OneWest Bank, F.S.B. v Battaglia

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OneWest Bank, F.S.B. v Battaglia 2012 NY Slip Op 32213(U) August 15, 2012 Supreme Court, Suffolk County Docket Number: 31273-09 Judge: Denise F. Molia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SIIORT FORi\! ORDER COPY INDEX NO., 31273-09 SUPREME COURT - STATE OF NEW YORK IAS PART 39 - SUFFOLK PRESENT: HOD. COUNTY DENISE F. MOLiA Justice of the Supreme Court , One West Bank, F.S.B., MOTION DATE: 1-31-12 ADJ. DATE: MOT. SEQ. #: 004 MG 005 MD Plaintiff, -againstAlfred Battaglia, LaSalle Bank National Association f/kla LaSalle National Bank, in its capacity as trustee under that certain Pooling and Servicing Agreement dated June 1, 1999 between LaSalle National Association, as Trustee, and Superior Bank FSB, as Depositor and Servicer, AFC Mortgage Loan Asset Backed Certificates, Series 1999-2, STEIN, WIENER & ROTH, L.L.P. Attorneys for Plaintiff One Old Country U.oad Suite 113 Carle Place, N. Y. 11514 LISA STRAX, ESQ. Attorney for Defendant Alfred Battaglia 10-54 Totten Street Whitestone, N. Y. 11357 "JOlIN DOE", "RICHARD ROE", "JANE DOE", "CORA COE", "DICK MOE" and "RUBY POE", the six defendants last named in quotation marks being intended to designate tenants or occupants in possession of the herein described premises or portions thereof, if any there be, said names being fictitious, their true name being unknown to plaintiff, Defendants, ----------------------, Upon the following papers numbered t to 33 read on this Notice of Motion and supporting papers for summary judgment and an order of reference 1-21 ; Cross mOlion and supporting 22-27 ; Replying Affidavits and supporting papers 28-32 ; Other memorandum onaw 33 ; (and aac, Itcal tng eotll,sc! in Stlpport and opposed 10 the ,notion) it is, ORDERED that this motion by the plaintiff for an order; (1) granting summary judgment pursuant to CPLR 3212 and; (2) an order of reference to compute is granted; and it is further [* 2] OlleWest v Battuglia 3/173/0'1 Page 1 /nde..'f: No.: ORDERED that the cross-motion by the defendant for an Order pursuant to CPLR 3211 (bJ(fI dismissing the plaintiffs complaint in its entirety as the plainti ff lacked standing to commence this action or in the altemative to compel the plaintiff to comply with the defendant's discovery demands IS denied; and it IS further ORDERE"D that plaintiff shall serve a copy of this order with Notice of Entry within sixty (60) days of the date this Order is signed upon counsel for the defendant pursuant to CPLR 2103 (b), (I), (2) or (3) and thereafter file the affidavit of service with the Clerk of the Court. The present action involves the foreclosure on a mortgage alleging that the defendant Alfred Battaglia ( hereinafter "Battaglia ") defaulted in repaying a note and mortgage which was secured by real property located at 35 Bellows Pond Road, Hampton Bays, New York 11946. Issue was joined by the service of Battaglia's amended answer with three affinnative defenses on March 30, 2011. Plaintiff now moves for summary judgment (see CPLR 3212 [a ]; Myung Cizult v North American Mortgage Co., 285 AD 2d 42; 729 NYS 2d 716 [ 1~IDept 2001 J) seeking to dismiss Battaglia's answer, affinnative defenses and for the issuance of an order of reference. "[IJo an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default" (Republic Natl Balik of N. Y. v O'Kalle, 308 AD 2d 482,764 NYS 2d 635 [2d Dept 2003]( citalion omitted). Plaintiff has established a prima facie case in this foreclosure action by the submission ofthc affidavits of Forrest McKnight, an Assistant Secretary of plaintiff, and plaintiff's counsel, along with copies of the pleadings and relevant mortgage documents, such as the note and mortgage signed by Battaglia, documentary evidence of Battaglia's del'ault since December 1, 2008 and proof that the default has not been cured to date (see Valley Natl. Bank JI Deut.~·ch,88 AD 3d 691, 930 NYS 2d 477 [ 2d Dept 2011 ]; Wells Fargo Bank v Karla, 71 AD 3d 1006,896 NYS 2d 681 [ 2d Dcpt 201 0 ]; Wash. Mut Balik F.A. v 0' COllller, 63 AD 3d 832, 889 NYS 2d 696 [2d Ocpt 2009J; Bercy /JlV.~: v Sun, 239 AD2d 161,657 NYS2d 47 [1'1 Dept 1997]; Bank of Leumi Trust Co. of New York v Lightning Park, fnc, 215 AD2d 246, 626 NYS2d 202 [1 Sl Dept 1995]; Village Bank v Wild Oaks Holding, Inc., 196 AD2d 812, 601 NYS2d 940 [2d Oept 1993]; Dart Assoc. v RO.~·a eat Mkt., 39 M AD2d 564. 321 NYS2d 853 [2d Depl 1972]; Gould v McBride, 36 AD2d 706, 319 NYS2d 125 (1" Dept 19711; 29 NY2d 708, 36 NYS2d 565 [1971 D. Plaintiff has also submitted documentary proof that It is a cun'ent holder in due course of a valid note and mortgage executed by Battaglia (see Deutsche Balik NutI' Trust Co. v Pietrallo;co, 33 Misc 3d 528 [Sup Ct Suffolk County 2011 1; Zuckerman v City New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Pla1l1tilThas established and Battaglla does not deny the existence of a vahd note and mortgage. Plainti ff has also submitted proof of service of the dehlUlt acceleration notice as requIred by the mortgage documents. (~rr'd (~r [* 3] OlleJVes( l' Battaglia Index No.: 31273/09 Page 3 Since plaintiff has presented documentary evidence of its entitlement to summary judgment as a matter of law, it now becomes incumbent upon Battaglia to come forward with proof of eviden!iary facts showing the existence of a triable issue with regards to bona fide defenses 10 the action such as waiver, estoppel, bad faith, fraud, oppressive and/or unconscionable conduct on the part of the plainti ff or its predecessor in interest (see Capstolle Bus. Credit, LLC v fmperia Family Realty, LLe. 70 AD 3d 882 Marine i\1idlalld Balik, N.A. v Freedom Rd. Realty Assoc., 203 AD2d 538, 611 NYS2d 34 [2d Oept 1994]; Village Bank v Wild Oaks Holdillg, IIlC., 196 AD2d 812, supra; Martoll Assoc. v Vitale, 172 AD2d 501, 568 NYS2d 119 l2d Ocpt 1991]; Andre v Pomery, 35 NY2d 362 NYS2d 131 [1974]). The Court finds that Bauaglla has not met that burden. Battaglia's general denials and denial ofinf011l1ation sufficIent to form a beliet: are patently insufficient, as a matter of law, and summary judgmcnt will bc granted when "thc Answer proffers nothing more than general denials" (Fairbanks Co. v Simplex Supply Co., 126 AD2d 882, 511 NYS2d 171 [3d Oept 1987]). Bare denials, such as those asserted by Battaglia without more, is insufficient to defeat plaintiff's motion for summary judgment (see 1130 Ander!J'olZAve. Realty Corp. v Milia Equities Corp., 95 AD2d 169,465 NYS2d 511 [1 'l Dept 1983]). "Where., _the cause of action is based upon documentary evidence, the authenticity of which is not disputed, a general denial, without more, will not suffice to raise an issue of fact" (Gould v McBride, 36 AD2d 706, 319 NYS2d 125 [1" Dept 1971]; affd 29 NY2d 768, 326 NYS2d 565 [1971]). Furthermore, speculation and conjecture is msufficient to defeat plaintiffs motion (see Capobianco v Mar;, 267 AD2d 191, 699 NYS2d 487 [2d Oept 1999]; Pre~,.tav Hml!J'siall, 186 AD2d 542,589 NYS2d 791 [2d Ocpt 1992]), in fact, Battaglia has not submitted an affidavit either in support of his pleadings and atTirmative defenses of payment and lack of notice as to his default, or in opposition to plamtlfTs motion for summary Judgment. Lack of opposition is tantamount to consent and in effect a concession that no qucstion(s) of [act eXist (see Argent Mtge. Co., LLC v lYlell1esa, 70 AD 3d 1070,915 NYS 2d 591 [2d Dcpt 2010 J; Hermitage fns. Co. v ])'anee Nite Club, fnc., 40 AD 3d 1032, supra: CPLR 3215; Z;no v Jaob Taxi, IIlC., 20 AD 3d 521, supra; Woodson v Mendoll Leasing COJp., 100 NY2d 62, supra; see a/so Neuman v Zuricl, N. Am., 36 AD 3d 601, supra; Kuehne & Nagel, fne. v Baidell, 36 NY 2d 539, 369 NYS 2d667 [ 1975]). Additionally, "uncontradicted facts arc deemed admitted" ( Tortorello v Larry M. Carlin, 260 AD 2d 201, supra). However, the dcl'cndant has cross moved for an order pursuant to CPLR 3211 [a][3] (see Well\' Fargo Bank .Millnesota National As.tlOciation v Ma.\'tropaolo, 42 AD 3d 239, 837 NYS 2d 247 2d Dept 2007]) to dismiss the plaintiffs complaint in its entirety as the plainlifTlacked standing to commence and maintain this action. The cross motion ignores and docs not address the two other affirmative defenscs Battaglia submitted in his answer. Defcndant's counscl, in her affinnation attcmpts to divert the first affirmative defense in defendant's answer into a scparalc issue. wherein Battaglia does not have to submit proof sufficient to raise a genuine question of fact or implIcate support for the atfinnative defenses asserted in Battaglia's answer. (see Grogg v. Soufh Road Assoc . ¢ ¢.. [* 4] 01leWeSlr Battaglia ludex No.: 31273/09 Page 4 74 AD 3d 1021,907 NYS 22 [2d Dept 2010); Washington Mllt. Bank v O'Conner, 63 AD 3d 832, 880 NYS 2d 696 [ 2d Dept 2009]). In effect the general contentions of Battaglia's counsel in her affinnation does not provide sufficient basis under CPLR 3212(f) for delaying dctcnnination of plaintiffs motion for summaly judgment (see Lewis v Safety Dispo!J·alSys, of Penmylvallia, fllC., 12 AD3d 324, 786 NYS2d 146 W Ocpt 2004]). "In order to commence a foreclosure action, the plaintiff must have a legal or equitable mterest in the mortgage" ( Wells Fargo Bank, lV.A. v Murchione, 69 AD 3d 204, 207, sl/pra). A plaintilThas standing where it IS both (I) the holder or assignee of the subject mortgage and; (2) the holder or assignee of the underlying note, eIther by physical delivery or execution of a written assignment prior to the commcncement of the action with the filing of the complamt (see Wells Fargo Bank, N.A. v Marchione, 69 AD 3d 204, supra; U.S. Bank, N.A. v Collymore, 68 AD 3d 752, 890 NYS 2d [2d Dcp! 2009]). In a reply affinnation to Battaglia's cross motion, counsel for plaintiff confinns that counsel is in possession of the original note and submits a copy therein. Here the plaintiff has established its lawful status as assignee, by the written assignment and physical delivery of the note/allonge prior to thc filing of the complaint and which is noted in the complaint. Where as in this foreclosure action plaintiff has produced sufficient documentary evidence and has eliminated all material issues of fact, the Court finds that the affinnation of Battaglia's counsel alone in this cross motion is insufficient (see Zuckerman v City of New York, 49 NY 2d 557, supra), and is without probative value in opposition to plaintiffs motIon (see Dicllpe v City of New York, 124 A02d 542, 507 NYS2d 687 [2d OCP! 1986]). As plaintiff has demonstrated ifs prima facie case, the burden shifted to the defendant to demonstrate by admissible evidence, the existence of a triable issue of fact as to a bona fide defense (see Wells Fargo Bank v Webster, 61 AD 3d 856, 877 NYS 2d 200 [ 2d Dept 2009]; Rose v Levine, 52 AD 3d 800, 861 NYS 2d 374 [2d Dept 2008]; Chemical Bank v Bowers, 228 AD 2d 407, 643 NYS 2d 653 [2d Oept 1996]). The granting of a summary Judgment motion should not be postponed to allow for discovery where the proponent of the additional discovery has failed "to demonstrate that the discovery sought would produce relevant evidence" (Frith v Affordable Homes of Am. 252 AD 2d 536, 537, 676 NYS 5 J 3 [ 2d Opet 1998 J); and cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that the discovery may lead to relevant evidence" ( Bailey v New York C'ity Tr. Auth., 270 AD 2d 156,704 NYS 2d 582 [2d Dept 2000)). Battaglia, a signatory to the note and mortgage. has failed to proffer any sin.b'Ular evidentiary fact in support of his claim and that part of the cross motion is also denied. Whereas in tIllS foreclosure action plaintiffhas produced sufficient documcntary evidencc and has eliminated all material issues of fact, the Court finds that Battaglia has failed to sustain his burden and thc affimwtion of counsel alone in this cross 1110tion is insufficient ( see Zuckerman v City of New [* 5] OlleIVest v Battaglia Index No.: 31273/09 PaKe 5 York, 49 NY 2d 557, supra), and is without probative value in opposition to plaintiff's motion (see Dicupe v City of New York, 124 AD2d 542, 507 NYS2d 687 (2d Ocpt 1986J).The Court finds that Battaglia has failed to demonstrate that plaintiff lacked standing to commence this action. Therefore the cross motion is denied and the affimlative defense of lack of standing is dismissed. Accordingly, the motion for summary judgment and for the appointment of a referee to compute is /:,'Tanted and the cross motion is denied, The Order of Reference is being concurrently signcd with this Short Form Order. All matters not decided herem are herehy deemed dCl11ed. This constitutes the Order and decision orthe Court. Dated: HON. DENISE F. MOLIA __ FINAL DISPOSITION x NON-FINAL J.S.c. DISPOSITION

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