Opinion
No. 12–0641.
04-18-2016
WELLS FARGO BANK, NA, Plaintiff, v. William E. ROSITZKE, Kerrie A. Rositzke, Defendants.
Shawn Spielberg, Esq., Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, Counsel for Plaintiff, movant. John P. Kingsley, Esq., John P. Kingsley, P.C., Catskill, Counsel for Defendants.
Shawn Spielberg, Esq., Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, Counsel for Plaintiff, movant.
John P. Kingsley, Esq., John P. Kingsley, P.C., Catskill, Counsel for Defendants.
LISA M. FISHER, J.
This is an action to foreclose a residential mortgage on property located at 29 Pheasant Lane, Catskill, in the County of Greene, State of New York (hereinafter “subject property”). This action was commenced via Summons and Complaint on June 19, 2012. A Verified Answer was filed and served July 25, 2012. The parties could not resolve this matter through CPLR § 3408 conferences.
On January 20, 2014, Plaintiff moved for summary judgment and to appoint a referee, to which Defendants opposed and cross-moved to serve an amended Answer. Plaintiff failed to serve opposition to the cross-motion, and on July 11, 2014, Supreme Court (Elliott, III, J.) denied Plaintiff's motion for summary judgment, without prejudice, and granted Defendants' cross-motion to serve an amended Answer. Supreme Court also ordered Plaintiff to respond to Defendants' disclosure demands. As such, Defendants' amended Answer filed on March 12, 2014 was accepted.
On October 21, 2014, Plaintiff moved to reargue and renew, arguing that it inadvertently failed to serve its opposition to the cross-motion on the court. Further, Plaintiff argued that the Court overlooked or misapprehended multiple issues of law or fact, including that Plaintiff had standing at the time of commencement of the action because it held the note and possesses the original note and the mortgage. Plaintiff also rebutted the various affirmative defenses in Defendants' amended Answer. On August 13, 2015, Supreme Court (Elliott, III, J.) held the branch of Plaintiff's motion to reargue was untimely, however the branch of Plaintiff's motion to renew had merit. Supreme Court struck all of Defendants' affirmative defenses, except for the Seventh and Tenth affirmative defenses as they go to the issue of standing. Supreme Court also denied Defendants' request to compel Plaintiff to comply with disclosure demands, as Defendants did not establish good faith efforts require to compel disclosure.
Plaintiff now moves for summary judgment and an order appointing a referee. Defendants opposes such motion arguing both procedure and substance. For the reasons that follow, Plaintiff's motion for summary judgment and to appoint a referee are granted, and Defendants' amended Answer is stricken and dismissed.
Defendants' argument that Plaintiff's motion for summary judgment is procedurally improper is without merit. First, Supreme Court's denial was “without prejudice,” thus indicating Supreme Court's implicit permission to refile. Second, successive motions for summary judgment are generally denied absent a showing of newly-discovered evidence or sufficient cause. (See Pavlovich v. Zimmet, 50 AD3d 1364 [3d Dept 2008] ; Matter of Bronsky–Graff Orthodontics, P.C., 37 AD3d 946, 947 [3d Dept 2007] ; Tuttle v. McQuesten Co., 243 A.D.2d 930, 931 [3d Dept.1997] ; La Freniere v. Capital Dist. Transp. Auth., 105 A.D.2d 517, 518 [3d Dept.1984].) Since Defendants were permitted to file an amended Answer simultaneously with Plaintiff's first motion for summary judgment, both newly-discovered evidence and sufficient cause, i.e., the new allegations, exist warranting the motion. Therefore, Plaintiff's motion for summary judgment is procedurally proper.
It is well-settled that “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp ., 68 N.Y.2d 320, 324 [1986] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc., 302 A.D.2d 700 [3d Dept 2003] ). Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 [“mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient.”].)
In a mortgage foreclosure action, “[e]ntitlement 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” (Charter One Bank, FSB v. Leone, 45 AD3d 958, 958–59 [3d Dept 2007], quoting HSBC Bank USA v. Merrill, 37 AD3d 899, 900 [3d Dept 2007]lv. dismissed 8 NY3d 967 [2007] ; see also Lasalle Bank Natl. Assn. v. Kosarovich, 31 AD3d 904, 905 [3d Dept 2006] [requiring once the burden has shifted for “the mortgagor to assert and demonstrate, by competent and admissible evidence, any defense that could properly raise a question of fact as to his or her default.”] [quotation and citations omitted] ). However, “to having standing, it is not necessary to have possession of the mortgage at the time the action is commenced” (Aurora Loan Serv., LLC v. Taylor, 25 NY3d 355, 361 [2015] ).
Plaintiff has proven entitlement to summary judgment as it is the holder of both the Note and Mortgage, and has demonstrated that Defendants have defaulted on their obligation to pay under such documents. This is advanced by the documentary evidence as well as the affidavit of Tiffany Bluford, vice president of loan documentation for Wells Fargo Bank, N.A. who is servicer of the mortgage for the above-referenced Plaintiff, which established that Defendants defaulted on their monthly payments since November 2011, and such default has not been cured. Ms. Bluford also affirms that Plaintiff had possession of the note on February 24, 2012, prior to the date of commencement. Kyra Schwartz, an employee of the law firm representing Plaintiff, also submitted an affidavit affirming that the original note was received by Plaintiff on March 19, 2012 and, when compared with the copy of the note, were identical.
As for the Mortgage, the assignment of the mortgage from the originator, MERS as nominee for Homestead Funding Corp., d/b/a First Niagara Mortgage, to Plaintiff, was executed on February 14, 2012 and filed with the Greene County Clerk's office on March 8, 2012. Thus, while it was not necessary, Plaintiff also held the mortgage at the time of commencement as well. This is affirmed in the affirmation of Lawrence Lambert, Esq. on February 6, 2013, per his discussions with Ellyn Beatty–Mock, vice president of loan documentation.
The burden shifts to Defendant to raise a triable issue of fact to defeat Plaintiff's summary judgment motion, which they do not. They provide a long list of arguments and defenses, but most merely point to benign gaps in proof which is insufficient to fulfill Defendant's burden (see DiBartolomeo v. St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010] ; accord Dow v. Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007] ), particularly given that none rebut the bare fact Plaintiff holds the Note, the Mortgage, and Defendants have defaulted on their obligation to pay.
Defendants' argument that the RPAPL § 1304 notice was not sent registered or certified mail is without merit. First, the affidavit of James Green, vice president of loan documentation for Wells Fargo Bank, N.A., affirms that the 1304 notice was sent by both certified and first-class mail. This is corroborated in the affidavit of Ms. Bluford, who avers the 90 day letter was sent out via certified mail and more than 90 days prior to commencement. Second, the documentary evidence of the section 1304 notice provides that it was sent via certified mail as noted by the certified mail bar code affixed to the copy of the letter. Third, notwithstanding the affidavits of Green and Bluford, Plaintiff's have demonstrated the 1304 notice was mailed raising a presumption Defendants have not rebutted. (See Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680 [2d Dept 2001] [noting “[t]he presumption [of proper mailing] may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed.”] [citing Tracy v. William Penn Life Ins. Co. of New York, 234 A.D.2d 745, 746 [3d Dept 1996] ].)
Defendants also argue summary judgment is inappropriate as there are outstanding disclosure demands. Notwithstanding, the fact that disclosure has not taken place or is incomplete, standing alone, does not preclude a motion for summary judgment. (See Landes v. Sullivan, 235 A.D.2d 657, 658 [3d Dept 1997].) A mere hope that further disclosure will reveal evidence that will establish a claim or defense is insufficient. (See Hobler v. Hussian, 111 AD3d 1006, 1009 [3d Dept 2013] ; Stoian v. Reed, 66 AD3d 1278, 1280–81 [3d Dept 2009] ; Bevens v. Tarrant Mfg. Co., Inc., 48 AD3d 939, 942 [3d Dept 2008].) Moreover, it is necessary under CPLR R. 3212(f) for the party opposing summary judgment to demonstrate how further disclosure might reveal the existence of evidence within the exclusive knowledge of the moving party which would warrant denial of the motion.” (See Saratoga Assoc. Landscape Architects, Architects, Engrs. & Planners, P.C. v. The Lauter Dev. Group, 77 AD3d 1219, 1222 [3d Dept.2010] ; Stoian, 66 AD3d at 1280–81 ; Heim v. Tri–Lakes Ford Mercury, Inc., 25 AD3d 901, 903–04 [3d Dept 2006] ; Bevens, 48 AD3d at 942 ; Green v. Covington, 299 A.D.2d 636 [3d Dept 2002].) Here, Plaintiff demonstrated that it did send various documents to Defendants' counsel, including an attempt via e-mail which could not be processed due to the sheer size of the documents.
Defendants' remaining defenses were denied amended in Supreme Court's prior Decision and Order. The Court notes that many of these defenses are not valid assertions or claims but rather an assortment of non-factual, conclusory statements, unsupported by evidence in admissible form, which do not constitute legally cognizable defenses. (See Charter One Bank, FSB v. Leone, 45 AD3d 958, 959 [3d Dept 2007] [“Self-serving and conclusory allegations do not raise issues of fact and do not require plaintiff to respond to alleged affirmative defenses which are based on such allegations.”].) Some of these defenses are not sufficiently particular enough demonstrate the material elements of a defense. (See CPLR § 3013 [“Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.”]; see also CPLR § 3018[b] [requiring affirmative defenses to be plead, including the “facts showing illegality either by statute or common law”] [emphasis added].) Most of these “defenses” attempt to excuse Defendant's conduct, which is not an aegis to defeating summary judgment. (See Lasalle Bank, 31 AD3d at 906 [“Simply put, the unfortunate fact that defendant may have struck a bad bargain does not excuse [her] default.”].)
Even though it is stricken for the reasons aforementioned, the Court also notes that the amended Answer is a ity as it was not verified, or proof of such is not provided. Such verification is required, since the original Answer was verified. (CPLR § 3020[a] “where a pleading is verified, each subsequent pleading shall also be verified”].)
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Plaintiff's motion for summary judgment is GRANTED, and Defendants' Amended Answer is stricken and dismissed; and it is further
ORDERED that Plaintiff's motion to appoint a referee is GRANTED, and Plaintiff's counsel shall submit directly to chambers a revised proposed order appointing a referee for the Court's signature, with a copy of this Decision and Order attached as an exhibit thereto.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.