Bank of N.Y. v Trezza

[*1] Bank of NY v Trezza 2006 NY Slip Op 52367(U) [14 Misc 3d 1201(A)] Decided on December 8, 2006 Supreme Court, Suffolk County Mayer, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2006
Supreme Court, Suffolk County

Bank of New York, as Trustee for the Certificate- holders of CWABS 2004-05, Plaintiff(s),

against

Ellen Trezza, Giovanni Trezza, United States of America-Internal Revenue Service, New York State Commissioner of Taxation and Finance, and "JOHN DOE # 1" through "JOHN DOE # 10", the last ten names being fictitious and unknown to the plaintiff, the person or parties intended being the person of parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendant(s).



16139-2006



Eschen, Frenkel & Weisman, LLP

Attorneys for Plaintiff

20 West Main Street

Bay Shore, New York 11706

Peter H. Mayer, J.

Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated August 24, 2006, and supporting papers; and now upon Due Deliberation and Consideration by the Court of the foregoing papers, the motion is decided as follows: it is [*2]

ORDERED that the motion by the plaintiff, Bank of New York, as Trustee for the Certificate holders of CWABS 2004-05 ("Bank of New York" ), for an Order of Reference in this mortgage foreclosure action is denied, with leave to renew upon proper papers, which comply with the requirements set forth in CPLR 3215(f), including but not limited to a proper affidavit from a party, as well as all assignments of the subject mortgage sufficient to establish the plaintiff's ownership rights under such mortgage; and it is further

ORDERED that movant shall serve a copy of this Order upon all appearing parties, or their attorney(s) if represented by counsel, pursuant to CPLR 2103(b)(l), (2) or (3) and shall thereafter file the affidavit(s) of service with the Clerk of the Court; and it is further

ORDERED that a copy of this Order and proof of service of same shall be annexed as exhibits to any motion to renew.

With regard to the proof necessary on an application for judgment by default, CPLR 3215(f) states, in relevant part, that "[o]n any application for judgment by default, the applicant shall file proof of service of the summons and the complaint . . . and proof of the facts constituting the claim, the default and the amount due by affidavit made by the party . . . Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due; in such case, an affidavit as to the default shall be made by the party or the party's attorney ... Proof of mailing the notice required by [CPLR 3215(g)], where applicable, shall also be filed." With regard to a judgment of foreclosure, an order of reference is simply a preliminary step towards obtaining such a judgment (Home Sav. of Am., F.A. v. Gkanios, 230 AD2d 770, 646 NYS2d 530 [2d Dept 1996]).

The moving papers establish that the original lender of the subject March 24, 2004 mortgage is America's Wholesale Lender ("Lender"). On the first page of the mortgage, Mortgage Electronic Registration Systems, Inc. (MERS) is stated to act "solely as nominee for Lender and Lender's successors and assigns . . . for purposes recording this mortgage." In support of its motion, the plaintiff submits a purported assignment of the mortgage from MERS to the plaintiff; however, the mortgage does not empower MERS to assign the mortgage to any other entity. Furthermore, there is no proof that the Lender had previously assigned the mortgage to MERS, nor is there any other evidence to establish the plaintiff's ownership rights under the mortgage.

Based on the foregoing, the plaintiff has failed to establish that it has standing as a plaintiff in this matter. As a result, the Court is unable to conclude that the affidavit from the plaintiff's Vice President in support of the motion is, in fact, a proper party affidavit as required by CPLR 3215(f). In the absence of either a proper affidavit by the party or a complaint verified by the party, not merely by an attorney with no personal knowledge, the entry of judgment by default is erroneous (see, Peniston v Epstein, 10 AD3d 450, 780 NYS2d 919 [2d Dept 2004]; Grainger v Wright, 274 AD2d 549, 713 NYS2d 182 [2d Dept 2000]; Finnegan v. Sheahan, 269 AD2d 491, 703 NYS2d 734 [2d Dept 2000]; Hazim v. Winter, 234 AD2d 422, 651 NYS2d 149 [2d Dept 1996]; Mullins v. DiLorenzo, 199 AD2d 218; 606 NYS2d 161 [1st Dept 1993]). [*3]Therefore, the plaintiff's motion must be denied at this time.

This constitutes the Decision and Order of the Court.

Peter H. Mayer, J.S.C.