OneWest Bank, F.S.B. v Khan

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OneWest Bank, F.S.B. v Khan 2013 NY Slip Op 31513(U) June 3, 2013 Sup Ct, Suffolk County Docket Number: 29708-10 Judge: Denise F. Molia Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO.: 29708-10 SUPREME COURT - STATE OF NEW YORK IAS PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA Justice of the Supreme Court MOTION DATE: 9-14-12 ADJ. DATE: 10-15-12 MOT. SEQ. #: 001 MG X OneWest Bank, F.S.B., Plaintiff, STEIN, WIENER & ROTH, L.L.P. Attorneys for Plaintiff One Old Country Road Suite 113 Carle Place, N. Y. 11514 -againstMuhammed E. Khan, Robin J. Khan, Mortgage Electronic Registration Systems, Inc., As nominee for JndyMac Bank, F.S.B., Discover Bank, Charter One Auto Finance Corp., Great Seneca Financial Corporation A 0 Household Orchard Bank, Sears Roebuck & Co, A Corporation, People of the State of New York, Auto Expo Ent. Inc., Fairfield at Riverhead LLC, Palisades Collection LLC, LAW OFFICE O F RONALD D. WEISS, P.C. Attorneys for Defendant Robin J. Khan 734 Walt Whitman Road Suite 203 Melville, N. Y. 11747 JOHN DOE , RICHARD ROE , JANE DOE , CORA COE , DICK MOE and RUBY POE , the six defendants last names in quotation marks being intended to designate tenants o r occupants in possession of the herein described premises o r portions thereof, if any there be, said names being fictitious, their true name being unknown to plaintiff, Defendants. X Upon the li~llowing papers numbered 1 to 27 read on this motion for summary iudgement an order of rt.li.rencc and other related relief ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 18 : Notice ofc ro is Motion and supporting papers 0 ; Affirmation in Opposition and supporting papers I9-2d : lieplying Affidavits and supporting papers 25-27 ; Other Plaintiffs memorandum of law :( ) it is. ~ ( ORDERED that this motion by the plaintiff seeking an Order; (1 ) for suiminary judgment pursuant t o CI I,II 3212; (2) for an order of reference; and (3) for such other an further relief as this [* 2] Onewest Batik v Khan Index No.: 29708/10 Page 2 Court may seen1 just and proper and proper is granted; and it is further ORDERED that plaintiff shall serve a copy of this Order with Notice of Entry within sixty (60) d a j s of the date this Order is signed by the Court upon counsel for the defendant mortgagors pursuant to CPLR 2103 (b), ( I ) , (2) or (3) and thereafter file the affidavit of service with the Clerk of thc Court: and is further ORDERED that the plaintiff shall serve a copy of this Order with Notice of Entry upon the Calendar Clerk ofthis IAS Part 39 and the Clerk ofthe Court who shall note in the courts computerized records the caption amendment as to the substitution of the John and Jane Doe defendants and all fLiture submissions under this Index Number to the Court shall reflect the caption amendment. l hepresent action involves the foreclosure on a note and mortgage pertaining to and alleging that the mortgagor defendants Mohamed E. Khan and Robin J. Khan ( hereinafter collectively Khan ) defaulted in repaying the note and mortgage secured by real property located at 131 Helmig Street, Brentwood, N Y 1 1717. Issue was joined by the service of an answer by counsel consisting of general denials and sixteen af firmative defenses and three counterclaims on or about September 27, 20 10. Plaintiff now moves for summary judgment ( s e e CPLR 3212 [a] ; Myung Clzun v North Am. Mtg. Co., 285 AD2d 42, 729 NYS 2d 716 [ lstDept 2001 1) to dismiss the answer, affirmative defenses and counterclaim set forth by Khan and for the issuance of an order of reference. [Iln an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production f ol the mortgage. the unpaid note, and evidence of default ( Republic Natl. Bank o N. Y. v O Kane, 308 AD 2d 482, 764 NYS 2d 635 2d Dept 2003 ] ( citation omitted ).; see also Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753,915 NYS 2d 569 [ 2d Dept 201 11). 1 laintil.f submits the affidavit testimony of Desiree Rodriguez and Nicole Washington officers ofthe thc plaintiff and the affirmation of plaintiffs counsel along with copies of the pleadings and the relevant mortgage documents, such as the note and mortgage signed by Khan on March 30, 2007, in addition t o documentary evidence of Khan s default since September 1, 2009 and that to the date of this motion said default remains uncured ( see Emigrant Mtg. Co., I m . v Fisher, 90 A D 3d 823, 935 NYS 2d 313 [ 2d Dept 201 I]; ArgentMtge. Co., LLCvMerttesnna, 79 AD 3d 1079, 915 NYS. 2d 57 1 [ 3d I k p t 20 lo]; Cliiarelli v Kotsifos, 5 AD 3d 345, 772 NYS 2d 53 1 [ 2d Dept 2004 1; Republic Nutl. Bntik o N. Y. v O Knne, 308 AD 2d 482, stipr-a ). f It is \\/ell settled that on a motion for summary judgment in foreclosure, a plaintiff establishes its prima l acit. entitlement to judgment as against a defendant mortgagor by submitting copies of the subject signed mortgage and note ( see JPMorgan Chase Bank, NatiotialAssociatioti vSliupiro, I04 AI123d411. 959NYS2d918 [ 2dDept20131; JPMorganCllrrseBank,N.A. vAgnello,62AD3d 878 NYS 2d 397 [ 2d Dept 2009 1; Cochran Inv. Co., Inc. v Jackson, 38 AD 3d 704, 834 NYS. 2d 1 98 L ?d Dept 1007]: Hoirseliolrl Fin. Realty Corp. o New York v Winn, 19 AD 3d 545, 796 NYS. f [* 3] Oti e west v Kli ail Itides No.: 29 7O8/10 Page 3 2d 533 [ 2d Dept 20051; Marine Midland Bank, N.A. v Freedom Rd. Realty Assoc., 203 AD 2d 538, 61 1 NYS 2d 34 [ 2d Dept 19941). With this established, the burden shifted to Khan to lay bare their proof and demonstrate, by admissible evidence, the existence of a material issue fact requiring a trial ( see GroggvSoutlz RoadAssoc.,L.P., 74 AD 3d 1021,907NYS 2d 22 [ 2d Dept 20101; Wasliittgtotz Mut. Bank v O Cotrner , 63 AD 3d 832, 880 NYS 2d 696 [ 2d Dept 20091: Aames Funding Corp. v Houston, 44 AD 3d 692,843 NYS 2d 660 [ 2d Dept 2007 1; Iv app den 10 NY3d 704,857 NYS 2d 37 [ 3008 1; i ecrr-giin7enlden 10 NY 3d 916, 862 NYS 2d 222 [ 20081; Charter One Bank v Houston, 300 AD 2d 429.75 1 NYS 2d 573 [ 2d Dept 2002 1; Iv app dismissed 99 NY 2d 65 1,760 NYS 2d 104 [ 2003 1) It is well settled that on a motion for summary judgment in foreclosure, a plaintiff establishes its prima facie entitlement to judgment as against a defendant mortgagor by submitting copies of the subject signed mortgage and note ( see JPMorgan CItase Bank, N.A. v Agnello,62 AD 3d 878 NYS 2d 397 [ 2d Dept 2009 1; Coclzrnn Inv. Co., Inc. v Jackson, 38 AD 3d 704, 834 NYS. 2d 198 [ 2d Dept 20071;HSBCBatzk USA vMerrill, 37 AD 3d 899,830 NYS 2d 598 [ 3d Dept 20071; Houselroll Fin. Realty Corp. o New York v Wintz, 19 AD 3d 545, 796 NYS. 2d 533 [ 2d Dept 20051; Marine f Midlarid Bank, N A . v Freedom Rd. Realty Assoc., 203 AD 2d 538, 6 1 1 NYS 2d 34 [ 2d Dept 19941). The moving papers further established, prima facie, that the plaintiff had standing to prosecute its pleaded claims for foreclosure and sale by, among other things, its possession of the mortgage mote bearing an indorsement in blank by the previous holder of the note at the time of commandment of this action. The standing of a plaintiff in a mortgage foreclosure action is measured by its ownership, holder status or possession of the note and mortgage at the time of the commencement of the action ( see U.S Bank ofN. Y. v Silverberg, 86 AD 3d 274,926 NYS 2d 532 [ 2d Dept 201 I]; US. Bank v Adrian Collymore, 68 AD 3d 572 , 890 NYS 2d 578 [ 2d Dept 2009 1; Wells Fargo Bank, N.,4. v Marclrione, 69 AD 3d 204,887 NYS 2d 61 5 [ 2d Dept 20091). Because a mortgage is merely security for a debt or other obligation and cannot exist independent of the debt or obligation ( Deutsclze Bank Natl. Trust Co. v Spanos, 102 AD 3d 909, 910, 961NYS 200 [ 2d Dept 2013 ] internal citutions on7i//ed ) A mortgage passes as an incident of the note upon its physical delivery to the plaintiff. I lolder status is established where the plaintiff is the special indorsee of the note or takes possession of amortgage note that contains an indorsement in blank on the face thereof as the mortgage follows as an incident thereto ( see UCC 5 3-202; UCC 3 3-204; UCC 9-203 [g]). Here thc plaintiff established that it took possession of the note, prior to the commencement of the action and was the holder thereof as said note contained an indorsement in blank on the face thereof ( \ce Mortgage Elec. Registration Sys. Inc. v Coakley, 41 AD 3d 674, 838 NYS 2d 632 [ 2dDept 20071; Deutsche Batik Natl. Trust co. v Pietmno, 33 Misc. 3d 528,928 NYS 2d 81 8 [ Sup Ct Suff olk County 201 11. affd 102 AD 3d 724, 957 NYS 2d 868 [ 2d Dept 201 3 1). In further support of its standing to bring the foreclosure action plaintiff submitted the affidavit of Forrest McKnight, an offiicer of plaintiff: in its reply papers further settling further evidentiary proof of plaintiffs standing to coninicnce and maintain this foreclosure action. Furthermore. the plaintiff in a residential foreclosure action is icquired to file with the Court an affirmation of the mortgagee s counsel verifying among other t h i n g , the accuracy of the notarizations contained in the supporting documents filed with the foreclosure action. Counsel is required to represent that he or she communicated with a representative of thc plaintiffwho reviewed the docuineiits and records relating to the action and the papers filed with [* 4] Onewest v Kltaiz Index No. :2 9 708/10 Poge 4 the court confirming the factual accuracy ofthe plaintiffs pleadings ( s e e Administrative Order 548110 which has been replaced by Administrative Order 43 1/11). The plaintiff has established, prima facie, that it has standing to prosecute this action ( see U.S. Bank of N. Y. v Silverberg, 86 AD 3d 274. sipru; U.S. Bank v Adrian Collyniore, 68 AD 3d 572, supra; Mortgage Elec. Registration Sys., Inc. v Coaklej~, AT) 3d 674, 838 NYS 622 [ 2d Dept 20071). In opposition, Khan has failed to raise a 41 triable issue of fact ( mcord JPMorgan Cliase Bank, National Association v Sltapiro, 104 AD 23d 41 1. \Z//I/.O ). I he burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff ( see Anderson v GHIAuto Serv., 45 AD 3d 5 12, 845 NYS 2d 129 [ 2d Dept 20071; Kearney v Neurosurgeons of N. Y., 3 1 AD 3d 390 , 8 17 NYS 2s 502 [ 2d Dept 20061; Batikers Trust Co. of Ca/. v Tsoukas, 303 AD 2d 343, 756 NYS 2d 92 [ 2d Dept 20031). The affirmative defense that the Court lacked jurisdiction over Khan is dismissed as they failed to submit an affidavit contesting service of process (see,Associates First Capital Corp. v Wiggins, 75 AD3d 6 14,904 NYS2d 668 [2d Dept 201 01). Moreover, this defense was waived as Khan failed to move to dismiss the complaint against them on this ground within sixty (60) days after service of their answer (see, CPLR 321 1 [e]; Reyes v Albertson, 62 AD3d 855, 878 NYS2d 623 [2d Dept 20091; Dimonrl v Verdon, 5 AD3d 718, 773 NYS2d 603 [2d Dept 20041). It was thus incumbent upon the answering defendant to submit proof sufficient to raise a genuine question of fact rebutting the plaintiffs prima facie showing or in support of the remaining affirmative defenses asserted in their answer or otherwise available to them ( see Flagstar Bank v Bellarfiore, 94 AD 3d 1044,943 NYS 2d 55 1 [ 2d Dept 20121; GroggAssocs. vSoutli Rd. Assocs. 74 AD 3d 102 1,907 NYS 2d 22 [ 2d Dept 201 01; Wells Fargo Bank v Karla, 71 AD 3d 1006,896 NYS 2d 681 [ 2d Dept 20101; Washington Mut. Bank v O Conner, 63 AD 3d 832,880 NYS 2d [ 2d Dept 2009 1 ; JPMorgan Cliase Bank, N.A. v Agnello, 62 AD 3d 662, 878 NYS 2d 397 [ 2d Dept 20091; Annzes Funding Corp. v Houston; 44 AD 3d 692, 843 NYS 2d 660 [ 2d Dept 20071). A defense not properly stated or one which has no merit is subject to dismissal pursuant to CLR 32 1 I [b]. 11. thus may be the target of a summary judgment motion by a plaintiff seeking dismissal of any affirmative defense after the joinder of issue. In order for a defendant to successfully oppose such a motion, the defendant must show his or her possession of a bona fide defense , i.e. one having a plausible ground or basis which is fairly arguable and of substantial character and should shown by affidavits or other proofs ( see Einstein v Levy, 121 AD 2d 499, 503 NYS 2d 821 [ lstDept 1986 I). Notably. self serving and conclusory allegations do not raise issues of fact and do not require plaintiffto respond to an alleged affirmative defense which are based on such allegations ( see Cltarter One Bunk , FSB v Leone, 45AD 3d 958 845 NYS 2d 513 [ 3rdDept 20071; Rosen Auto Leasing Inc. v Jncobs, 9 AD 3d 798. 780 NYS 2d 338 [ 3rdDept 20041). Where a defendant fails to oppose all o i - some of the matter advanced on a motion for summary judgnient, the facts as alleged in the mo\ ants papers may be deemed admitted as there is in effect a concession that no question of fact c\isls ( )ce Kuehni & Nagel, Inc. v Bniclen, 36 NY 2sd 539, 369 NYS 2d 667 [ 1975 1; sec iilso Mndeline D Antliony Enter. Inc. vSkowsky, 101 AD 3d 6 0 6 , 957NYS 88 r2d Dept 2012l;Argent Mtgr Co., LLC Mentesana, 79 AD 3d 1079, 915 NYS 2d 591 [ 2d Dept 20101). Additionally. [* 5] Onewest v Khan Index No. :2 9 708A0 Page 5 uncontradicted facts are deemed admitted ( Tortorello v Carlin, 260 AD 2d 201, 688 NYS.2d 64 [ I Dept 19991) and considered by the Court be on default ( see Rokina Optical Co. v Camera King IMC.,63 N Y 2d 728,480 NY S 2d 197 [ 1984 1; Acupuncture Works, P.C. as Assignee o Jacqcirlirie f Romaii G[irci(i,v Iiiterboro Ins. Co. 34 Misc 134A, 946 NYS 2d 65 [ Supreme Court ofNew York, Appellate Term, Second Department 20 1 11). Thus, the remaining fourteen affirmative defenses and are treated as abandoned ( see US Bank v Flynn, 27 Misc 3d 897, 897 NYS 2d 855 [ Sup Ct Suffolk r d f ( ounty 3010 I; ~ ~ w Bankers Trust o Rockland Cnty v Keesler, 49 ADd 2d 91 8, 373 NYS 637 [ 2d Dept 19751). \ The denials in Khan s answer are insufficient to defeat the motion for summary judgment ( New York Higlter Education Services v Ortiz, 104 AD 2d 864, 685, 479 NYS 2d 910 [ 3 Dept 19841 L ifLitioii omitted ). A defendant cannot shelter herself behind general or specific denials, or denials of knowledge or information sufficient to form a belief. She must show that her denial or defense is not false and sham, but interposed in good faith and not for delay ( see Dwan v Massarene, 199 AD 872, 192 NYS 577 [ lStDept 19221 rev on other grounds ). Khan s denials of information sufficient to form a belief, are patently insufficient, as a matter of law, and summary judgment will be granted when the Answer proffers nothing more than general denials (Fairbanks Co. v Simplex Supply Co., 126 AD2d 882,5 1 1 NYS2d 171 [3d Dept 19871). Bare denials, such as those asserted by Khan without more, are insufficient to defeat plaintiffs motion for summary judgment (see 1130 Anderson Ave. Realty Corp. v Mina Equities Corp., 95 AD2d 169,465 NYS2d 5 1 1 [ 1 Dept 19831). Where . . . the cause of action is based upon documentary evidence, the authenticity of which is not disputed. a general denial, without more, will not suffice to raise an issue of fact (Goufdv McBride, 36 AD2d 706,319 NYS2d 125 [lSt Dept 19711; afld 29 NY2d 768,326 NYS2d 565 [1971]). To the extent that Khan is attempting to assert counterclaims, they are fatally defective as they consists ofonly conclusory and unsupport allegations unrelated to the fact that Khan is in default. Such general claims plainly are insufficient to raise triable issues of fact statements in a pleading shall be sufficiently particular to give the court and parties notice of the transaction, occurrence , or series of transactions, intended to be proved and the material elements of each cause of action or defense ( CPLR 30 1 3 ). Counterclaims asserting unsubstantiated allegations concerning the impropriety of plaintiffs conduct aic insufficient to raise a triable issue of fact with respect to the foreclosure of a mortgage see Brink o Tok3)o-il.litscrbiishiTrust Co. vMereditlt AvenueAssociates, 256 AD 2d 532.683 NYS 2d 106 f [ 2d Dcpt 19981). As such, Khan s counterclaims are dismissed in their entirety as a matter of law.. I( An affidavit from one who has no personal knowledge of the operative facts is without probativc balue and consequently is insufficient to defeat the motion ( Bronson v Algonquin Lodge ilsr n, IHC.295 AD 2d 68 1 , 744 NYS 2d 220 [ 3 Dept 20021 citutions omitte4; ,see ulso Sturtevmit v Home Toiviz Bcikery, 192 AD 2d 904, 597 NYS 2d 176 [ 3 Dept 19981). It is also well settled as a matter of law that ;in attorney s affirmation of conclusory assertions not based upon personal Lnowlcdge. but hearsay. is legally insufficient to raise a material issue of fact to defeat a summary judgment inotion ( see Winter v Blrick, 95 AD 3d 1208, 943 NYS 2d 909 [ 2d Dept 20121; Crrrrie v Wi/Iioushi. 03 AI) 816, 941 NYS 2d 218 [ 2d Dept 20121; Icrcone vPassanisi, 89 AD 3d 991, 933 NYS 2d 373 [ 2d Dept 201 11; 1; Lampkin v CIZNM, AD 3d 727, 891 NYS 2d 113 [ 2d Dept 20091; 68 P d o v Prirrcipo, 303 AD 2d 478. 756 NYS 2d 623 [ 2d Dept 20031; Zuckermniz v City of New York, [* 6] Onewest v Khan Index No.: 29 708/10 Page 6 49 N Y 2d 557.427 NYS 2d 595 [1980]) I n opposition Khan has failed to raise a triable issue of fact or even submit an affidavit in opposition. Indeed, Khan does not make any attempt to justify the affirmative defenses or counterclaims, nor seeks dismissal upon the other fourteen affirmative defenses. nor does counsel even reference them i n his affirmation. Likewise as noted herein, the Court finds Khan s counterclaims to be patently wiihout merit and no support for them is proffered by counsel in his opposition papers. In view of the foregoing, the del cndant s answer, affirmative defenses and counterclaims are dismissed as a matter of law. The assertions by Khan s counsel that summary judgment is premature because discovery is ongoing and their demands have not been answered is rejected. CPLR 32 12 [f] provides that should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but that it cannot be then stated, a court may deny the motion or may order a continuance to permit affidavits or disclosure to be had and may make such other order as may be just. One seeking discovery * * must offer an evidentiary basis to show that discovery may lead to relevant evidence andl that essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff. ( Martinez v Kreychmar, 84 AD 3d 1037, 923 NYS 2d 648 [ 2d Dept 201 I]; see Seaway Capital Corp. v 500Sterling Realty Corp., 94 AD 3d 856,941 NYS 2d 87 1 [ 2d Dept 201 21; Swedbank A B v Hale Ave. Borrower, LLC, 89 AD 3d 922, 540 [ 2d Dept 201 I]; McFadyen Consulting Group, Ittc. v Puritan Pride, 87 AD 3d 620, 928 NYS 2 87 [ 2d Dept 201 I]; Urstadt Biddle Prop., inc. v Excelsior Realty, 65 AD 3d 1 135,885 NYS 2d 5 10 [ 2d Dept 2009 I). The mere hope or speculation that evidence sufficient to defeat a motion for summaryjudgment may be uncovered by further discovery is an insufficient basis for denying the motion Woodard v Thomas, 77 AD 3d 738, 740, 913 NYS 2d 103 [ 2d Dept 20 101 internal citations omitted ); see also Friendlander Org., LLC v Ayoride , 94 AD 3d 693.943 NYS 538 [ 2d Dept 2012 1; Stoian vReed, 66 AD 3 1278, 1280, 888 NY NYS 2d 639 [ 3d Dept 20091). I n the absence of some evidentiary showing suggesting that discovery will yieldmaterial and and relevant cvidence it is not an abuse of the courts discretion to deny the request ( see Saratoga Assoc. Landsccipe Architects, Architects, Engrs. & Planners, P.C. v Lauler Decv Group, 77 AD 3d 1219. 1222. 910 NYS 2d 571 [ 3d Dept 20101 internal citation ornitted).Rather, Khan s speculation about plaintiff-s lack of standing constitutes mere hope that evidence sufficient to defeat the motion may be uncovered ( Stoicrn v Reed, 66 AD 3 1278, 1280, supra) internal citations omitted ). Furthermore, there is no court order requiring plaintiff to comply with discovery ( see Enzigrtrnt Mtge. Co., Inc. v Beckevnzan, - AD 3d __ , - NYS 2d -[ 2d Dept 201 31; 20 13 WL 1632059). Accordingly, the plaintiffs motion for summary judgment and for and order of reference is granted. The Order of Reference is being contemporaneously signed with this Short Form Order. This constitutes the Order and decision of the Court. J+ tlatcci: -~ 2013 I< i \re 1-11 . N Y ead FINAL DISPOSITION X NON-FINAL DISPOSITION

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