Opinion
607224-2015
01-22-2019
WILMINGTON SAVINGS FUND SOCIETY, FSB, Doing Business as Christiana Trust, Not in Its Individual Capacity, but Solely as Trustee for BCAT 2014-11 TT, Plaintiff, v. Kent TERCHUNIAN a/ka Kent T. Terchunian; Marianne Terchunian a/k/a Marianne Dusseldorp Terchunian; Mortgage Electronic Registration Systems, Inc., as Nominee for Countrywide Bank, N.A., Defendants.
KNUCKLES, KOMINSKI & MANFRO, LLP, 50 Tice Blvd., Suite 183, Woodcliff Lake, NJ 07677, Attorneys for Plaintiff. THE LAW OFFICES OF GARY J. WEBER, PO Box 1588, Westhampton Beach, NY 11978, Attorney for Defendants Terchunian.
KNUCKLES, KOMINSKI & MANFRO, LLP, 50 Tice Blvd., Suite 183, Woodcliff Lake, NJ 07677, Attorneys for Plaintiff.
THE LAW OFFICES OF GARY J. WEBER, PO Box 1588, Westhampton Beach, NY 11978, Attorney for Defendants Terchunian.
Robert F. Quinlan, J.
Upon the following papers, 1-48 read on plaintiff's motion for summary judgment and appointment of a referee pursuant to RPAPL § 1321 ; Notice of Motion and supporting papers: 1-35 ; defendants' affirmation in opposition: 36-41; and plaintiff's reply: 42-48 ; it is,
ORDERED that this motion by Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity but solely as Trustee for BCAT 2014-11 TT for summary judgment dismissing the answer of Kent T. Terchunian and Marianne Dusseldorp Terchunian and for an order of reference pursuant to RPAPL § 1321, is granted; it is further
ORDERED that the proposed order submitted by plaintiff, as modified by the court, is signed contemporaneously with this decision, and it is further:
ORDERED that plaintiff is directed to serve an executed copy of the order of reference amending the caption of this action 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 plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED , that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order (plaintiff's submissions); defendant(s) may submit written objections and proof in support thereof (defendant's objections) to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant(s) objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant(s) objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant(s) objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, May 29, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
This is an action to foreclose a mortgage upon residential real property located at 19 The Registry, East Quogue, Suffolk County, New York ("the property") given by Kent T. Terchunian and Marianne Dusseldorp Terchunian("defendants") to The New York Mortgage Company, LLC ("New York Mortgage"), a predecessor in interest to Wilmington Savings Fund Society, FSB, doing business as Christiana Trust, not in its individual capacity but solely as Trustee for BCAT 2014-11 TT ("plaintiff"). The history of this action is given in the written decision of this court dated July 10, 2017 which, after oral argument of plaintiff's first motion for summary judgment (Mot. Seq. # 001) and defendants' cross-motion (Mot. Seq. # 002), denied defendants' motion and granted plaintiff partial summary judgment pursuant to CPLR 3212 (g) dismissing all of defendants' affirmative defenses raised in their answer, set the default of the non-answering defendants, amended the caption, but denied plaintiff's application for the appointment of a referee and full summary judgment as plaintiff had not established the default in payment of defendants. Pursuant to CPLR § 2218 the court set a limited issue trial as to that issue, allowing the parties a limited period of discovery on that issue, and authorizing successive summary judgment motions by both parties which weree to be filed within 30 days of the filing of the note of issue.
On December 6, 2017 a compliance/certification conference was held and the action was certified ready for trial. Plaintiff filed the note of issue simultaneously with this motion on December 18, 2017.
Plaintiff has now presented an affidavit of a vice president of Sterling National Bank ("Sterling"). Her affidavit, along with other documents submitted in support of the motion, establishes that Sterling merged with Astoria Bank ("Astoria"), which serviced the loan at the time of defendants' default in payment. Her affidavit establishes her ability to testify to the business records of Astoria, now the records of her employer Sterling as a result of the merger, pursuant to CPLR 4518 (a) and establishes that those records show that defendants defaulted in their payment starting with the payment due December 1, 2012. Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage and the unpaid note, and evidence of the 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] ). Once plaintiff has established that by proof submitted in evidentiary form, it 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] ). By now establishing defendants' default in payment, plaintiff has shown its prima facie entitlement to foreclose.
In opposition, defendants submit no evidence in admissible form that counters this proof and raises a question of fact as to their default in payment. There is no affidavit from defendants claiming payment or any other proof which raise a question of fact. Faced with a movant's prima facie showing of entitlement to such relief, it is incumbent upon an opponent to lay bare its proof and present evidentiary proof in admissible form sufficient to raise a triable issue of fact, or have its claim subject to dismissal (see Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc. 46 NY2d 1065 [1979] ; Zuckerman v. City of New York , 49 NY2d 557 [1980] ; Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ; Morgan v. NY Tel. , 220 AD2d 728 [2d Dept 1995] ; Hovi v. City of New York , 226 AD2d 430 [1996] ; Washington Mut. Bank v. Valencia, 92 AD3d 774 [2d Dept 2012] ). As defendant has failed to meet this burden, no question of fact has been raised, accordingly, plaintiff is granted full summary judgment. Defendants' answer is stricken and plaintiff's application for the appointment of a referee pursuant to RPAPL § 1321 is granted.
Plaintiff's proposed order, as modified by the court is signed contemporaneously with this decision.
This constitutes the Order and decision of the Court.