Opinion
INDEX NO.: 19474-12
07-31-2014
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Plaintiff, v. DONALD E. SARTORIUS; CITIBANK, NA; "JOHN DOES" and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien against the premises, Defendants.
ROSICKI, ROSICKI & ASSOCIATES, PC Attorneys for Plaintiff 26 Harvester Avenue Batavia, N. Y. 14020 MICHAEL V. DEVEVE, ESQ. Attorney for Defendant Donald E. Sartorius 1000 Main Street Pt. Jefferson, N.Y. 11777
SHORT FORM ORDER
PRESENT: Hon. ANDREW G. TARANTINO JR. Acting Supreme Court Justice Motion Date: 10-1-13
Adj. Date: __________
Mot. Seq. #001-MotD
ROSICKI, ROSICKI & ASSOCIATES, PC
Attorneys for Plaintiff
26 Harvester Avenue
Batavia, N. Y. 14020
MICHAEL V. DEVEVE, ESQ.
Attorney for Defendant
Donald E. Sartorius
1000 Main Street
Pt. Jefferson, N.Y. 11777
Upon the following papers numbered 1 to 9 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers __________; Notice of Cross Motion and supporting papers __________; Answering Affidavits and supporting papers __________; Replying Affidavits and supporting papers __________; Other __________; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this unopposed motion by the plaintiff for, inter alia, an order awarding summary judgment in its favor, fixing the defaults of the non-answering defendants, appointing a referee and amending the caption is determined as set forth below; and it is
ORDERED that the plaintiff is directed to serve a copy of this order amending the caption upon the Calendar Clerk of this Court; and it is further
ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(1), (2) or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the Clerk of the Court.
This is an action to foreclose a mortgage on real property known as 8 Wagner Drive, Coram, New York 11727. On September 19, 2002, the defendant Donald E. Sartorius (the defendant mortgagor) executed a fixed-rate note in favor of Washington Mutual Bank, FA (WAMU) in the principal sum of $75,726.00. To secure said note, the defendant mortgagor gave WAMU a mortgage also dated September 19, 2002 on the property. By way of an endorsed note and a Purchase and Assumption Agreement between the Federal Deposit Insurance Corporation (FDIC) as Receiver for WAMU and JPMorgan Chase Bank, National Association (the plaintiff), dated September 25, 2008, the plaintiff acquired, among other things, the subject loan from WAMU.
The defendant mortgagor allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on November 1, 2011, and each month thereafter. After the defendant mortgagor allegedly failed to cure his default, the plaintiff commenced the instant action by the filing of a summons and verified complaint on June 27, 2012. The following day, the plaintiff filed the lis pendens in this action.
Issue was joined by the interposition of the defendant mortgagor's verified answer sworn to on August 10, 2010. By his answer, the defendant mortgagor generally denies all of the allegations contained in the complaint, and asserts three affirmative defenses, alleging, inter alia, the following: the failure to satisfy a condition precedent; the failure to properly serve him; and the lack of personal jurisdiction. The remaining defendants have neither appeared nor answered herein.
According to the records maintained by the Court's computerized database, a series of settlement conferences were conducted or adjourned before this Court's specialized mortgage foreclosure part beginning on January 11, 2013 and concluding on June 13, 2013. A representative of the plaintiff attended and participated in all settlement conferences. On the last date, this case was dismissed from the conference program because the parties were unable to modify the loan or otherwise reach a settlement. Accordingly, no further conference is required under any statute, law or rule.
The plaintiff now moves for, inter alia, an order: (1) pursuant to CPLR 3212 awarding summary judgment in its favor and against the defendant mortgagor, striking his answer and dismissing the affirmative defenses set forth therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; and (4) amending the caption. No opposition has been filed in response to this motion.
A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default ( see, Valley Natl. Bank v Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut Bank, FA. v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff' ( Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 2010], quoting Mahopac Nat'l Bank v Baisley, 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]).
By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RPAPL § 1321; Wachovia Bank, NA. v Carcano, 106 AD3d 724,965 NYS2d 516 [2d Dept 2013]; US. Bank, NA. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Capital One, NA. v Knoltwood Props. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). In the instant case, the plaintiff produced, inter alia, the note, the mortgage and evidence of nonpayment (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust NatL Assn. v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]). Furthermore, the plaintiff submitted proof of compliance with the notice requirements set forth in the mortgage regarding a default (see, Wachovia Bank, NA. v Carcano, 106 AD3d 724, supra; Indymac Bank, F.S.B. v Kamen, 68 AD3d 931, 890 NYS2d 649 [2d Dept 2009]). Thus, the plaintiff demonstrated its prima facie burden as to the merits of this foreclosure action.
The plaintiff also submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in the defendant mortgagor's answer are subject to dismissal due to their unmeritorious nature (see, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 2009]; Wells Fargo Bank Minn., NA. v Perez, 41 AD3d 590,837 NYS2d 877 [2d Dept 2007]; Coppa v Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Wachovia Bank, N.A. v Carcano, 106 AD3d 724, supra [compliance with the pre-foreclosure notice requirement of RPAPL §1304 satisfies the "30-day notice" requirement specified in the mortgage]; Bank o/N.Y. Mellon vScura, 102 AD3d 714, 961 NYS2d 185 [2d Dept 2013]; Scarano v Scarano, 63 AD3d 716, 880 NYS2d 682 [2d Dept 2009] [process server's sworn affidavit of service is prima facie evidence of proper service]; Grogg v South Rd. Assoc, L.P., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 2010] [the mere denial of receipt of the notice of default is insufficient to rebut the presumption of delivery]).
As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007]). Accordingly, it was incumbent upon the defendant mortgagor to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see, Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]; Washington Mut Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]).
Self-serving and conclusory allegations do not raise issues of fact, and do not require the plaintiff to respond to alleged affirmative defenses which are based on such allegations (see, Charter One Bank, FSB v Leone, 45 AD3d 958, 845 NYS2d 513 [3d Dept 2007]; Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798, 780 NYS2d 438 [3d Dept 2004]). In instances where a defendant fails to oppose a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see, Kuehne & Nagel v Baiden, 36 NY2d 539, 369 NYS2d 667 [1975]; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606,957 NYS2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Additionally, "uncontradicted facts are deemed admitted" ( Tortorello v Carlin, 260 AD2d 201,206,688 NYS2d 64 [1st Dept 1999] [internal quotation marks and citations omitted]).
The defendant mortgagor's answer is insufficient, as a matter of law, to defeat the plaintiff's unopposed motion (see, Flagstar Bank v Bellafwre, 94 AD3d 1044,943 NYS2d 551 [2d Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra). In this case, the affirmative defenses asserted by the defendant mortgagor are factually unsupported and without apparent merit (see, Becker v Feller, 64 AD3d 672, supra). The second and third affirmative defenses, in which the defendant mortgagor alleges that die Court lacks jurisdiction over him, are stricken because he does not allege by way of a sworn statement in evidentiary form that he was not properly served with process herein (see, Associates First Capital Corp. v Wiggins, 75 AD3d 614, 904 NYS2d 668 [2d Dept 2010]). These defenses were also waived as the defendant mortgagor failed to move to dismiss the complaint against him on this ground within 60 days after serving the answer (see, CPLR 321 l[e]; Reyes v Albertson, 62 AD3d 855, 878 NYS2d 623 [2d Dept 2009]; Dimond v Verdon, 5 AD3d 718, 773 NYS2d 603 [2d Dept 2004]). In any event, the failure by the defendant mortgagor to raise and/or assert each of his pleaded defenses in opposition to the plaintiff's motion warrants the dismissal of the same as abandoned under the case authorities cited above (see, Kuehne & Nagel v Baiden, 36 NY2d 539, supra; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, supra).
Under these circumstances, the Court finds that the defendant mortgagor failed to rebut the plaintiff's prima facie showing of its entitlement to summary judgment requested by it (see, Flagstar Bank v Bella/tore, 94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; Rossrock Fund II, LP. v Commack Inv. Group, Inc., 78 AD3d 920,912 NYS2d 71 [2d Dept 2010]; see generally, Hermitage Ins. Co. v Trance Nile Club, Inc., 40 AD3d 1032,834 NYS2d 870 [2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment in its favor against the defendant mortgagor (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, supra; see generally, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Accordingly, the defendant mortgagor's answer is stricken, and the affirmative defenses set forth therein are dismissed.
The branch of the instant motion wherein the plaintiff seeks an order pursuant to CPLR 1024 amending the caption by excising the fictitious named defendants, John Does and Jane Does, is granted (see, PHH Mtge. Corp. v Davis, 111 AD3d 1110,975 NYS2d 480 [3d Dept 2013]; Flagstar Bank v Bella/lore, 94 AD3d 1044, supra; Neighborhood Hous. Servs. of N .Y. City, Inc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Dept 2009]). By its submissions, the plaintiff established the basis for the above-noted relief. All future proceedings shall be captioned accordingly.
By its moving papers, the plaintiff further established the default in answering on the part of the defendant Citibank, N.A. (see, RPAPL § 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]). Accordingly, the default of Citibank, N.A. is fixed and determined. Since the plaintiff has been awarded summary judgment against the defendant mortgagor, and has established the default in answering by Citibank, N.A., the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage ( see, RPAPL § 1321; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dept 2005]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank of E. Asia v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]).
Accordingly, this motion for, inter alia, summary judgment is determined as set forth above. The proposed long form order appointing a referee to compute pursuant to RPAPL § 1321, as modified by the Court, has been signed concurrently herewith. Dated: JUL 31 2014
/s/_________
Hon. ANDREW G. TARANTINO, A.S.C.J.