Bank of N.Y. Mellon v Dougherty

[*1] Bank of N.Y. Mellon v Dougherty 2018 NY Slip Op 50064(U) Decided on January 18, 2018 Supreme Court, Suffolk County Kelly, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 18, 2018
Supreme Court, Suffolk County

The Bank of New York Mellon FKA the Bank of New York as Trustee for the Certificateholders CWABS, Inc. Asset-Backed Certificates, Series 2005-14, Plaintiff,

against

Ronald Dougherty; Cynthia Dougherty; JP Morgan Chase Bank N.A.; Clerk of the Suffolk County District Court; Capital One Bank U.S.A. N.A.; MSW Florida Capital LLC; MSW Capital LLC; Midland Funding LLC, Defendant(s).



24750-2011



DAVIDSON FINK LLP

Attorneys for Plaintiff

28 East Main Street, Suite 1700

Rochester, NY 14614-1990

THE RANALLI LAW GROUP, PLLC

Attorneys for Defendant Cynthia Dougherty

742 Veterans Memorial Highway

Hauppauge, NY 11788
Peter J. Kelly, S.

Upon the following papers numbered 1 to 20 read on this application for an order granting summary judgment and dismissal of the complaint; Notice of Motion/Order to Show [*2]Cause and supporting papers 1-15; Notice of Cross Motion and supporting papers___________; Answering Affidavits and supporting papers 16-20 ; Replying Affidavits and supporting papers; Other ; it is,

ORDERED that this motion by defendant Cynthia Dougherty for summary judgment is denied; and it is further

ORDERED that the limited issue trial of this action is scheduled for Friday, February 23, 2018 at 2:00 PM.

This is an action to foreclose a mortgage on premises known as 31 13th Street, Bohemia, Suffolk County, New York ("the property"). Plaintiff the Bank of New York Mellon fka the Bank of New York as Trustee for the Certificateholders CWABS, Inc. Asset-backed Certificates, Series 2005-14 ("plaintiff") commenced this action by filing a summons, complaint and notice of pendency with the Suffolk County Clerk on August 2, 2011.

Although there is an order of this court dated June 13, 2014 (Martin, J.) which purports to dismiss the counterclaims of defendants Ronald Dougherty and Cynthia Dougherty (Mot. Seq. No.001), the parties submissions in plaintiff's motion for summary judgment seeking dismissal of defendant Cynthia Dougherty's ("defendant") answer (Mot. Seq. #002), previously before this court, contained only an amended answer by defendant which raised six affirmative defenses and no counterclaims. From that motion it appeared defendant Ronald Dougherty was in default in answering.

In Mot. Seq. #002, in addition to seeking summary judgment dismissing defendant's answer, plaintiff also sought appointment of a referee pursuant to RPAPL § 1321, to fix the default of the non-appearing, non-answering defendants and to amend the caption. After oral argument on March 2, 2017, the court issued a decision on the record granting plaintiff partial summary judgment. The further history of this case and the basis for the court's ruling are contained in that decision. In granting partial summary judgment, the court also fixed and set the default of the non-answering, non-appearing defendants including defendant Ronald Dougherty, and amended the caption (which is correctly indicated above) and dismissed defendant's second affirmative defense. The court denied plaintiff full summary judgment as there were questions of fact as to plaintiff's proof of its standing to bring the action (defendant's first, fifth and sixth affirmative defenses), of compliance with the mailing requirements of the notices required by RPAPL § 1304 ("the notices") and of the filing required by RPAPL § 1306 (defendant's third and fourth affirmative defenses) precluding the dismissal of those affirmative defenses. The court set the action for a limited issue trial pursuant to CPLR § 2218 on those issues, issuing a written discovery and scheduling order, which authorized discovery limited to those issues.

That order also authorized the submission of further summary judgment motions by the parties upon the completion of discovery, within thirty day of filing of a note of issue. Although multiple summary judgment motions are discouraged without a showing of newly discovered evidence, or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources that would otherwise require a trial (see Detko v McDonald's Restaurants of New York, Inc, 198 AD2d 208 [2d Dept 1993]; Rose v Horton Med. Ctr., 29 AD3d 977 [2d Dept 2006]; Landmark Capital Investments, Inc. v Li-Shan Wang, 94 AD3d 418 [1st Dept 2012];Valley National Bank v INI Holding, LLC, 95 [*3]AD3d 1108 [2d Dept 2012]; American Equity Insurance Co. v A & B Roofing, Inc., 106 AD3d 762 [2d Dept 2013]; Kolel Damsek Eliezer, Inc. v Schlesinger, 139 AD3d 810 [2d Dept 2016]).

Although plaintiff did not accept the court's suggestion, defendant, who filed no previous summary judgment motion, now moves for summary judgment dismissing the action claiming plaintiff had failed to comply with the mailing requirements of the notices and the filing requirements of RPAPL § 1306 (Mot. Seq. #003).

In support of her motion defendant submits an affirmation of counsel and exhibits including a copy of the notices (Defendant's Exhibit "1"). Also included in those exhibits are submissions made by plaintiff in support of its prior motion for summary judgment (Mot. Seq. #002), including the affidavit of Chelsie Hall, an officer of Ditech Financial LLC F/K/A Green Tree Servicing LLC ("Ditech") attorney in fact for plaintiff (Defendant's Exhibit "2") and plaintiff's proof of filing with the NYS Department of Financial Services pursuant to RPAPL §1306 (Defendant's Exhibit "3"). In addition defendant submits an excerpt from a transcript of testimony from a trial before this court in an unrelated foreclosure action, Bank of America, N.A. v Ahmad, Suffolk County Index No. 33978/2011, March 21, 2017 (Defendant's Exhibit "4""). Plaintiff opposes the motion arguing defendant has not established her prima facie case and questions of fact exist which preclude the granting of summary judgment.

The affirmation of defendant's counsel submitted in support of her motion for summary judgment is merely hearsay. An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance as it fails to provide proof in evidentiary form to establish its prima facie entitlement to summary judgment (see JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373 [2005]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Palo v Principio, 303 AD2d 478 [2d Dept 2003]). Furthermore, in his affirmation defendant's counsel leaps to conclusions which are not supported by evidentiary proof in admissible form. Counsel attempts to setup plaintiff's argument that the mailing was done in plaintiff's regular course of business, as stated paragraph 10 of the affidavit of Hall (Defendant's Exhibit "2").

He then points out discrepancies in that claim with other documents submitted by plaintiff in support of Mot. Seq. #002. From those documents, he concludes that the mailing of the notices were not made by plaintiff, but by Bank of America ("B of A"), or one of its subsidiaries, as the copy of the notice submitted in Mot. Seq. #002 is on the letterhead of B of A (Defendant's Exhibit "1") and the filing made with the NYS Department of Financial Services shows the mailing was made by B of A (Defendant's Exhibit "3"). Although this raises a question of fact and indicates a gap in proof which, in part, caused the denial of Mot. Seq. #002, this does not establish as a matter of law that the notices were not mailed to defendant.

Defendant's counsel then makes an additional conclusory leap that, although having failed to establish that B of A mailed the notices, if the notices were "mailed" by B of A, then they must have been "really mailed" by a mailing house that it uses, Walz & Company ("Walz"). He bases this conclusion on the fact that in a trial of another action before this court on March 21, 2017 involving different parties, in which B of A was plaintiff, there was evidence that Walz mailed the notices for B of A. Counsel attaches an excerpt from trial testimony in that case as Defendant's Exhibit "4." In the excerpt, the witness is not named (although the top of each page says "Cromiak"), nor is he identified as an employee or officer of any particular entity (although on page 26, lines 11-13 it appears that he may be an "associate" of B of A), nor are his duties [*4]and responsibilities as to what he testified to set forth. Most importantly, there is nothing relating that testimony to the present case. The conclusion that because in that case B of A used Walz for mailings, B of A must use Walz for mailings in all cases, including this case, and that as plaintiff's affiant does not mention Walz, plaintiff has not established the mailing of the notices is not only not supported by evidentiary proof in admissible form, it is an assumption based upon assumptions.

Although all this may raise questions that have to be decided by the trier of fact, that is not defendant's burden of proof for summary judgment. The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence to establish the absence of any material issues of fact, failure to do so requires the motion to be denied regardless of the sufficiency of the opposition (see Jacobsen v New York City Health & Hospitals Corp., 22 NY3d 824 [2014]; William J Jenack Estate Appraiser and Auctioneers v Rabizadeh, 22 NY3d 470 [2013]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]). For the court to grant summary judgment it must clearly appear that no material and triable issue of fact is presented (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). A party seeking summary judgment may not merely point to gaps in an opponent's proof to obtain relief, it must adduce affirmative evidence of entitlement to that relief, regardless of the sufficiency of the opposing papers (see Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Gilbert Frank Corp. v. Federal Insurance, 70 NY2d 966 [1988]; Torres v. Industrial Container, 305 AD2d 136 [1st Dept 2003]; Fields v Village of Sag Harbor, 92 AD3d 718 [2d Dept 2012]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2d Dept 2013]). Only after such proof has been offered does the burden shift to the opposing party, who, in order to defeat the motion must proffer evidence in admissible form to establish a factual issue sufficient to require a trial (CPLR 3212 [b]; see Zuckerman v City of New York, supra). Defendant has not met that burden here.

Although defendant's counsel has effectively pointed out problems with the potential evidentiary proof to be offered by plaintiff based upon its unsuccessful proof in Mot. Seq. #002, and provided plaintiff with a preview of a possibly effective cross-examination, defendant has not establish by her submissions and arguments of counsel that plaintiff did not mail the notices. The court's task in deciding the motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (see Vega v Restani Corp., 18 NY3d 499 [2012]). Credibility is an issue for trial. As with other issues such as standing, the burden on the moving defendant is to establish prima facie plaintiff's failure to mail the notices, rather than pointing to plaintiff's inability to establish its mailing (see Deutsche Bank Natl. Trust Co. v Spanos, supra). To defeat defendant's motion, plaintiff has no burden of establishing the mailing as a matter of law (see Deutche Bank Trust Co. Ams. v Vitallas, 131 AD3d 52 [2d Dept 2015]; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650 [2d Dept 2016]; Wells Fargo Bank, NA v Talley, 153 AD3d 583 [2d Dept 2017]). Defendants' motion for summary judgment is denied.

Defendant's motion to dismiss for plaintiff's failure to comply with the filing requirements of RPAPL § 1306 is premised upon plaintiff's failure to establish the mailing of the notices by B of A, as stated in the filing it made. As defendant has failed to establish that as a matter of law, that part of defendant's motion is necessarily denied.

Defendant's proposed order submitted with this motion is marked "Not Signed."

As the issues set for limited issue trial in the decision of March 2, 2017 remain, a trial limited to those issues would be held before this court on Friday, February 23, 2018 at 2:00PM.

This constitutes the order and decision of the Court.

DATED: January 18, 2018

HON. ROBERT F. QUINLAN, JSC