Opinion
31039/2009
01-24-2019
FEDERAL NATIONAL MORTGAGE ASSOCIATION ("FANNIE MAE"), a Corporation Organized and Existing Under the Laws of the United States of America, Plaintiff, v. Lester E. WACKERNAH, Patricia L. Wackernah, Town Supervisor Town of Babylon, and "John Doe" and/or "Jane Doe" #1-10 Inclusive, the Last Ten Names Being Fictitious and Unknown to Plaintiff, the Persons or Parties Intended Being the Tenants, Occupants, Persons or Corporations, if Any, Having or Claiming an Interest in or Lien Upon the Premises, Described in the Complaint, Defendant(s).
DAVID A. GALLO & ASSOCIATES LLP, 89 Powerhouse Road - First Floor, Roslyn Heights, NY 11577, Attorneys for Plaintiff MICHAEL C. DELISA, ESQ., 630 Johnson Ave., Suite GL-006, Bohemia, NY 11716, TOWN SUPERVISOR TOWN OF BABYLON, 200 Sunrise Hwy, Lindenhurst, NY 11757, Milton Jones (John Doe # 1), 112 W Scudder Ave, Copiague, NY 11726, Jeanette Jones (Jane Doe # 1), 112 W Scudder Ave, Copiague, NY 11726, Attorney for Defendants
DAVID A. GALLO & ASSOCIATES LLP, 89 Powerhouse Road - First Floor, Roslyn Heights, NY 11577, Attorneys for Plaintiff
MICHAEL C. DELISA, ESQ., 630 Johnson Ave., Suite GL-006, Bohemia, NY 11716, TOWN SUPERVISOR TOWN OF BABYLON, 200 Sunrise Hwy, Lindenhurst, NY 11757, Milton Jones (John Doe # 1), 112 W Scudder Ave, Copiague, NY 11726, Jeanette Jones (Jane Doe # 1), 112 W Scudder Ave, Copiague, NY 11726, Attorney for Defendants
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting summary judgment and order of reference ; Notice of Motion dated February 21, 2017 and supporting papers ; it is
ORDERED that this unopposed motion by plaintiff for an order striking the answer and affirmative defenses of the defendants Lester Wackernah and Patricia L. Wackernah, awarding it summary judgment, appointing a referee to compute, granting default judgment against the non-appearing and non-answering defendants, and amending the caption, is granted to the extent that plaintiff is granted partial summary judgment dismissing defendants first, second third, and fifth through eleventh affirmative defenses; and it is further
ORDERED that upon the proof submitted plaintiff's application to dismiss defendants' fourth affirmative defense alleging plaintiff's failure to establish compliance with RPAPL Article 13 is denied as is plaintiff's application to dismiss defendant's answer; and it is further
ORDERED that plaintiff's application to amend the caption by substituting Milton Jones for John Doe # 1 and Jeanette Jones for Jane Doe # 1 and striking the fictitiously named defendants "JOHN DOE" and "JANE DOE # 2-10 is granted upon the proof submitted and the caption is amended to read:
X
FEDERAL NATIONAL MORTGAGE ASSOCIATION ("FANNIE MAE"), a corporation organized and existing under the laws of the United States of America,
Plaintiff,
against
LESTER E. WACKERNAH, PATRICIA L. WACKERNAH, TOWN SUPERVISOR TOWN OF BABYLON, MILTON JONES, AND JEANETTE JONES,
Defendant(s).
X
; and it is further
ORDERED that plaintiff is directed to serve a copy of this order upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption; and it is further;
ORDERED that, if applicable, within thirty (30) days of the entry date of this Order, notice pursuant to CPLR § 8019(c) with a copy of the order shall be served upon the County Clerk, along with payment of any required fees; and it is further
ORDERED that upon the proof submitted the default of all non-appearing, non-answering defendants is fixed and set; and it is further
ORDERED that in all other respects, plaintiff's motion is denied; and it is further
ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL § 1321 is denied and its proposed order submitted with this motion is marked "Not Signed"; and it is further
ORDERED that plaintiff is directed to file a note of issue within thirty (30) days of the date of this order; and it is further
ORDERED that this action is scheduled for limited issue trial before this part in accordance with this order on Friday, March 22, 2019 in the Cromarty Court Complex, 210 Center Drive, 4th floor, Riverhead, NY at 9:30AM.
This is an action to foreclose a mortgage on residential real property known as 112 W Scudder Ave, Copiague, Suffolk County, New York given by defendants Lester Wackernah and Patricia L. Wackernah ("defendants") on April 11, 2008 to Citimortgage, Inc. ("Citimortgage"), plaintiff's predecessor in interest. Defendants purportedly defaulted on the obligation and Citimortgage commenced this action by filing the summons, complaint and notice of pendency with the Suffolk County Clerk on August 11, 2009. Plaintiff previously moved for an order of reference and related relief (# 002) and defendants cross moved to dismiss pursuant to CPLR 3215 (c) (# 003). Counsel entered into a stipulation withdrawing the motions and permitting defendants to interpose an answer to the complaint. Thereafter defendants submitted an answer dated July 1, 2013 consisting of general denials and eleven affirmative defenses, including plaintiff's failure to establish standing to commence the action (second and eighth affirmative defenses), failure to serve 90 day notices pursuant to RPAPL Article 13 (third affirmative defense) and the broadly phrased fourth affirmative defense that "plaintiff failed to comply with the notice requirements imposed by Article 13 of the Real Property Actions and Proceedings Law" which plaintiff, Federal National Mortgage Association ("plaintiff"), and the court, interpret as failure to comply with RPAPL § 1303. Plaintiff was substituted in place of Citimortgage by order dated April 12, 2015.
Plaintiff now moves for an order granting summary judgment against defendants, striking their answer and affirmative defenses, amending the caption, and for an order of reference appointing a referee to compute pursuant to RPAPL § 1321 (# 006). Defendants do not oppose the motion.
SUMMARY JUDGMENT
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 (see Wells Fargo Bank, N.A. v. DeSouza , 126 AD3d 965 [2d Dept 2015] ; Wells Fargo, NA v. Erobobo , 127 AD3d 1176 [2d Dept 2015] ; Wells Fargo Bank, NA v. Morgan , 139 AD3d 1046 [2d Dept 2016] ). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment ( CPLR 3212 ; RPAPL § 1321 ; see Federal Home Loan Mtge. Corp. v. Karastathis , 237 AD2d 558 [2d Dept 1997] ). The burden then shifts to defendant to demonstrate 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] ; Citibank, NA v. Van Brunt Properties, LCC , 95 AD3d 1158 [2d Dept 2012] ). Defendant must then produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v. Valencia , 92 AD3d 774 [2d Dept 2012] ; Winegrad v. New York Univ. Med. Ctr ., 64 NY2d 851 [1985] ). Defendant's answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see , Flagstar Bank v. Bellafiore , 94 AD3d 1044 [2d Dept 2012] ). In deciding the motion the court is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v. Restani Corp. , 18 NY3d 499 [2012] ).
Where plaintiff's standing has been placed in issue by defendant's answer, as here by defendant's second and eighth affirmative defenses, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor , 25 NY3d 355 [2015] ; US Bank, NA v. Richard , 151 AD3d 1001 [2d Dept 2017] ; Nationstar Mtge., LLC v. Laporte , 162 AD3d 784 [2d Dept 2018] ; Wells Fargo Bank, N.A. v. Inigo , 164 AD3d 545 [2d Dept 2018] ).
In addition, where defendant has properly asserted non-compliance with the notice requirements of RPAPL § 1304 and § 1303 as a defense (third and fourth affirmative defenses, respectively), plaintiff must adduce due proof that the pre-action notice requirements have been satisfied to establish it's prima facie entitlement to summary judgment (see PHH Mtge. Corp. v. Celestin , 130 AD3d 703 [2d Dept 2015] ; Zarabi v. Movahedian , 136 AD3d 895 [2d Dept 2016] ; U.S. Bank, N. A, v. Singh , 147 AD3d 1007 [2d Dept 2017] ; First Natl. Bank of Chicago v. Silver , 73 AD3d 162 [2d Dept 2011] ; Eastern Savings Bank, FSB v. Tromba , 148 AD3d 674 [2d Dept 2017] ).
STANDING ESTABLISHED
Plaintiff in a residential foreclosure action has standing if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v. Larizza , 129 AD3d 904 [2d Dept 2015] ; M & T Bank v. Cliffside Prop. Mgt., LLC , 137 AD3d 876 [2d Dept 2016] ). Here, plaintiff's submissions include the Affidavit of Possession and Mailing of an officer of Citimortgage, plaintiff's predecessor in interest, the entity which commenced the action. Through this affidavit plaintiff demonstrates Citimortgage's standing as holder of the note by the affiant establishing her ability to testify as to Citimortgage's records pursuant to CPLR 4518(a) and a review of books and business records maintained in the ordinary course of business indicating possession of the note on April 21, 2008, a date prior to commencement of the action (see Aurora Loan Services, LLC v. Taylor , supra; Wells Fargo Bank, N.A. v. Charlaff , 134 AD3d 1099 [2d Dept 2015] ; Flagstar Bank v. Mendoza , 139 AD3d 898 [2d Dept 2016] ; US Bank N.A. v. Ellis , 154 AD3d 710 [2d Dept 2017] ; US Bank, N.A. v. Nelson , ––– AD3d –––– 2019 NY Slip Op 00494 [2d Dept 2019] ). Defendants' second and eighth affirmative defenses addressing plaintiff's lack of standing are dismissed.
RPAPL § 1304 NOT APPLICABLE
Here the affidavit of the Citimortgage officer establishes that at the time the action was commenced in August, 2009 the RPAPL § 1304 ninety day notices were not required to be sent in this action because the loan was not subprime, high-cost or non-traditional ( RPAPL § 1304 [1] ). Defendants' third affirmative defense is dismissed.
COMPLIANCE WITH RPAPL § 1303 NOT ESTABLISHED
Where as here defendants have properly asserted non-compliance with the notice requirements of RPAPL § 1303 as an affirmative defense, plaintiff must adduce proof that the notice was delivered with the summons and complaint ( RPAPL § 1303[2] ; see First Natl. Bank of Chicago v. Silver , supra ; Aurora Loan Services v. Weisblum , 85 AD3d 95 [2d Dept 2011] ). RPAPL § 1303 in effect at the time this action was commenced required that a notice, entitled "Help for Homeowners in Foreclosure," be delivered with the summons and complaint in residential foreclosure actions involving owner-occupied, one-to-four family dwellings ( RPAPL § 1303[1] ). Among other requirements the notice was to contain the statutory language and be printed on colored paper, on its own page. Although a process server's affidavit of service is prima facie proof of proper service of the RPAPL § 1303 notice (see Deutsche Bank Nat. Trust Co. v. Quinones , 114 AD3d 719 [2d Dept 2014] ), here contrary to the assertions of plaintiff's counsel, the affidavits of service of the summons and complaint do not indicate service of the RPAPL § 1303 notice. A review of the affidavits of service submitted with the motion clearly show the process server served the "summons & verified complaint & notice of pendency" and there is no proof that the process server served the § 1303 notice with the summons and complaint. Further the court has reviewed the court file which contains the original summons and complaint and affidavits of service and there is no notice in the file on colored paper, on its own page, that contains the statutory language in accordance with RPAPL § 1303. Plaintiff having failed to submit proof to establish satisfactory compliance with RPAPL § 1303 dismissal of defendants' fourth affirmative defense is denied (see Prompt Mortg. Providers of North America, LLC v. Singh , 132 AD3d 833 [2d Dept 2015] ; Eastern Savings Bank, FSB v. Tromba , supra; US Bank, N.A. v. Nelson , supra).
REMAINING AFFIRMATIVE DEFENSES DEEMED ABANDONED
As to defendants' remaining affirmative defenses, the failure to raise and support pleaded affirmative defenses in opposition to a motion for summary judgment renders them abandoned and 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] ; New York Commercial Bank v. J. Realty F. Rockaway, Ltd. , 108 AD3d 756 [2d Dept 2013] ; Starkman v. City of Long Beach , 106 AD3d 1076 [2d Dept 2013] ; Katz v. Miller , 120 AD3d 768 [2d Dept 2014] ). Defendants' first, fifth through seventh, and ninth through eleventh affirmative defenses are dismissed.
As plaintiff's submissions have failed to establish proof of the condition precedent required by RPAPL § 1303, its motion must be denied, and plaintiff's proposed order marked "Not Signed."
Plaintiff is directed to file a note of issue within thirty (30) days of the date of this order and a trial, limited to the issue of compliance with RPAPL § 1303 will be held before this court on Friday, March 22, 2019 at 9:30 AM.
This constitutes the Order and decision of the Court.