Opinion
38419/2012
09-12-2019
HSBC BANK USA, NATIONAL ASSOCIATION, as Indenture TRUSTEE OF the FBR SECURITIZATION TRUST 2005-1, CALLABLE MORTGAGE-BACKED NOTES, SERIES 2005-1, Plaintiff, v. Keith SMIDT, Mortgage Electronic Registration Systems Inc. as Nominee for Accredited Home Lenders Inc., United States of America, FIA Card Services a/k/a Bank of America, New York State-Department of Taxation & Finance, Ronald Rula, and Marion Rodriguez, Defendant(s).
JEFFREY A. KOSTERICH, LLC, 68 Main Street, Tuckahoe, NY 10707, KEITH SMIDT, 121 N Delaware Ave, Lindenhurst, NY 11757, KEITH SMIDT, 44 West 11th St, Huntington Station, NY 11746, Attorneys for Plaintiff KENNETH C. HENRY, JR., ESQ., 900 Merchants Concourse, Suite 303 Westbury, NY 11590, MARION RODRIGUEZ, 44 West 11th St, Huntington Station, NY 11746, CHRISTOPHER MODELEWSKI, ESQ./REFEREE, 44 Elm St., Ste 18, Huntington, NY 11743, [And Others - See Attached] Attorney for Defendant-Ronald Rula
JEFFREY A. KOSTERICH, LLC, 68 Main Street, Tuckahoe, NY 10707, KEITH SMIDT, 121 N Delaware Ave, Lindenhurst, NY 11757, KEITH SMIDT, 44 West 11th St, Huntington Station, NY 11746, Attorneys for Plaintiff
KENNETH C. HENRY, JR., ESQ., 900 Merchants Concourse, Suite 303 Westbury, NY 11590, MARION RODRIGUEZ, 44 West 11th St, Huntington Station, NY 11746, CHRISTOPHER MODELEWSKI, ESQ./REFEREE, 44 Elm St., Ste 18, Huntington, NY 11743, [And Others - See Attached] Attorney for Defendant-Ronald Rula
Robert F. Quinlan, J.
Upon the following papers numbered 1-48 read on this application for judgment of foreclosure and sale; Notice of Motion/Order to Show Cause and supporting papers 1-20 ; Answering Affidavits and supporting papers 21-33 ; Replying Affidavits and supporting papers 34-48 ; it is,
ORDERED that this motion by plaintiff HSBC Bank USA, National Association, as Indenture Trustee of the FBR Securitization Trust 2005-1, Callable Mortgage-backed Notes, Series 2005-1, for an order confirming the referee's report and for judgment of foreclosure and sale is granted.
This is an action to foreclose a mortgage on residential real property known as 44 West 11th Street, Huntington, Suffolk County, New York given by defendant Keith Smidt on April 26, 2005 to secure a note given on the same date. Plaintiff commenced this action by filing the summons and complaint with the Suffolk County Clerk on December 26, 2012. Defendant Ronald Rula ("defendant") was named as a defendant as a result of filing a notice of pendency on the property. Defendant is a non-borrower, he did not sign the note or the mortgage that are the subject of this action. The borrower defendant, Keith Smidt, did not answer or appear. By order dated February 14, 2018 this court granted plaintiff's motion (Seq. #001) for summary judgment pursuant to CPLR §§ 3212 as against the answering defendant, striking his answer, setting the default against the non-appearing, non-answering defendants, amending the caption and for an order of reference pursuant to RPAPL § 1321. By orders dated March 7, 2019 this court granted plaintiff's motion for substitute referee (Seq. #002) and denied defendant's cross motion for a referee hearing (Seq. #003).
Plaintiff now moves for an order confirming the referee's oath and report and judgment of foreclosure and sale (Seq. #004) and the non-borrower defendant opposes the motion by submission of the affirmation of his counsel who argues the motion should be denied because the evidence submitted is inadmissable, interest should be disallowed due to the purported delay in prosecuting the action, and plaintiff failed to provide adequate factual support for its request for attorneys fees.
The award of summary judgment in this case is the law of the case and was a determination by the court that none of the defenses asserted by the defendant were meritorious (see Carbon Capital Mgt., LLC v. American Express, Co. , 88 AD3d 933 [2d Dept 2011] ; Aames Funding Corp. v. Houston , 85 AD3d 1070 [2d Dept2011] ). Further the court's March 7, 2019 order appointing a substitute referee (Seq. #002) and denying defendant's cross motion requesting a referee hearing (Seq. #003) clearly established that the order of reference defined the powers of the referee and the responsibilities of the parties ( CPLR 4313 ; see L.H. Feder Corp. v. Bozkurtian , 48 AD2d 701 [2d Dept 1975] ), as did the the February 14, 2018 order granting plaintiff's motion (Seq. #001) for summary judgment and for an order of reference specifically directed the following:
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 defendant(s) objections 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; (emphasis supplied)
Here although given ample opportunity to raise any insufficiencies or errors in the submissions by plaintiff pursuant to the terms of the court's order, defendant failed to provide objections to the referee and has provided no substantive claim of error or insufficiency to the court in opposition to this motion warranting denial of the application (see Deutsche Bank National Trust Co. v. Zlotoff , 77 AD3d 702 [2d Dept. 2010] ). Failing to do so defendant has waived such objections and establishes that there has been no prejudice.
Defendant having failed to raise timely objection to plaintiff's submission on the grounds that they were insufficient hearsay, defendant waived that objection and the court could consider the submission. In Bank of New York Mellon v. Gordon , 171 AD3d 197, 202 (2d Dept 2019) in discussing the "General Principles" applicable to legal analysis in summary judgment motions, the Second Department stated:
However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v. St. George Health & Racquetball Assoc., 119 AD3d at 55, 948 N.Y.S.2d 401), .... "Indeed in civil cases, ‘inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess’ " (Rosenblatt v. St. George Health & Racquetball Assoc. , 119 AD3d at 54-55, 948 N.Y.S.2d 401, quoting Jerome Prince, Richardson on Evidence § 8-108 [Farrell 11th ed 2008]; see Matter of Findlay, 253 NY 1, 11, 170 N.E. 471 ; Ford v. Snook , 205 App. Div 194, 198, 199 N.Y.S. 630 aff'd 240 NY 624, 148 N.E.732).
This principle applicable to summary judgment is also applicable here. Accordingly, plaintiff's submissions having provided the necessary basis to warrant a judgment of foreclosure and sale in the amount determined, the 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] ).
The court finds that the other arguments put forward by defendant are unsupported and without merit.
Plaintiff's proposed order, as modified by the court, is signed contemporaneously herewith.
This constitutes the order and decision of the court.