Teachers Fed. Credit Union v Duryee

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Teachers Fed. Credit Union v Duryee 2013 NY Slip Op 33321(U) December 11, 2013 Sup Ct, Suffolk County Docket Number: 22796-11 Judge: Jr., John J.J. Jones Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] ~ SHORT FORM ORDER SUPREME·~Q- INDEXN0.,22796-11 STATE OF NEW YORK IAS PART 10 - SUFFOLK COUNTY PRESENT: Hon. JOHN J. J. JONES JR. Justice of the Supreme Court TEACHERS FEDERAL CREDIT UNION, Plaintiff, MOTION DATE 4-25-13 Mot. Seq. #001-MotD BERKMAN, HENOCH, PETERSON, PEDDY & FENCHEL, P.C. Attorneys for Plaintiff 100 Garden City Plaza, Garden City, N. Y. 11530 DANIELLE R. DURYEE 2 Jamestown Court, Lancaster, PA 17602 -againstDANIELLE R. DURYEE, TEACHERS FEDERAL CREDIT UNION, "JOHN DOE #1" through "JOHN DOE #12", the last twelve 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, TEACHERS FEDERAL CREDIT UNION 2410 N. Ocean Avenue, Farmingville, N. Y. 11738 VANCE BULLOCK 65 Grove Drive, Mastic, N. Y. 11951 AMY ALFRED 65 Grove Drive, Mastic, N. Y. 11951 Defendants. Upon the following papers numbered I to 12 read on this motion for summary judgment; Notice of Motion/Order to Show Cause and supporting papers 12 ; Notice of Cross Motion and supporting papers _ __ Answering Affidavits and supporting papers ; Replying Affidavits and supporting papers ; Other _ _ _ ; (imd aftet hea1i1tg eMti~el in !!11ppo11: and opposed to the motion) it is, ORDERED that this unopposed motion by the plaintiff for, inter alia, an order: (I) pursuant to CPLR 3212 awarding summary judgment in its favor and against the defendant Danielle R. Duryee, striking her answer and dismissing the affirmative defenses therein; (2) pursuant to CPLR 3215 fixing the defaults of the non-answering defendants; (3) pursuant to RP APL § 1321 appointing a referee to (a) compute amounts due under the subject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; (4) amending the caption; and (5) awarding the plaintiff the costs of this motion is determined as indicated below; and it is ORDERED that the plaintiffs request for the costs of this motion is denied without prejudice, leave to renew upon proper documentation for costs at the time of submission of the judgment; and it is [* 2] Teachers Federal Credit Union v Duryee Index No. 22796-11 Pg.2 ORDERED that the plaintiff shall submit with the proposed judgment of foreclosure a certificate of conformity with respect to the affidavit of service upon the defendant Danielle R. Duryee, executed outside the State of New York (see, CPLR 2309[c]; U.S. Bank N.A. v Dellarmo, 94 AD3d 746, 942 NYS2d 122 [2d Dept 2012]); and it is further ORDERED that the plaintiff is directed to serve a copy of this Order with notice of entry upon all parties who have appeared herein and not waived further notice pursuant to CPLR 2103(b)(l), (2) or (3) within thirty (30) days of the date herein, and to promptly file the affidavits of service with the Clerk of the Court. This is an action to foreclose a mortgage on residential real property known as 65 Grove Drive, Mastic, New York 11950. On February 11, 2005, the defendant Danielle R. Duryee (the defendant mortgagor) executed a fixed-rate note in favor of Teachers Federal Credit Union (the plaintiff) in the principal sum of $189,000.00. To secure said note, the defendant mortgagor gave the plaintiff a mortgage also dated February 11, 2005 on the property. The defendant mortgagor allegedly defaulted on the note and mortgage by failing to make her monthly payment of principal and interest due on or about June 1, 2010, and each month thereafter. After the defendant mortgagor allegedly failed to cure her default, the plaintiff commenced the instant action by the filing of a summons and verified complaint on July 13, 2011. Issue was joined by service of the defendant mortgagor's verified answer sworn to on July 29, 2011. By her answer, the defendant mortgagor generally denies some of the material allegations set forth in the complaint and admits other allegations. The defendant mortgagor also asserts twelve affirmative defenses, alleging, among other things, the lack of personal jurisdiction; the lack of standing and capacity to sue as a foreign corporation; and the plaintiffs failure to comply with the provisions ofRPAPL § 1303 and RPL § 332 as well as Banking Law§§ 595-a and 61 (repealed L. 2006, ch 703, § 3, effective Sept. 13, 2006), the last of which the Court deems to be an affirmative defense pursuant to Banking Law§ 6-1. The remaining defendants have neither answered nor appeared herein. In compliance with CPLR 3408, a settlement conference was held in this Court's specialized mortgage foreclosure part on April 25, 2012. On that date, this case was dismissed from the conference program after the defendant mortgagor failed to appear or otherwise participate. Accordingly, no further conference is required. The plaintiff now moves for, inter alia, an order: ( 1) pursuant to CPLR 3212 awarding summary judgment in its favor and against the defendant mortgagor, striking her answer and dismissing the affirmative defenses therein; (2) pursuant to CPLR 3215 fixing the defaults of the nonanswering defendants; (3) pursuant to RPAPL § 1321 appointing a referee to (a) compute amounts due under the su~ject mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or multiple parcels; (4) amending the caption; and (5) awarding the plaintiff the costs of this motion. No opposition has been filed in response to this motion. [* 3] Teachers Federal Credit Union v Duryee Index No. 22796-1 I Pg. 3 Where, as here, an answer served includes the defense of standing or lack of capacity to sue, the plaintiff must prove its standing in order to be entitled to relief (see, CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 931NYS2d638 [2d Dept 2011)). 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, Bank of N. Y. v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890 NYS2d 578 (2d Dept 2009]). A mortgage "is merely security for a debt or other obligation, and cannot exist independently of the debt or obligation" (Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911, 961 NYS2d 200 [2d Dept 2013] [internal quotation marks and citations omitted]). Holder status is established where the plaintiff is the special indorsee of the note or takes possession of a mortgage note that contains an endorsement in blank on its face or attached thereto, as the mortgage follows as an incident thereto (see, Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674, 838 NYS2d 622 [2d Dept 2007]). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, supra at 754 [internal quotation marks and citations omitted]). A plaintiff in a mortgage foreclosure action establishes a prima facie case for summary judgment by submission of the mortgage, the note, bond or obligation, and evidence of default (see, Valley Natl. Bank v Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo Bank v Das Karla, 71AD3d1006, 896 NYS2d 681 [2d Dept 2010]; Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832, 880 NYS2d 696 [2d Dept 2009]). The burden then shifts to the defendant to demonstrate "the existence of a triable issue of fact as to a bona fide defense to the action, such as waiver, estoppel, bad faith, fraud, or oppressive or unconscionable conduct on the part of the plaintiff'' (Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2d Dept 2010], quoting Mahopac Natl. Bank v Baisley, 244 AD2d 466, 467, 644 NYS2d 345 [2d Dept 1997]). By its submissions, the plaintiff established its prima facie entitlement to summary judgment on the complaint (see, CPLR 3212; RPAPL § 1321; Wachovia Bank, N.A. v Carcano, 106 AD3d 724, 965 NYS2d 516 [2d Dept 2013]; U.S. Bank, N.A. v Denaro, 98 AD3d 964, 950 NYS2d 581 [2d Dept 2012]; Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). In the instant case, the plaintiff produced, inter alia, the note, the mortgage and evidence of nonpayment (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, 655 NYS2d 631 [2d Dept 1997]; First Trust Natl. Assn. v Meisels, 234 AD2d 414, 651 NYS2d 121 [2d Dept 1996]). The plaintiff also demonstrated compliance with the notice requirements ofRPAPL §§ 1303 and 1304 (cf, Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 923 NYS2d 609 [2d Dept 2011]). Furthermore, the plaintiff demonstrated that, as the originating lender and the holder of the note, it has standing to commence this action (see, Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]). Under these circumstances, the plaintiff demonstrated its prima facie burden as to the merits of this foreclosure action and as to its standing to maintain the same. The plaintiff also submitted sufficient proof to establish, prima facie, that the affirmative defenses set forth in the defendant mortgagor's answer are subject to dismissal due to their [* 4] Teachers Federal Credit Union v Duryee Index No. 22796-l l Pg.4 unmeritorious nature (see, Becher v Feller, 64 AD3d 672, 884 NYS2d 83 [2d Dept 2009]; Wells Fargo Bank Minn., N.A. v Perez, 41AD3d590, 837 NYS2d 877 [2d Dept 2007]; Coppa v Fabozzi, 5 AD3d 718, 773 NYS2d 604 [2d Dept 2004] [unsupported affirmative defenses are lacking in merit]; see also, Grogg v South Rd. Assoc., L.P., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 201 OJ [the mere denial ofreceipt of the notice of default is insufficient to rebut the presumption of delivery]; Scarano v Scarano, 63 AD3d 716, 716, 880 NYS2d 682 [2d Dept 2009] [a process server's affidavit of service constitutes primafacie evidence ofproper service]; First Wis. Trust Co. v Hakimian, 237 AD2d 249, 654 NYS2d 808 [2d Dept 1997]. As the plaintiff duly demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see, HSBC Bank USA v Merrill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007]). Accordingly, it was incumbent upon the defendant mortgagor to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see, Baron Assoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 946 NYS2d 611 [2d Dept 2012]; Washington Mut. Bank v Valencia, 92 AD3d 774, 939 NYS2d 73 [2d Dept 2012]). Self-serving and conclusory allegations do not raise issues of fact, and do not require the plaintiff to respond to alleged affirmative defenses which are based on such allegations (see, Charter One Bank, FSB v Leone, 45 AD3d 958, 845 NYS2d 513 [2d Dept 2007]; Rosen Auto Leasing, Inc. v Jacobs, 9 AD3d 798, 780 NYS2d 438 [3d Dept 2004]). In instances where a defendant fails to oppose a motion for summary judgment, the facts, as alleged in the moving papers, may be deemed admitted and there is, in effect, a concession that no question of fact exists (see, Kuehne & Nagel, Inc. v Raiden, 36 NY2d 539, 369 NYS2d 667 [1975]; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101AD3d606, 957 NYS2d 88 [1st Dept 2012]; Argent Mtge. Co., LLCv Mentesana, 79 AD3d 1079, 915 NYS2d 591 [2d Dept 2010]). Additionally, "uncontradicted facts are deemed admitted" (Tortorello v Carlin, 260 AD2d 201, 206, 688 NYS2d 64 [1st Dept 1999] [internal quotation marks and citations omitted]). The defendant mortgagor's answer is insufficient, as a matter of law, to defeat the plaintiff's unopposed motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra). In this case, the affirmative defenses asserted by the defendant mortgagor are factually unsupported and without apparent merit (see, Becher v Feller, 64 AD3d 672, supra). The first affirmative defense, in which the defendant mortgagor alleges that the Court lacks jurisdiction over her, is stricken as she does not allege that she was not properly served with process herein (see, Associates First Capital Corp. v Wiggins, 75 AD3d 614, 904 NYS2d 668 [2d Dept 201 O]). This defense was also waived as the defendant mortgagor failed to move to dismiss the complaint against her on this ground within 60 days after serving the answer (see, CPLR 3211 [e ]; Reyes v Albertson, 62 AD3d 855, 878 NYS2d 623 [2d Dept 2009]; Dimond v Verdon, 5 AD3d 718, 773 NYS2d 603 [2d Dept 2004]). In any event, the failure by the defendant mortgagor to raise and/or assert each of her pleaded defenses in opposition to the plaintiffs motion warrants the dismissal of the same as abandoned under the case authorities cited above (see, Kuehne & Nagel, Inc. v Raiden, 36 NY2d 539, supra; see also, Madeline D'Anthony Enters., Inc. v Sokolowsky, 101 AD3d 606, supra). [* 5] Teachers Federal Credit Union v Duryee Index No. 22796-11 Pg. 5 Under these circumstances, the Court finds that the defendant mortgagor failed to rebut the plaintiff's prima facie showing of its entitlement to summary judgment requested by it (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Argent Mtge. Co., LLC v Mentesana, 79 AD3d 1079, supra; Rossrock Fund II, L.P. v Commack Inv. Group, Inc., 78 AD3d 920, 912 NYS2d 71 [2d Dept 201 OJ; Wells Fargo Bank Minn., N.A. v Perez, 41 AD3d 590, supra; see generally, Hermitage Ins. Co. v Trance Nite Club, Inc., 40 AD3d 1032, 834 NYS2d 870 [2d Dept 2007]). The plaintiff, therefore, is awarded summary judgment in its favor against the defendant mortgagor (see, Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558, supra; see generally, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Accordingly, the defendant mortgagor's answer is stricken, and the affirmative defenses set forth therein are dismissed. The branch of the instant motion wherein the plaintiff seeks an order pursuant to CPLR 1024 amending the caption by substituting Vance Bullock for John Doe # 1 and Amy Alfred for John Doe #2, and by excising the fictitious named defendants, John Doe #1 through John Doe #12, is granted (see, Flagstar Bank v Bellafiore, 94 AD3d 1044, supra; Neighborhood Hous. Servs. of N. Y. City, Inc. v Meltzer, 67 AD3d 872, 889 NYS2d 627 [2d Dept 2009]). By its submissions, the plaintiff established the basis for this relief. All future proceedings shall be captioned accordingly. By its moving papers, the plaintiff further established the default in answering on the part of the defendant Teachers Federal Credit Union (as a subordinate lien holder) as well as the newly substituted defendants Vance Bullock and May Alfred (see, RPAPL § 1321; HSBC Bank USA, N.A. v Roldan, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011]). Accordingly, the defaults of the abovenoted remaining defendants are fixed and determined. Since the plaintiff has been awarded summary judgment against the defendant mortgagor, and has established the default in answering by the remaining defendants, the plaintiff is entitled to an order appointing a referee to compute amounts due under the subject note and mortgage (see, RP APL § 1321; Ocwen Fed. Bank FSB v Miller, 18 AD3d 527, 794 NYS2d 650 [2d Dept 2005]; Vermont Fed. Bank v Chase, 226 AD2d 1034, 641NYS2d440 [3d Dept 1996). Accordingly, this motion for, inter alia, summary judgment and to appoint a referee to compute is determined as indicated above. The proposed long form order appointing a referee to compute pursuant to RP APL § 1321 , as modified by the Court, has been signed ~ncurrently herewith. /11p(. \ 1 Dated: IU-~e -<-- -Z.-0 1 3 i A 1 /\ · ~~-=--+-~-+-+-+-+-------<--+~~,_.._~~~~ FINAL DISPOSITION X NON-FINAL DISPOSITION

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