Bank of Am. v Lavelle

[*1] Bank of Am. v Lavelle 2018 NY Slip Op 50701(U) Decided on April 19, 2018 Supreme Court, Queens County Modica, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2018
Supreme Court, Queens County

Bank of America, et al., Plaintiff,

against

Emily Lavelle a/k/a Emily K. Lavelle, et al., Defendants.



703663/2015



For Plaintiff: Shapiro, Di Caro & Barak, LLC, by Jason P. Dionisio, Esq., 175 Mile Crossing Blvd., Rochester, NY 14624

For Defendant: Dominick W. Lavelle, Esq., 100 Herricks Road, suite 201, Mineola, NY 11501
Salvatore J. Modica, J.

Papers Numbered NYSCEF Doc. Nos. 61-70, together with a Reply Papers by Defendant, dated April 2, 2018, that defense counsel has failed to file on NYSCEF.

The defendant's motion, by Order to Show Cause, to vacate a judgment of foreclosure and sale, and for other relief, in this mortgage foreclosure action, is, in all respects, denied. See Mr. Dionisio's affirmation in opposition.

In addition, the Court notes that the defendant's claim that she re did not receive any notice of the foreclosure is demonstrably untrue. Currently, too many litigants and their counsel indulge in fictional narratives, even when their concocted claims are betrayed by evidence. The courts must stop this practice of condoning seemingly tailored testimony and perjured narratives. See, Washington Mut. Bank v. Holt, 113 AD3d 755, 756-757 (2nd Dept. 2014) ("Where a witness has given testimony that is demonstrably false, we may, in accordance with the maxim falsus in uno falsus in omnibus, choose to discredit or disbelieve other testimony given by that witness."); accord, Michalska v. Coney Island Site 1824 Houses, Inc., 155 AD3d 1024 (2nd Dept. 2017) (holding that where a witness has given discrepant accounts in an affidavit from that in a subsequent EBT, credibility is in doubt, and a lower court must deny summary judgment; in that case, the Second Department reversed the lower court that granted summary judgment).

Although the maxim falsus in uno, falsus in omnibus is usually a charge given at trial, as Mr. Dionisio correctly maintains, the time has come for the courts to start applying the maxim to [*2]demonstrably false statements made in affirmations and affidavits. Courts have long honored the maxim of falsus in uno. See, e.g., The Santissima Trinidad, 20 U.S. 283, 339 (1822) (Story, J.) (Supreme Court unanimously held that where a party speaks to a fact in respect to which he cannot be presumed liable to mistake, as in relation to the country of his birth, if the fact turn out otherwise, courts must apply the maxim falsus in uno, falsus in omnibus); Deering v. Metcalf, 74 NY 501 (1878); Washington Mut. Bank v. Holt, 113 AD3d 755, supra. Then, enforcing this centuries-old maxim, the courts can stop the prevalent cancerous practice of lying to courts.

Here, the defendant did receive notice of the foreclosure, and, in fact, waived jurisdictional defenses.

Finally, defendant, Emily Lavelle, does not have a reasonable excuse or a meritorious defense to the mortgage foreclosure action. See, Wells Fargo Bank, N.A. v. Pelosi, 2018 WL 1309762, 2018 NY Slip Op. 01634 (2nd Dept. 2018); Wells Fargo Bank, N.A. v. Shatles, 157 AD3d 750 (2nd Dept. 2018); FRT 2011-1 Tr. v. Duncan, 156 AD3d 867, 867 (2nd Dept. 2017); Kondaur Capital Corp. v. McAuliffe, 156 AD3d 778 (2nd Dept. 2017). The defendant's other arguments are all without any merit.

The defendant's motion is denied in all respects. The Court vacates all prior stays and restraints.

Finally, defense counsel failed to scan his papers—that is, both the OSC and the reply papers—on the NYSCEF system. The defendant's OSC had to be scanned and filed on NYSCEF by court personnel.

The foregoing constitutes the decision, order, and opinion of the Court.

Dated: April 19, 2018
Jamaica, New York
Honorable Salvatore J. Modica
J.S.C.