Wilmington Sav. Fund Socy., FSB v Santora

[*1] Wilmington Sav. Fund Socy., FSB v Santora 2017 NY Slip Op 50529(U) Decided on April 19, 2017 Supreme Court, Orange County Vazquez-Doles, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 19, 2017
Supreme Court, Orange County

Wilmington Savings Fund Society, FSB, DOING BUSINESS AS CHRISTIANA TRUST, NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS LEGAL TITLE TRUSTEE FOR BRONZE CREEK TITLE TRUST 2013-NPL1, PLAINTIFF, AGAINST

against

James P. Santora; UNITED STATES OF AMERICA (SOUTHERN DISTRICT); "JOHN DOE No.1" through "JOHN DOE #10" inclusive the names of the ten last name, Defendants being fictitious, real names unknown to the Plaintiff, the parties intended being persons or corporations having an interest in, or tenants or persons in possession of, portions of the mortgaged premises described in the Complaint, DEFENDANTS.



6785/2014



KNUCKLES, KOMOSINSKI & MANFRO, LLP

Attorneys for Plaintiff

565 Taxter Road, Suite 590

Elmsford, New York 10523

James Santora, pro-se
Maria S. Vazquez-Doles, J.

The following papers numbered 1 to 16 were read on this motion by plaintiff seeking an order restoring the matter to the calendar; granting default against all defendants; appointing a referee and amending the caption:

Notice of Motion/Affirmation (Buffa)/Supporting Affidavit

(Pope)/Proposed Order and Exhibits A-L 1 - 16

Upon review of the foregoing papers, plaintiff's unopposed motion to restore the action to the court's calendar, an Order of Reference and related relief is denied.

Plaintiff previously filed a motion to restore the matter to the calendar, for default judgment and an Order of Reference which motion was denied without prejudice by Decision and Order dated August 22, 2016. Plaintiff was granted leave to renew upon legible proof for the relief requested. Plaintiff has failed to provide such proof and further has not sufficiently established standing.

The affidavit of Haley Pope, foreclosure manager of plaintiff's servicer fails to state that plaintiff was in possession of the Note at the time of commencement. In fact, she avers that the Note and Mortgage were ultimately assigned to plaintiff after commencement of the action.

It should also be noted that this action was previously dismissed by Decision and Order of Hon. Debra J. Kiedaisch dated April 24, 2015 for failure to comply with the service of the notice required by RPAPL 1304 which is a condition precedent to the bringing of the foreclosure action. The Court specifically indicated that plaintiff acknowledged it never served the RPAPL 1304[1] notice upon the defendant. Plaintiff never filed a motion to reargue and/or renew nor did they file an appeal to Judge Kiedaish's decision.

Plaintiff now moves to restore the matter to the calendar and submits a copy of the 90-day notice that plaintiff avers was served upon the defendant.

Accordingly, it is hereby

ORDERED that Plaintiff's motion for default judgment on the complaint for an order of reference and to amend the caption is denied; and it is further

ORDERED that the complaint is dismissed.

The foregoing constitutes the Decision and Order of this Court.

Dated: April 19, 2017

Goshen, New York

HON. MARIA S. VAZQUEZ-DOLES, J.S.C.