Opinion
No. 15717/2008.
03-30-2016
US BANK NATIONAL ASSOCIATION, as Trustee for the Holders of the SAA Home Equity Trust 2006–20, Asset-backed Certificates, Series 2006–20, Plaintiff, v. Oscar MOSQUERA, Rosario Wise, et. al., Defendants.
RAS Boriskin, LLC, Westbury, Attorney for Plaintiff. Cabanillas & Associates, PC, White Plains, Attorney for Defendant Oscar Mosquera.
RAS Boriskin, LLC, Westbury, Attorney for Plaintiff.
Cabanillas & Associates, PC, White Plains, Attorney for Defendant Oscar Mosquera.
WILLIAM J. GIACOMO, J.
The following papers numbered 1 to 6 were read on plaintiff's motion for a Judgment of Foreclosure and Sale.
PAPERS NUMBERED
Notice of Motion/Affirmation/Exhibits 1–3
Affirmation in Opposition/Exhibits 4–5
Reply Affirmation 6
Factual and Procedural Background
Plaintiff commenced this residential mortgage foreclosure action in July 2008. Defendant Oscar Mosquera neither appeared nor answered.
On January 7, 2014 this Court granted plaintiff's application for an Order of Reference and denied Mosquera's application to dismiss the complaint for failure to prosecute on the ground that he did not first serve plaintiff with a demand to resume prosecution under CPLR 3216.
On February 21, 2014, plaintiff served defendants with notice of entry of the Order of Reference.
Plaintiff now moves to confirm the referee's report and for Judgment of Foreclosure and Sale.
Mosquera, via an affirmation of his counsel, opposes the motion on the ground that pursuant to CPLR 4313 he is entitled to a hearing before the referee on the amount due on his debt. Mosquera's counsel also argues that in determining the amount due in this case the referee improperly relied upon inadmissible evidence.
Discussion
CPLR 4313 Notice provides:
Except where the reference is to a judicial hearing officer or a special referee, upon the entry of an order of reference, the clerk shall send a copy of the order to the referee. Unless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and place for the first hearing to be held within twenty days after the date of the order or shall forthwith notify the court that he declines to serve. (Emphasis added).
Here, there is no dispute that the referee did not comply with the provisions of CPLR 4313 and provide Mosquera with notice of a time and date for a hearing to be held.
Nevertheless, in opposition to plaintiff's motion Mosquera merely submits his attorney's affirmation which is of no probative value or evidentiary significance (see Currie v. Wilhouski, 93 AD3d 816 [2nd Dept 2012] ).
Moreover, while it may have been an error for the referee not to provide Mosquera with notice of a time and place for a hearing to be held, in opposing this motion Mosquera submitted no evidence, other than conclusory allegations, that the referee's calculations are incorrect. In opposition to this motion, Mosquera has the burden of establishing why the referee's failure to hold a hearing before calculating the amount due was not harmless (see Deutsche Bank Nat. Trust Co. v. Zlotoff, 77 AD3d 702 [2nd Dept 2010] [ “[T]he (defendants) had an opportunity to raise and submit proof as to all of the issues they now raise on this appeal to the Supreme Court. Thus, any error in failing to hold a hearing did not prejudice the (defendants) and does not require reversal.”]; see also Deutsche Bank Nat. Trust Co. v. Williams, 134 AD3d 981 [2nd Dept 2015]; Dune Deck Owners Corp. v. J.J. & P. Associates Corp., 85 AD3d 1091 [2nd Dept 2011] [“[T]he Supreme Court did not err in deciding the motion and cross motion without a hearing, since the appellant failed to demonstrate the existence of any relevant factual dispute warranting a hearing.”).
Based on the foregoing, plaintiff's application for a Judgment of Foreclosure and Sale is GRANTED and the judgment is signed herewith.