Teachers Fed. Credit Union v Gergel
Annotate this CaseDecided on December 1, 2017
Supreme Court, Suffolk County
Teachers Federal Credit Union, Plaintiff,
against
James E. Gergel, BARBARA-JO GAFFNEY, "JOHN DOE #1" through "JOHN DOE #20," the last twenty names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises, described in the complaint, , Defendant(s).
615410/2016
STAGG, TERENZI, CONFUSIONE &
WABNIK, LLP
Attorneys for Plaintiff
401 Franklin Avenue, Suite 300
Garden City, NY 11530
James E. Gergel
12 Elmsmere Place
East Northport, NY 11731
Barbara-Jo Gaffney
10 Clubhouse Drive
Patchogue, NY 11772
James E. Gergel
27 Daffodil Road, Rocky Point, NY 11778
Barbara-Jo Gaffney
27 Daffodil Road, Rocky Point, NY 11778
Robert F. Quinlan, J.
Upon the following papers electronically filed and read on these applications for: expedited judgment of foreclosure and sale; Notice of Motion/Order to Show Cause and supporting papers (Seq. #001 Doc # 10-26): Affidavits in opposition to motion and supporting papers _________; Reply Affirmation in Further Support of Motion ________; it is
ORDERED that this motion by plaintiff Teachers Federal Credit Union for expedited judgment of foreclosure and sale pursuant to RPAPL §§ 1309 and 1351 is granted; and it is further
ORDERED that pursuant to RPAPL § 1351 (1) the mortgaged premises is to be sold under the direction of the referee within ninety (90) days of the date of this order.
This is an action to foreclose a mortgage on real property known as 27 Daffodil Road, Rocky Point, Suffolk County, New York ("the property"). On January 13, 1994 defendants James E. Gergel and Barbara-Jo Gaffney ("defendants") executed a note in favor of plaintiff Teachers Federal Credit Union ("plaintiff") in the principal sum of $98,000.00, at the same time giving plaintiff a mortgage on the property to secure the note. Defendants allegedly defaulted on the payments due pursuant to the note and mortgage, failed to cure the default, and plaintiff commenced the instant action on October 3, 2016. Defendants were served pursuant to CPLR 308[4]. None of the defendants have answered or appeared.
The court's computerized records indicate that a foreclosure settlement conference was held on December 5, 2016, defendants did not appear and this matter was marked not settled and referred to an Individual Assignment Part. Thus, there has been compliance with CPLR 3408.
Plaintiff now moves pursuant to RPAPL §1309 to expedite judgment of foreclosure and sale to be granted pursuant to RPAPL § 1351. RPAPL §1309 provides that plaintiff may move for expedited relief once defendants time to answer has expired if the property meets the criteria for vacant and abandoned residential property (as defined in RPAPL §1309 [2]) as set forth in RPAPL §1309 (1).
The application meets the preliminary requirements for expedited proceedings pursuant to RPAPL § 1309 as plaintiff's motion was filed after defendants time to answer the complaint had expired, the motion provides the last known addresses of defendants, provides proof of service upon defendants at their last know addressees, and contains the information required by RPAPL § 1309 (1). Additionally the court sent notice to the defendants as required by RPAPL §1309[1].
Plaintiff's submissions in support of its motion include its attorney's affirmation, affidavit of plaintiff's Senior Vice President of Credit in support of expedited procedure for a judgment of foreclosure and sale, the note, mortgage, pleadings, and affidavits of service. Plaintiff also submits copies of three inspection reports with photographs taken at each inspection annexed to the reports, as well as proof that electrical power to the property has been shut off.
The court finds plaintiff has established its entitlement to expedited relief pursuant to RPAPL § 1309. Pursuant to RPAPL § 1309 (4) plaintiff's submissions have established that the property is vacant and abandoned as defined by RPAPL § 1309 (2) (a). As required by RPAPL § 1309 (4), the court finds that by the preponderance of the evidence the property is vacant and abandoned as defined by RPAPL § 1309 (2) (a), based upon the submission of plaintiff's inspector's reports. Those reports show plaintiff's inspector conducted three inspections of the property 25 to 35 days apart at different times of the day. At each inspection it was shown that no occupant was present, that there was no evidence of occupancy on the property and that the [*2]property was not being maintained. Further, the reports indicate that power to the property has been disconnected. Thus the property is vacant and abandoned real property as defined by RPAPL § 1309 (2) (a).
Additionally, pursuant to RPAPL § 1309 (4), plaintiff has established itself as the owner and holder of the subject mortgage and note as it is the original lender, and annexed a copy of the note and mortgage to its Certificate of Merit Pursuant to CPLR 3012-b (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank National Trust Co. v. Logan, 146 AD3d 861 [2d Dept 2017]; Deutsche Bank Trust v Garrison, 147 AD3d 725 [2d Dept 2017]). Further, after a review of the itemized account of fees and costs and the court's confirmation of the interest calculations, the court finds plaintiff has established the sum due and owing to it upon the note and mortgage.
On a motion for leave to enter a default judgment, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting party's failure to answer or appear (CPLR 3215[f]; see Dupps v Betancourt, 99 AD3d 855 [2d Dept 2012]; Green Tree Serv., LLC v Cary, 106 AD3d 691[2d Dept 2013]; JPMorgan Chase Bank, N.A. v Boampong, 145 AD3d 981 [2d Dept 2016]; US Bank, N.A. v Singer, 145 AD3d 1057 [2d Dept 2016]; Bank of Am., NA v Agarwal, 150 AD3d 651 [2d Dept 2017]). Plaintiff has met its proof of a prima facie case through the production of the original mortgage, the unpaid note, and evidence of defendants default (see Deutsche Bank Natl. Trust Co. v Abdan, 131AD3d 1001 [2d Dept 2015]; U. S. Bank N. A. v Akande, 136 AD3d 887 [2d Dept 2016]).
Proof required on default under CPLR 3215 (f) is merely proof of facts constituting the claim. To demonstrate the facts constituting the claim, movant must only submit sufficient proof to enable the court to determine if the claim is viable (see Woodson v. Mendon Leasing Corp., 100 NY2d 62 [2003]; Global Insurance Company v Gorum, 143 AD3d 768 [2d Dept 2016]; Manhattan Telecommuincations Corp. v. H & A Locksmith, Inc., 21 NY3d 200 [2013]; Araujo v Aviles, 33 AD3d 830 [2d Dept 2006]; U.S. Bank, N.A. v Tate, 102 AD3d 859 [2d Dept 2013]).
Plaintiff's applications for an expedited judgment of foreclosure and sale pursuant to RPAPL § § 1309 and 1351, for the appointment of a referee to conduct such sale, and to amend the caption to remove the "John Doe" defendants is granted, and any further proceeding in the action shall proceed under the amended caption as it appears in the proposed order submitted by plaintiff, as modified by the court, which is signed contemporaneously herewith.
This constitutes the Order and decision of the Court.
Dated: December 1, 2017
_______________________________________
Hon. Robert F. Quinlan, J.S.C.
XFINAL DISPOSITIONNON-FINAL DISPOSITION
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