Opinion
No. 5167–13.
08-15-2014
SOVEREIGN BANK, NA, Plaintiff, v. Michael J. DELFINO, Sr. d/b/a D & D Holding Co., New York State Department of Taxation and Finance, John Doe # 1 through John Doe # 50, these names being fictitious and unknown to plaintiff, the parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises known as and by 64 Knickerbocker Avenue, Bohemia, New York, Defendants.
Ruskin, Moscou, Faltischek, Uniondale, for Plaintiff. Pryor & Mandelup, LLP, Westbury, for Defendant, Delfino. David J. Gold, PC, New York, Co-counsel for Defendant Delfino.
Ruskin, Moscou, Faltischek, Uniondale, for Plaintiff.
Pryor & Mandelup, LLP, Westbury, for Defendant, Delfino.
David J. Gold, PC, New York, Co-counsel for Defendant Delfino.
Opinion
THOMAS F. WHELAN, J.
ORDERED that this motion (# 001) by the plaintiff for accelerated judgments on its complaint and an order of reference is considered under CPLR 3212, 3215 and RPAPL § 1321 and is granted.
The plaintiff commenced this action in February of 2013 to foreclose a restated mortgage dated November 22, 2002, given by defendant, Michael J. Delfino, Sr., d/b/a D & D Holding Company as part of larger commercial mortgage loan transaction between such defendant and the Independence Savings Bank. The restated mortgage encumbered real property located at 65 Knickerbocker Avenue in Bohemia, New York ans was given to secure a substitute mortgage note of the same date executed by such defendant in favor the Independence Savings Bank. Also executed on that date was the Restatement, Consolidation, Extension, Assumption and Modification Agreement to reflect consolidation of prior notes and mortgages so as to form a single lien in the amount of $737,000.00. Thereafter, a merger of the Independence Savings Bank with the plaintiff, Sovereign Bank, occurred which left the plaintiff in possession of the notes and mortgages held by Independence Savings Bank on date of its mortgage loan transaction with defendant Delfino. The plaintiff alleges that a default in payment occurred on December 1, 2012, the extended maturity date of the substitute mortgage note and that such default continues to date.
Issue was joined by service of an answer by the mortgagor defendant, dated March 7, 2013. No affirmative defenses nor any counterclaims were asserted, as the defendant asserted only denials of the certain of the allegations advanced in the complaint.
By the instant motion, the plaintiff moves for summary judgment striking the answer served by the mortgagor defendant and for summary judgment on its complaint, together with and the deletion of the remaining unknown defendants and the appointment of a referee to compute. Defendant Delfino opposes on the following two grounds: 1) that the plaintiff failed to establish that it is the “proper holder of the note and mortgage to be foreclosed”; and 2) there was no default in payment because the note was extended for a Second Renewal Term set forth therein which extended the maturity date to December 1, 2017. For the reasons stated below, the motion is granted.
“Entitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact” (Zanfini v. Chandler, 79 AD3d 1031, 912 N.Y.S.2d 911 [2d Dept 2010], quoting HSBC Bank USA v. Merrill, 37 AD3d 899, 900, 830 N.Y.S.2d 598 [2d Dept 2010] ; see Plaza Equities, LLC v. Lamberti, 118 AD3d 688, 986 N.Y.S.2d 843 [2d Dept 2014] ; Emigrant Mtge. Co., Inc. v. Beckerman, 105 AD3d 895, 964 N.Y.S.2d 548 [2d Dept 2013] ; Solomon v. Burden, 104 AD3d 839, 961 N.Y.S.2d 535 [2d Dept 2013] ; US Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Baron Assoc., LLC v. Garcia Group Enter., 96 AD3d 793, 946 N.Y.S.2d 611 [2d Dept 2012] ). This standard is enlarged to include a demonstration that the plaintiff is possessed of the requisite standing to pursue its claims where, and only where, the defense of standing is due and timely asserted by a defendant possessed of such defense (see Plaza Equities, LLC v. Lamberti, 118 AD3d 688, supra; see Peak Fin. Partners, Inc. v. Brook, 119 AD3d 539, 987 N.Y.S.2d 916 [2d Dept 2014] ; Kondaur Capital Corp. v. McCary, 115 AD3d 649, 981 N.Y.S.2d 547 [2d Dept 2014] ; Deutsche Bank Natl. Trust Co. v. Whalen, 107 AD3d 931, 969 N.Y.S.2d 82 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Rivas, 95 AD3d 1061, 945 N.Y.S.2d 328 [2d Dept 2012] ; Citimortgage, Inc. v. Stosel, 89 AD3d 887, 888, 934 N.Y.S.2d 182 [2d Dept 2011] ; U.S. Bank, N.A. v. Adrian Collymore, 68 AD3d 752, 890 N.Y.S.2d 578 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 837 N.Y.S.2d 247 [2d Dept 2007] ).
The last stated rule is discernible from the general precept that the standing of a plaintiff is not an element of his or her claim (see id., at 42 AD3d 250; see also Plaza Equities, LLC v. Lamberti, 118 AD3d 688, supra ). This is particularly evident in the mortgage foreclosure arena wherein recent appellate case authorities have repeatedly held that a lack of standing is merely an affirmative defense which must be timely raised by a defendant possessed of such defense or it is waived (see CPLR 3018[b] ; CPLR 3211 [e]; JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 AD3d 821, 979 N.Y.S.2d 620 [2d Dept 2014] ; Deutsche Bank Trust Co. Am. v. Cox, 110 AD3d 760, 973 N.Y.S.2d 662 [2d Dept 2013] ; U.S. Bank Natl. Ass'n v. Denaro, 98 AD3d 964, 950 N.Y.S.2d 581 [2d Dept 2012] ; Capital One, N.A. v. Knollwood Prop. II, LLC, 98 AD3d 707, 950 N.Y.S.2d 482 [2d Dept 2012] ; Countrywide Home Loans, Inc. v. Delphonse, 64 AD3d 624, 883 N.Y.S.2d 135 [2d Dept 2009] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, supra ). The defense of standing is thus not jurisdictional in nature (see Bank of New York v. Mulligan, 119 AD3d 716, 2014 WL 3444067 [2d Dept 2014] ; Wells Fargo Bank, N.A. v. Gioia, 114 AD3d 766, 980 N.Y.S.2d 535 [2d Dept 2014] ; Citimortgage, Inc. v. Friedman, 109 AD3d 573, 970 N.Y.S.2d 706 [2d Dept.2013] ; HSBC Bank USA, N.A. v. Taher, 104 AD3d 815, 962 N.Y.S.2d 301 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 AD3d 724, 957 N.Y.S.2d 868 [2d Dept 2013] ; US Bank Natl. Ass'n v. Tate, 102 AD3d 859, 958 N.Y.S.2d 722 [2d Dept 2013] ; Deutsche Bank Natl. Trust Co. v. Hunter, 100 AD3d 810, 954 N.Y.S.2d 181 [2d Dept 2012] ; Bank of New York v. Alderazi, 99 AD3d 837, 951 N.Y.S.2d 900 [2d Dept 2012] ; U.S. Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, supra ; U.S. Bank v. Emmanuel, 83 AD3d 1047, 921 N.Y.S.2d 320 [2d Dept 2011] ; Wells Fargo Bank Minn., N.A. v. Mastropaolo, 42 AD3d 239, 242–244, supra ).
Once waived, a standing defense may not be resurrected by its assertion in opposition to a motion for summary judgment (see Bank of New York Mellon Trust Co. v. McCall, 116 AD3d 993, 985 N.Y.S.2d 255 [2d Dept 2014] ; Capital One, N.A. v. Knollwood Prop. II, LLC, 98 AD3d 707,supra; JPMorgan Chase Bank, N.A. v. Bauer, 92 AD3d 641, 938 N.Y.S.2d 190 [2d Dept 2012] ; US Bank Natl. Ass'n. v. Denaro, 98 AD3d 964,supra; HSBC Bank, USA v. Schwartz, 88 AD3d 961, 931 N.Y.S.2d 528 [2d Dept 2011] ; U.S. Bank Natl. Ass'n v. Eaddy, 79 AD3d 1022, supra ) The plaintiff thus has no obligation to establish its standing on a motion for summary judgment where none of the answers served contain an affirmative defense premised on the absence of standing on the part of the plaintiff.
Here, the moving papers submitted on this motion established, prima facie, the plaintiff's entitlement to summary judgment on claims for foreclosure and sale against the answering defendant as such papers included copies of the mortgage, and the note executed by defendant Delfino together with due evidence of a default under the terms thereof (see CPLR 3212 ; RPAPL § 1321 ; U.S. Bank Natl. Assn. v. Denaro, 98 AD3d 964,supra; Washington Mut. Bank v. Valencia, 92 AD3d 774, supra ). The plaintiff thus established its prima facie entitlement to the summary judgment requested by it against the mortgagor defendant, Delfino.
It was thus incumbent upon defendant Delfino to submit proof sufficient to raise a genuine question of fact rebutting the plaintiff's prima facie showing or in support of an affirmative defense asserted in his answer or otherwise available to him (see Flagstar Bank v. Bellafiore, 94 AD3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012] ; Grogg v. South Rd. Assocs., 74 AD3d 1021, 907 N.Y.S.2d 22 [2d Dept 2010] ; Wells Fargo Bank v. Karla, 71 AD3d 1006, 896 N.Y.S.2d 681 [2d Dept 2010] ; Aames Funding Corp. v. Houston, 44 AD3d 692, 843 N.Y.S.2d 660 [2d Dept 2007] ). A review of the opposing papers submitted by defendant Delfino reveals that no such question of fact was raised.
The standing defense asserted by defendant Delfino may not serve to defeat the plaintiff's prima facie of its entitlement to summary judgment because such defense was waived by the defendant's failure to assert it in either a timely motion to dismiss or in his answer. The defendant's assertion of this waived defense in his opposing submissions fails, as a matter of law, under certain of the above cited case authorities (see e.g., Bank of New York Mellon Trust Co. v. McCall, 116 AD3d 993,supra; Capital One, N.A. v. Knollwood Prop. II, LLC, 98 AD3d 707,supra; JPMorgan Chase Bank, N.A. v. Bauer, 92 AD3d 641, 938 N.Y.S.2d 190 [2d Dept 2012] ; US Bank Natl. Ass'n. v. Denaro, 98 AD3d 964, supra ).
The defendant's claim that there was no default in payment because the note contained a Second Renewal Term is lacking in substantive merit. The record contains ample evidence that, while there were discussions regarding a second extension, the note was not renewed and accordingly, the maturity date was not extended from December 1, 2012 to December 17, 2017. Nor is there any merit to the defendant's claim that the plaintiff's acceptance of payments following the default date of December 1, 2012 constituted evidence of the renewal and/or a waiver of the plaintiff's right to foreclose. These clams are belied by the no-waiver provisions of the loan documents and by the conduct of the plaintiff who at all times advised the defendant that his acceptance of payments from him did not constitute a waiver of the default or the plaintiff's right to foreclose.
The court thus finds that the defendant failed to raise any genuine question of fact necessary to rebut the plaintiff's prima facie entitlement to the summary judgment requested by it against defendant Delfino. Those portions of the instant motion wherein the plaintiff seeks such relief are granted.
The plaintiff's demand for an order dropping, by way of discontinuance, the unknown defendants listed as party defendants in the caption is granted (see CPLR 1003 ). Also granted is the plaintiff's request for an amendment of the caption to reflect a change in the name of the plaintiff from Sovereign Bank to Santander Bank. The caption of this action is hereby amended to reflect these changes as set forth in the order appointing the referee which shall issue with this order.
The moving papers further established the defaults in answering on the part of the remaining defendants, including those newly identified, none whom served answers to the plaintiff's complaint. Accordingly, the defaults of all such defendants are hereby fixed and determined. Since the plaintiff has been awarded summary judgment against the answering defendant and has established a default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see RPAPL § 1321 ; Bank of East Asia, Ltd. v. Smith, 201 A.D.2d 522, 607 N.Y.S.2d 431 [2d Dept 1994] ; Vermont Fed. Bank v. Chase, 226 A.D.2d 1034, 641 N.Y.S.2d 440 [3d Dept 1996] ; LaSalle Bank, NA v. Pace, 31 Misc.3d 627, 919 N.Y.S.2d 794 [Sup.Ct. Suffolk County 2011], aff'd, 100 AD3d 970, 955 N.Y.S.2d 161 [2d Dept 2012] ).
Proposed Order appointing referee to compute, as modified by the court, has been signed simultaneously herewith.