U.S. Bank, N.A. v Goff

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U.S. Bank, N.A. v Goff 2017 NY Slip Op 31063(U) April 28, 2017 Supreme Court, Suffolk County Docket Number: 11-33879 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. 11-33879 SllORT HlRM ORr>~'.R SUPREME COURT - STA TE OF EW YORK I.A.S. PART 37 - SUFfOLK COUNTY PRES EN T: Hon. JOSEPH FARNET£ Acting Justice Supreme Court MOTION DATE MOTION DJ\ TE /\DJ.DATE 12-14-15 1-25-16 2-4-16 Mot. Seq. # 00 I - MotD Mot. Seq. # 002 - MotD ---------------------------------------------------------------X U.S. Bank, National Association, as Trustee for RASC 2006-EMX8, Plaintiff, - against Raymond P. Goff a/k/a Raymond Goff; Christine Goff, In favor of Richard M. Gold. Esq. Law Guardian, "JOUN DOE'·, said name being fictitious, it being the intention of Plaintiff to designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest or lien upon the mortgaged premises, SHAP IRO, DICARO & BARAK, LLC Attorneys for Plaintiff 175 Mile Crossing Boulevard Rochester, New York 14624 YOUNG LAW GROUP, PLLC Attorneys for Defendant RAYMOND P. GOFF a/k/a RAYMOND GOFF 80 Orville Drive, Suite l 00 Bohemia, New York 11716 Defendants. ---------------------------------------------------------------){ Upon the reading and filing of the following papers in this maner: (I) Notice of Motion by the plaintiff, dated November 20, 20 15. and supporting papers; (2) Notice of Cross Motion by the defendant Raymond P. Goff , dated January 15. 2016, and supporting papers; (3) Affinnation in Opposition and Reply by the plaintiff, dated January 22, 2016; (4) Other: stipulation of adjournment ; (and after hem i11g eo1:111scls' or al argt1111e11t.\ i11 \t1pprnt <1fllud opposed to the 111otio11); and now it is ORDERED that this motion (seq. #00 1) by the plaintifl', and the motion (seq. #002) by the defendant Raymond P. Goff, which was improperly labeled a cross-motion, are consolidated for the purposes of this determination and decided herewith; and it is further ORDERED that the motion (seq. #001) by the plaintiff for, inter alia, an order awarding summary judgment in its favor against the defendant Raymond P. Goff, fixing the defaults of the nonanswering defendants, appointing a referee and amending the caption is granted solely to the extent stated below, otherwise denied with leave to renew within 120 days of the date herein or, in the alternative, the filing of a note of issue within 120 days of the date herein; and it is further [* 2] ll.S. Bank. 1/\ v Goff. el. al. Index I o.: 11-33879 Page 2 ORDERED that this motion (s<.:q. #002) hy the defendant Raymond P. (iolT for, intff olio, an order. ostensibly. pursuant to: (I) CPLR 3025 (b) for leave to file m1 amcn<lc..:d answer to ass<.:rt certain anirmative defonses asserting the plaintiff's lack or standing and its failure to demonstrate..: complianee with the notice requirements of RP/\PL 1304 is granted solely to the e:<tent indicate<l below. otherwise denied: and it is further ORDERED that the defendant Raymond P. Goff shall serve the plaintiff with an amended answer asserting, as a first affirmative defense. the plaintifrs alleged lack of compliance with the service requirements of the 90-<lay prc-roreclosure notice pursuant to RPAPL 1304 within sixty (60) days of'the date of this order, and he shall thereafter promptly lilt.: proof' or service of sami.; wi th the Clerk of the Court: and it is further ORDERED that the caption is amended by substituting Tracy Dobrie in place of ··JOHN OOE:' and by excising the remaining descriptive wording relating thereto. and it is further ORDERED that the plaintiff shall to serve a copy of this order amending the caption of this action upon the Calendar Clerk of this Court: and it is further ORDERED that Lhc moving parties shall serve a copy ofthis order with nOLice of entry upon opposing counsel pursuanl to CPLR 2103 (b) within thirty (30) days of the date herein, and to promptly file the affidavits or service with the Clerk of the Court. This is an action to foreclose a mortgage on real property known as 259 Oak Street. Patchogue. New York l 1772 (''the property.. ). On June 14. 2006. the defendant Raymond P. Goff("the defendant mortgagor"') executed an adjustable-rate balloon note in favor of Mortgage Lenders Network USA, Inc. ("the lender··) in the principal sum of $364.000.00. To secure said note, the defendant mortgagor gave the lender a mortgage also dated June I 4, 2006 on the property. The mortgage indicates that Mortgage 1 cctronic Registration Systems, Inc. (.. MERS'') acted so lely as a nominee for the lender and its :1 successors and assigns and that for the purposes of recording the mortgage, MERS was the mortgagee of record. The mortgage was recorded in the SurlOtk County Clerk's Orticc on July 6, 2006. The mongage was subsequently modified by Loan Modification Agreement {.. the modification agreement .. ) made on February 5. 20 I 0, between the defendant mortgagor and Wells Fargo Bank. ./\. ("Wells Fargo") doing business as America·s Servicing Company r·ASC'). Pursuant to the loan modification agreement. the outstanding principal balance at that time was adjusted lo reflect a new unpaid principal balance in the sum of $368, 14 7.23 as or March I, 20 I 0, the interest rate was decreased to a 5.000% fixed-rate (from an initial adjustable- rate of 7.400%), monthly payments were lowered to approximately $2.097.74 (from $2368.53) beginning on April J. 2010 through to July I. 2036. the maturity date. By way of a series of endorsements with physical delivery. the promissory note was allegedly transferred to the plaintiff, U.S. Rank National Association. a<; Trustee for R/\SC 2006-EMX8. prior to commencement. The transfer or the note to the plaintiff was subsequently memorialized by way of an [* 3] U.S. Bank, Av <Joff.. d. ul. Index No.: 11-33879 Page J assignment of the mortgage cxe<.:ulcd on August:?., 20 11 . Thereafter. the assignment was subsequently duly rcrnrded in the OJfo.::c the Suffolk County Clerk on August 16. '.2011. or The defendant mortgagor allegedly defaulted on the note and mortgage hy failing w make the monthly payment of principal and interest. <L'> modified. due on May 1, 2011 , and each month thereafter. Alter the defendant mortgag()r allegedly failed to cure the ddault in payment. the plaintiff commenced an action by the filing the lis pendens, summons and complaint on November 2. 20 I 1. Issue was joined by the interposition of the defendant mortgagor's veri lied answer sworn to on November 23, 20 I I. By his answer, the defendant mortgagor generally denies all of the allegations in the complaint. and asserts, as affirmative defenses. the plaintirrs alleged failure to file a request for judicial intervention and an affirmation pursuant to Administrutivc Order 431 / 11. or By way of further background, the parties began a prolonged period or negotiations in an attempt to agree on a loan modification, and foreclosure settlement conferences were conducted or adjourned before thi s court's specialized Mortgage Foreclosure Part beginning on September 13, 2013 and continuing until May '27, 2015. A representative of the plaintiff attended and participated in all settlement conferences. On the last date, this case was dismissed from the conference program because tJ1e parties were unable to reach an agreement modifying the loan or otherwise settling this action. Accordingly, there has been compliance with CPLR 3408, and no further conference is required under any statute, law or rule. The plaintiff now moves for, inter alia. an order: ( 1) pursuant to CPLR 3212. awarding summary judgment in its favor against the defondant mortgagor, striking the answer and dismissing the affirmative defenses asserted therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RPAPL 1321 appointing a referee to (a) compute amounts due under the subjecr mortgage; and (b) examine a nd report whether the subject premises should be sold in one parcel or multiple parcels: and (4) amending the caption. The defendant mortgagor opposes the plaintiff's motion and moves for. inter a/;a, an order. ostensibly, pursuant to: ( 1) CPLR 3025 (b) for leave to file an amended answer to assert affirmative defenses asserting the plaintiffs lack of standing and its failure to demonstrate compliance with the notice requirements of RPAPL 1304. In response to the defondant mortgagor's motion, the plaintiff has submitted opposition and reply papers. At the outset the Court notes that the defendant mortgagor' s untimely motion was improperly denominated a cross-motion because it was not made returnable al the same time as the plaintiffs motion (see CPLR 2215). The plainti!Ts motion-in-chief was served on November 20. 20 15 and made returnable on December 14. 2015; however, the defendant mortgagor's motion (which does not have an affidavit service annexed thereto). was made returnable on January 25. 2016. By stipulation executed on December 1, 2015, the parties agreed to adjourn the plaintiff's motion to February 4. 2016. Thus. in the interest of judiciaJ economy. the motions are consolidated for the purposes of this detennination. The Court first turns to the branch of the defendant mortgagor" s motion for an CPLR 3025 (b) for leave to interpose an amended answer asserting certain aflirmative defenses. As a general rule. motions [* 4] Gorr: ct. al. U.S. Bank, N/\ v JnJc~ Nu.: 11-33879 Page 4 for leave to amend pleadings pursuant lo ('PLR 3025 (b) arc lO be libera lly granted. absent prcjudi<.:c or surprise resulting from the delay (U.S. Ba11k, N.A . v S harif 89 /\D3d 723. 724, 933 NYS2<l 293 12<l D<.!pt 20111: Lucido v Mancuso. 49 /\D3J 220, 222. 851 NYS2d 238 12d Dept 2008 !). The movant. however, must make some evidcntiary showing that the proposed amendment has merit: otherwise it will not be permitted (B uckholz v Maple Garden A pts., LLC. 38 /\D3d 584. 585, 832 NYS2d 255 12d Dept 20071: Curran v A uto l ab Ser v. Ctr .. 280 /\D2d 636, 637. 711 NYS2d 662 j2d Dept 2001 I). At the outset, after a ten month delay. the defendant mortgagor moves to interpose an amended answer without proffering any explanation for the four year delay, and after the plaintiff already moved for summary judgment (see general~v Majestic luvs., ltd. v Lopez, 111 /\D2d 844, 490 NYS2d 585 f2d Dept 19851). In the instant case, the defendant mortgagor waived any defense based upon the plaintiff's lack of standing because he failed to interpose that defense in the original answer. or in a timely prcanswer motion to dismiss the complaint (see C PLR 3211 [a] 13J; [ej; Wells Farg() B ank, N.A. v Erobobo. 127 J\03d 1176, 9NYS3dJ12 l2<l Dept 20151; Deutsche Bank Natl. Trust Co. v Islar, 122 AD3d 566, 996 NYS2d 130 (2d Dept 20141: Bank of N. Y. Mellon Trust Co. v McCall.. 116 AD3d 993. 985 NYS2d 255 l2d Dept 20 14J: U.S. Bank N.A. v Denaro, 98 AD3d 964, 950 NYS2d 581 f2d Dept 20121: Citibank, N.A. v H errera, 64 A03d 536, 881 NYS2d 334 r2d Dept 20091). Moreover. the defendant mortgagor's delay deprived the plaintiff of an opportunity to promptly investigate the defense of lack of standing sought to be asserted in the amended answer aind to address any alleged defects in this case at a point when it might have been timely cured (see Wells F argo B an k, N.A. v Morgan. 139 /\D3d I 046, 32 A03d 595 r2d Dept 20161: HSBC B ank USA v Philisti11, 99 AD3d 667, 952 NYS2d 83 l2d Dept 2012]). ln any event, the plaintiff annexed copies or the endorsed promissory note, the mortgage, the modification agreement and the a5signment to the complaint as exhibits (see Natio11star M tge., LLC v Catiw ne, 127 AD3d 1151 , 9 NYS3d 315 r1d Dept 20151; Ba11k of N . Y. Mellon Trust Co., NA v S achar, 95 J\D3d 695, 943 NYS2d 893 l2d Dept 2012L cf Deutsche Ban k Natl. Trust Co. v Haller. I 00 AD3d 680. 954 NYS2d 551 (2d Dept 20121). Such evidence demonstrates that the plaintiff holds the original note. Accordingly, the branch of the defendant mortgagor's motion to amend the answer asserting standing as an affirmative defense is denied. The Court reaches a different conclusion with respect to the issue of the plaintiffs compliance with the notice requirements of RP APL 1304. In its present form , RP /\PL 1304 provides that in a legaJ action, including a residential mortgage foreclosure action, at least 90 days before the lender commences an action against the borrower. the lender must send a notice to th e boll'owcr including certain language and the notice must be in 14-point type. The notice must be sent by registered or certified mail and also hy first-class mail to the last known address of the borrower, and if different. to the residence that is the subject of the mo11gagc (see RP APL 1304 ). Such notice shall be sent by the lender, assignee or mortgage loan servicer in a separate envelope from any other mai ling or notice (id.). The statute further provides that the notice shall contain a list of at least five housing counseling agencies that serve the region where the borrower resides (id.). R PA PL 1304 provides that the notice must be sent to the ·'borrower:· a term not defined in the statute (Aurora Loan Servs., LLC v Weisblu m , 85 /\D3d 95. I 05, 923 NYS2d 609 pd Dept 2011]). (see Unlike the defense of a failure to satisfy a contractual condition precedent which must be pleaded CPLR 3015 ja j; 3018). a party who has timely appeared may raise the absence or detective notice [* 5] U.S. Bank. , A ,. Gof{ cl. al. Index 1o.: 11-33879 Page 5 defense on motion . even though it was not included in an answer nor made the subject of a pre-answer to dism iss. Failure to comply with RP A PL 1304 is not jurisdictional (Pritchard v Curtis, I 01 AD3d 1502. 1505. 957 YS2d 4..+0 !Jd Dept 2012 j). Rather. it is a defcnsl! which may hi.! raised at :my time (U.S. Bank N.A. v Carey. 13 7 AD3d 894. 896, 28 YS3d 68 I2<l Dept 20 161). Because the no tice dcfonsc remains viable during the pendcncy of the action it may be raised by a non-defaulting party any time prior to judgment (Citimortgage, btc. v Pembelto11 . 39 Misc3d 454. 960 YS2d 867 lSup Ct, Sutfolk County 2013] l finding that the failure to comply with RP A PL 1304 gives rise to a heightened or ··super" defense to the plaintiffs claim that is not subject to waivcrJ : ~I PHii Mtge. Corp. v. Celestin. 130 AD3d 703. 11NYS3d871 [2d Dept 2015J [defendant precluded from raising RPAPL 1304 defense si nce he was not entitled to an order vacating his default purs uant to CPLR 5015 [al). Proper service or the RP APL 1304 notice containing the statutorily-mandated content on the ..borrower'' or ··borrowers" is a cond ition precedent to the commencement or a foreclosure action. and the plaintiffs failure to show strict compliance requires dismissal (Hudson City Sav. Bank v DePasquale. 11 3 A D3d 595. 596. 977 NYS2d 895 [2d Dept 20141: Deutsche Bank Natl. Trust Co. v Spanos. 102 AD3d 909, 910, 961 NYS2d 200 [2d Dept 2013]: Aurora loan Servs., LLC v Weisblum , 85 /\ D3d 95, supra at I 03; see also. Pritchard v Curtis. I 0 I AD3d 1502, supra at 1504 ). Since this action was commenced on o r after January 14, 20 I 0, the 90-day notice requirement set forth in the statute is applicable (see RP /\PL 1304; Laws 2008, ch 4 72. § 2. eff Sept 1, 2008. as amended by Laws 2009, ch 507, § I-a, eff Jan 14. 20 l 0). Thus. in support or its motion for summary judgment on the complaint, the plaintiff was required to prove its allegations by tendering sufficient evidence demonstrating the absence of material issues as to its strict compliance w ith RP APL 1304. and failure to make this showi ng requires denial of the motion. regardless of the opposing papers (Aurora Loan Servs., LLC v Weisblum. 85 A.D3d at 106 lcitation omittedl). In meeting this burden, the plaintiff benefits from the long-stand ing doctrine of presumption of regularity - generally, a letter or notice that is properly stamped, addressed, and mailed is presumed to be delivered by that addressee ( Trusts & Guar. Co. v Barnhardt, 270 NY 350, 352 [ J 936]; News Syndicate Co. v Gatti Paper Stock C01p .. 256 NY 2 11 , 2 14-2 16 [1931 ]; Connolly (Allstate Ins. Co.) , 2 13 AD2d 787. 787, 623 NYS2d 373 lJd Dept 1995]; Kearney v Kearney. 42 Misc3d 360. 369. 979 NYS2d 226 [Sup Ct. Monroe County 20 131). T he presumption of receipt by the addressee "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" (Residential Holding Corp. v Scottsdale Ins. Co.. 286 AD2d 679. 680, 729 NYS2d 776 f2d Dept 2001 I). CPLR 2103 (f) (I) defines mailing as '"the deposit of a paper enclosed in a first class postpaid wrapper. addressed to the address designated by a person for that purpose or. if none is designated, at that person's last known add ress, in a post office or official depository under the excl usive care and custody of the United States Postal Service within the s tale'' (see, Lindsay v Pasternack Tilker Ziegler Walslt Sta11to11 &: Romano LLP. 129 AD3d 790. 12 NYS3d 124 f2d Dept 20 151). ··1 f that proof is establ ished, the burden shifts to the borrower." and ·'the final legal truism prevai ls: once the presumption or proper service has been established. mere denial of receipt is insufficient to rebut the presumption·· (Kearney v Kearney. 42 Misc3d 360. supra at 3 70; see Matter ofA TM One v Landaverde, 2 Y3d 4 72, 4 78. 779 NYS2d 808 (20041). [* 6] U.S. Bank. A v Goff, ct. al. Index o.: 11-33879 Page 6 The plaintiffs suhmissions arc in sufficient to demonstrate cvidentiary proof or compliance with RPAPL 1304 (se(.' Cenlar, FSB v Weisz. 136 AlBd 855. 25 NYS3d 308 j2d Dept 20161: Bank of N. Y. Mellon v A quino. 131 AD3d 1186. 16 'YS3d 770 12d Dept 2015]: Wells Fargo Bank, NA v Burke. 125 AD3d 765. S NYS3d I07 j2d Dept 2015 j: Hudson Ci~r Sav. Bank v De Pasquale. I 13 AD3d 595. supra). The plaintiff subm itted neither affidavits of service of the 90-day notice allegedly sent by ASC upon the defondant mortgagor. nor an affidavit from one with personal knowledge of the mailing, along with copies of the certified mailing receipts stamped by the United States Pos t Office on the date of the alleged mailing (see Deutsclte Bank N atl. Trust Co. v Spanos. 102 A OJd 909. supra). Under the facts presc..:nted, the statements set fo11h in the affidavit of Renee I licks, an Authorized Signer of Ocwen Loan Servicing. LLC ('"Ocwen "), servicer, and a Vice President of Loan Documentation from Wells Fargo, regarding the 90-day pre-foreclosure notice, even when combined with copies of certain submitted documentation, are insufficient to meet the requirements of the statute (see JPMorgan Chase Bank, N.A . v Kutch . 142 ADJd 536. 36 YS3d 235 f2d Dept 20 I 6]; Hudson City Sav. Bank v DePasquale, I 13 ADJd 595, supra). Even though Ms. Hicks alleges that the subject notice was mailed to the defendant mortgagor. she did not set forth sufficient facts as to how or when compliance was accomplished. She also did not state that she served the notice: nor did she identify the individuals who allegedly did so. Further, it is noted that Ms. Hicks' affidavit docs not constitute sufficient proof or a standard office practice or procedure designed to ensure that items are properly addressed and mailed by certified mail and by first class mail (see Nocella v Fort Dearborn Life Ins. Co. ofN. Y., 99 AD3d 877. 955 NYS2d 70 [2d Dept 20 12j: cf Pref erred M ut. lits. Co. v Don11elly , I 11 AD3d 1242. 974 YS2d 682 [4th Dept 2013J: Residential Holding Corp. v Scottsdale Ins. Co.. 286 AD2d 679, supra). Additionally, the plaintifrs affiant neither specified the exact business records upon which she relied in her affidavit; nor did she allege that she is familiar with ASC' s and/ or Ocwen 's record keeping practices and procedures to insure that items are properly addressed and mailed and, thus, she did not attempt to lay a foundation for their admissibility (see CPLR 4518 [a]: Citibank. N.A. v Cabrera. 130 AD3d 86 I, 14 NYS3d 420 I2d Dept 2015]: US Bank N.A. v Madero, 125 AD3d 757, 5 NYS3d l 05 (2d Dept 2015]: Palisades Collection, LLC v Kedik. 67 AD3d 1329, 890 NYS2d 230 f2d Dept 2009]; see also Cadle Co. v Gregory. 293 /\D2d 335. 739 NYS2d 825 I1st Dept 2002]). Because the plaintiff's representative failed to lay a proper foundation for the admission of the records relating to the alleged service of the 90-day pre-foreclosure notice. under the business records exception to the hearsay rule (see CPLR 4518 Ia]). those of her assertions that were based on these records are inadmissible (see US Bank N.A. v Madero, 125 AD3d 757, supra). Therefore, the plaintiff failed to establish its primajc1cie entitlement to judgment as a matter of law with respect to the 90-day notice (see US Bank N.A. v Madero. 125 AD3d 757. supra). Accordingly, the branch of the defendant mortgagor·s motion for an CPLR 3025 (b) for leave to interpose an amended answer is granted solely as to the intcrpositjon of a first affi rmative defense alleging the plaintiffs failure to demonstrate compl iance with the service requirements of the 90-day notice pursuant to RPAPL 1304. The remainder of the branch of the defendant mortgagor·s motion for leave to interpose an amended answer is denied. [* 7] U.S. Bank. NA v Goff. ct. al. Index No.: 11-33879 Page 7 The Court next turns to the ancillary relief requested by the plaintiff. The branch of the instant tting Tracy Oobrie in place motion !'or an order pursuant lo CPLR !024, amending the caption by substitL of ··JOl lN DOE." and by excising the remaining Jescriptivc wording relating thereto is granted (see PHH Mtge. Corp. v Davis. 111 AD3d 1110, 975 NYS2d 480 ! 3d Dept 2013 J; Neig hborhood Hous. Servs. of N. Y. City , Inc. v Meltzer , 67 AD3d 872. 889 NYS2d 627 [2d Dept 2009]). Ry its submissions. the plaintiff established the basis for the above-noted relief. All future proceedings shall be captioned accordingly. The plaintiffs request for an order fixing the defaults of the non-answering defendants is denied with leave to renew. The Court takes judicial notice from the electronic records maintained by the Office of Court Administration that the defendant Richard M. Gold, Esq. ("Gold''). who was allegedly served with service of process pursuant to CPLR 308 (2), is now deceased. The plaintiffs submissions are deficient to the extent that it has neither furnished a copy of Gold. s death certificate. nor furnished pertinent information as to Gold's heirs-at-law and next-of-kin. Absent the proper joinder of Gold' s heirs-at-law and next-of-kin by way of. inter ct!ia, stipulation of all appearing parties. intervention or an amendment of the complaint by leave of cou11. the rights. if any, of Gold ' s heirs-at-law are unaffected by the judgment (see generally Polislz Natl. A lliance of Brook~vn v White Eagle Hall Co., 98 AD2d 400, 470 NYS2d 642 l2d Dept 1983]). Because Gold is merely a judgment creditor, however, thejoinder of Gold's estate is unnecessary (see RPAPL 1311 [3]; Financial Freedom Senior Funding Corp. v Rose. 64 AD3d 539, 883 NYS2d 546 !2d Dept 20091 ; Countrywide Hom e Loans, Inc. v Keys, 27 AD3d 247. 811 NYS2d 362 [I s i Dept 2006]). Parenthetically, the Court notes that the plaintiff has alleged in the complaint that Gold' s judgment held against the defendant mortgagor was entered on rebruary 24, 2011 , in the amount of$512.00. In view of the open question of whether the plaintiff strictly complied with the 90-day notice requirement of RP APL 1304 and in light of the death of Gold, the remaining branches of the plaintiffs motion are denied at this juncture with leave to renew within 120 days of the date herein or, in the alternative. the filing of a note of issue within 120 days of the date herein. The plaintiffs renewed motion, if any, shall include proof by way of affidavits of service or affidavits from one with personal knowledge, together with business records, that detail a standard of office practice or procedure with respect to the 90-day pre-foreclosure notice, as well as the proof outlined above relative to Gold. Accordingly, these motions are determined as indicated above. In view of the foregoing, the proposed order submitted by the plaintiff has been marked '"not signed.·· Dated: April 28, 2017 FINAL DISPOSITION

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