Opinion
INDEX NO.: 31719-12
10-15-2015
MID-ISLAND MORTGAGE CORP., Plaintiff, v. JAMES T. GATTI, KAREN M. GATTI, BANK OF AMERICA, N.A., FLEET NATIONAL BANK, CACH LLC, TARGET NATIONAL BANK, COMMISSIONER OF TAXATION AND FINANCE, "JOHN DOE #1 through "JOHN DOE #12" the last twelve 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, Defendants
BERKMAN, HENOCH, PETERSON, PEDDY & FENCHEL, P.C. Attorneys for Plaintiff 100 Garden City Plaza Garden City, New York 11530 ALAN C. STEIN, P.C. Attorneys for James T. Gatti and Karen M. Gatti 479 South Oyster Bay Road Plainview, New York 11803 BANK OF AMERICA, N.A. Defendant 185 Wheeler Road Central Islip, New York 11722 FEIN SUCH & CRANE, LLP. Attorneys for Defendant Fleet National Bank 747 Chestnut Ridge Road, Suite 200 Chestnut Ridge, New York 10977-6216
COPY
SHORT FORM ORDER
PRESENT: Hon. GLENN A. MURPHY Acting Justice of the Supreme Court MOTION DATE 09-18-14
ADJ. DATE 10-15-15
MOT. SEQ # 001 MG
BERKMAN, HENOCH, PETERSON, PEDDY &
FENCHEL, P.C.
Attorneys for Plaintiff
100 Garden City Plaza
Garden City, New York 11530
ALAN C. STEIN, P.C.
Attorneys for James T. Gatti and Karen M. Gatti
479 South Oyster Bay Road
Plainview, New York 11803
BANK OF AMERICA, N.A.
Defendant
185 Wheeler Road
Central Islip, New York 11722
FEIN SUCH & CRANE, LLP.
Attorneys for Defendant Fleet National Bank
747 Chestnut Ridge Road, Suite 200
Chestnut Ridge, New York 10977-6216
Upon the following papers numbered 1 to 28 read on this motion for Summary Judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 24; Notice of Cross Motion and supporting papers ___; Answering Affidavits and supporting papers 25; Replying Affidavits and supporting papers 26-28; Other ___; (and after hearing counsel in support and opposed to the motion) it is, UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is hereby
ORDERED that this motion by the plaintiff Mid Island Mortgage Corp., pursuant to CPLR §3212 for summary judgment on its verified complaint, to strike the answer and counterclaim of the defendants and, for an order of reference appointing a referee to compute pursuant to Real Property Actions and Proceedings Law §1321, is granted; and it is further
ORDERED that the plaintiffs application for leave to amend the caption of this action pursuant to CPLR §3025 (b), is granted; and it is further
ORDERED that James Gatti, Chrtistina Gatti, and "Jane Doc" are hereby substituted in place and stead of "JOHN DOR #1" through "JOHN DOE #3" respectively; and it is further
ORDERED that defendants captioned as "JOHN DOE #4" through "JOHN DOE #12", not having been served with a copy of the summons and complaint, are neither necessary nor proper party defendants and their names arc hereby stricken from the caption of this action; and it is further
ORDERED that the caption is hereby amended to read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK MID-ISLAND MORTGAGE CORP., Plaintiff,
-against- JAMES T. GATTI, KAREN M. GATTI, BANK OF AMERICA, N.A. FLEET NATIONAL BANK, CACH, LLC, TARGET NATIONAL BANK, COMMISSIONER OF TAXATION AND FINANCE, JAMES GATTI, CHRISTINA GATTI, "JANE DOE," Defendants. INDEX NO. 31719/12 and it is further
ORDERED that default is found against all non-answering defendants; and it is further
ORDERED that plaintiff shall serve a copy of this order upon the referee appointed herein, the owner of the equity of redemption and all parties counsel who have appeared in this action.
This is an action to foreclose a mortgage on premises known as 233 42nd Street, Lindenhurst, New York. On December 21, 2000, the defendants executed a note in favor of Hartford Funding LTD (Hartford) agreeing to pay the sum of $120,000.00 at the yearly rate of 8.125 percent. On the same date, the defendants executed a first mortgage in like sum on the subject property to Hartford as the mortgagee of record.
The documentation produced by the plaintiff does establish the plaintiff is the holder of the note. Further the defendants mere conclusionary allegations that a corporate resolution is required to have Hartford transfer the note to the plaintiff is not a basis by which this Court can deny summary judgment. It is noted that the defendant affirmation does not include an affidavit of the defendant or any other person nor any authority for its position.
An affirmation of an attorney who demonstrates no personal knowledge is without evidentiary value (Zuckerman v. City of New York , 49 N.Y. 2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 (1980); Weingarten v. Marcus , 118 A.D. 2d 640, 499, N.Y.S.2d 794 (2d Dept 1986), and is not considered competent evidence. ( David Graubart , Inc. V Bank Leumi Trust Co. Of N.Y., 48 N.Y.2d 554, 423 N.Y.S.2d 899, 399 N.E.2d 930 (1979).) Thus conclusory and unsubstantiated factual allegations by any attorney lacking personal knowledge are patently insufficient. ( Kartiganer Assocs. V. Town of New Windsor , 132 A.D.2d 527, 517 N.Y.S.2d 266 (2d Dept. 1987); Rera v. Rera , 100 Misc.2d 670 420 N.Y.S.2d 127 (1979).) Courts have variously stated that such an affirmation would be insufficient to raise a triable issue_ (Barbieri v. D'Angelo , 128 A.D.2d 661, 513 N.Y.S.2d 160 (2d Dept. 1987); that such an attorney's affirmation is hearsay Mascoli v. Mascoli , 129 A.D.2d 778, 514 N.Y.S.2d 521 (2d Dept 1987); South Shore Skate Club , Inc. v. Fatscher , 17 A.D.2d 840, 233 N.Y.S.2d 372(2d Dept 1962)); that such an affidavit (if in that form) has no probative value and should be disregarded. (Rubin v. Rubin , 72 A.D.2d 536, 421 N.Y.S. 2d 68 (1st Dept. 1979); Chickering v. Colonial Life Ins. Co of America , 57 A.D.2d 566, 378 N.Y.S.2d 475 (2d Dept. 1916); Phillip A. Feinberg , Inc. V. Varig , S.A., 80 Misc.2d 305, 363 N.Y.S.2d 195 (1974).) See also, Aetna Casualty & Surety Co . v. Schulman , 70 A.D.2d 792, 417, N.Y.S.2d 77 (1st Dept. 1979); DiSabato v. Soffes , 9 A.D.2d 297, 193 N.Y.S.2d 184 (1st Dept. 1959); Cohen v. Pannia , 7 A.D.2d 886, 181 N.Y.S.2d 220 (4th Dept. 1959.);_ Barnet v. Horwitz , 278 A.D.700, 103 N.Y.S.2d 105 (2d Dept. 1951).
With respect to the remaining affirmative defenses and counter-claims, the defendants have failed to raise any triable issues 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 (see Cochran . Inv. Co., Inc. v Jackson , 38 AD3d 704, 834 NYS2d 198 [2d Dept 2007] quoting Mahopac Natl . Bank v Baistey , 244 AD2d 466, 664 NYS2d 345 [2nd Dept 1997]. Here, answering the defendant has failed to demonstrate, through the production of competent and admissible evidence, a viable defense which could raise a triable issue of fact (see Deutsche Bank Natl . Trust Co. V Posner , 89 AD3d 674, 933 NYS2d 52 [2d Dept 2011]). "Motions for summary judgment may not be defeated merely by surmise, conjecture or suspicion" ( Shaw v Time-Life Records , 38 NY2d 201, 379N YS2d 390 [1975]. Notably, the defendant does not deny that they have not made payments of interest or principal on the note since default. (see Citibank , N.A. v Souto Geffen Co ., 231 AD2d 466, 647 NYS2d 467 [1st Dept 1996].
In light of the foregoing, the motion for summary judgment is granted against the defendants and the defendants answer is stricken. The plaintiffs request for an order of reference appointing a referee to compute the amount due plaintiff under the note and mortgage is also granted (see Vermont Fed . Bank v Chase , 226 AD2d 1034, 641 NYS2d 440 [3d Dept 1996]; Bank of East Asia , Ltd. v Smith , 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]).
ORDERED , further that this action is hereby referred to Paul M DeChance, Esq., with an office located at P.O. Box 1626 Riverhead, New York 11901 631-727-6983, who is hereby appointed Referee to ascertain and compute the total amount due plaintiff for unpaid principal, accrued interest and all (other disbursements advanced as provided for by statute) mortgage costs and expenses other than attorneys' fees secured by the note and mortgage set forth in the complaint, and to examine and report as to whether the mortgaged premises can be sold in one parcel; and it is further
ORDERED , that plaintiff shall provide the Referee all required documents to compute within sixty (60) days from the dale of this Order, and the Referee shall make his/her report no later than thirty (30) days thereafter and that, except for good cause shown, the plaintiff shall move for judgment no later than thirty (30) days of the date of the Referee's Report; and it is further
ORDERED , that by accepting this appointment the Referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to section 36.2 (c) ("Disqualifications from appointment"), and section 36.2 (d) ("Limitations on appointments based upon compensation"); and it is further
ORDERED , that upon submission of the Referee's Report, plaintiff shall pay pursuant to CPLR §8003 (a) $250.00 to the Referee as compensation for his/her services, which sum may be recouped as a cost of litigation; and it is further
ORDERED , that the Referee is prohibited from accepting or retaining any funds for him/herself or paying funds to him/herself without compliance with Part 36 of the rules of the Chief Administrative Judge; and it is further
ORDERED , that the Referee appointed herein is subject to the requirements of Rule 36.2 (c) of the Chief Judge, and if the Referee is disqualified from receiving an appointment pursuant to the provision of that Rule, the Referee shall notify the appointing Justice forthwith; and it is further
ORDERED , plaintiff is to include in any proposed order for a judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Foreclosure Action Surplus Monies form contained in Suffolk County Administrative Order #41-13; and it is further
ORDERED , that a copy of this order with Notice of Entry shall be served upon the designated Referee, the owner of the equity of redemption, any tenants named in this action and any other party entitled notice within twenty (20) days of entry and no less than thirty (30) days prior to any hearing before the Referee. The Referee shall not proceed to take evidence as provided herein without proof of such service, which must accompany any application for Final Judgment of Foreclosure and Sale. Dated:10/15/15
/s/_________
Hon. Glenn A. Murphy
Acting Justice Supreme Court
___ FINAL DISPOSITION X NON-FINAL DISPOSITION
Cach, LLC
Defendant
c/o Secretary of State of the State of NY
One Commerce Plaza
99 Washington Avenue
Albany NY 12210
Target National Bank
Defendant
3701 Wayzata Blvd.
Minneapolis, MN 55416
Commissioner of Taxation and Finance
Defendant
300 Motor Parkway
Hauppauge, NY 11788
James Gatti s/h/a "John Doe #1"
Defendant
233 42nd Street
Lindenhurst, NY 11757
Christina Gatti s/h/a "John Doe #2"
Defendant
233 42nd Street
Lindenhurst, NY 11757