Bank of N.Y. Mellon v Burden
Annotate this CaseDecided on April 6, 2018
Supreme Court, Suffolk County
The Bank of New York Mellon FKA the Bank of New York, as Trustee (CWALT 2006-31CB), Plaintiff,
against
Robert Burden A/K/A Robert D. Burden Noreen Burden, Leonard B. Marro, Dennis Callahan D/B/A A1-Heating and Plumbing, Zachary Allen Entertainment, Inc., Dippa Nussbaum Advertising Inc. DBA DNA Creative, Daniel Kepert, Richard Burlew, Four D. Landscaping Inc., Asset Acceptance, LLC APO Wells Fargo, Cypress Financial Recoveries, LLC, John Doe (Name Unknown) S/H/A John Doe No.1, Jane Doe (Name Unknown) S/H/A John Doe #2, Defendant(s).
604829/2015
MCCABE WEISBERG & CONWAY, P.C.
Attorneys for Plaintiff
145 Hugenot Street
Suite 210
New Rochelle, New York 10801
Robert Burden A/K/A Robert D. Burden
[redacted]
Stony Brook, New York 11790
Noreen Burden
[redacted]
Stony Brook, New York 11790
Robert F. Quinlan, J.
Upon the following papers read on this application by plaintiff order granting summary [*2]judgment and appointment of a referee to compute; Notice of Motion dated November 9, 2017 and supporting papers (Doc # 74-94); Notice of Cross Motion and supporting papers; Replying Affidavits and supporting papers; Other; it is
ORDERED that plaintiff's motion for summary judgment against the answering defendant, striking the affirmative defenses, awarding default judgment against the remaining defendants and appointment of a referee to compute is denied; and it is further
ORDERED that this action is scheduled for limited issue trial before this part in accordance with this order on Wednesday, May 23, 2018 in the Cromarty Court Complex, 210 Center Drive, 4th floor, Riverhead, NY at 9:30AM.
This is an action to foreclose a mortgage on residential property known as 15 Bentley Lane, Stony Brook, Suffolk County, New York ("the property").
Plaintiff's previous motion for summary judgment (seq. 001) and defendant's cross motion (seq. 002) were decided on the record after oral argument on February 16, 2017. On the record the court granted plaintiff partial summary judgment, however questions of fact remained as to plaintiff's proof establishing defendants' default in payment and proof of compliance with the default notice requirement under the mortgage, as well as the notice requirement of RPAPL §1304. After oral argument the court issued a written discovery order and schedule ("discovery order") and set the above issues for a limited issue trial, authorizing successive summary judgment motions after the completion of the discovery period.
Thereafter defendants' counsel moved by order to show cause to be relieved as counsel and stay the action (seq. 003). That motion was granted and the action stayed by order dated May 1, 2017. Plaintiff served notice upon defendants pursuant to CPLR 321[c] and the stay was lifted on or about June 24, 2017. A status conference was held September 13, 2017. In accordance with the directive in the discovery order, plaintiff submitted a written request to the court, dated September 20, 2017 but received in NYSCEF on September 23, 2017, for permission to file a successive motion for summary judgment prior to the filing of a note of issue court. The court granted that request in writing filed with N YSCEF on September 25, 2017, authorizing plaintiff to file such a motion within 45 days. Plaintiff filed the within motion November 9, 2017.
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 [2d Dept 2012]). The court granted permission here in the belief that plaintiff's second summary judgment would eliminate a burden on judicial resources by making a trial unnecessary, but that belief has not been borne out, resulting instead in a further wasting of [*3]judicial resources.
The submissions in support of plaintiff's motion include inter alia its attorney's affirmations, affidavit of merit and amounts due of a representative of Bayview Loan Servicing, LLC ("Bayview"), servicer and attorney-in-fact-for plaintiff, the note, mortgage, assignments, pleadings, the affidavits of service of process, copies of the notices pursuant to the mortgage and RPAPL § 1304. The court notes that as the motion was to address the limited issues set for trial, much of plaintiff's submissions are redundant and unnecessary. Defendants do not oppose the motion.
The court notes that the affidavit submitted in support of the present motion from Kelli Smith, an employee of Bayview, is almost a mirror image of the insufficient affidavit submitted with plaintiff's first motion by Rosalind Carroll, another employee of Bayview. Both affidavits contain the exact same language found insufficient in the first motion in paragraphs 1, 9 and 12, except for the fact that in the first paragraph 9 the reference is to an Exhibit C, while it is an Exhibit D in the second affidavit. Having once been found insufficient, the language remains insufficient.
Even though there is no opposition by the now self-represented defendants, as proof of defendants' default in payment and plaintiff's proof of mailing the notices required by the mortgage and RPAPL § 1304 were raised by defendants' answer, raised in opposition plaintiff's first motion, and set for a limited issue trial by the order of February 16, 2017, plaintiff must still establish its entitlement to summary judgment in regard to them. 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]).
Just as with Ms. Carroll's affidavit in the first motion, Ms. Smith affidavit here fails to meet basic requirements for admissibility pursuant to CPLR § 4518 (a) as to either Bayview's records or plaintiff's records. As to both, her affidavit never establishes that either records were made in the regular course of business and that it was the regular course of business to make them at or about the time of the events or within a reasonable time thereafter; basic requirements for the application of the exception to the rule against hearsay found in CPLR § 4518 (a). She merely states that the records were kept and maintained in the regular course of plaintiff's business. For this reason alone her affidavit is inadmissible, and plaintiff fails to provide proof of defendants' default in payment, the mailing of the mortgage default notice or the notices required by RPAPL § 1304.
Further, her affidavit fails to establish her personal knowledge of business practices and procedures of plaintiff and as such fails to meet the standards for admissibility pursuant to CPLR § 4518 (a) set by the Second Department to provide proof of the mailing of the notices required by the mortgage and RPAPL § 1304 (see Aurora Loan Servs., LLC v Mercius, 138 AD3d 650 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683 [2d Dept 2016]; JPMorgan Chase Bank v. Kutch, 142 AD3d 536 [2d Dept 2016]; Aurora Loan Servs., LLC v Bartiz, 144 AD3d 618 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v Carlin, 152 AD3d 491 [2d Dept 2017]; M & T Bank v Joseph, 152 AD3d 579 [2d Dept 2017]; Aurora Loan Servs v. [*4]Komarovsky, 151 AD3d 924 [2d Dept 2017]; Wells Fargo Bank, NA v Talley, 153 AD3d 583 [2d Dept 2017]; Bank of NY Mellon v Cutler, 154 AD3d 910 [2d Dept 2017]; Bank of NY Mellon v Alli,156 AD3d 597 [2d Dept 2017];Bank of New York Mellon v Lopes, 158 AD3d 662 [2d Dept 2018]; US Bank, N.A. v Ballin, 158 AD3d 786 [2d Dept 2018]; One West Bank, FSB vv Berino, 158 AD3d 811 [2d Dept 2018]). Additionally, as the notice of default required by the mortgage is on letterhead of a prior servicer, Bank of America, her failure to establish her ability to testify as to that entities business practices and procedures precludes its admissibility as proof of that mailing (see Arch Bay Holding, LLC v Albanese, 146 AD3d 849 [2d Dept 2017]; Aurora Loan Svcs, LLC v Ang, 150 AD3d 649 [2d Dept 2017]).
Even if Ms. Smith had established her ability to provide evidence pursuant to CPLR 4518 (a), the contents of her affidavit fail to provide proof of the mailings, as it merely contains unsubstantiated and conclusory statements referring to copies of the dated notices. The Second Department has consistently held that affidavits containing just such information are insufficient to prove mailing (see HSBC Mtge. Corp. v Gerber, 100 AD3d 966 [2d Dept 2012]; Citimortgage, Inc. v Espinal, 134 AD3d 876 [2d Dept 2015]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; U. S. Bank, N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]). Due proof of mailing of the notices 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 Vivane Etienne Med. Care, P.C. v Country Wide Ins. Co., 25 NY3d 498 [2015]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2d Dept 2001]; CitiMortgage v Banks, 155 AD3d 936 [2d Dept 2017]; CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Citibank, N.A. v Wood, 150 AD3d 813 [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]; Bank of America, NA v Wheatley, 158 AD3d 736 [2d Dept 2018]; J.P. Morgan Mtge. Acquistion Corp v Kagan, 157 AD3d 875 [2d Dept 2018]).
In the face of this consistent line of cases and the court's decision of February 16, 2017, it is clear that plaintiff's motion must be denied in its entirety. No further motions for summary judgment will be authorized.
Plaintiff is directed to file a note of issue within 30 days of the date of this order, paying all necessary fees and attaching a copy of this order to the note of issue as authority and direction to so file it.
As it is presumed plaintiff will comply with the direction to file the note of issue, this action is scheduled for a limited issues trial before this part on Wednesday, May 23, 2018 at 9:30 AM solely as to the issue of defendants' default in payment under the note and mortgage, the mailing of the RPAPL 1304 notice and the mailing of the default notice pursuant to the mortgage agreement, pursuant to the prior discovery order.
Accordingly, plaintiff's motion is denied and the proposed order marked "not signed."
This constitutes the decision and order of the court.
Dated: April 6, 2018
Hon. Robert F. Quinlan, J.S.C.
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