ; Citibank, NA v. Van Brunt Properties, LCC , 95 AD3d 1158 [2d Dept 2012] ).
Where plaintiff's standing has been placed in issue by defendants' answer, as here, plaintiff must also establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor , 25 NY3d 355 [2015] ; Bank of New York Mellon v. Gordon, 171 AD3d 197 [2d Dept 2019] ; US Bank, N. A. v. Echevarria , 171 AD3d 979 [2d Dept 2019] ). In addition, also as here, where defendants have properly asserted non-compliance with the notice requirements of RPAPL § 1304 as a defense, plaintiff must adduce due proof that the pre-action foreclosure 90 day notice requirements have been satisfied as part of it's prima facie proof (see Bank of New York v. Aquino , 131 AD3d 1186 [2d Dept 2015] ;]; Cenlar FSB v. Weisz , 136 AD3d 855 [2d Dept 2016] ; U.S. Bank, N. A, v. Singh , 147 AD3d 1007 [2d Dept 2017] ; Deutsche Bank Natl. Trust Co. v. Starr , 173 AD3d 836 [2d Dept 2019] ).
ESTATE NOT REQUIRED AS A PARTY
Defendants also raise a claim that as plaintiff has not moved to substitute decedent's estate, the action remains stayed and cannot continue until such an appointment is made and the appointed representative substituted. Under the facts of this case, such argument has no merit. As plaintiff has discontinued any possible action against the estate by discontinuing against decedent and plaintiff's counsel unequivocally stated that plaintiff releases decedent's estate from any claim of a deficiency judgment, decedent's estate is no longer a necessary party to the foreclosure, and the action may proceed without it (see Federal Natl. Mtge Assoc. v. Connelly , 84 AD2d 805 [2dDept 1981] ; DLJ Mortg. Capital Inc. v. 44 Brushy Neck, Ltd. , 51 AD3d 875 [2d Dept 2008] ; Bank of New York Mellon, Trust Co. v. Ungar Family Realty Corp. , 111AD3d 657 [2d Dept 2013]; U.S. Bank, N.A. v. Esses , 132 AD3d 847 [2d Dept 2015] ; Bank of New York Mellon v. Buckowitz , 164 AD3d 730 [2d Dept 2018] ), as was determined by the court's order of February 20, 2018 (Mot. Seq. #002) and ratified by the court's decision above. Defendants never moved to reargue that decision. That claim is dismissed.
UNSUPPORTED AFFIRMATIVE DEFENSES AND COUNTERCLAIM DISMISSED
Defendants' answer raises 22 affirmative defenses and 1 counterclaim. In opposition to plaintiff's motion defendants only attempt to support their claims of plaintiff's lack of standing to prosecute the action (1st and 14th affirmative defenses), failure to provide a notice of default (6th and 7th affirmative defenses) and that portion of their 10th affirmative defense that raises compliance with the notices required by RPAPL § 1304. The failure to raise and support pleaded affirmative defenses and counterclaims in opposition to a motion for summary judgment renders those defenses and counterclaims abandoned and thus 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] ; Wells Fargo Bank, N.A. v. Thomas , 150 AD3d 1312 [2d Dept 2017] ; JPMorgan Chase Bank, N.A. v. Cao, 160 AD3d 821 [2d Dept 2018] ; U.S. Bank, N.A. v. Gonzalez , 172 AD3d 1273 [2d Dept 2019] ). Defendants 2nd through 5th, 8th, 9th, 11th through 13th and 15th through 22nd affirmative defenses, as well as the other claims made in their 10th affirmative defense, are dismissed, as is their counterclaim.
Although there is a passing reference made by defendants' counsel in his affirmation in opposition (see par. 10) as to plaintiff having failed to prove mailing of a notice of default as required by the mortgage, and there are specific claims in the affidavits of each defendant in support of their 6th and 7th affirmative defenses that plaintiff failed to mail them such a default notice, as pointed out by plaintiff's counsel in his affirmation, the mortgage does not contain a provision that requires a notice of default to be sent before an action can be commenced. That a letter is claimed to have been sent notifying defendants of their default, the receipt of which is denied by defendants, who additionally challenge the proof offered of its mailing, does not change the fact that the mortgage did not require such a default letter to be sent. Where the mortgage and note do not require plaintiff to send defendants-mortgagors notice of default, contentions by defendants that such a notice was not received when plaintiff claims to have sent one, is not a defense to the action (see Emigrant Funding Corp v. Agard , 121 AD3d 935 [2d Dept 2014] ; Flagstar Bank, F.S.B. v. Davis , 50 Misc 3d 1205 (A) [Sup. Ct. Suffolk Co, 2015] ). Defendants 6th and 7th affirmative defenses are dismissed.
Plaintiff has presented through evidence in admissible form, proof of the note and mortgage executed by defendants, as well as proof of defendants' default in payment. The court notes that defendants raise no claim that they are not in default in payment, and any claim that payments had been made but not properly allocated raised by their 12th affirmative defense was abandoned by the failure to support it in opposition, as was any claim raised by their 22nd affirmative defense that challenged the authenticity of the signatures on the note, mortgage and other loan documents. Plaintiff's proof has established the three elements basic to a successful foreclosure action.
STANDING ESTABLISHED
The affidavit of an officer of plaintiff establishes her ability to testify to plaintiff's business practices, procedures and records in conformity with CPLR 4158. She states that a review of those records indicate that plaintiff had possession of the note from January 27, 2010 "through at least May 10, 2013, the date of the commencement of the foreclosure action." Defendants' counsel attempts to raise questions concerning plaintiff's authority to act as "servicer" on behalf of the "owner" of the loan prior to a limited power of attorney from the "owner" to plaintiff dated April 23, 2013, but they are without merit. The limited power of attorney dated April 23, 2013 spells out plaintiff's authority to act as servicer prior to the filing of the action on May 10, 2013. The affidavit of plaintiff's officer attests to plaintiff's possession of the note, endorsed to plaintiff by Lend-Mor by an allonge stapled to the note, a copy of which is attached as an exhibit to her affidavit, prior to and at the time of the filing of the action, that is sufficient to establish its standing. An affidavit of plaintiff's representative based upon personal knowledge and review of books and business records maintained by plaintiff in the ordinary course of business that establishes facts of plaintiff's possession of the note on a date prior to commencement of the action is sufficient to establish plaintiff's standing (see Aurora Loan Services, LLC v. Taylor , 25 NY3d 355 [2015] ; Deutsche Bank Natl. Trust Co. v. Naughton ; 137 AD3d 1199 [2d Dept 2016] ); Bank of NY Mellon v. Gordon, supra ; Wells Fargo Bank, N.A. v. Gonzalez , 174 AD3d 555 [2d Dept 2019] ). The fact that the allonge also contains an indorsement in blank by plaintiff is of no moment. Defendants' 1st and 14th affirmative defenses are dismissed.
COMPLIANCE WITH RPAPL § 1304 NOT ESTABLISHED
Defendants' challenge to compliance with the mailing requirements are two fold; the first is that plaintiff's submissions do not establish it's the mailing of the notices; the second is that the mailing of the notices to defendant Agnes Adaszewski at the property address fails to comply with the mandate of the statute, as she did not reside at the property and that plaintiff was aware of this fact before the notices were sent. The court will address these arguments in reverse order.
DEFENDANTS CLAIM OF INVALID MAILING ADDRESS DISMISSED
Defendants arguments claiming plaintiff was aware that defendant Agnes Adaszewski did not reside at the property and that plaintiff was aware of a mailing address for defendant Agnes Adaszewski other than the property, requiring the RPAPL § 1304 notices to be mailed to her at that other address, are unsupported by evidence in admissible form and dismissed by the court. As stated above an opponent of summary judgment, just as a movant, must assemble and lay bare all of its proof in opposition providing evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see Zuckerman v. City of New York, supra ; Winegrad v. New York Univ. Med. Ctr., supra ; Washington Mut. Bank v. Valencia, supra ). Failure to do so is done at the opponent's risk, for hearsay and speculation based upon inadmissible evidence do not meet that standard of proof necessary to raise a valid question of fact.
Plaintiff's submissions establish by proof in evidentiary admissible form that defendant Agnes Adaszewski executed documents representing that the property was her primary residence and mailing address, and that she was required by those documents to mail a written notification to plaintiff, or a predecessor in interest, of a change in her address. Defendants have not challenged the authenticity of those documents, one of which was signed by defendant Agnes Adaszewski under oath. Additionally, defendants submissions have not established by evidentiary proof in admissible form that defendant Agnes Adaszewski ever mailed a written notification to plaintiff, or a predecessor in interest, of a change of address or that she never resided at the property.
Paragraph 8 of the note (Plaintiff's Exhibit "2") signed by defendant Agnes Adaszewski states that notice will be mailed "to Borrower at the property address above or at a different address if Borrower has given Lender a notice of Borrower's different address." The property address at the top of the note is the property.
The first paragraph of the mortgage (Plaintiff's Exhibit "3"), signed by defendant Agnes Adaszewski, lists all borrowers followed by the statement "whose address is 21 Shire Ct., Greenlawn, NY 11740," and contains within it standard language in paragraph 5 that the borrower will occupy the property as her primary residence. Paragraph 13 of that document also states that any notice shall be directed to the property address or any other address borrower designates to lender and the mortgage further requires that any notice to lender, which includes a change of address, must be given in writing by first class mail.
The HUD settlement statement (part of Plaintiff's Exhibit "4") lists defendant Agnes Adaszewski's address as the property, as does the "Notice of Right To Cancel" (also part of Plaintiff's Exhibit "4"), both of which she signed.
Further, plaintiff submitted an affidavit of occupancy of the property (Plaintiff's Exhibit "5") sworn to by defendant Agnes Adaszewski before a notary, in which she avers that the property was her primary residence.
Although provisions of the note and mortgage refer to the fact that defendant Agnes Adaszewski may notify plaintiff's predecessor in interest, or plaintiff, of a different address for notice by mail in writing, she offers no proof of the mailing of such a notice. Any "proof" that she submits claiming plaintiff, or its predecessor in interest, had or received notice that the property was not her primary residence is not in admissible form and is at best inadmissible hearsay. In her affidavit she asserts that she orally advised an unidentified representative of Lend-Mor at the closing that she resided at a different address, a claim supported by her co-defendant son, yet at the closing she signed all the documents, including an affidavit, stating that the property was her residence. Subsequently, on a date not given, she claims to have notified another unidentified representative of plaintiff, or a predecessor in interest, by phone that she never lived at the property, although the documents she signed at the closing required her to give such notification in writing by first class mail. What "documentation" she submits to support her claim that plaintiff, or a predecessor in interest, was aware that she did not live at the property and/or that she had notified them in writing of that fact are not in admissible form and/or are of no assistance in determining when such a written notification was purportedly given.
The fact that the deed to the property filed with the Suffolk County Clerk on September 2, 2008, when title was transferred to defendants well over a year before the loan transaction of January 9, 2010, listed her and her husband as living at another address in Greenlawn does not refute the representations she made in the documents she signed at the loan transaction, including the standard language in the mortgage that the borrowers would make the property their primary residence and the affidavit of occupancy she gave.
The undated "Request For Mortgage Assistance" submitted as defendants' Exhibit "B" with their opposition, which lists a different address for defendant Agnes Adaszewski, is merely page one of seven, the other six pages are not submitted. Further, nowhere in her affidavit, or her son's affidavit, do either of them refer to or identify that document, state who filled it out, when it was filled out, to whom it was mailed, when and if it was mailed, or attempt to explain or acknowledge it in any way. As such, it appears to be a partial document submitted by counsel who is also unable to provide an evidentiary basis to make the document admissible. As such it is not in evidentiary admissible form, is hearsay and should not be considered in opposition to a motion for summary judgment. The court also notes, that as only defendant Agnes Adaszewski is listed in the document as a "CO-BORROWER," it appears to be a document submitted for consideration after the passing of decedent in 2015, well after the claimed mailing of the RPAPL § 1304 notices.
The "Request for Transcript of Tax Return - IRS Form 4506-T" and "Hardship Letter" submitted as Exhibit "1" to defendants' counsel's Supplemental Affirmation In Opposition are also inadmissible hearsay, as there is no affidavit submitted from defendant Agnes Adaszewski, her son or anyone with personal knowledge attesting to them. Just as with the prior unexplained exhibit submitted with her counsel's first affirmation, defendants' attorney's affirmation is insufficient to make such documents admissible, as he has no personal knowledge as to them (see Matter of Zlomek , 40 AD3d 774 [2d Dept 2007] ; Barcov Holding Corp. v. Bexin Realty Corp. , 16 AD3d 282 [1st Dept 2005] ; US National Bank Assn. v. Melton , 90 AD3d 742 [2d Dept 2011] ; Bank of NY Mellon v. Aiello , 164 AD3d 632 [2d Dept, 2018] ). Additionally, as with the prior exhibit, these exhibits are unexplained and unacknowledged by defendants, and there is no proof submitted of when and to whom they were mailed in any form, let alone admissible form, by anyone with personal knowledge. The court further notes that the "Hardship Letter" does not contain an address other than the property for defendant Agnes Adaszewski. While there appears to be an address different from the property as her "current address" on the "Request for Transcript of Tax Return - IRS Form 4506-T," there is no proof submitted as to whether this was a personal request from defendant Agnes Adaszewski and decedent for a copy of their tax return, or an authorization to release it to another, as there is no authorization identifying that the returns are to be sent to someone else and more specifically to plaintiff or a predecessor in interest, nor is there any proof that this was ever mailed to plaintiff or a predecessor in interest.
Defendants' submissions fail to establish by evidentiary proof in admissible form the existence of a triable issue of fact as to a bona fide defense to the action, more particularly defendants' claim that the RPAPL § 1304 notices should have been mailed to defendant Agnes Adaszewski at an address other than the property (see Zuckerman v. City of New York, supra ; Winegrad v. New York Univ. Med. Ctr., supra ; Washington Mut. Bank v. Valencia, supra ).
MAILING OF RPAPL § 1304 NOTICES NOT ESTABLISHED
Although defendants fail to establish that defendant Agnes Adaszewski's address used by plaintiff to mail her the notices required by RPAPL § 1304 was an improper address for such mailings, plaintiff's submissions have failed to establish the mailing of those notices to defendants, preventing the dismissal of that portion of defendants' 10th affirmative defense that raises compliance with the mailing of the notices required by RPAPL § 1304.
As noted above, where defendants have raised compliance with the requirements of RPAPL § 1304 plaintiff must establish that compliance as part of its prima facie case. Here, in its original submissions plaintiff submits an affidavit of one of its officers in which she claims to set forth plaintiff's practices and procedures for mailing of the RPAPL § 1304 notices, using the "TrackRight" system, and provides a print out of the "TrackRight" mailing information claiming that this establishes mailing of the notices by plaintiff. The printout (Exhibit "11" submitted with her affidavit) shows that the notices were mailed on June 5, 2012 with a notation "LenderLive Event-Mailed." Despite plaintiff's co-counsel's assertion in his reply affirmation that this affidavit establishes the mailing, he appears to question that, as he submitted with his reply a second affidavit from an employee of the entity that actually mailed the RPAPL § 1304 notices on behalf of plaintiff, The Walz Group, LLC, a subsidiary of LenderLive Services, LLC, now known as Covius Services, LLC ("Walz"). From many summary judgment motions and limited issue trials involving the issue of mailing of notices required by the mortgage or RPAPL § 1304, including some of this court's decisions cited by defendant's counsel in his affirmation in opposition, the court is very familiar with Walz. It is clear from each submission by plaintiff that the mailings here were actually done by Walz on behalf of plaintiff, not by plaintiff as its officer averred. If the affidavit submitted in reply had been submitted originally by plaintiff, the court's decision on this issue may have been different than what it will now set forth, for although plaintiff's officer's affidavit sets forth her ability to testify to plaintiff's records pursuant to CPLR 4518, it does not establish her familiarity with the mailing practices and procedures used by Walz, the "LenderLive Event-Mailed," to mail the RPAPL § 1304 notices on behalf of plaintiff in sufficient form to meet standards set by appellate decisions.
To establish mailing, plaintiff may provide proof of actual mailing or a description of its office's practice and procedure for mailing (see New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006] ; Citibank, N.A. v. Wood , 150 AD3d 813 [2d Dept 2017] ; Wells Fargo Bank, N.A. v. Taylor , 170 AD3d 921 [2d Dept 2019] ). Due proof of the mailing of the RPAPL § 1304 notices are established by submission of an affidavit of service (see Bank of NY Mellon v. Aquino , 131 AD3d 1186 [2d Dept 2015] ; 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] ) 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] ;Bank of New York Mellon v. Gordon, supra ; Wells Fargo Bank, N.A. v. Kohli , 173 AD3d 941[2d Dept2019] ). An affiant must show her familiarity with office practices and procedures to establish office practices and procedures to insure proper addressing and mailing (see CitiMortgage, Inc v. Pappas, 147 AD3d 900 [2d Dept 2017] ; US Bank v. Henry, 157 AD3d 839 [2d Dept 2018] ; Wells Fargo Bank, N.A. v. Moran , 168 AD3d1128 [2d Dept 2019]; US Bank, N.A. v. Cope , ––– AD3d ––––, 2019 NY Slip Op 06111 [2d Dept 2019] ). Here the affidavit of plaintiff's officer submitted with plaintiff's motion fails to establish the actual procedures that insure mailing by Walz on behalf of plaintiff.
Although an affiant may establish her ability to testify to her employer's business records and its practices and procedures for mailing, if she fails to establish her familiarity with the mailing practices of the entity which actually mailed the notices, plaintiff's motion should be denied (see CitiBank, N.A. v. Conti-Scheurer , 172 AD3d 17 [2d Dept 2019] ). Where, as here, it is clear from the records submitted that the notices were mailed by another entity, an affidavit which fails to establish familiarity with the mailing practices and procedures of that entity is insufficient to establish mailing (see LNV Corp. v. Sofer , 171 AD3d 1033 [2d Dept 2019] ).
AFFIDAVIT IN REPLY CANNOT BE CONSIDERED
Although the affidavit of the Walz employee submitted in reply may have established the mailing of the RPAPL § 1304 notices to defendants, the court cannot consider this affidavit. Here plaintiff was aware that defendants had contested compliance with RPAPL § 1304 from their 10th affirmative defense and also was aware that once raised, it was required to prove compliance with the mailing requirements of those notices as part of its prima facie proof. For this reason, plaintiff should have been prepared on its original submission to submit proof more consistent with the Walz affidavit submitted in reply. Plaintiff having failed to do so, the court must disregard the information submitted in plaintiff's affidavit in reply which should have been submitted along with original submission (see Duran v. Milord , 126 AD3d 932 [2d Dept 2015] ; Aurora Loan Services, LLC v. Baritz , 144 AD3d 618 [2d Dept 2016] ; Bank of America, N.A. v. Moody , 147 AD3d 712 [2d Dept 2017] ; Tri-State Loan Acquisitions III v. Litkowski , 172 AD3d 780 [2d Dept 2019] ; U.S. Bank N.A. v. Laino , 172 AD3d 947 [2d Dept 2019] ). It is the function of a reply affidavit to address arguments made for the first time in opposition to the position of movant, not to permit movant to introduce new proof in support of its motion (see Ritt v. Lenox Hill Hospital , 182 AD2d 560 [2d Dept 1992] ; Matter of Allstate Insurance v. Dawkins , 52 AD3d 826 [2d Dept 2008] ). In a similar situation involving proof of mailing of a notice of default required by the mortgage raised as an affirmative defense, plaintiff's submission of proof of compliance in reply to defendant's opposition was improper and should not have been considered (see Wells Fargo Bank, N.A. v. Osias , 156 AD3d 942 [2d Dept 2017] ). Applying these principles, the court must disregard the affidavit submitted in reply, refuse plaintiff full summary judgment dismissing that portion of defendants' 10th affirmative defense and striking their answer.
LIMITED ISSUE TRIAL SET AS TO PROOF OF MAILING ONLY
The court grants plaintiff partial summary judgment pursuant to CPLR 3212 (g) as the court finds that the only remaining issue of fact is whether plaintiff complied with the mailing requirements relevant to the notices required by RPAPL § 1304. The court finds that the notices submitted by plaintiff comply with the requirements as to content and form set forth in RPAPL § 1304 and that the trial set pursuant to CPLR 2218 shall be limited to the proof of mailing.
SUCCESSIVE SUMMARY JUDGMENT MOTIONS ON LIMITED ISSUE AUTHORIZED
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] ; Graham v. City of New York, 136 AD3d 754 [2d Dept 2016] ; Kolel Damsek Eliezer, Inc. v. Schlesinger , 139 AD3d 810 [2d Dept 2016] ). It is clearly appropriate to consider a successive summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few 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] ).
The court finds that the circumstances of this case lend itself to authorizing the parties to file successive summary judgment motions on the limited issue set for trial, which motions may be made within 60 days of the filing of the note of issue ( CPLR 3212 [a] ).
The default of non-answering, non-appearing defendant Amy Adaszewski is fixed and set, but the court notes that as the note submitted by plaintiff was not signed by her, plaintiff may not seek a deficiency judgment against her (see Plaintiff's Exhibit "2"). Additionally, the court notes that no issue is raised pursuant to CPLR § 3215 (c) by the timing of this application, as plaintiff originally sought this relief in Mot. Seq. #001, filed on December 3, 2013, well within one year of defendant Amy Adaszewski's default in appearing (see GMAC Mtg LLC v. Todaro , 129 AD3d 666 [2d Dept 2015] ; US Bank N.A. v. Piccone , 170 AD3d 1070 [2d Dept 2019] ; Natl. City Mtge Co. v. Sclavos , 172 AD3d 884 [2d Dept 2019] ).
Plaintiff's motion for full summary judgment dismissing and striking defendants Edward S. Adaszewski and Agnes Adaszewski's answer, as well as for the appointment of a referee pursuant to RPAPL § 1321 is denied and its proposed order submitted with the motion is marked "Not Signed."
The action is set for a certification conference on Monday, October 7, 2019 at 9:30 AM before this part at which time the court expects the parties to certify the case ready for the limited issue trial set by this order and after which plaintiff is to file a note of issue.
This constitutes the order and decision of the court.