BAC Home Loans Servicing, LP v Giaramita

Annotate this Case
Download PDF
BAC Home Loans Servicing, LP v Giaramita 2018 NY Slip Op 32706(U) October 16, 2018 Supreme Court, Suffolk County Docket Number: 042592/2009 Judge: James Hudson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Short Fon11 Onf Pr $tyJreme <tourt oftKe C!ountg of$ujJOfli $tate ofNtw ']"or& - Part XL C(()p y PRESENT: HON. JAMES HUDSON Acting Justice oftlte Supreme Court x---------------------------------------------------------x INDEX N0.:042592/2009 BAC HOME LOANS SERVICING. LP, MOT. SEQ. N0.:002-MD Plaintiff. BERKMAN HENOCH, PERTERSON. PEDDY & FENCHEL, PC -againstTHOMAS GIARAMITA. BLUE WA VE ENTERPRJSES. LLC. COUNTRYWIDE HOME LOANS. INC .. ·'JOHN DOE # 1" through "JOHN DOE # 12", the last tvvelve 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. Attorneys for Green Tree Servicing LLC 1. 00 Garden City Plaza Garden City, NY 11530 LAWRENCE & LAWRENCE. ESQS. Attorneys for Defendant Thomas Giaramita 23 Green Street. Suite 30 I Huntington, NY 11743 Defendants. x---------------------------------------------------------x Upon the fol lowing papers numbered .L.!QJ1 read on this Motion/ Order to Show Cause lo Reargue ;(mtd ,1ftc1 hc111 i11g coun3cl i113upport1111d oppo~cd to the 111otio11) it is. ORDERED that the motion (seq. no.:002) of Plaintiff for an order granting leave to renew pursuant to CPLR Rul e 2221(e) and. if granted , an order of summary judgment pursuant to CPLR Rule 32 l 2, and striking the answer with affirmative defenses, substituting Germella Curry as John Doe# I as a necessary party Defendant, discontinuing the action as to John Doe #2 through John Doe # l 2, adding the New York State Commissioner of Taxation and Finance and New York State Commissioner of Labor as necessary party Defendants, substituting Green Tree Servi.c ing. LLC in place of Plaintiff in the caption. appointing a referee to ascertain and compute the amount due to Green Tree. finding default against all non-answering defendants. awarding the costs of this motion to Green Tree is denied in its entirety: and it is further Page 1 of 7 [* 2] BAC. 111 al. 1• Index No.:0./2597,/ 2009 T/10111as (iiora111ita. el al. ORDERED that the relief requested by Dcfcndanr Thomas Giaramita (.. Defendant") in opposition. rn have discO\·ery wirh respect LO the issue of standing and that Plaintiff be directed to produce the original promissory note and mortgag1.: is granted: and it is further ORDERED that Plaimiff produce the original promissory note and mortgage for discovery and inspection by Defendant within thirty (30) days of the date of this Order. and that Defendant have di scovery with respect to the issue ors tnndi ng. Preliminary Sta tement Pl aintiff. as a cond ition precedent in its motion (seq. nn.:002) has pied for an order granting the Plaintiff leave to renew. The Cou rt will there fore first address Plaintitrs entitlement to renew pu rsuant to CPLR Ruic 2221 (c). In order to satisfy the elements of CPLR Ruic 2221 (e). the Plaintiff must demonstrate reasonable justification for its failure to present nc\\' facts not offered on the prior motion or th<lt a change in the la'.v has occurred which would change the prior determination by the Court. In the event Pl<lintiff is fou nd entitled to renew. the Court will consider its request for su mmary judgment pursuant to CPLR Ruic 32 12 and other further reli ef requested in Plaimirrs moti on (seq. no.:002). The Courl notes that Plainti trs prior motion (seq. no.:00 I) requesting identical relief (other than chc request to renew) was denied on June 17 1h. 20 16 by Justice Daniel Martin. The instant motion is therefore a narrow consideration as to: 1) whether there are new facts not offered on the prior motion that would change the prior determination or that there has been a change in the law that would change the pri or determination; and 2) the motion sha ll contain reasonable justification for the failure to present such facts on the prior motion. Case History Th is is a matter seek ing forec losure and sale o r rental real property situate in Huntington Station. Suffolk County. New York. On February 2Th, 2004 Defendant/Mortgagor Thomas Giaramita ("Defendant'') closed on a first mortgage loan secured by a note and mortgage on 73 Northridge Street, I luntington Station. New York 11746. Defendant ceased payment April 1' 1• 2009. On October 23ru. 2009 Plaintiff commenced its foreclos ure action. On October 301h. 2009 Plaintiff effected service of its summons and complaint pursuant to CPLR § 308( 1) by in-hand serv ice upon the Defendant. Defend ant appeared and filed his answer on November I 81h. 2009. Page 2 or 7 [* 3] BAC. et al. v Thomas Giara111i1a, er al. fnclex No.:0./259212009 On June 17111 • 2010 and again on August I01h , 2010. a CPLR Rul e 3408 mandatory settlement conference \-Vas schedu led. Defendant did not appear at either scheduled conference and was determined ineligible as the subject premises are rental real estate. On or about September I l 1h, 2014. Plaintiff filed a motion for summary judgment pursuant to CPLR Rul e 3212 (seq. no.:00 I) and other relief. Defendant opposed the motion. On June 17111. 20 16 Justice Daniel Martin denied Plaintiff's motion (seq. no.:001 ). On July 28 111, 20 I 7. Plaintiff filed the instant motion (seq. no.:002) to renew pursuant to CPLR Rule 2221 (e). and repeated its request for inter alia. summa1y judgment pursuant to CPLR Rule 3212. Plaintiff has filed ev identiary proof not presented in its prior summary judgment motion (seq. no. :00 I). Defendant has opposed the motion and requested discovery and production of the original note and mortgage and further discovery as to the issue of standing. Motion for Leave to Renew CPLR Rule 2221. Motion Affecting Prior Order states. in pertinent part: "(e) A motion for leave to renew: I. shall be specifically identified as such: 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been an change in the law that would change the prior determination; and 3. sha ll contain reasonable justification for the failure to present such facts on the prior motion." McKinney's CPLR Rule 2221 [20 181 . It is acknowledged that Plaintiff has filed ne"v facts not offered on its prior motion. It is noted that CPLR Rule 2221 ( e) requires that motion to renew shall be based upon new facts not previously offered, and shall contain reasonable justification for the failure to present such facts on the prior motion. On an appeal from an order granting a motion to renew: Page 3 of 7 [* 4] RAC. et al. 1· T/1011ws Giammita. 111 l11dex No.:0-1259211009 al. ..The Second Department emphnsi:led that the Supreme Court · 1acks di scretion to grant renewal where the moving party omits a rea sonable justification for foiling to present the new facts 011 the ori ginal motion'.. (Connors. Supplemental Practice Commentaries. C:212 l :9. McKinney's CPLR Ruic 2221 (c) [20 I 8]: quoting Cioff i v. S.!J,f . Foods, fil e.. 129 A03 d 888. 89 1. I0 NYS3d 620. 625 [2d Dept 2015)) . ..The new or add itional facts presented ''either mu st have not been known lo the party seeking r~n cwa I or may. in the Supreme Court· s discretion. be based on facts known to the party seeking rene\\'ul at the time or the original motion" (Id. at 89 1, 625 quoting Deutsclte Bank Trust Co. v. Ghaness. I 00 AD3d 585. 586. 953 NYS2d 30 I [2d Dept 2012 J) . ..The Supreme Court lacks discretion to grant renewa l where the moving party omits a reasonab le justilicati on for fai ling to present the new facts on the origi nal motion '' (J ovanovic v. J owuuwic, 96 AD3d 10 19, 1020. 947 NYS2d 554 f2 d Dept 20 12]; see Rowe l'. N YCPD . 85 AD3d 100 I. I 003. 926 NYS2s 12 1 f2d Dept 2011 -I). ..Reasonable justification docs not exist where the ·new evidence' consists of documents which the [moving party'! knew existed and were in fact in his own possession at the time the ini tial motion was made.. (Cioffi at 89 1, 625: quoting Rowe at 1003, 12 1; see J ova11ovic at 1020. In a recent Second Departmen t case, the /\ppellate Division , on Plaintiff's appea l of a denial or Plai ntilr s motion fo r leave to renew and reargue affirmed the Supreme Court' s denial for failure to set forth any justification for hi s failure to submit the purported new focts in his opposition to Defendant"s prior motion (Brax ton v. Plaza H o11si11g Development Fund Company, Ille .. 163 AD3d 756,- NYSJd- 2018 WL 3451528 I2d Dept 20 l 8]). " A motion for leave to renew is not a second chance freely given lo part ies who have not e\ercised due diligence in making thei r first factual presentation" (Serviss v. Incorporated Village of Floral Park. 164 /\D3d 5 I2. - NYS3d *2, 2018 WL 363 7681 I2d Dept 20 I 81: see JP Morgan Chase Bank, N.A . v. Novis. 157 /\03d 776, 70 NYSJ cl 2 11 [2d Dept 20 181: Kio Seob Kim v. Malwon, LLC. 155 /\.D3d I 017, 66 NYS3d 318 [2d Dept 20171: Federal Natl !i'ftge. Assn. v. S akizada. 153 AD3d 1236. 1237, 60 YS3d 466 [2d Dept 20171~ .Joseph v. S immons. 114 AD3d 644. 979 NYS2d 675 [2d Dept 20 14]). Page 4 of 7 [* 5] BAC. ef al. r Thomas Giaramiro. er al. Index No. :0./1592/:l009 [n his motion (seq. no.:002). Plaintiff has filed an affirmation in support and an affimrntion in reply. The Court will review each in the order presented on the question of what reasonable justification is offered for failing to present the new facts stated when it previously pied for summary judgment relief(seq. no.:001). In his affirmation in support, Plaintiffs Counsel avers in reference to the facts now offered as proof of physical delivery of the duly endorsed note to Plaintiff prior to the commencement of this action: '"The information was not previously submitted because Green Tree reasonably believed its prior evidentiary submissions were sufficient to demonstrate standing:· lt is noted that Plaintiff does notassertthat its new facts were unavailable orunknown at the time of it's first motion for summary judgment (seq 00 I) . .Justice Martin, in his June l 7u1, 2016 Order denying Plain ti ff summary judgment, on the issue of standing, stated: "'[n the instant case. the plaintiff failed to establish.primafacie, that it had standing as its evidence did not adequately demonstrate that the note was physically delivered to it prior to the commencement of the action (citations omitted) ... The plaintiffs representative however, did not provide any factual details concerning when the note was endorsed or when the plaintiff received physical possession of the note, and. thus, the plaintiff fa iled to establish that it had physical possession of the note prior to commencing this action (citations omitted). Furthermore. in this case, the note contain s an undated endorsement, and the plaintiff's representative did not allege when the endorsement was placed on the note. It is, therefore, not clear whether the endorsement was effectuated prior to the c01mnencement of this action (citations omitted). Moreover, the plaintiffs representative neither addressed the relevance of the merger between the plaintiff and Bank of America, nor the relationship. if any, between these entities and the lender, in any event. ifMERS. as nominee of the lender was not the owner of the note. as it appears. it \VOuld have lacked rhe authority to assign the note to the plaintift~ and absent an effective transfer of the note, the assignment of the mortgage to the plaintiff would be a nullity (citations omitted). Thus. the issue of Page 5 of 7 [* 6] standing cannot be determined as a ma lier o rl:rn· on this record . In view of the plaintiffs incomplete evidentiary submissions. an issue of fact remains as to whether it had standing to commence thi s action:· lt is di l'licult for this Court to lind Plaintiff s excuse for its previous failure as stated in its aftirm::ition in support of this motion (seq. no.:002 ) as "reasonable justification.,. Simply sta ting " reasonab le belier· without further daboration is insuCticient. Plaintiff has admitted possession and/or knowledge or the ne\\' fac ts submitted herein at the time of commencement of this action. The Co urt will now consider Plaintiffs reply aflirmation for reasonablcjustitication fo r its previous l ~tilure to submit adequate facts to prove standin g in its first motion for summary j udgmcnt (seq. no. :00 l ). The reply nffirmation assert s that the new fac ts offered in this motion sequence 002 establi sh its standing to commence the action. The rep ly anirmation does not assert reasonable justification for its failu re to presenl those facts in motion sequence 00 I. The reply affirmat ion mere ly .. respectfully requests that this Court exercise its discretion and grant its motion." The Courl is constrained to follow the Second Department on the question of reasonable justificat ion pursuant to CPLR Rui c 2221 ( e) (3) (see Braxton. Cioffi. Jova11ovic. Rowe, supra). The reply affimrntion lai Is to provide reasonable justi Ii cati on for Plaintiffs previous railure to offer the facts contained within the instant motion (seq. no.:002). [t is also necessary to examine both the a ffirmation in support and the repl y ani rmati on to determine whether Plaintiff asserts a chan ge in th e law whi ch wi ll change the prior detern1inatio11 and presumably al ~o by sul:h changt: i n the l aw offer its own n.:<1sonub lc.: just ifi cation to salis ly the two (2) prongs o f C PLR Rule 22'.2 l (e) (2 ). (3). It is noted that the examination of both the affirmati on in support and the affirmation in reply fails Lo di sclose any assertion by Plaintiff of a change in the law which would change the pri or determination of failure to prove standing and resu ltant refusa l of a finding of summary judgmenl pursuant to CPLR Rule 3212. Plaintiff. in its reply anirmation relics upon a statement that the new facts presented \\'ill result in Lhe ability to find standing and therefore sati sfy its moLi on for reliefof summary judgment pursuant to C PLR Rule 3212. Same statement fails to aver a change in the law and fails to provide reasonable justification for failure to offer those facts in its previous motion (seq. no .:00 I). [* 7] BAC. et al. 1• /11d11x .Vo.:0./1592/100CJ Thomas ( ;iaramito. et al. The Plaintiff has failed to demonstrate a basis of entitlement to renew pursuant lo CPLR Ruic 2221 (c). Same granting of e ntitlement to renew is stated us a condition precedent in PlaintilTs motion for further relief~ including inter alia. summary judgment pursuant to CPLR Ruic 3212. Pl aintitrs motion for further relief is therefore denied. Plain ti ff will produce the origin al promissory note and mortgage for discovery and inspection by Defendant within thirty (30) cla~·s or the date orthis Order. The foregoing decision constiLUtes the Order DATED: OCTOBER 16 111 , 2018 RIVERHEAD, NY Page 7 o f 7 or the Court.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.