Opinion
Index No. 850245/2019 Motion Seq. No. 003
06-21-2024
HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR THE HOLDERS OF DEUTSCHE ALT-A SECURITIES INC. MORTGAGE LOAN TRUST, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2007-0A4, Plaintiff, v. JI YOUN MIN, YOOMI MIN, SUNG JIN MIN, NEW YORK SUPREME COURT, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, NEW YORK CITY ENVIRONMENTAL CONTROL BOARD, INTERNAL REVENUE SERVICE, THE BOARD OF MANAGERS OF 200 CHAMBERS STREET CONDOMINIUM, NATIONAL CITY BANK, AND JOHN DOE AND MARY DOE, (SAID NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS, TENANTS, PERSONS OR CORPORATIONS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON THE PREMISES BEING FORECLOSED HEREIN) Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
FRANCIS A. KAHN, III, JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 1261 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion is determined as follows:
The within action is to foreclose on a mortgage encumbering a parcel of residential real property located at 200 Chambers Street, Unit 7K, New York, New York. The mortgage, given by Defendant Ji Youn Min ("Min"), secures a loan with an original principal amount of $688,000.00 which is memorialized by a note dated April 10, 2007. Plaintiff commenced this action alleging Defendant Min defaulted in making installment payments under the note. Min answered and pled fifteen affirmative defenses, including lack of standing, failure to provide a pre-foreclosure notice pursuant to the mortgage and failure to comply with RPAPL §1304.
By order of this Court dated May 19, 2023, Plaintiffs motion for summary judgment was denied on the basis that prima facie proof of compliance with RPAPL §1304 and paragraph 22 of the mortgage was not established. Now, Plaintiff again moves for summary judgment against the Defendant Min, for an order of reference and to amend the caption. Defendant Min opposes the motion.
In denying the prior motion the Court determined on the above issues as follows:
Regarding the mailing of these notices, in addition to the affidavit of Raab, Plaintiff offered the affidavit of Cynthia Wallace ("Wallace"), the Second Vice President for [Specialized Loan Service], Although Raab and Wallace claimed personal familiarity with [SLS]'s mailing practices and procedures, neither described that procedure in any detail (see Freedom Mtge Corp v Granger, 188 A.D.3d 1163, 1165 [2d Dept 2020]; M&T Bank v Biordi, 176 A.D.3d 11941196 [2d Dept 2019; cf. Citimorlgage, Inc. v Ustick, 188 A.D.3d 793, 794 [2d Dept 2020]). Raab and Walace did not claim to have personal knowledge of the mailing itself and did not annex any records reviewed to support their assertions that SPS complied with its standard practice (cf United States Bank Trust, N.A. v. Mehl, 195 A.D.3d 1054 [2d Dept 2021]). Further, documentary proof that the certified and first-class mailings actually occurred was absent (see U.S. Bank v Zientek, 192 A.D.3d 1189, 1191 [2d Dept 2021]; US Bank v Hammer, 192 A.D.3d 846, 848-849 [2d Dept 2021]). Mere annexation of the notices with a bar code and 10-digit code number does not constitute proof the notice was mailed (see U.S. Bank N.A. v Hammer, 192 A.D.3d 846 [2d Dept 2021]; U.S. Bank, N.A. v Zientek, 192 A.D.3d 1189 [2d Dept 2021]).
In support of the present motion, the mailing of the statutory and contractual notices was attested to by Wallace in an affidavit dated February 15, 2024. Unlike her prior affidavit, Wallace described SLS's process of mailing default notices in adequate detail (see United States Bank Trust, N.A. v Mehl, 195 A.D.3d 1054 [2d Dept 2021]; Citimorlgage, Inc. v Ustick, 188 A.D.3d 793, 794 [2d Dept 2020]). The records evidencing the mailing of the contractual pre-foreclosure notice as well as the required notices under RPAPL §1304 were proffered. In opposition, Defendant Min's arguments concerning the sufficiency of the service of the statutory and contractual pre-foreclosure notices are unavailing. The mere denial of receipt of these notices also fails to raise an issue of fact (see United Nations Fed Credit; Union v Diarra, 194 A.D.3d 506 [1st Dept 2021]). To the extent Defendant is arguing the within motion is an inappropriate successive motion for summary judgment is unavailing. Multiple disputed issues are not presented here (cf. Wells Fargo Bank v Gittens, 217 A.D.3d 901, 903 [2d Dept 2023]) and entertaining a second summary' judgment motion furthers the ends of justice by allowing the Court to eliminate the need for a trial on issues that are not contested, to wit the existence of the note, mortgage; and Defendant's default (see MTGLQ Invs, LP v Collado, 183 A.D.3d 414 [1st Dept 2020]; Bank of Am NA v Brannon, 156 A.D.3d 1, 6 [1st Dept 2017][Uncontradicted facts on a motion for summary' judgment are "deemed to be admitted"]).
As to the branch of Plaintiffs motion to dismiss all Defendants' affirmative defenses, CPLR §3211 [b] provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit". For example, affirmative defenses that are without factual foundation, conclusory or duplicative cannot stand (see Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 A.D.3d 803, 805 [2d Dept 2020]; Emigrant Bank v Myers, 147 A.D.3d 1027, 1028 [2d Dept 2017]). When evaluating such a motion, a "defendant is entitled to the benefit of every reasonable intendment of its pleading, which is to be liberally construed. If there is any doubt as to the availability of a defense, it should not be dismissed" (Federici v Metropolis Night Club, Inc., 48 A.D.3d 741, 743 [2d Dept 2008]).
All the affirmative defenses are entirely conclusory and unsupported by any facts in the answer or by the papers submitted in opposition. As such, these affirmative defenses are nothing more than an unsubstantiated legal conclusion which is insufficiently pied as a matter of law (see Board of Mgrs. of Ruppert Yorkville Towers Condominium v Hayden, 169 A.D.3d 569 [l51 Dept 2019]; see also Bosco Credit VTrust Series 2012-1 v. Johnson, 177 A.D.3d 561 ; 170 W Vil. Assoc. v G & E Realty, Inc., 56 A.D.3d 372 [1st Dept 2008]; see also Becher v Feller, 64 A.D.3d 672 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opt., Inc., 51 A.D.3d 619 [2d Dept 2008]). Further, to the extent that no specific legal argument was proffered in support of a particular affirmative defense, such defenses were abandoned (see U.S. Bank NA. v Gonzalez, 172 A.D.3d 1273, 1275 [2d Dept 2019]; Flagstar Bank v Bellafiore, 94 A.D.3d 1044 [2d Dept 2012); Wells Fargo Bank Minnesota, NA v Perez, 41 A.D.3d 590 [2d Dept 2007]).
Accordingly, based on the foregoing, as well as the findings in the Court's May 19, 2023 decision, it is
ORDERED that the branch of Plaintiffs motion for summary judgment against the appearing Defendant is granted and Defendant's affirmative defenses are stricken; and it is further
ORDERED that Matthew D. Hunter III, Esq., 71-01 Austin Street, Forest Hills, NY 11575 (718) 309-1660 is hereby appointed Referee in accordance with RPAPL § 1321 to compute the amount 1 due to Plaintiff and to examine whether the property identified in the notice of pendency can be sold in parcels; and it is further [
ORDERED that in the discretion of the Referee, a hearing may be held, and testimony taken; and it is further
ORDERED that by accepting this appointment the Referee certifies that he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) ("Disqualifications from appointment"), and §36.2 (d) ("Limitations on appointments based upon compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further
ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); and it is further
ORDERED that the Referee is prohibited from accepting or retaining any funds for himself or paying funds to himself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further .
ORDERED that if the Referee holds a hearing, the Referee may seek additional compensation at the Referee's usual and customary hourly rate; and it is further
ORDERED that Plaintiff shall forward all necessary documents to the Referee and to Defendants who have appeared in this case within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further
ORDERED that if Defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiffs submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further
ORDERED that failure to submit objections to the referee may be deemed a waiver of objections before the Court on an application for a judgment of foreclosure and sale; and it is further
ORDERED that Plaintiff must bring a motion for a judgment of foreclosure and sale within 45 days of receipt of the referee's report; and it is further
ORDERED that if Plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct Plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to Plaintiffs failure to move this litigation forward; and it further i$
ORDERED that counsel for Plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being removed pursuant hereto; and it is further
ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein.
ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County if Clerk Procedures for Electronically Filed Cases (accessible at the "E-Eiling" page on the court's website at the address (www.nycourts.gov/supctmanh)]; and it is further
All parties are to appear for a virtual conference via Microsoft Teams on October 31, 2024, at 10:40 a.m. If a motion for judgment of foreclosure and sale has been filed Plaintiff may contact the Part I Clerk (SFC-Part32-Clerk@nycourts.gov) in writing to request that the conference be cancelled. If a motion has not been made, then a conference is required to explore the reasons for the delay.