HSBC Bank USA v Baksh

[*1] HSBC Bank USA v Baksh 2010 NY Slip Op 52194(U) [29 Misc 3d 1238(A)] Decided on December 20, 2010 Supreme Court, Queens County Markey, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2010
Supreme Court, Queens County

HSBC Bank USA, etc.

against

Andre Baksh, et al.



15598/2009



For the Plaintiff: Hogan Lovells US, LLP, by Allison J. Schoenthal, Eva L. Dietz, Michael E. Blaine, Esqs., 875 Third Ave., New York, New York 10022

For the Defendant Andre Baksh: Roberta Chambers, Esq., 110-21 Francis Lewis Blvd., Queens Village, New York 11429

Charles J. Markey, J.

Plaintiff commenced this action by filing a copy of the summons and complaint on June 12, 2009. Plaintiff seeks to foreclose on a mortgage on the subject real property known as 197-17 100th Avenue, Hollis, New York to secure repayment of a note, evidencing a loan in the original principal amount of $437,750.00, plus interest, extended to defendant Andre Baksh ("Baksh'), by Opteum Financial Services, LLC (Opteum). Plaintiff alleges that it is the holder of the mortgage and underlying note pursuant to an assignment, and that defendant Baksh defaulted under the terms of the mortgage and note by failing to make the monthly mortgage installment payment due on November 1, 2008, and as a consequence, it elected to accelerate the entire mortgage debt.

Defendant Baksh served an answer to the complaint denying certain allegations of the complaint, asserting various affirmative defenses, including lack of standing, and interposing counterclaims for declaratory and injunctive relief and an award of attorneys' fees. Plaintiff served a reply, denying the allegations of the counterclaims.

Defendant Baksh moves, pursuant to CPLR 3211(a)(3) and (7), to dismiss the first and second causes of action asserted against him, to dismiss the complaint asserted against him, and for an award of attorneys' fees, costs and disbursements.

To the extent defendant Baksh moves to dismiss the complaint asserted against him pursuant to CPLR 3211(a)(7), the Court must determine whether, assuming the allegations in the [*2]complaint are true, they state a cause of action upon which relief may be granted (see, Becker v Schwartz, 46 NY2d 401, 408 [1978]; DeRosa v Chase Manhattan Mtge. Corp., 10 AD3d 317 [1st Dept. 2004]). Contrary to defendant Baksh's assertion, the complaint states a valid cause of action for foreclosure. Upon the foregoing papers, that branch of the motion by defendant Baksh to dismiss the complaint asserted against him, pursuant to CPLR 3211(a)(7), is denied.

To the extent defendant Baksh moves to dismiss the causes of action asserted against him pursuant to CPLR 3211(a)(3), issue has been joined, and therefore, that branch of his motion should have been labeled as one made pursuant to CPLR 3212 (see, Hertz Corp. v Luken, 126 AD2d 446 [1st Dept. 1987]). This procedural defect caused plaintiff to be prejudiced, insofar as defendant Baksh originally asserted only that plaintiff had failed to produce a copy of the note, underlying the subject mortgage, in response to defendant Baksh's request dated December 29, 2009. In opposition to the motion, plaintiff established that it produced a copy of the note, endorsed in blank, on March 4, 2010, in accordance with the stipulation dated January 29, 2010 between plaintiff and defendant Baksh.

Defendant Baksh then improperly asserted, for the first time, in his reply papers that plaintiff had failed to submit an affidavit from any witness, indicating when the endorsement on the note was made. Defendant Baksh argued that in the absence of such witness affidavit, plaintiff had failed to establish it was the assignee or holder of the note at the time of the commencement of the action. However, in view of the defective notice of motion, and defendant Baksh's limited ground for seeking dismissal, i.e., failure to produce a copy of the note, plaintiff had no opportunity to produce a witness to demonstrate there was a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action (cf. U.S. Bank, N.A. v Adrian Collymore, 68 AD3d 752, 753-754 [2nd Dept. 2009]).

Thus, that branch of the motion by defendant Baksh to dismiss the causes of action asserted against him, pursuant to CPLR 3211(a)(3), is denied without prejudice to a motion for summary judgment dismissing the complaint asserted against him.

That branch of the motion by defendant Baksh seeking an award of attorneys' fees, costs and disbursements is denied.

Dated: December 20, 2010

J.S.C.