Opinion
18909-2012
01-15-2019
HSBC BANK USA, NATIONAL ASSOCIATION AS TRUSTEE FOR WELLS FARGO ASSET SECURITIES CORPORATION, Mortgage Pass-Through Certificates, Series 2007-7 3476 Stateview Boulevard Ft. Mill SC 29715, Plaintiff, v. Carlos NUNEZ, New York State Department of Taxation and Finance, People of the State of New York on Behalf of Stony Brook Univ. Hosp. I/P, Town Supervisor Town of Brookhaven, Well Fargo Bank, N.A., John Doe (Being Fictitious, the Names Unknown to Plaintiff Intended to be Tenants Occupants, Persons or Corporations Having or Claiming an Interest in or Lien Upon the Property Described in The Complaint or Their Heirs at Law, Distributees, Executors, Administrators, Trustees, Guardians, Assignees, Creditors or Successors.), Defendants.
GROSS POLOWY, LLC, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, NY 14221 DOUGLAS REDA, ESQ., Attorney for Defendant- Nunez, 180 Froehlich Farm Blvd., oodbury, NY 11797
GROSS POLOWY, LLC, Attorneys for Plaintiff, 1775 Wehrle Drive, Suite 100, Williamsville, NY 14221
DOUGLAS REDA, ESQ., Attorney for Defendant- Nunez, 180 Froehlich Farm Blvd., oodbury, NY 11797
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting summary judgment, striking the answer of defendant, appointment of a referee to compute ; Notice of Motion dated September 5, 2017 and supporting papers; Affirmation in Opposition dated November 30, 2017 and supporting papers; it is,
ORDERED that plaintiff's motion for summary judgment against the answering defendant Carlos Nunez, striking his answer, and appointing a referee to compute is denied; and it is further
ORDERED that, as although the court's decision of September 19, 2016 granted plaintiff's application to amend the caption, the order failed to set that out, therefore the court now amends the caption as set forth below to reflect the decision and it shall read as follows:
X
HSBC BANK USA, NATIONAL ASSOCIATION AS
TRUSTEE FOR WELLS FARGO ASSET SECURITIES
CORPORATION, MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-7
Plaintiff,
against -
CARLOS NUNEZ, NEW YORK STATE DEPARTMENT
OF TAXATION AND FINANCE, PEOPLE OF THE
STATE OF NEW YORK ON BEHALF OF STONY
BROOK UNIV HOSP I/P, TOWN SUPERVISOR TOWN
OF BROOKHAVEN, WELLS FARGO BANK, N.A., JOSE
CRUZ, MARIA GUERRERO, NOE GUERRERO,
Defendants
X,
and all further proceedings shall be under this 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 this action is scheduled for limited issue trial before this part in accordance with this order on Friday, February 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 property known as 83 3rd Avenue, Bay Shore, Suffolk County, New York ("the property"). The prior history of this action is set forth in the decision placed on the record by the court on September 19, 2016 after oral argument of plaintiff's first motion for summary judgment (Mot. Seq. # 001). At that time, although the court found that plaintiff had established the basic prima facie proof required for summary judgment in a foreclosure action by producing the mortgage, the unpaid note, and evidence of the default in payment, the court denied plaintiff's motion as it had failed to establish the mailing of the notices required by RPAPL § 1304 as plead in its complaint and denied by the answer of defendant Carlos Nunez ("defendant"). The court set that issue for a limited issue trial pursuant to CPLR 3212 (g) and 2218, issued a scheduling and discovery order which authorized a limited period of discovery on that issue and set a certification/compliance conference for February 1, 2017, an authorized successive summary judgment motions by the parties after the completion of discovery, but no later than thirty days after the filing of a note of issue.
After a series of conferences, the action was certified for trial and plaintiff filed the note of issue on September 5, 2017, filing the present motion (Mot. Seq. # 2) on October 3, 2017, to which defendant filed opposition.
MAILINGS OF RPAPL § 1304 NOTICES NOT ESTABLISHED
Although the sole remaining issue for this motion was plaintiff's establishing the mailings of the notices required by RPAPL § 1304, plaintiff's submissions are insufficient to establish that issue. The affidavit of an employee of plaintiff's servicer Wells Fargo Bank, N. A. ("Wells Bank") submitted in support of the motion unnecessarily addresses issues already resolved by the decision of September 19, 2016. Although the affiant establishes her ability to testify as to her employer's business records, when she attempts to address proof of mailing of the RPAPL § 1304 notices, she merely refers to her review of Wells Bank records and claims that they show the mailings and refer to attached copies of the letters purportedly mailed. Such testimony has been found to be insufficient to establish mailings (see HSBC Mtge. Corp. v. Gerber, 100 AD3d 966 [2d Dept 2012] ; Citimortgage, Inc. v. Espinal , 134 AD3d 876 [2d Dept 2015] ; Cenlar, FSB v. Weisz , 136 AD3d 855 [2d Dept 2016] ; US Bank, NA v. Sabloff , 153 Ad3d 879 [2d Dept 2017] ; Wells Fargo Bank, N.A. v. Mandrin , 160 AD3d 1014 [2d Dept 2018] ). If an affiant establishes her ability to testify as to business records pursuant to CPLR 4518, but merely states a review of the records establishes the notices were mailed by both regular and certified mail on a certain date, such proof is unsubstantiated, conclusory and insufficient to establish the mailings required by RPAPL § 1304 (see JPMorgan Chase Bank, N.A. v. Kutch, 142 AD3d 536 [2d Dept 2016] ; Cenlar FSB v. Censor , 139 AD3d 781 [2d Dept 2016] ; US Bank, NA v. Henderson , 163 AD3d 601[ 2d Dept 2018] ).
To establish mailing, plaintiff may provide proof of actual mailing or 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] ; Citimortgage Inc. v. Banks 155 AD3d 936 [2d Dept 2017] ). Due proof of the mailing of the RPAPL § 1304 notices are established by submission of an affidavit of service (see Emigrant Mortgage Co., Inc. v. Persad, 117 AD3d 676 [2d Dept 2014] ; 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] ; Wells Fargo v. Moza, 129 AD3d 946 [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] ; Deutsche Bank Natl. Trust Co. v. Heitner , 165 AD3d 1038 [2d Dept 2018] ). Plaintiff provides no such proof here.
The court also points out that the mailings were addressed from Wells Fargo Home Mortgage ("Wells Home"). Although plaintiff submitted as an exhibit to the motion a merger agreement between Wells Home and Wells Bank dated 2004, the affiant makes no reference to it to either explain whether her employer has made Wells Home's business records its own, nor to explain how an entity which is not "the surviving entity" under the merger agreement, Well Home, remained in existence sending RPAPL § 1304 notices on its letterhead dated 2011.
Within plaintiff's counsel's affirmation, which also spends unnecessary time and effort establishing issues already established by the decision of September 19, 2016, he alludes to "proof" of the RPAPL § 1304 mailings. His statements were not made based upon personal knowledge, and as the mailing were not made by his law firm, he does not establish the proof necessary to show their mailings as in Flagstar Bank, FSB v. Mendoza , 139 AD3d 898 (2d Dept 2016).
As plaintiff's submissions have again failed to establish proof of the condition precedent required by RPAPL § 1304, its motion must be denied, and plaintiff's proposed order marked "Not Signed."
As the issue set for limited issue trial in the decision of September 19, 2016 remain, a trial limited to those issues would be held before this court on Friday, February 22, 2019 at 9:30 AM.
This constitutes the order and decision of the Court.