Bank of Am., N.A. v Settineri

[*1] Bank of Am., N.A. v Settineri 2018 NY Slip Op 51090(U) Decided on April 24, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2018
Supreme Court, Suffolk County

Bank of America, N.A., Plaintiff,

against

Anthony Settineri; THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE HOLDERS OF CWHEQ, INC. HOME EQUITY LOAN ASSET BACKED CERTIFICATES, SERIES 2006-S9, SIM 3 MANAGEMENT CORP. D/B/A EMPIRE BONDING AGENCY, Defendants.



31170-2013



BERKMAN, HENOCH, PETERSON, PEDDY & FENCHEL, P.C.

Attorneys for Plaintiff

100 Garden City Plaza

Garden City, NY 11530

Donna M. Fiorelli, P.C. Attorney for Defendant

41 Front Street, 2nd Floor

Rockville Center, NY 11570
Robert F. Quinlan, J.

Upon the following papers read on this application for an order granting summary judgment dismissing defendants 4th and 10th affirmative defenses, dismissing and striking defendant's answer and appointment of a referee; plaintiff's Notice of Motion dated May 23, 2017, affirmations of counsel, affidavits, memorandum of law and attached exhibits; defendant's Notice of Cross Motion and opposition dated July 13, 2017 consisting of an affirmation of counsel and affidavit of defendant and attached exhibits; and plaintiff's memorandum of law in opposition to cross-motion and in reply dated July 26, 2017; it is,

ORDERED that plaintiff Bank of America, N. A.'s motion for full summary judgment dismissing defendant Anthony Settineri's 4th and 10th affirmative defenses, striking and dismissing his answer and for appointment of a referee to compute pursuant to RPAPL § 1321 is granted to the extent that defendant's 10th affirmative defense is dismissed, but defendant's 4th affirmative defense cannot be dismissed on this submission; and it is further

ORDERED that defendant Anthony Settineri's cross-motion to dismiss 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 June 15, 2018 at 9:30 AM, Cromarty Court Complex, 210 Center Drive, 4th floor, Rm 17, Riverhead, NY.

This is an action to foreclose a mortgage on residential real property known as 41 Glenmere Lane, Coram, Suffolk County, New York ("the property") given by defendant Anthony Settineri. ("defendant") to Concord Mortgage Corp. ("Concord"), an alleged predecessor in interest to plaintiff Bank of America, N.A. ("plaintiff"). Plaintiff previously moved for summary judgment dismissing defendants' affirmative defenses and answer, appointment of a referee pursuant to RPAPL § 1321, fixing the default of the non-appearing, non-answering defendants, and other ancillary relief (Mot. Seq. # 001), and defendant filed opposition. After oral argument of the motion on October 20, 2016, the court issued a decision on the record which, among other things, granted plaintiff partial summary judgment dismissing all of defendant's affirmative defenses except his 4th affirmative defense, which raised a claim of compliance with the notice requirement of RPAPL § 1304 and his 10th affirmative defense which raised the issue of plaintiff's standing to bring the action, as questions of fact remained as to these issues based upon the proof before the court, and set those issues for a trial pursuant to CPLR § 2218. The court granted plaintiff's application to fix the default of the non-answering, non-appearing defendants and to amend the caption by removing the "John Doe" defendants. The court also authorized successive motions for summary judgment by the parties after the discovery period and the filing of a note of issue.

Upon completion of discovery and filing of a note of issue, plaintiff filed a second motion for summary judgment addressing the issues set for the limited issues trial. Defendant opposed the motion and cross-moved to dismiss based upon plaintiff's lack of standing to bring the action (10th affirmative defense), failure to comply with the notice requirements of RPAPL § 1304, and for the first time, failure to establish compliance with RPAPL § 1306 (both 4th affirmative defense). Plaintiff filed a memorandum of law in opposition and reply.

Although both parties style their motions as seeking leave to renew, renewal is unnecessary as in its order of October 20, 2016 the court had granted them the right to successive summary judgment motions after the filing of the 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 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]). Here the court had concluded that by allowing successive summary judgment motions, the court could eliminate the need for a trial.

PLAINTIFF ESTABLISHES STANDING

Where plaintiff's standing has been placed in issue by defendant's answer, plaintiff must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor, 25 NY3d 355 [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 of the note 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]). A "holder" of the note is a person in possession of the negotiable instrument that is payable either to bearer or an identified person in possession (UCC 1-201 [b] [21], 3-202 [1], 3-204 [2]; see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683 [2d Dept 2016]; US Bank Natl. Assoc. v Cruz, 147 AD3d 1103 [2d Dept 2017]).

Here to establish its standing, in addition to counsel's affirmation and submissions, plaintiff submits the affidavit of an officer of plaintiff, who establishes her ability to testify to plaintiff's business records pursuant to CPLR 4518. Defendant in his opposition argues that the affiant never reveals the office she holds; that is of no moment. There is no requirement that an employee of a business who establishes her ability to testify to the business records and practices of that business hold any particular position/office. It is enough, as here, that the affiant testifies that she is employed/holds a position with the business, that she is familiar with the records maintained by the business, that she has personal knowledge of the business's practices and procedures for creating and [*2]maintaining the records, that the records were made at or about the time of the occurrences by someone with personal knowledge of the events, that they are kept in the regular course of the business and that it was the regular course of the business to make such records. The affidavit of plaintiff's employee submitted in support of this motion satisfied these requirements. Her review of plaintiff's records reveals that the original note, indorsed by Concord on the back of the last page of the note, in blank and undated was in plaintiff's possession as of December 7, 2006, well before the filing of this action in 2013. She refers to, and identifies in her affidavit, a copy of a print-out from plaintiff's records, attached as an exhibit to her affidavit, which confirms the date of the possession of the note, and also identifies copies of the indorsed note and the original mortgage, also attached to her affidavit. Her affidavit, attachments thereto, and plaintiff's submissions, establish plaintiff's standing as holder of the note prior to commencement of the action. An affidavit of plaintiff's representative based upon personal knowledge and review of books and business records maintained by plaintiff in the ordinary course of business that establishes the facts of plaintiff's possession of the indorsed note on a date prior to commencement of the action are sufficient to establish plaintiff's standing (see Aurora Loan Services, LLC v Taylor, supra; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099 [2d Dept 2015]; Wells Fargo Bank, N.A. v Joseph, 137 AD3d 896 [2d Dept 2016]; Flagstar Bank v Mendoza, 139 AD3d 898 [2d Dept 2016]; US Bank, NA v Ellis, 154 AD3d 710 [2d Dept 2017]).

Further, an indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed (UCC 3-204[2]). "Bearer" means a person in possession of a negotiable instrument (UCC1-201[b][5]). There is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (UCC 3-204[2]). It is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date (see Aurora Loan Services, LLC v. Taylor, 25 NY3d at 362; JPMorgan Chase Bank, NA v Weinberger, 142 AD3d 643 [2d Dept 2016]; Deutsche Bank Natl. Trust Co. v Logan, 146 AD3d 861 [2d Dept 2017]; US Bank N.A. v Coppola, 156 AD3d 934 [2d Dept 2017]).

Plaintiff's motion to dismiss defendant's 10th affirmative defense is granted.

MAILING OF RPAPL § 1304 NOTICES NOT ESTABLISHED

Although plaintiff's affiant has established her ability to testify as plaintiff's business records, she fails to provide sufficient proof of mailing of the notices required by RPAPL § 1304 ("the notices"), merely stating that her review of the records show the notices were mailed by regular and certified mail, gives dates of the mailing, and refers to copies of the notices submitted, but provides no actual proof that they were mailed, either by an affidavit of mailing or by establishing plaintiff's office practices and procedures to ensure proper mailing.

Unsubstantiated and conclusory statements in an affidavit of plaintiff's representative, 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]; Cenlar, FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; US Bank, NA v Sabloff, 153 AD3d 879 [2d Dept 2017]). To establish mailing, plaintiff may provide proof of actual [*3]mailing or a 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 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, supra).

Even if, where as here, affiant establishes her ability to testify as to the business records pursuant to CPLR 4518, if the affiant merely states that a review of the records establishes the notices were mailed by plaintiff by both regular and certified mail on a certain date, such statements are unsubstantiated, conclusory and insufficient to establish the mailing required by RPAPL § 1304 (see JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536 [2d Dept 2016]; Cenlar FSB v Censor, 139 AD3d 781 [2d Dept 2016]). The affiant must show her familiarity with office practices and procedures to establish practices and procedures to insure proper addressing and mailing (see 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]; J.P. Morgan Mtge. Acquistion Corp v Kagan, 157 AD3d 875 [2d Dept 2018]; Bank of America, NA v Wheatley, 158 AD3d 736 [2d Dept 2018]).

As this record fails to establish proof of mailing of the notices, plaintiff's application to dismiss defendant's 4th affirmative defense is denied.

COMPLIANCE WITH RPAPL § 1306 NOT ESTABLISHED

The fact that plaintiff failed to address compliance with RPAPL § 1306 ("the filing") in its motion is understandable, for as indicated in the decision of October 20, 2016, in opposing Mot. Seq. # 001 defendant only raised the claim of plaintiff's failure to meet the mailing requirements of RPAPL § 1304 in support of his overly broad and non-specific 4th affirmative defense; there was no mention of failure to make the filing. The first time the issue of the filing was raised by defendant was in his cross-motion and opposition (Mot. Seq. #003). Yet, once it was raised, and having not submitted proof of the filing with Mot. Seq. #001, the court expected that plaintiff would have provided proof of its compliance in reply, which would have been proper (see Central Mtge. Co v Jahnsen, 150 AD3d 661 [2d Dept 2017]). However, plaintiff provided no proof of filing, instead relying on an argument that "the law of the case" in the October 20, 2016 decision established the filing. The court's decision made no reference to that fact, as the only "condition precedent" raised by defendant in response to Mot. Seq. #001 was RPAPL § 1304 (see plaintiff's Exhibit "1" and defendant's Exhibit "A").

Proof of compliance with the filing is a condition precedent to the commencement of a foreclosure action governed by the requirements of RPAPL Article 13 (see TD Bank v Leroy, 121 AD3d 1256 [3rd Dept 2014], cited with approval in Hudson City Savings Bank v Seminario, 149 [*4]AD3d 706 [2d Dept 2017]). Like any other defense involving a statutory condition precedent in Article 13 of the RPAPL, compliance with the filing requirement can be waived if not raised and plaintiff would not be required to prove compliance, (see Citimortgage v. Espinal, 134 AD3d 876 [2d Dept, 2015]; U.S. Bank N.A. v Carey, 137 AD3d 894 [2d Dept 2016]; Flagstar Bank, FSB v Jambelli, 140 AD3d 829 [2d Dept, 2016]). As defendant did not raise it in Mot. Seq. #001, plaintiff could argue that it was waived, such an argument fails for two reasons.

First, like other RPAPL Article 13 conditions precedent, it can be raised at any time by defendant (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 [2d Dept 2010]; Aurora Loan Services v Weisblum, 85 AD3d 95 [2d Dept 2011]; Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909 [2d Dept 2013]), even as late as on a motion for a judgement of foreclosure (see Emigrant Mtge Co, Inc. v Lifshitz, 143 AD3d 755 [2d Dept 2016]). Only on appeal has it been held too late to raise it (see 40 B, LLC v Katalikarn, 147 AD3d 710 [2d Dept 2017]; Bank of America, NA v Barton, 149 AD3d 676 [2d Dept 2017]; Bank of America, N.A. v Cudjoe, 157 AD3d 653 [2d Dept 2018]). Once raised, plaintiff is required to prove compliance (see Bank of New York v Aquino, 131 AD3d 1186 [2d Dept 2015]; Citimortgage v Espinal, supra; Cenlar FSB v Weisz, 136 AD3d 855 [2d Dept 2016]; Zarabi v Movahedian, 136 AD3d 895 [2d Dept 2016]; M & T Bank v Joseph, 152 AD3d 579 [2d Dept 2017]).

Second, as plaintiff plead compliance with the filing in paragraph 9 of its complaint, an allegation denied by defendant's answer, plaintiff was required to prove compliance (see JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536 [2d Dept 2016]; Bank of New York Mellon v Zavolunov, 157 AD3d 754 [2d Dept 2018]; Pennymac Corp. v DiPrima, 54 Misc 3d 990 [Sup. Ct., Suffolk County 2016]).

Where, as here, plaintiff's submissions fail to establish proof of filing with the State Banking Dept./ Dept. Of Financial Services as required by RPAPL § 1306, summary judgment must be denied, regardless of the sufficiency of defendants opposition papers (see Hudson City Savings Bank v Seminario, supra); here serving a an additional basis for not dismissing defendant's 4th affirmative defense.

DEFENDANT'S CROSS-MOTION IS DENIED

Defendant's cross-motion to dismiss is denied. The court notes that as with defendant's 4th affirmative defense which failed to specify with particularity the conditions precedent plaintiff allegedly failed to comply with, his notice of cross-motion fails to set forth the grounds upon which he seeks dismissal. CPLR 2215 and 2214 (a) require that a notice of motion include "the relief requested," as well as "the grounds thereof." Defendant's notice only states that it requests "[t]o dismiss the Plaintiff's action and/or deny the Plaintiff's Motion " without setting forth the grounds for dismissal. The court recognizes that the basic form for a notice of motion set forth in 22 NYCRR 202.7 fails to clearly list this requirement, and that failure to cite statute or case law for grounds in a notice of motion does not warrant denial if the other papers submitted adequately set forth the grounds in support for the motion, (see Blauman-Spindler v Blauman, 68 AD3d 1105 [2d Dept 2009]; Bank of America, N.A. v Diaz, _AD3d_, 2018 NY Slip Op 02421 [1st Dept 2018]), but defendant's continued reliance upon broad, open ended claims in his papers that do not adequately establish grounds in support of his motions despite statutory and case law requirements is [*5]disappointing and concerning.

DISMISSAL FOR LACK OF STANDING DENIED

A defendant who moves to dismiss for lack of standing has the burden to establish plaintiff's lack of standing as a matter of law (see LGF Holdings, LLC v Skydel, 139 AD3d 814 [2d Dept 2016]; MLB Sub I, LLC v Bains, 148 AD3d 881 [2d Dept 2017]; US Bank, N. A. v Cohen, 156 AD3d 844 [2d Dept 2017]). As noted above, plaintiff has established its standing as a matter of law. Defendant in his cross-motion presents no evidence in admissible form to contradict plaintiff's proof or raise a triable issue of fact, let alone establish his entitlement to summary judgment in his favor on the issue of standing. Although defendant is correct in his assertion that a plaintiff who attempts to establish its standing through an assignment of a mortgage that involves Mortgage Electronic Registration Systems, Inc. as nominee fails to do so (see Mortgage Elec. Registration Sys., Inc. v Coakley, 41 AD3d 674 [2d Dept 2007]; Bank of New York v Silverberg, 86 AD3d 274 [2d Dept 2011]; Aurora Loan Servs., LLC v Baritz, 144 AD3d 618 [2d Dept 2016]), that argument is irrelevant here. Plaintiff attempted to rely on such proof in Mot. Seq. #001, in this motion plaintiff does not rely on that proof. The claim for dismissal in defendant's cross-motion based upon lack of standing is dismissed.

DEFENDANT'S CLAIM FOR DISMISSAL PURSUANT TO RPAPL §§ 1304 AND 1306 IS DENIED

Defendant raises these issues in a manner that is similar to the vague drafting of his 4th affirmative defense and in addressing his opposition on this point in Mot. Seq. #001. The 4th affirmative defense merely claimed plaintiff failed to comply "with conditions precedent" to foreclosure, without any specificity. CPLR 3013 requires that a defense be raised with particularity as to give notice of the elements of each defense; defendant's 4th affirmative defense failed to do this. Yet, as no objection on this point was raised by plaintiff, because the court was aware that a defendant can raise an RPAPL § 1304 defense at virtually anytime (see Aurora Loan Services v Weisblum, supra; Citimortgage v Espinal, supra; Emigrant Mtge Co, Inc. v Lifshitz, supra) and that it has been held that where plaintiff, as here, alleges in its complaint that it served the notices required by RPAPL § 1304, in support of its motion for summary judgment, plaintiff must prove its strict compliance with RPAPL § 1304 (see JPMorgan Chase Bank, N.A. v Kutch, supra; Pennymac Corp. v Di Prima, supra), the court addressed that issue in its decision of October 20, 2016. Once pled by plaintiff in its complaint and denied by defendant in his answer and affirmative defenses, it is plaintiff's responsibility to establish compliance with RPAPL§§ 1304 and 1306 as part of its prima facie case (see Bank of New York v. Aquino, 131 AD3d 1186 [2d Dept 2015]; Zarabi v. Movahedian, 136 AD3d 895 [2d Dept 2016]; Cenlar FSB v. Weisz, 136 AD3d 855 [2d Dept 2016]; JPMorgan Chase Bank, N.A. v. Kutch, supra; Aurora Loan Servs., LLC v. Baritz, 144 AD3d 618 [2d Dept 2016]).

Defendant's submission only raises questions of compliance which would preclude plaintiff obtaining judgment, it does not establish that the filing was not made. As with any motion for summary judgment, defendant's burden on this issue is to establish by evidentiary proof in admissible [*6]form that the filing was not made. 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]). Here defendant has not established that plaintiff failed to make the filing with DFS, his claim for dismissal on this basis is denied.

Defendant has also failed to establish as a matter of law that plaintiff did not mail the notices as required by RPAPL § 1304. A defendant who moves for summary judgment dismissing the complaint for failure of plaintiff to comply with the mailing requirements of RPAPL § 1304, just as any movant for summary judgment, has the burden to establish plaintiff's failure to comply as a matter of law (see LGF Holdings, LLC v Skydel, supra; MLB Sub I, LLC v Bains, supra). 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 Winegrad v. New York University Medical Center, 64 NY2d 851[1985]; Gilbert Frank Corp. v. Federal Insurance, 70 NY2d 966[1988]; Jacobsen v New York City Health & Hospitals Corp., supra; William J Jenack Estate Appraiser and Auctioneers v Rabizadeh, supra; Torres v. Industrial Container, 305 AD2d 136 [1st Dept 2003]). A party moving for summary judgment bears the heavy burden of establishing a prima facie showing of entitlement to a judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Deleon v NY City Sanitation Dept., 25 NY3d 1102, 1106 [2015]). As with standing, the burden is not on plaintiff to establish compliance with the mailings for defendant's motion to be denied, it is sufficient if it raises questions of fact (see HSBC Bank USA v Lewis, 134 AD3d 764 [2d Dept 2015]; U. S. Bank, Nat. Assoc. v Noble, 144 AD3d 786 [2d Dept 2016]; New York Community Bank v McClendon, 138 AD3d 805 [2016]; Aurora Loan Servs, LLC v. Komarvsky, 151 AD3d 924 [2d Dept 2017]). If defendant fails to establish plaintiff's lack of mailing, its motion is to be denied (see US Bank N.A. v Weinman, 123 AD3d 1108 [2d Dept 2014]; Flagstar Bank, FSB v Campbell, 137 AD3d 853 [2d Dept 2016]). As defendant failed to meet this burden, this portion of defendant's cross-motion is also denied.

LIMITED ISSUE TRIAL

Since the court is setting the issue of plaintiff's compliance with proof of mailing of the notices and proof of filing required by RPAPL § 1306 for a limited issue trial, the court wishes the parties to be aware that these are the only issues for that trial. All defendant has raised in opposition to Mot. Seq. #001, in opposition to Mot. Seq. #002 and in support of his Mot. Seq. # 003 is plaintiff's failure to establish the mailing of the notices, and now in Mot. Seq. #003, a claim that there was a failure to provide proof of compliance with the filing with the DFS required by RPAPL § 1306.

Defendant has not raised any other objections to plaintiff's compliance with statutory conditions precedent under Article 13 of the RPAPL. Defendant has raised no objection to RPAPL § 1304 other than arguing the proof of mailing of the notices is insufficient. Having failed to raise any other claims as to Article 13 of the RPAPL or RPAPL §§ 1304 and 1306 compliance, defendant [*7]has now waived any other possible claims of failure to comply with these statutes. The court recognizes that the Second Department has held that compliance with conditions precedent in Article 13 of the RPAPL, and more specifically RPAPL § 1304, may be raised at anytime , as cited above, but having raised compliance with the statute, can a defendant and his counsel continue to raise it piecemeal, a "slice" at a time? The Second Department has held that compliance with RPAPL § 1304 may be waived if not raised timely, as cited above; applying that principle, if a defendant has raised compliance with RPAPL § 1304 but only as to one issue involved in compliance with that statute, has not defendant waived other issues that were then clearly available to him, but not raised? It has long been recognized as a general principle of summary judgment that a moving party, as well as its opponent, is required to assemble and lay bare all its proof in support, or opposition, of the motion (see Maurice O'Meara Co. v. National Park Bank of New York, 239 NY 386 [1925]; Dodwell & Co. I.nc. v. Silverman, 234 AD 362 [1st Dept 1932]; M & S Mercury Air Conditioning Corp. v. Rodolitz, 24 AD2d 873 [2d Dept 1965]). Failure to do so is done at the party's risk, as movant bears the heavy burden of establishing a prima facie showing of entitlement to judgment as a matter of law, providing sufficient proof to demonstrate the absence of any material issue of fact (see Deleon v. New York City Sanitation Dept., supra) and an opponent has to produce evidentiary proof in admissible form sufficient to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see, Washington Mut. Bank v Valencia, 92 AD3d 774 [2d Dept 2012]; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Applying this principle to this case, the court finds that as to RPAPL § 1304 compliance, defendant has waived any other claim of defect in plaintiff's submission or notices other than the proof of mailing of the notices. Any attempt to raise new claims for the first time at trial will be denied. This is not a situation as the court faced in Citimortgage v Bunger, 58 Misc 3d 333 (Sup. Ct., Suffolk Co. 2017) where the court had left the record open through conducting multiple oral arguments. Here the record has been closed.

Additionally, the court notes that plaintiff has proven compliance with the notice requirements of RPAPL § 1303. The affidavits of service provided with plaintiff's Mot. Seq. #001 establish that the notice was served. As with service of the summons and complaint, a defendant's claim of non-service is insufficient in face of a proper affidavit of service which includes the RPAPL § 1303 notice (see Deutsche Bank Natl. Trust Co. v Hussain, 78 AD3d 989 [2d Dept 2010]; U. S. Bank Natl. v. Tate, 102 AD3d 859 [2d Dept 2013]; Onewest Bank, NA v Mahoney, 154 AD3d 770 [2d Dept 2017]; Nationstar Mtg., LLC v Kamil, 155 AD3d 966 [2d Dept 2017]).

As the parties have now had an opportunity to file two motions for summary judgment, the court will entertain no such further motions, this case is to be tried.

Having denied defendant's cross-motion, granted plaintiff's motion to dismiss defendant's 10th affirmative defense, but denying dismissal of defendant's 4th affirmative defense as to whether mailing of the notices pursuant to RPAPL § 1304 has been established, and whether filing of the notice required by RPAPL § 1306 was accomplished, the court sets these issues for a limited issue trial to be held on June 15, 2018 at 9:30 AM in this part.

This constitutes the Order and decision of the Court.

Dated: April 24, 2018

_______________________________________

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