NYCTL 1998-1 Trust v Cruz

[*1] NYCTL 1998-1 Trust v Cruz 2010 NY Slip Op 52007(U) [29 Misc 3d 1226(A)] Decided on November 24, 2010 Supreme Court, Kings County Schack, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 24, 2010
Supreme Court, Kings County

NYCTL 1998-1 Trust AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, Plaintiffs,

against

Antonio Cruz, et. al., Defendants.



35985/05



Appearances:

Plaintiff:

Shari Barak, Esq.

Shapiro & DiCaro

Commack NY

Defendant did not appear

Arthur M. Schack, J.

The following papers numbered 1 - 1 read on this motion:Papers Numbered:

Notice of Motion with affirmations/exhibits1

____________________________________________________________ ____________

Plaintiffs, NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN (THE TRUST), move, in this foreclosure action on a tax lien certificate for premises located at 121 Powell Street, Brooklyn, New York (Block 3712, Lot 17, County of Kings), for an order of reference and related relief. Counsel for plaintiffs failed to submit a copy of the subject tax lien to the Court. Further, the affidavit of merit submitted in support of this application for an order of reference and related relief was not executed by an officer of THE TRUST, but by a servicer without a valid power of attorney from THE TRUST. The power of attorney submitted to the Court was executed more than five [*2]months after the affidavit of merit was executed. The subject power of attorney not only is missing a jurat but it cannot have a retroactive effect. Leave is granted to THE TRUST to renew the instant motion, within sixty (60) days of this decision and order, provided that THE TRUST provides the Court with: a copy of the subject tax lien; and. complies with the statutory requirements of CPLR § 3215 (f), with "an affidavit of facts" executed by someone who is an officer of THE TRUST or someone who has a valid power of attorney from THE TRUST.

Background

THE TRUST alleges that it purchased certain tax liens from the City of New York

on June 1, 2001, including the tax lien for the premises known as 121 Powell Street, Brooklyn, New York (Block 3712, Lot 17, County of Kings). Further, THE TRUST alleges that the tax liens, including the subject tax lien, were recorded in the Kings County Office of the City Register, New York City Department of Finance, on June 28, 2001, at Reel 5201, Page 613. THE TRUST failed, in its moving papers, to provide the Court with a copy of the subject tax lien. It is not the duty of the Court to verify the subject tax lien by checking the records of the City Register.

Further, plaintiffs' moving papers for an order of reference and related relief failed

to present an "affidavit made by the party," pursuant to CPLR § 3215 (f). The instant application contains an affidavit of merit, executed on February 13, 2008, by Albert Fiorello. Mr. Fiorello states that "I am an Authorized Signatory of Plymouth Park Tax Services, LLC, d/b/a Xspand, servicer for the plaintiff NYCTL 1998-1 TRUST, and The Bank of New York as Collateral Agent and Custodian . . . the owner of the tax lien which is the subject of this foreclosure action."

Plaintiffs' counsel provided the Court with a power of attorney from Jacqueline Kuhn, Assistant Treasurer of the Bank of New York, to "Plymouth Park Tax Services, LLC, d/b/a Xspand, Servicer" to provide the Court with an "affidavit in support of default judgment," "[p]ursuant to Section 2.01 (b) of the Servicing Agreement." However, the power of attorney is dated July 17, 2008, more than five months after Mr. Fiorello executed his affidavit of merit on February 13, 2008. The power of attorney cannot have a retroactive effect. Further, the power of attorney is missing a jurat with a notarization of Jacqueline Kuhn's signature. Moreover, THE TRUST only presented to the Court two uncertified pages of the alleged Servicing Agreement, pages 15 and 16. Therefore, the proposed order for an order of reference and related relief is denied without prejudice.

Leave is granted to plaintiffs to: provide the Court with a copy of the subject tax lien; and, comply with CPLR § 3215 (f) by providing an "affidavit made by the party," whether by an officer of THE TRUST or someone with a valid power of attorney from THE TRUST, issued prior to execution of the affidavit of merit.

Discussion

THE TRUST failed to meet the clear requirements of CPLR § 3215 (f) for a

default judgment.

On any application for judgment by default, the applicant

shall file proof of service of the summons and the complaint, or

a summons and notice served pursuant to subdivision (b) of rule

305 or subdivision (a) of rule 316 of this chapter, and proof of

the facts constituting the claim, the default and the amount due [*3]

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. [Emphasis

added].

Plaintiffs did not submit "proof of the facts" in "an affidavit made by the party." The "affidavit of facts" was submitted by Albert Fiorello, "an Authorized Signatory of Plymouth Park Tax Services, LLC, d/b/a Xspand, servicer for the plaintiff NYCTL 1998-a TRUST, and The Bank of New York as Collateral Agent and Custodian . . . the owner of the tax lien which is the subject of this foreclosure action."

Mr. Fiorello must have, as plaintiffs' agent, a valid power of attorney for that express purpose, not a power of attorney executed five months subsequent to his affidavit of merit. Additionally, the power of attorney presented to the Court refers to a Servicing Agreement. The Court needs a properly offered copy of the Servicing Agreement, to determine if the servicing agent may proceed on behalf of plaintiffs. (EMC Mortg. Corp. v Batista, 15 Misc 3d 1143 (A), [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust Co. v Lewis, 14 Misc 3d 1201 (A) [Sup Ct, Suffolk County 2006]).

If a Servicing Agreement is presented with a renewed motion for an order of reference, it must be an original or a copy of the original certified by plaintiffs' attorney, pursuant to CPLR § 2105. CPLR § 2105 states that "an attorney admitted to practice in the court of the state may certify that it has been compared by him with the original and found to be a true and complete copy." (See Security Pacific Nat. Trust Co. v Cuevas, 176 Misc 2d 846 [Civ Ct, Kings County 1998]).

Moreover, the complaint in the instant action is unverified. In Blam v Netcher, 17 AD3d 495, 496 [2d Dept 2005], the Court reversed a default judgment granted in Supreme Court, Nassau County, holding that:

In support of her motion for leave to enter judgment against

the defendant upon her default in answering, the plaintiff failed to

proffer either an affidavit of the facts or a complaint verified by a

party with personal knowledge of the facts (see CPLR 3215 (f):

Goodman v New York City Health & Hosps. Corp. 2 AD3d 581

[2d Dept 2003]; Drake v Drake, 296 AD2d 566 [2d Dept 2002];

Parratta v McAllister, 283 AD2d 625 [2d Dept 2001]). Accordingly,

the plaintiff's motion should have been denied, with leave to renew

on proper papers (see Henriquez v Purins, 245 AD2d 337, 338

[2d Dept 1997]).

(See HSBC Bank USA, N.A. v Betts, 67 AD3d 735 [2d Dept 2009]; Hosten v Oladapo, 44 AD3d 1006 [2d Dept 2007]; Matone v Sycamore Realty Corp., 31 AD3d 721 [2d Dept 2006]; Taebong Choi v JKS Dry Cleaning Equip. Corp., 15 AD3d 566 [2d Dept 2005]; Peniston v Epstein, 10 AD3d 450 [2d Dept 2004]; De Vivo v Spargo, 287 AD2d 535 [2d Dept 2001]).

Therefore, the instant motion for an order of reference and related relief is denied without prejudice. The Court will grant THE TRUST an order or reference and related relief when THE TRUST timely submits: a copy of the subject tax lien; and, an affidavit by either an officer of [*4]THE TRUST, or someone possessing a valid power of attorney from THE TRUST, issued prior to his or her execution of an affidavit of merit, who has personal knowledge of the facts.

Conclusion

Accordingly, it is

ORDERED, that the application of plaintiffs NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, for an order of reference and related relief in a foreclosure action on a tax lien for the premises located at 121 Powell Street, Brooklyn, New York (Block 3712, Lot 17, County of Kings), is denied without prejudice; and it is further

ORDERED, that leave is granted to plaintiffs NYCTL 1998-1 TRUST AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN, to renew its application, within sixty (60) days of this decision and order, for an order of reference and related relief in a foreclosure action on a tax lien for the premises located at 121 Powell Street, Brooklyn, New York (Block 3712, Lot 17, County of Kings), upon presentation to the Court of; a copy of the subject tax lien; and, compliance with the statutory requirements of CPLR § 3215 (f), with an affidavit of facts by someone with valid authority to execute such an affidavit.

This constitutes the Decision and Order of the Court.

ENTER

___________________________

HON. ARTHUR M. SCHACK

J. S. C.