Summary
In Amos Financial, LLC v. Crapanzano (73 Misc 3d 448 [Sup Ct Rockland Co 2021]), the Court reviews caselaw addressing Commercial Division Rule 19-a and holding that a failure to comply with it does not mandate that a court deem facts admitted, but instead leaves the remedy to the court's discretion.
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07-30-2021
Amos Financial LLC, Plaintiff, v. Sharon K. Crapanzano, UNION STATE BANK, KRISTINA CRAPANZANO, MIRIAM ROSENBERG, Defendants.
Jason D. Silver, Esq. Greenspoon Marder, LLP Attorneys for Plaintiff By NYSCEF Sharon K. Crapanzano Defendant By U.S. Mail Miriam Rosenburg Defendant By U.S. Mail
Jason D. Silver, Esq. Greenspoon Marder, LLP Attorneys for Plaintiff By NYSCEF
Sharon K. Crapanzano Defendant By U.S.
Mail Miriam Rosenburg Defendant By U.S. Mail
Robert M. Berliner, J.
The following papers were read on this motion by plaintiff for an Order pursuant to CPLR 3212 granting summary judgment against defendant Sharon Crapanzano, pursuant to CPLR 3215 granting default judgment against all other defendants, pursuant to RPAPL 1321 appointing a computational referee, and for related relief:
Notice of Motion 1
Attorney Affirmation (Wynn) in Support, Exhs A-P 2-16
Affidavit of Service 17
Upon the foregoing papers, and all prior papers and proceedings in this action, the motion is determined as follows:
Background
This tortured residential foreclosure action concerns the real property located at 28 Eakman Drive, Garnerville, New York. As plaintiff's motion papers correctly memorialize, plaintiff commenced this action in 2009 under the caption BAC Home Loans Servicing v Crapanzano, et al. (Index No. 6759/2009), obtained default judgment, then moved this Court to vacate the same; this Court (Garvey, J.) granted that relief by Order dated November 18, 2010. For the next nine years, plaintiff let the action linger. Plaintiff then moved in 2019 to restore the action to an active calendar. The Court (Berliner, J.) granted that relief but directed plaintiff to show cause before Referee David Evan Markus why interest should not be tolled nunc pro tunc due to plaintiff's failure to proceed during the preceding nine years. Upon Referee Markus' hearing, party submissions and his CPLR 4320 report, this Court (Berliner, J.), by Order dated March 3, 2020, tolled interest from January 1, 2011, and directed plaintiff to move for summary judgment within 45 days on pain of Rule 202.27 dismissal for unreasonably failing to proceed. In so doing, the Court specifically ratified Referee Markus' findings of fact and conclusions of law that plaintiff had engaged in an extraordinary pattern of bad faith in this action and failed to satisfy not one but three mandates of this Court to proffer some non-trivial explanation for nine years of inaction at defendant's expense.
During the covid-19 pandemic, plaintiff moved on December 4, 2020, for summary judgment and related relief. After mandatory proceedings related to the pandemic, this Court (Berliner, J.), by Decision and Order entered April 30, 2021, denied all branches of plaintiff's motion except to dismiss all affirmative defenses and amend the caption and substitute Amos Financial, the current loan servicer, as plaintiff. the Court's findings were that plaintiff's alleged proof of loan default was facially insufficient, and that plaintiff's evidentiary proffer lacked adequate foundation. Having denied plaintiff's summary judgment, the Court put the matter down for a trial scheduling conference.
Six weeks later, before that conference could occur, plaintiff brought the instant motion on June 11, 2021. Plaintiff's Notice of Motion styles itself as an application for summary judgment and default judgment, and to appoint a computational referee pursuant to RPAPL 1321 - the third such motion in this action. Plaintiff's affirmation in support, however, styles it as a "renewal" of plaintiff's prior summary judgment application (Pl's Aff in Support [Wynn], at ¶ 25). Plaintiff's papers include several hundred pages of advocacy and business records, including an affidavit by Mr. Brian Donegan, Amos Financial's general counsel (see Pl's Exh C). This affidavit, in turn, appends an estimated 100 pages of sub-exhibits appearing to originate from numerous prior holders and/or servicers of this loan that, he alleges, was serially assigned over the last 12 years among at least four holders.
At the trial scheduling conference of July 8, 2021, this Court directed plaintiff to file a Note of Issue and Certificate of Readiness by, along with a letter application pursuant to Uniform Rule 202.5-b(b)(2)(iv) to convert this action to electronic filing with a new index number. Plaintiff complied that same day. Also on that date, this Court memorialized that "[p]laintiff's application to delay scheduling of trial and allow a third summary judgment motion is denied." Accordingly, this Court set this action down for trial on October 27, 2021.
Consistent with the foregoing, the Court denies plaintiff's current motion in its entirety.
Plaintiff's Violation of Uniform Rule 202.8-g
This Court denies this motion because it violates the Uniform Rules governing summary judgment applications. Effective February 1, 2021, every motion for summary judgment in this State, except in lieu of a complaint pursuant to CPLR 3213, must annex a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried" (22 NYCRR [Uniform Rules of Supreme and County Court] § 202.8-g[a]; see also Siegel, NY Prac § 281 [2021 supp]). Such numbered paragraphs must specifically cite to evidence separately submitted in support of the motion (see Uniform Rule 202.8-g[d]). Uniform Rule 202.8-g took effect over four months before plaintiff brought this motion, yet here plaintiff offers no Statement of Material Facts at all - in direct violation of the Rule. Plaintiff's papers also appear to offer no explanation for why plaintiff did not and could not comply with this Rule, or any recognition that this Rule exists.
Uniform Rule 202.8-g is not precatory or discretionary in its application: it is a mandate on all summary judgment movants in this State. Consistent with Judiciary Law section 213(2)(b), the Chief Administrative Judge - on the advice and consent of the Administrative Board of the Courts, comprising the Chief Judge and the four Presiding Justices of the Appellate Divisions (see NY Const, art VI, § 30) - promulgated this rule of practice and procedure to vindicate substantial judicial economy interests for both bar and bench. These interests have been the focus of extensive discussion, and years of experience, concerning the Commercial Division predicate to Uniform Rule 202.8-g(a) (see 22 NYCRR [Uniform Rules of the Commercial Division] § 202.70, Rule 19-a). Plaintiff's motion ignores Uniform Rule 202.8-g entirely, along with its constitutional, statutory and administrative predicates, and its underlying policy objectives. Thus, plaintiff's motion is procedurally defective on its face.
Less immediately clear is what the remedy should be for such a facial violation of Uniform Rule 202.8-g - a question that appears to be one of first impression in this State. A recent trial court case held that a party admits all facts in a Rule 202.8-g Statement of Material Facts by failing to oppose it compatibly with that Rule (see Reus v ETC Housing Corporation (__ Misc.3d __, 2021 NY Slip Op 21130 [Sup Ct Clinton Co, May 6, 2021] [applying Uniform Rule 202.8-g(d)]). That case also appeared to be one of first impression, and stands somewhat orthogonal to others arising under the Commercial Division Rule 19-a predicate for Uniform Rule 202.8-g. Those other cases have held that courts enjoy discretion to deem material facts admitted by respondents whose opposition failed to comply with Rule 19-a. Those cases declined to impose an inflexible mandate or even presumption to assume admission by Rule 19-a violation (see Abreu v Barkin & Assocs. Realty, Inc., 69 A.D.3d 420, 421 [1st Dept 2010]), and specifically held that trial courts abuse their discretion by hyper-technically applying Rule 19-a so as to prejudice an otherwise responsive opposition to summary judgment (see e.g. Matter of Crouse Health Sys., Inc. v City of Syracuse, 126 A.D.3d 1336 [4th Dept 2015]).
Here, however, it is the movant rather than the respondent that fails to submit CPLR 3212 motion papers in the form and with the content that the Chief Administrative Judge mandated. This distinction makes a difference. Unlike a summary judgment respondent entitled to the benefit of every possible favorable inference in opposition to the motion (see e.g. 511 West 323 Owners Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 152 [2002]; Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]; Leon v Martinez, 84 N.Y.2d 83, 87 [1994]), a summary judgment movant enjoys no such presumption but rather must carry affirmatively its burden of proof.
This Court therefore credits Reus and applies its also to a moving party. If a respondent failing to oppose a Rule 202.8-g Statement of Material Facts in the manner that Rule prescribes thereby admits those facts, then a fortiori a CPLR 3212 movant whose papers fail to satisfy the condition precedent of a Uniform Rule 202.8-g Material Statement of Facts thereby fails properly to put those facts before the Court in the first instance.
This Court further holds that a summary judgment movant's total failure to submit a Uniform Rule 202.8-g Statement of Material Facts constitutes a violation that is neither merely technical nor without prejudice. Unlike minor technical "glitches," irregularities and harmless pleading errors that courts have substantial discretion to correct nunc pro tunc under CPLR 2101(f) and/or CPLR 2001 (see e.g. Status General Development, Inc. v 501 Broadway Partners, LLC, 163 A.D.3d 740 [2d Dept 2018]; Francis v Midtown Express, LLC, 124 A.D.3d 493 [1st Dept 2015]; Grskovic v Holmes, 111 A.D.3d 234 [2d Dept 2013]), the total absence of a Uniform Rule 202.8-g Statement of Material Facts constitutes a substantive defect in a motion for summary judgment. As such, the CPLR 2101(f) directive to excuse minor defects in the form of papers cannot redeem a summary judgment movant's wholesale violation of Uniform Rule 202.8-g.
Even if a substantive Uniform Rule 202.8-g violation theoretically could fall within the ambit of CPLR 2101(f), that statute's directive to excuse defects in the form of pleadings applies only where "a substantial right of a party is not prejudiced." A summary judgment movant that entirely ignores Uniform Rule 202.8-g, however, can prejudice a respondent by offering motion papers that - as plaintiff's papers do here - functionally bury in a voluminous record the relevant allegations of fact and their evidentiary basis. The policy objective to avoid that impairment to cost-effective practice and judicial economy was precisely why the Judiciary promulgated Rule 202.8-g in the first place. Were trial courts to ignore a wholesale Rule 202.8-g violation, courts thereby would peril not just that rule and its constitutional and statutory predicates, but also the other efficiency reforms that the Judiciary enacted with it.
Administrative Order 270/2020, promulgated December 29, 2020, brought into the Supreme and County Court rules of procedure not only new Uniform Rule 202.8-g incorporating provisions of Commercial Division Rule 19-a but also a bevy of other reforms to promote the cost-effectiveness and judicial economy of civil practice. Among these reforms are Uniform Rules 202.8-a (expanding applicability of record-attachment requirement of CPLR 3212[b] to include dismissal motions), 202.8-b (governing length of papers), 202.8-d (regulating applications for temporary restraining orders and orders to show cause), 202.20-a (governing privilege logs), 202.20-b (setting forth limitations on depositions and interrogatories), 202.20-c (governing CPLR 3122[a] responses to discovery demands), 202.20-d (regulating the CPLR 3106[d] denomination of certain entity deponents), 202.20-h (requiring submission of pre-trial memoranda at the pre-trial conference), 202.20-i (allowing the Court to require direct witness testimony by affidavit in certain proceedings), 202.23 (requiring counsel consultation and good-faith effort to reach specified agreements prior to certain conferences), 202.29 (allowing all-party requests for referral to a "settlement judge") 202.34 (requiring pretrial consultation as to marking and admission of trial exhibits), and 202.37 (governing witness testimony at trial). While the instant motion squarely presents only Rule 202.8-g among these reforms - and while some of these procedures are more substantive (and their violations potentially more prejudicial) than others - a cavalier approach to Rule 202.8-g by bar or bench (and especially by both) would vitiate the intent of the Chief Administrative Judge, the Administrative Board of the Courts, and the substantial public engagement by the Advisory Committee on Civil Practice and Advisory Committee on Matrimonial Practice that this reform initiative reflects (see Administrative Order 270/2020 [available at https://www.nycourts.gov/legacy/PDFs/RULES/trialcourts/AO-270-20.pdf] [accessed July 27, 2021]).
Such a finding of prejudice especially obtains under the instant facts and circumstances. This summary judgment application was exempt from electronic filing when plaintiff filed it, thus obligating respondent - and this Court - to sift through an extensive paper record without the substantial efficiency reforms that Uniform Rule 202.8-g would have achieved. This prejudice is particularly manifest on this third of plaintiff's summary judgment motions. This Court also observes that defendants appear pro se, which magnifies the resulting prejudice.
This Court also should not need to remind plaintiff about the equitable posture of this action. As Referee Markus correctly observed 18 months ago upon plaintiff's extraordinary record of bad faith in this action, "It is well settled that an action to foreclose a mortgage is equitable in nature and triggers the equitable powers of this Court" (PHH Mortgage Corp. v Hepburn, 128 A.D.3d 659, 661 [2d Dept 2015]; Norstar Bank v Morabito, 201 A.D.2d 545, 546 [2d Dept 1994], following Notey v Darien Constr. Corp., 41 N.Y.2d 1055 [1977]). "Once equity is invoked, this Court's power is as broad as equity and justice require" (Hepburn, 128 A.D.3d at 661; Morabito, 201 A.D.2d at 546; Ripley v Int'l Rys. of Central Am., 8 A.D.2d 310, 328 [1st Dept 1959], affd 8 N.Y.2d 430 [1960]). Section 1(c) of the Rules of the Foreclosure Court also specifically direct that the Court will apply its equitable powers in this action.
Given all of the foregoing, and the nearly decade-long interest toll that this Court already imposed on the subject loan, this Court might have hoped that plaintiff and plaintiff's counsel would demonstrate every effort to proceed in strict compliance with this Court's rules of practice, and in the utmost of unquestioned good faith, to avoid unnecessarily adding to this action's already extensive litigation history. This unfortunate record further prevails on this Court, sitting in equity, to decline any discretion it may have sua sponte to grant plaintiff further latitude in derogating applicable rules and orders absent good cause shown.
Other Procedural Grounds
Even were this Court to overlook the Uniform Rule 202.8-g violation, this Court still would deny the motion as procedurally defective.
Construing this application as a "renewal" motion consistent with the affirmation of plaintiff's counsel, the Court would deny it for violating CPLR 2221(e). Leaving aside that a renewal motion "shall be identified specifically as such" (CPLR 2221[e][1]) - which plaintiff's Notice of Motion did not - a renewal motion must demonstrate "new facts not offered on the prior motion that would change the prior determination" and "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221[e][2]-[3]; see Countrywide Home Loans, Inc. v Ward, 167 A.D.3d 842, 844 [2d Dept 2018]; see Professional Offshore Opportunity Fund, Ltd. v Braider, 121 A.D.3d 766, 769 [2d Dept 2018] [collecting cases]). Renewal is "not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Ward, at 844, quoting JPMorgan Chase Bank, N.A. v Novis, 157 A.D.3d 776, 777 [2d Dept 2018]).
Plaintiff's motion offers not even a scintilla of explanation (much less a sufficient one) for why plaintiff did not offer on its prior summary judgment motion the alleged evidence of loan default that plaintiff purports to offer now. Neither does this Court find any record basis to excuse these facial defects. As this Court and plaintiff's own papers here amply established, the subject loan was serially assigned with multiple service transfers. These facts were not only reasonably knowable to plaintiff on the prior motion but also actually known by plaintiff's counsel and plaintiff's affiant on the prior motion - as plaintiff's papers amply demonstrated. As such, it strains credulity that the defects of foundation and proof that this Court identified in its prior denial of summary judgment admit of some reasonable justification that also would bear on plaintiff's alleged cure of them now. Plaintiff having failed to carry that burden, plaintiff's motion - styled as a CPLR 2221(e) renewal application - is denied.
Styling this application instead as an ordinary motion for summary judgment, the Court also denies it for procedural reasons. This Court's April 2021 Decision and Order already denied plaintiff's second summary judgment motion and did not invite a third one - whether to cure a mere technical defect or otherwise. Leaving aside general judicial disfavor for multiple summary judgment motions, this Court specifically declines to invoke its discretion to consider a third summary judgment motion on this record, especially given plaintiff's substantial history of bad faith in this action that itself has been exhaustively litigated.
Merits Analysis
Even were this Court to reach this application's merits, this Court would be constrained to deny it, yet again, given the facial insufficiency of Mr. Donegan's foundational affidavit.
Mr. Donegan avers that his employer and plaintiff's loan servicer assignee, Amos Financial, was assigned the subject loan by a nonparty entity on May 6, 2020 (see Donegan Aff. [Pl's Exh C], at ¶ 7). Thus, the pre-2020 records that Mr. Donegan attested to reviewing in connection with his affidavit were created not by Amos Financial but by one or more of the numerous nonparty plaintiffs and/or their loan servicers in the subject note's chain of custody.
Against that backdrop, Mr. Donegan attests, in boilerplate fashion, as follows:
"To the extent that the business records of the loan in this matter were created by a prior servicer, the prior servicer's records for the loan were integrated and boarded into Amos's systems, such that the prior servicer's records concerning the [l]oan are now part of Amos's business records. Amos maintains quality control and verification procedures as part of the boarding process to ensure the accuracy of the boarded records. It is the regular practice of Amos to integrate prior servicers' records into Amos' business records, and to rely upon the accuracy of these boarded records in providing its loan service functions"(Donegan Aff, at ¶ 4).
Without more, this boilerplate attestation - on the facts and circumstances of this case - does not satisfy the requirements of Bank of New York Mellon v Gordon (171 A.D.3d 197 [2d Dept 2019]). Under Gordon, while a loan servicer may rely on business records incorporated from another entity that made those records, the CPLR 4518(a) business records exception to the rule against hearsay requires that a party offering such records into evidence first must establish either "personal knowledge of the maker's business practices and procedures, or... that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business" (id., at 210, quoting People v Cratsley, 86 N.Y.2d 81, 90-91 [1995]).
Mr. Donegan's affidavit suffices under neither prong of Gordon. As to the first prong, Mr. Donegan failed to attest to personal knowledge of the business practices and procedures of the "maker" of any records on which his affidavit purports to rely. Nor would this Court expect that Mr. Donegan would have such personal knowledge given the loan's serial transfers among numerous nonparty note holders and loan servicers before Amos Financial in 2020. As to the second prong of Gordon, Mr. Donegan's affidavit failed to attest to anything that might tend to establish the minimal reliability of Amos' procedures for on-boarding the business records of prior note holders and loan servicers. More pointedly, Mr. Donegan's affidavit fails to establish - or even credibly allege - that Amos received all of such business records from their "makers" as the condition precedent of proving their incorporation under Gordon.
Indeed, this Court questions how plaintiff could have made that showing on the present record. Because a residential foreclosure action can accrue only after a defendant defaults on paying the loan secured by the subject property, plaintiff bears the burden to plead and prove that a qualifying loan default occurred prior to commencing the action. Mr. Donegan's affidavit, however, attests that Union State Bank - now a caption defendant in this action - held the note continuously from loan origination in 2007 until the first of several transfers during 2012 - three years after commencement of this action (see Donegan Aff., at ¶ 7). It follows, for Gordon purposes, that the contemporaneous "maker" of any business records proving defendants' pre-commencement loan default was either Union State Bank or its loan servicer at that time. Plaintiff's affidavit continues, however, that Amos Financial is at best the fourth in a series of holders or servicers: Mr. Donegan's affidavit and the various assignment instruments show that Union State Bank assigned the loan in 2012 to nonparty Countrywide, which assigned it later that year to nonparty KeyBank, which assigned it in 2020 to Amos Financial (see id.).
Given these serial transfers, plaintiff failed to carry its burden to show - and did not even so much as allege - that the business records of loan default that Amos Financial allegedly incorporated in 2020 were" provided by the maker" of such records (Gordon, 171 A.D.3d at 210 [emphasis added]) - here, Union State Bank or its loan servicer at the time of default. Because plaintiff thereby fails the second prong of Gordon, this Court concludes that plaintiff again failed to lay that requisite foundation to admit those records into evidence under CPLR 4518(a). Plaintiff having offered no other competent evidence of default, plaintiff's motion must be denied.
Even were these business records admissible on this record, a cursory examination raises questions about their materiality to prove the necessary element of pre-commencement loan default. Mr. Donegan's affidavit attaches and purports to authenticate a "current loan history" from KeyBank spanning a nine-year period from January 4, 2011, to January 25, 2020. Leaving aside that Mr. Donegan alleged transfer to KeyBank in 2012 rather than 2011, all of the alleged transactions in that "current loan history" pre-date the 2009 commencement of this action and thus logically cannot prove borrower default. Mr. Donegan's affidavit also attaches and purports to authenticate a "customer account activity statement" from nonparty PHH Mortgage Services - an apparently new entity in the intrepid travels of this loan - for which plaintiff offers no record foundation. Foundational issues aside, this "customer account activity statement" references transactions dating to December 2010 - slightly further back in time than the "current loan history" but still well after the 2009 commencement of this action. How plaintiff can rely on these records of post-commencement transactions to prove pre-commencement loan default defies comprehension.
A third set of documents might be more relevant to proving borrower default but raises more troublesome questions than it answers. Mr. Donegan's affidavit attaches and purports to authenticate a further business record purporting to reflect loan transactions starting in 2008. While this record at least pre-dates commencement of the action, its provenance is curious: it appears to bear a KeyBank logo but a subject header from Bank of America - yet another new twist in this loan's intrepid travels, and another for which plaintiff offers no record foundation or other explanation. This record also bears a report date of June 29, 2017, but plaintiff points this Court to no cognizable record evidence that KeyBank (or Bank of America) serviced the loan at the time of borrower default. For his part, the only relevant mention of KeyBank in Mr. Donegan's affidavit relates to KeyBank's receipt of the loan from Countrywide in 2012, making KeyBank at least the third note holder or loan servicer in the series of transfers.
The foregoing analysis underscores the evidentiary difficulty of this record and especially Mr. Donegan's utterly boilerplate attestation. Mr. Donegan having failed to claim any personal knowledge of the record keeping practices of any of the foregoing note holders or loan servicers, Gordon required plaintiff to prove that Amos Financial properly incorporated the loan records it received. Instead, plaintiff offered business records that were dubious in their relevance to prove loan default, or attenuated if not uncertain in their provenance. Put simply, plaintiff's record fails to establish whether the 2008 loan records bearing a 2017 print date were made originally by Union State Bank and then incorporated into KeyBank's records, or were made by KeyBank, or were made by Bank of America, or perhaps were made by some other entity in the chain and then incorporated into some other entity. This pivotal question of fact is not conjecture: it arises from plaintiff's own papers and its failure, once again, to carry its burden of proof.
Moreover, if the business records of loan default were serially incorporated (as appears possible if not probable based on the several loan transfers and the content of the business records themselves), then such records might well constitute double or even triple hearsay under the incorporation standard of Gordon. This observation is not to hold that plaintiff might not be able to lay a sufficient foundation to admit them into evidence, but rather to underscore how plaintiff failed to do so on this application against the backdrop of the serial transfers long ago evident to plaintiff and plaintiff's affiant.
Whether plaintiff can cure these defects of foundation and proof is a question this Court will answer at the previously scheduled trial. For purposes of this motion, this Court holds that plaintiff failed to redress the substantial evidentiary difficulties from its prior summary judgment motion.
For each and all of the foregoing reasons, plaintiff's motion is denied on its merits.
Admonishment to Plaintiff
Plaintiff and plaintiff's counsel are admonished that this Court will hold them to applicable standards of conduct and rules of practice in all further proceedings before this Court, including at the forthcoming trial and any subsequent motion practice. In furtherance of this objective, plaintiff's attorney who filed the facially defective papers bringing on this motion shall, within 30 days hereof, upload to NYSCEF an affirmation attesting that, during the preceding 30 days, such attorney read Administrative Order 270/2020 and its annexed rules of civil procedure, and that such attorney will comply with them in all further proceedings before the Courts of this State. According it is hereby
ORDERED that plaintiff's motion is denied in its entirety; and it is further
ORDERED that within 30 days hereof, plaintiff's attorney who filed the facially defective papers bringing on this motion shall upload to NYSCEF an affirmation attesting that, during the preceding 30 days, such attorney read Administrative Order 270/2020 and its annexed rules of civil procedure, and that such attorney will comply with such rules of procedure in all further proceedings before the Courts of this State; and it is further
ORDERED that plaintiff and plaintiff's counsel are admonished that further derogation of any rule or order of this Court may result in proceedings pursuant to 22 NYCRR (Rules of the Chief Administrative Judge) part 130; and it is further
ORDERED that within five days hereof, counsel for plaintiff shall serve this Decision and Order, with Notice of Entry, on defendants by U.S. Mail at their record addresses, and file by such date a suitable affirmation of such service; and it is further
ORDERED that the Trial Scheduling Order entered on July 8, 2021, directing trial of this action on October 27, 2021, and the interest toll nunc pro tunc from January 1, 2011, both remain in full force and effect.
The foregoing constitutes the Decision and Order of this Court.