Opinion
2014-11-5
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., appellant, v. Norris ISLAR, respondent, et al., defendants.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F. Battista of counsel), for appellant.
Reversed and remitted.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F. Battista of counsel), for appellant. WILLIAM F. MASTRO, J.P., PETER B. SKELOS, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schack, J.), dated April 8, 2013, as denied those branches of its motion which were for summary judgment on the complaint, to strike the answer of the defendant Norris Islar, for an order of reference, and to amend the caption to substitute Lisa Mathis and Mrs. Johnson as party defendants instead of the defendants sued as “John Doe # 1” and “John Doe # 2” and delete the defendants sued as “John Doe # 3” through “John Doe # 10.”
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the answer of the defendant Norris Islar, for an order of reference, and to amend the caption to substitute Lisa Mathis and Mrs. Johnson as party defendants instead of the defendants sued as “John Doe # 1” and “John Doe # 2” and delete the defendants sued as “John Doe # 3” through “John Doe # 10” are granted; and it is further,
ORDERED that the matter is remitted to the Supreme Court, Kings County, for further proceedings before a different Justice.
The Supreme Court denied that branch of the plaintiff's motion which was for summary judgment on the complaint on the ground that the plaintiff had failed to establish its standing to foreclose the subject mortgage. Where, as here, the defendants in a mortgage foreclosure action waive the issue of standing by failing to assert the defense in an answer or pre-answer motion to dismiss the complaint ( see CPLR 3211[e] ), the plaintiff need not establish its standing in order to demonstrate its prima facie entitlement to judgment as a matter of law ( see Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d 239, 244–245, 837 N.Y.S.2d 247).
Furthermore, the plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the mortgage, the note, and the affidavit of its vice president attesting to the default ( see Katz v. Miller, 120 A.D.3d 768, 991 N.Y.S.2d 346; KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 A.D.3d 991, 992, 986 N.Y.S.2d 598; Emigrant Mtge. Co., Inc. v. Beckerman, 105 A.D.3d 895, 964 N.Y.S.2d 548). “Since no opposition was filed, no triable issue of fact was raised in response to the plaintiff's prima facie showing” ( Flagstar Bank v. Bellafiore, 94 A.D.3d 1044, 1045, 943 N.Y.S.2d 551; see KeyBank N.A. v. Chapman Steamer Collective, LLC, 117 A.D.3d at 992, 986 N.Y.S.2d 598). Accordingly, those branches of the plaintiff's motion which were for summary judgment on the complaint, to strike the answer of the defendant Norris Islar, and for an order of reference should have been granted ( see Flagstar Bank v. Bellafiore, 94 A.D.3d at 1045, 943 N.Y.S.2d 551).
Additionally, as the plaintiff demonstrated that it had served Lisa Mathis and Mrs. Johnson as “John Doe # 1” and “John Doe # 2,” respectively, and that there were no other “John Does” occupying the mortgaged premises, that branch of its motion which was to amend the caption to substitute Lisa Mathis and Mrs. Johnson as party defendants instead of the defendants sued as “John Doe # 1” and “John Doe # 2” and delete the defendants sued as “John Doe # 3” through “John Doe # 10” should have been granted ( see CPLR 1024; Flagstar Bank v. Bellafiore, 94 A.D.3d at 1046, 943 N.Y.S.2d 551; Neighborhood Hous. Servs. of N.Y. City, Inc. v. Meltzer, 67 A.D.3d 872, 873–874, 889 N.Y.S.2d 627).
Since Justice Arthur Schack continues to flagrantly ignore this Court's precedent, as articulated in Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 A.D.3d at 239, 837 N.Y.S.2d 247, holding that the defense of lack of standing is waived if not raised by the defendant in an answer or pre-answer motion to dismiss ( see HSBC Bank USA, N.A. v. Taher, 104 A.D.3d 815, 817, 962 N.Y.S.2d 301; U.S. Bank, N.A. v. Emmanuel, 83 A.D.3d 1047, 1048–1049, 921 N.Y.S.2d 320; cf. Bank of N.Y. v. Cepeda, 120 A.D.3d 451, 452, 989 N.Y.S.2d 910; Bank of N.Y. v. Mulligan, 119 A.D.3d 716, 716, 989 N.Y.S.2d 295; Wells Fargo Bank, N.A. v. Gioia, 114 A.D.3d 766, 767, 980 N.Y.S.2d 535), we deem it appropriate to remit the matter to the Supreme Court, Kings County, for further proceedings before a different Justice.