Flagstar Bank, FSB v Curtis

[*1] Flagstar Bank, FSB v Curtis 2018 NY Slip Op 50448(U) Decided on April 4, 2018 Supreme Court, Suffolk County Quinlan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 4, 2018
Supreme Court, Suffolk County

Flagstar Bank, FSB, Plaintiff,

against

Amelia M. Curtis; "JOHN DOES" and "JANE DOES", said names being fictitious, parties intended being possible tenants or occupants of premises, and corporations, other entities or persons who claim, or may claim, a lien the premises, , Defendant(s).



602800/2015



HOGAN LOVELLS US LLP

Attorneys for Plaintiff

875 Third Avenue

New York, NY 10022

AMELIA M. CURTIS

Defendant Pro Se

358 Sunrise Highway Service Road

Center Moriches, NY 11934
Robert F. Quinlan, J.

Upon the following papers numbered read on this motion for an order granting summary judgment and order of reference; Notice of Motion and supporting papers (Doc #30-51); Answering Affidavit and supporting papers (Doc #55-57); Replying Affidavit and supporting papers (Doc #58-62); it is,

ORDERED that this motion by plaintiff Flagstar Bank, FSB for an order dismissing the answer including all counterclaims and affirmative defenses of defendant Amelia M. Curtis, awarding it summary judgment, appointing a referee to compute, granting default judgment against the non-appearing and non-answering defendants, and amending the caption, is granted to the extent that plaintiff is granted partial summary judgment dismissing defendant Amelia M. Curtis' First through Fourth, and Sixth through Nineteenth Affirmative Defenses as well as dismissing her First through Fifth counterclaims; and it is further

ORDERED that plaintiff's application to dismiss defendant Amelia M. Curtis' Fifth Affirmative Defense, as well as its application to dismiss defendant's answer are denied; and it is further

ORDERED that pursuant to CPLR 3212 (g) and §2218, the action is set for trial limited to proof of plaintiff's compliance with mailing of the notices required pursuant to RPAPL §1304, defendant Amelia M. Curtis' Fifth Affirmative Defense; and it is further

ORDERED that portion of plaintiff's motion seeking to amend the caption to discontinue as to [*2]defendants "John Does" and "Jane Does,"and to add Josh Curtis as party defendant is granted and the caption shall now appear as follows:

X

FLAGSTAR BANK, FSB,

Plaintiff,

against

AMELIA M. CURTIS, JOSH CURTIS

Defendant(s).

X

; and it is further

ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL§ 1321 is denied and its proposed order submitted with this motion is marked "Not Signed" and in all other respects, plaintiff's motion is denied; and it is further

ORDERED that plaintiff is to file a note of issue within 90 days of the date of this order and is to attach a copy of this order to the note of issue; and it is further

ORDERED that upon filing the note of issue the court will entertain renewed summary judgment motions from the parties, but in no case will such a motion be entertained more than 60 days after the filing of the note of issue; and it is further

ORDERED that the action is scheduled for a pre-trial conference on July 10, 2018 at 9:30 AM in Part 27 unless a successive summary judgment motion authorized by this order has been filed before the scheduled conference; and it is further

ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further

This is an action to foreclose a mortgage on residential real property known as 358 Sunrise Highway Service Road, Center Moriches, Suffolk County, New York given by defendant Amelia M. Curtis ("defendant") to Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Flagstar Bank FSB ("plaintiff") on June 11, 2008 to secure a note given on the same date by defendant to plaintiff. Plaintiff commenced this action by filing the summons and complaint with the Suffolk County Clerk on March 20, 2015. Defendant interposed an answer, only on her behalf, dated April 6, 2015 consisting of general denials, nineteen affirmative defenses including inter alia failure to establish plaintiff's standing to prosecute the action (Second Affirmative Defense), plaintiff's failure to comply with notice requirements of RPAPL 1304 (Fifth Affirmative Defense) and plaintiff's failure to comply with the filing requirements of RPAPL 1306 (Twelfth Affirmative Defense), as well as five counterclaims.

A foreclosure settlement conferences was held September 11, 2015 after which the action was released to an IAS Part, thus there has been compliance with CPLR 3408. The action and motion was originally assigned to Acting Supreme Court Justice Denise F. Molia, but was re-assigned to this part by AO #58-16 signed by District Administrative Judge C. Randall Hinrichs on October 18, 2016.

Plaintiff now moves for an order granting summary judgment against defendant, striking her answer including affirmative defenses and counterclaims, amending the caption, fixing the default as against the non-appearing defendant and for an order of reference appointing a referee to compute pursuant to RPAPL § 1321. The submissions in support of plaintiff's motion include its attorney's affirmations, an affidavit in support of summary judgment of an employee of plaintiff, the note, mortgage, pleadings, and the affidavits of service of process. Defendant submits her affidavit in opposition, also signed by defaulting defendant Josh Curtis, and defendant's opposition to plaintiff's [*3]memorandum in support in which defendant makes numerous arguments in opposition to the motion, including plaintiff's failure to establish standing to prosecute the action, failure to comply with the notice provision of RPAPL 1304 and argues that the affidavit of plaintiff's representative is not admissible. Plaintiff submits an affirmation of counsel and supporting documents in reply.

DEFAULTING DEFENDANT CANNOT OPPOSE MOTION, HIS DEFAULT IS FIXED

Preliminarily, the court notes that only defendant filed an answer, which was filed solely in her name. In deciding plaintiff's motion, the court grants plaintiff's application to substitute defendant Josh Curtis, who was timely served as a "John Doe" defendant as established by the affidavit of service of plaintiff's process server, for one of the "John Doe" defendants and to amend the caption to remove the other "John Does" and "Jane Does." Having been served, Mr. Curtis was required to appear and answer the complaint, which he failed to do. A party who is in default may not seek relief without first moving to vacate his/her default (see Nationstar Mtg., LLC v Kamil, 155 AD3d 968 {2d Dept 2017]; Chase Home Finance, LLC v Garcia, 140 AD3d 820 [2d Dept 2016]; Nationstar Mortgage, LLC v Avella, 142 AD3d 594 [2d Dept 2016];Southstar III, LLC v Ettienne, 120 AD3d 1332 [2d Dept 2014]; U.S. Bank Natl. Assn. v Gonzalez, 99 AD3d 694 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v. Stathaklis, 90 AD3d 694 [2d Dept 2011]; Holubar v. Holubar, 89 AD3d 802 [2d Dept 2011]). As Mr. Curtis did not answer, has not moved to vacate his default and remains in default, the court will not consider defendant's opposition to this motion in regards to him.

The default of the non-appearing, non-answering defendant Josh Curtis is fixed and set (see U.S. Bank N.A. v Wolherman, 135 AD3d 850 [2d Dept 2016]; HSBC USA, N.A. v Alexander, 124 AD3d 838 [2d Dept 2015]; U.S. Bank, N.A. v Razon, 115 AD3d 739 [2d Dept 2014])

DEFENDANT'S REQUEST FOR DISMISSAL IMPROPER

Additionally, the court notes any request by defendant in her opposition seeking dismissal of the action is procedurally improper as it is not accompanied by a notice of cross motion (see, CPLR 2215). In the absence of a notice of cross motion, or a separate motion, a defendant is not entitled to obtain any affirmative relief (see, Lee v Colley Group McMontebello, LLC, 90 AD3d 1000 [2d Dept 2011]; DeLorenzo v Gabbino Pizza Corp., 83 AD3d 992 [2d Dept 2011].

SUMMARY JUDGMENT

Entitlement to summary judgment in favor of a foreclosing plaintiff is established, prima facie, by plaintiff's production of the mortgage, the unpaid note, and evidence of default in payment (see Wells Fargo Bank, N.A. v. DeSouza, 126 AD3d 965 [2d Dept 2015]; Wells Fargo, NA v Erobobo, 127 AD3d 1176 [2d Dept 2015]; Wells Fargo Bank, NA v Morgan, 139 AD3d 1046 [2d Dept 2016]). If established by proof submitted in evidentiary form, plaintiff has demonstrated its entitlement to summary judgment (CPLR 3212; RPAPL § 1321; see Federal Home Loan Mtge. Corp. v Karastathis, 237 AD2d 558 [2d Dept 1997]).

The burden then shifts to defendant to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see Capstone Bus. Credit, LLC v Imperia Family Realty, LLC, 70 AD3d 882 [2d Dept 2010], Zanfini v Chandler, 79 AD3d 1031 [2d Dept 2010]; Citibank, NA v Van Brunt Properties, LCC, 95 AD3d 1158 [2d Dept 2012]). Defendant must then produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact (see Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Defendant's answer and affirmative defenses alone are insufficient to defeat plaintiff's motion (see, Flagstar Bank v Bellafiore, 94 AD3d 1044 [2d Dept 2012]). In deciding the motion the court 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]).

Plaintiff's submissions include the mortgage and the unpaid note. In support of the motion plaintiff has also submitted an affidavit of one of its employees who establishes her ability to testify as to [*4]plaintiff's business records pursuant to CPLR § 4518 (a) as she attests that she is familiar with, and has personal knowledge of, plaintiff's business practice and procedures, that those records were made in the regular course of plaintiff's business and that it was the regular course of plaintiff's business to make them at or about the time of the event (see Aurora Loan Services, LLC v Taylor, 25 NY3d 355 [2015]; Wells Fargo Bank, N.A. v Joseph, 137 AD3d 896 [2d Dept 2016]; HSBC Bank, USA v Espinal, 137 AD3d 1079 [2d Dept 2016]; Flagstar Bank v Mendoza, 139 AD3d 898 [2d Dept 2016]; US Bank, NA v Ellis, 154 AD3d 710 [2d Dept 2017]). Her affidavit establishes the default in payment of defendant. Plaintiff has thereby established these basic elements of its prima facie case for foreclosure. In opposition to this defendant has not submitted evidentiary proof in admissible form which raises a triable issue of fact.

STANDING ESTABLISHED

Where plaintiff's standing to bring the action has been placed in issue by defendant's answer, as here, plaintiff also must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, supra; Loancare v. Firshing, 130 AD3d 787 [2d Dept 2015]; US Bank,, NA v Richard, 151 AD3d 1001 [2d Dept 2017]; US Bank, N. A. v Cohen, 156 AD3d 844 [2d Dept 2017]). Plaintiff establishes its standing by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v Taylor, supra; Wells Fargo Bank, NA v Rooney, 132 AD3d 980 [2d Dept 2015]). A written assignment or physical delivery prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident thereto (see U.S. Bank, NA v Collymore, 68 AD3d 752 [2d Dept 2009]; Bank of NY Mellon v Gales, 116 AD3d 723 [2d Dept 2014]).

The court notes that the note and mortgage indicate that plaintiff was the original lender in this case. The fact that the mortgage was given to MERS acting solely as nominee for plaintiff for the recording of the mortgage is of no moment. In any event, as indicated by the holdings in U.S. Bank, NA v Collymore, supra and Bank of NY Mellon v Gales, supra, the general principle of law is that the mortgage follows the note.

Plaintiff has standing to bring the action if it establishes that it was the holder of the note at the time the action was commenced (see Emigrant Bank v Larizza, 129 AD3d 904 [2d Dept 2015]; M & T Bank v Cliffside Prop. Mgt., LLC, 137 AD3d 876 [2d Dept 2016]). Here plaintiff has established its standing in two ways.

First, plaintiff has attached an unendorsed copy of the original note executed by defendant to the complaint at the time the action was filed.

This establishes that plaintiff had possession of the note prior to filing the action, and therefore establishes its standing (see Nationstar Mortg., LLC v Catizone, 127 AD3d 1151 [2d Dept 2015]; Deutsche Bank Natl. Trust v Leigh, 137 AD3d 841 [2d Dept 2016]; Nationstar Mortg., LLC v Weisblum, 143 AD3d 866 [2d Dept 2016]; Deutsche Bank Natl Trust Co. v Carlin, 152 AD3d 491[2d Dept 2017]; Bank of NY Mellon v Burke, 155 AD3d 932 [2d Dept 2017]; Wells Fargo Bank, N.A. v Osias, 156 AD3d 952 [2d Dept 2017]; Bank of America, NA v Wheatley, 158 AD3d 736 [2d Dept 2018]).

Additionally, plaintiff provided the affidavit of its employee referred to above. As indicated, in that affidavit the employee established her ability to testify to plaintiffs business records pursuant to CPLR § 4518 (a) and attests that pursuant to her review of those business records the original note has been in the possession of plaintiff since June 3, 2008. This also establishes the plaintiff's standing to bring the action. An affidavit of an employee of plaintiff that established plaintiff, the original lender, had possession of the note at the time the action was commenced establishes plaintiff's standing (see Bethpage Fed. Credit Union v Caserta, 154 AD3d 691 [2d Dept 2017]). The fact that plaintiff's affiant had placed an undated and in blank indorsement on the note attached to the affidavit is of no moment, as the evidentiary proof in admissible form submitted establishes that the note remained in the possession of [*5]plaintiff, the original lender, continuously since June 3, 2008; any claim otherwise is based upon mere speculation. In this way, this case significantly differs from the facts in Deutsche Bank Nat. Trust Co. v Webster 142 AD3d 636 (2d Dept 2016).

The arguments made by defendant in opposition to plaintiff's proof of standing are speculative, not based upon evidentiary proof in admissible form and are without merit.

PRIOR ACTION NOT DISPOSITIVE OF STANDING

A prior action by plaintiff against defendant to foreclose this mortgage was dismissed upon a pre-answer motion by defendant pursuant to CPLR 3211 (a) by order of this court dated August 3, 2013 (Flagstar v Curtis, Index No. 5058/2011; reargument and renewal denied by order dated June 24, 2014; Hon. Daniel Martin, ASJ). Acting Justice Martin's order dismissed the action finding that plaintiff's "submission does not constitute 'proof' of standing sufficient to meet plaintiff's burden on this motion." In essence , the order dismissed the case not because defendant had established that plaintiff had no standing, but because plaintiff's proof in opposition failed to prove its standing.

The order did not establish, as defendant appears to conclude, that plaintiff did not have and could not have standing; it found only that plaintiff's submissions in opposition were insufficient to prove its standing in that action. 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 (see Torres v. Industrial Container, 305 AD2d 136 [1st Dept 2003]; Gilbert Frank Corp. v. Federal Insurance, 70 NY2d 966 [1988]; Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]). 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]). The burden on the moving defendant is to establish prima facie plaintiff's lack of standing, rather than pointing to plaintiff's inability to establish its standing. To defeat defendant's motion, plaintiff has no burden of establishing its standing 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]).

As the present action was commenced subsequent to the dismissal of the action under Index No. 5058/2011 the issue of plaintiff's standing to bring this action is to be determined independently of the order in the prior action.

That order has no collateral estoppel, res judicata or issue preclusion effect upon the issue of plaintiff's standing in this action. Plaintiff's standing in this action has been determined upon the proof submitted in this action, as determined above.

Defendant's Second Affirmative Defense is dismissed.

COMPLIANCE WITH RPAPL §1304 NOT ESTABLISHED

Where, as here, defendant has properly asserted non-compliance with the requirements of mailing of the RPAPL § 1304 notices ("the notices") as a defense plaintiff must adduce proof that the pre-action foreclosure 90 day notice requirements have been satisfied (see PHH Mtge. Corp. v. Celestin, 130 AD3d 703 [2d Dept 2015]; Cenlar FSB v. Weisz, 136 AD3d 855 [2d Dept 2016]; Zarabi v. Movahedian, 136 AD3d 895 [2d Dept 2016]; Aurora Loan Svcs, LLC v Baritz, 144 AD3d 618 [2d Dept 2016]; U.S. Bank, N. A, v Singh, 147 AD3d 1007 [2d Dept 2017]). Here, although the affidavit of plaintiff's employee establishes her ability to testify to plaintiff's business records pursuant to CPLR 4518 (a), it fails to establish mailing of the notices. The affiant merely states a review of the records establishes the notices were sent to defendant on a certain date "by [*6]certified mail and first class mail." Unsubstantiated and conclusory statements in an affidavit of plaintiff's employee, along with dated copies of the notices are insufficient to prove that the notices were properly mailed (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]). To establish mailing, plaintiff may provide proof of actual mailing or description of its office's practice and procedure for mailing (see New York & Presbyt. Hosp. v Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v Wood, 150 AD3d 813 [2d Dept 2017]; Citimortgage Inc. v Banks 155 AD3d 936 [2d Dept 2017]).

Due proof of the mailing of the notice is established by submission of an affidavit of service (see JPMorgan Chase Bank, N.A. v Schott, 130 AD3d 875 [2d Dept 2015]; Wells Fargo v Moza, 129 AD3d 946 [2d Dept 2015]) or through business records that detail a standard of office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]); after which a presumption of receipt arises (see Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp., v Scottsdale Ins. Co., supra; Citimortgage v Banks, 155 AD3d 936 [2d Dept 2017]). The affiant must show her familiarity with office practices and procedures to establish office practices and procedures to insure proper addressing and mailing (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; Investors Savings Bank v Salas, 152 AD3d 752 [2d Dept 2017]; US Bank v Henry, 157 AD3d 839 [2d Dept 2018]; Bank of NY Mellon v Zavolunov, 157 AD3d 754 [2d Dept 2018]; J.P. Morgan Mtge. Acquistion Corp v Kagan, 157 AD3d 875 [2d Dept 2018]; Bank of America, NA v Wheatley, supra).

Applying this standard of proof of mailing to plaintiff's submission, plaintiff has failed to establish that it mailed the notices, plaintiff's application to dismiss defendant's Fifth Affirmative Defense is denied. This issue is set for a limited issue trial pursuant to CPLR 3212 (g) and §2218, to establish plaintiff's compliance with mailing of the notices required pursuant to RPAPL §1304

COMPLIANCE WITH RPAPL § 1306 ESTABLISHED

Although it could be argued that proof of mailing of the notices is an integral element of compliance with the filing requirement of RPAPL §1306, the court cannot assume that plaintiff failed to comply with that mailing requirement, only that on the proof submitted on this motion plaintiff has failed to establish that mailing. As such, if subsequent proof by plaintiff establishes the mailing of the notices, then the submission here of proof of filing with the Department of Financial Services ("DFS") pursuant to RPAPL §1306 is sufficient to establish plaintiff's compliance with that section. If subsequently on a successive summary judgment motion, defendant is able to establish that plaintiff did not mail the notices, or if at a trial, plaintiff is unable to establish the mailing of the notices, the action will necessarily be dismissed, and proof of compliance with the filing requirement of RPAPL § 1306 will no longer be important. If on a successive summary judgment motion, or at a trial, plaintiff establishes the mailing of the RPAPL § 1304 notices prior to filing the action, but after their purported mailing as indicated in the RPAPL § 1306 filing with DFS, such proof would raise issues of strict compliance with RPAPL § 1306 (see TD Bank v Leroy, 121 AD3d 1256 [3rd Dept 2014], cited with approval in Hudson City Savings Bank v Seminario, 149 AD3d 706 [2d Dept 2017]), but as that proof would constitute new evidence, defendant would be able to move in response thereto. Plaintiff's present submission has sufficiently established the filing required by RPAPL § 1306, barring an event similar to that just referred to.

Defendant's Twelfth Affirmative Defense is dismissed.

UNSUPPORTED AFFIRMATIVE DEFENSES AND COUNTERCLAIMS

DEEMED ABANDONED

As to defendant's remaining affirmative defenses and counterclaims, defendant has failed to [*7]submit any support for them in opposition. The failure to raise and support pleaded affirmative defenses and counterclaims in opposition to a motion for summary judgment renders them abandoned and subject to dismissal (see Kuehne & Nagel Inc. v Baiden, 36 NY2d 539 [1975]; Kronick v L. P. Therault Co., Inc., 70 AD3d 648 [2d Dept 2010]; New York Commercial Bank v. J. Realty F. Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]; Starkman v. City of Long Beach, 106 AD3d 1076 [2d Dept 2013]; Katz v Miller, 120 AD3d 768 [2d Dept 2014]). Defendants First, Third, Fourth, Sixth through Eleventh, and Thirteenth through Nineteenth affirmative defenses and First through Fifth counterclaims are dismissed.

SUCCESSIVE SUMMARY JUDGMENT MOTIONS ALLOWED

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 (see Detko v McDonald's Restaurants of New York, Inc, 198 Ad2d 208 [2d Dept 1993]; Valley National Bank v INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012]; Kolel Damsek Eliezer, Inc. v Schlesinger, 139 AD3d 810 [2d Dept 2016]). It is clearly appropriate to consider a second summary judgment motion where the court has already granted a party partial summary judgment and limited the issues to a few, or where such a motion would correct a simple defect, eliminating the burden on judicial resources which would otherwise require a trial (see 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]). The denial of a subsequent summary judgment motion which could be dispositive for the sole reason of the prohibition against second summary judgment motions has been held to be an improvident exercise of the court's discretion (see Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017]).

As here, only one issue remains outstanding, which may be resolved by a more sufficient affidavit, thereby avoiding the expense and time to the parties and waste of court resources on a trial, the court finds it an appropriate exercise of discretion to allow the parties to submit successive summary judgment motions on this single issue after the filing of a note of issue as set forth below. Other than this motion, no other motions will be entertained without permission of the court.

LIMITED DISCOVERY ON SINGLE ISSUE

To facilitate the filing of a successive summary judgement motion, the court authorizes a limited period of discovery on this issue. Parties must serve any discovery demands relating to this issue within 30 days of the date of this order, after which no further discovery will be allowed without further order of the court. Any request for further discovery after this date must be made by letter to the court, which the court will either grant or deny in writing, or set for a conference in the part.

All discovery is to be completed within 90 days of the date of this order. A compliance/certification conference is set for July 10, 2018 at 9:30 AM in Part 27, at which time the parties will execute a compliance conference order certifying the action for trial of the limited issue, or be directed by the court to do so, also setting the timing for filing of a note of issue and a pre-trial conference setting the action for trial date.

Any successive summary judgment motion must be made within 30 days of the filing of the note of issue (CPLR 3212 [a]).

Plaintiff's proposed order is marked "not signed."

This constitutes the Order and decision of the Court.

Dated: April 4, 2018

_______________________________________

Hon. Robert F. Quinlan, J.S.C.