PNC Bank, N.A. v Joseph
Annotate this CaseDecided on February 8, 2016
Supreme Court, Kings County
PNC Bank, National Association, Plaintiff
against
Godrick Joseph NEW YORK CITY TRANSIT ADJUDICATION BUREAU and "JOHN DOE No.1" through "JOHN DOE #10", the last 10 names being fictitious and unknown to the Plaintiff, the person or parties intended being the person or parties, if any, having or claiming an interest in or lien upon the mortgage premises described in the verified complaint, Defendants.
501864/14
Attorney for Plaintiff
LISA L WALLACE Firm Name: McCabe, Weisberg & Conway, P.C. Work Address: 145 Huguenot Street Suite 210, New Rochelle, NY 10801
Attorney for Defendant
Nicholas P. Scunziano Firm Name: Nicholas P. Scunziano Counselor at Law Work Address: 8413 13th Ave, Brooklyn, NY 11228
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of plaintiff PNC Bank, National Association (hereinafter PNC), filed on March 4, 2014, under motion sequence number one, for an order (1) striking Godrick Joseph (hereinafter Joseph) answer and granting PNC summary judgment as against him pursuant to CPLR 3212; (2) appointing a referee to compute pursuant to RPAPL 1321; (3) modifying the caption by substituting Meryl Joseph instead of John Doe # 1 and Mr. Joseph instead of John Doe # 2 and striking all other John Doe defendants from the caption; and (3) deeming all other non-answering defendants in default.
- Notice of Motion
- Proposed order of reference
- Affirmation pursuant to CPLR 3408
Certificate of Merit Pursuant to CPLR 3012-b
- Affirmation in support
- Exhibits A-G
Affidavit as to Military Service
Affidavit of Brittany Sloneker
Affirmation in opposition
Affirmation in reply
BACKGROUND
On March 4, 2014, PNC commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk's office using the electronic filing system.
In accordance with 202.5-b (2) (vii) of the Uniform Rules of the New York State Trial Courts PNC and Joseph submitted a hard copy of the complete set of the instant motion (hereinafter the motion papers). The instant decision and order is based on the Court's review of the hard copy of the motion papers.
The complaint contains seventeen allegations in support of an action to foreclose a residential mortgage on certain real property known as 2912 Pitkins Avenue, Brooklyn, New York 11208, Block 4242 Lot 6. The second paragraph of the complaint refers to exhibit A as the document containing the name of the obligor who executed a note on August 12, 2004. In the third and seventh paragraph it refers to exhibit B as a copy of the mortgage securing the note. In the twelfth paragraph it refers to exhibit C as a document which describes the lien of defendant New York City Transit Adjudication Bureau. In the thirteenth paragraph it refers to exhibit D as a document pertaining to plaintiff's compliance with certain Banking Laws provisions and with RPAPL § 1304, 1306 and UCC § 9-611. None of the exhibits referred to within the complaint were annexed to the complaint.
Defendant Joseph interposed an answer, dated February 2, 2012, which asserted, among other things, that the plaintiff did not comply with preconditions to commencing a foreclosure action. No other defendant has appeared or answered the complaint.
Joseph is the only defendant who has submitted opposition to the instant motion.
LAW AND APPLICATION
As of February 17, 2012, the Kings County Supreme Court Courthouse Procedures for electronically filed cases provide in Section B (7) (a) as follows:
Working Copies of Documents for Judicial Review: Unless otherwise directed by the Court or as described herein, and with the exceptions listed below, in all NYSCEF cases in which an RJI has been filed, working copies of e-filed documents that are intended for judicial review must be submitted. Working copies are not required of documents that are only processed by a support office [*2](e.g. preliminary conference request, note of issue). Working copies shall include exhibit tabs and backs, and for motion papers, the motion sequence number. In addition, the filer of a working copy must firmly bind thereto, with the back page facing out, a copy of the Confirmation Notice that was generated by NYSCEF when that document was e-filed. Working copies that are submitted without the related Confirmation Notice will not be accepted. The official record of a document in an e-filed case is the electronic record of the document stored by the County Clerk [Uniform Rule 202.5-b (d)(4)]. Working copies are intended only for the use of the Justice and will be discarded after the Justice is finished with them. Thus, in the event that counsel fails to e-file a document, it will not be part of the court record.
"Working copy" is defined in the definition section of 202.5-b (2) (vii) of the Uniform Rules of the New York State Trial Courts as a hard copy that is an exact copy of a document that has been electronically filed in accordance with this section.
As previously indicated PNC's complaint refers to four annexed exhibits which were not annexed to the complaint. The complaint is, therefore, incomplete.
PNC's Motion for Summary Judgment CPLR § 3212(b) provides in pertinent as follows:
Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit.
A motion made pursuant to CPLR 3212 requires the annexing of pleadings under section 3212(b). "The pleadings" means "a complete set of the pleadings" Wider v Heller, 24 AD3d 433 [2nd Dept 2006] or "all the pleadings" (Welton v Drobnicki, 298 AD2d 757 [3rd Dept 2002]).
The requirement that a motion for summary judgment be supported by the pleadings is mandatory. In fact, the failure to include the pleadings would render the motion procedurally defective (Matsyuk v Konkalipos, 35 AD3d 675 [2nd Dept 2006]; Wider v Heller, 24 AD3d 433 [2nd Dept 2006]).
PNC's motion is for summary judgment on its complaint against defendant Joseph. However, PNC did not annex a complete copy of the complaint. Although Joseph did not raise this deficiency in opposition to PNC's motion, the requirement of a complete set of pleadings is mandatory and exists for the benefit of the court. Accordingly, PNC's motion is denied (Thompson v Foreign Cars Center, Inc. et al., 40 AD3d 965 [2nd Dept 2007]). The denial, however, is without prejudice (Greene v Wood, 6 AD3d 976 [3rd Dept 2004]).
PNC's Motion for a Default Judgment and order of Reference
PNC also seeks a default judgment against all other defendants who allegedly have
not appeared or interposed an answer to the complaint.
RPAPL 1321 provides in pertinent part as follows:
If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and [*3]determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.
When seeking an order of reference to determine the amount that is due on an encumbered property, a plaintiff must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant's default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant's answer admits plaintiff's right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01 [4] [k] [note: online edition]).
As a preliminary matter the Court reviews PNC's compliance with the mandatory pre-commencement notices prior to reviewing the requirements for an accelerated judgment or for the appointment of a referee.
RPAPL 1303 was enacted in July 2006, as part of the Home Equity Theft Prevention Act (hereinafter HETPA) (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 [2nd Dept 2010]; Senate Introducer Mem. in Support, Bill Jacket, L.2006, ch. 308, at 7—8) (Board of Directors of House Beautiful at Woodbury Homeowners Ass'n, Inc. v Godt, 96 AD3d 983 [2nd Dept 2012]). As relevant here, that section provides that "[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to ... any mortgagor if the action relates to an owner-occupied one-to-four family dwelling" (RPAPL 1303 [1] [a]) (Id.). The statute "requires the foreclosing party in a residential mortgage foreclosure action to deliver statutory-specific notice to the homeowner, together with the summons and complaint" (First Natl. Bank of Chicago v Silver, 73 AD3d at 165). "[T]he foreclosing party has the burden of showing compliance therewith and, if it fails to demonstrate such compliance, the foreclosure action will be dismissed" (Id. at 166).
The foreclosing party in a mortgage foreclosure action, which involves residential real property consisting of owner-occupied one-to-four-family dwellings shall provide notice to the mortgagor in accordance with the provisions of this section with regard to information and assistance about the foreclosure process (Countrywide Loans v Taylor, 17 Misc 3d 595 [NY Sup Ct Suffolk Co.2007]).
The statutorily required language of the notice is set forth in RPAPL 1303 (3), which became effective February 1, 2007. The appearance and procedural details of the notice are set forth in RPAPL 1303 (2), which also became effective February 1, 2007 and which states: The notice required by this section shall be delivered with the summons and complaint to commence a foreclosure action. The notice required by this section shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type. The notice shall be on its own page.
In this action, the plaintiff's summons and complaint and notice of pendency were filed with the County Clerk on March 4, 2014, after the effective date of RPAPL 1303, thereby requiring compliance with the notice provisions set forth in the statute (WMC Mortg. Corp. v Thompson, 24 Misc 3d 738 [NY Sup Ct Kings Co.2009]). Given the explicit statutory [*4]requirements regarding the content, type size and paper color of the notice, the plaintiff must submit proper evidentiary proof to establish full compliance with the substantive and procedural requirements of RPAPL 1303.
CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. The affidavit of plaintiff's process server and the affirmation of PNC's counsel, Shan P. Massuad (hereinafter Massaud), aver that a copy of the RPAPL 1303 notice was properly served upon the defendants. The affidavit of Brittany Sloneker (hereinafter Sloneker), who describes herself as an authorized signer of PNC, is silent on this issue. Massaud's affirmation refers to exhibit E as proof of service of, among other things, the RPAPL 1303 notice. Exhibit E, however, does not contain a copy of the RPAPL 1303 notice that was purportedly sent. In sum, neither the process server, nor Massaud nor Sloneker refer to an annexed copy of the RPAPL 1303 notice.
Accordingly, the plaintiff did not provide a sufficient basis upon which the court may conclude as a matter of law that the plaintiff has complied with the statute (Countrywide Loans v Taylor, 17 Misc 3d 595 [NY Sup.Ct. Suffolk Co.2007]).
In light of the foregoing, plaintiff's motion for an order striking Joseph's answer and granting PNC summary judgment against him, appointing a referee to compute and finding all non-answering defendants in default is denied. The denial is without prejudice until such time as plaintiff demonstrates compliance with RPAPL 1303.
PNC's Motion to Amend the Caption
Through the affirmation of it counsel, plaintiff has demonstrated that it has served the commencement papers on Meryl Joseph and Mr. Joseph and that there were no other "John Does" occupying the mortgaged premises.
Accordingly, that branch of its motion seeking to modifying the caption by substituting Meryl Joseph instead of John Doe # 1 and Mr. Joseph instead of John Doe # 2 and striking all other John Doe defendants from the caption is granted (Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 [2nd Dept 2014] citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]).
In the interest of judicial economy, the Court stopped reviewing the instant motion papers after finding the above mentioned problem. In the event that PNC seeks the same relief in a subsequent motion, it is directed to annex the instant decision and order with its motion papers.
CONCLUSION
That branch of PNC's motion which seeks an order striking Joseph's answer and granting PNC summary judgment as against him is denied.
That branch of PNC's motion which seeks an order appointing a referee to compute pursuant to RPAPL 1321 is denied.
That branch of PNC's motion which seeks an order modifying the caption by substituting Meryl Joseph instead of John Doe # 1 and Mr. Joseph instead of John Doe # 2 and striking all other John Doe defendants from the caption is granted
The foregoing constitutes the decision and order of this Court.
Enter:
[*5]
J.S.C.
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