Bank of Am., N.A. v Geenangela Enters., LLC
Annotate this CaseDecided on September 20, 2018
Supreme Court, Suffolk County
Bank of America, N.A., Plaintiff,
against
Geenangela Enterprises, LLC, THOMAS GIARAMITA A/K/A THOMAS A. GIARAMITA, BANK OF AMERICA, N.A., NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, GREG GREEN, JON DOE #2, JOHN DOES #3, JOHN DOE #4, Defendants.
6166-2014
erkman, Henoch, Peterson, Peddy & Fenchel, PC
Attorneys for Plaintiff
100 Garden City Plaza
Garden City, N. Y. 11530
Carl M. Lawrence, Esq.
Attorney for Defendant Giaramita
23 Green Street, Suite 301
Huntington, N. Y,. 11743
Robert F. Quinlan, J.
Upon the following papers read on this application for an order granting plaintiff full summary judgment and, appointment of a referee pursuant to RPAPL § 1321; plaintiff's Notice of motion and supporting papers numbered 1-21; defendant Giaramita's opposition papers numbered 22-25, and plaintiff's reply papers numbered 26-33; it is,
ORDERED that plaintiff Bank of America's motion for full summary judgment dismissing defendant Thomas Giaramita's answer and appointing a referee pursuant to RPAPL § 1321 is granted; and it is further
ORDERED that defendant Thomas Giaramita's answer is dismissed and stricken; and it is further
ORDERED that plaintiff's proposed order submitted with this motion, as modified by the court, is to be signed contemporaneously with this order; and it further
ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, "plaintiff's submissions"; defendant(s) may submit written objections and proof in support thereof, "defendant's objections," to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference (CPLR 4311, RPAPL § 1321), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant's objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant's objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of [*2]foreclosure and sale; failure to submit defendant's objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, January 23, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined.
This is an action to foreclose a mortgage on real property known as 24 West 16th Street, Huntington, Station, Suffolk County, New York ("the property") given by defendant Thomas Giaramita ("defendant") to Countrywide Home Loans, Inc, a predecessor in interest to plaintiff Bank of America, N.A. ("plaintiff") prior to the commencement of this action. The prior history of the action, as well as the court's decision on Motion Seq. #001, is contained in the record of the oral argument and court's decision placed on the record on February 23, 2017. In that decision the court granted plaintiff partial summary judgment pursuant to CPLR 3212 (g), dismissing defendants' affirmative defenses, but denied plaintiff full summary judgment as there were issues of fact as to plaintiff's proof of mailing of the notice of default required by the mortgage as put in issue by defendant's denial of plaintiff's allegation in the complaint. In the decision the court held that although the content of the notice submitted by plaintiff was sufficient under the terms of the mortgage, plaintiff failed to establish its mailing. This single issue was set for a limited issue trial pursuant to CPLR § 2218, and a written discovery and scheduling order was issued at that time authorizing a limited period of discovery on the issue remaining for trial, as well as authorizing successive motions for summary judgment by the parties after the completion of discovery, but no later than 30 days after the filing of the note of issue.
SUCCESSIVE SUMMARY JUDGMENT MOTION
AUTHORIZED
Although plaintiff styles its motion as one seeking leave to renew, it is unnecessary as the court had granted the parties the right to successive summary judgment motions in its order of February 23, 2017. Here the parties entered into a certification order on September 13, 2017, indicating the completion of discovery and plaintiff filed a note of issue on October 17, 2017, twelve days after the filing of this motion, therefore this motion is made in compliance with the court's order of February 23, 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 [*3]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]). 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]). The authorized motion herein furthers the ends of justice, eliminates a burden on court resources required by a trial and is dispositive of the single issue remaining before the court.
PLAINTIFF ESTABLISHES MAILING
The court's decision placed on the record on February 23, 2017 determined that plaintiff had established all of the elements necessary to entitle it to summary judgment in this action, except proof of mailing of the notice of default under the mortgage, the content of which notice the court had found sufficient to comply with the terms of the mortgage. Plaintiff's submissions on this motion have established the mailing of that default notice through the affidavit of Nicole Renee Williams, an Assistant Vice President of plaintiff. Mr. Williams' affidavit established her ability to testify as to plaintiff's business records pursuant to CPLR 4518, as well as her familiarity with plaintiff's business practices and procedures to ensure that the notice of default was mailed to defendant at both the property and the last known address given by defendant to plaintiff. In addition, her affidavit refers to attached copies of portions of plaintiff's business records which are maintained upon the mailing of the notices as a record of the mailing. Here plaintiff chose to mail the notice to defendant at each address by both regular mail and certified mail. Her affidavit established that computer records were made of the mailing under plaintiff's practices and procedures, provided copies of those records establishing that the mailing were made on June 26, 2013, more than thirty days prior to the commencement of this action in 2014. Among the exhibits attached to Ms. William's affidavit is a copy of the signed "return receipt" for the certified mailing made to the last address given to plaintiff by defendant, as well as a copy of the certified mailing sent to the property marked by the USPS as "unclaimed." As noted in the court's decision on the record on February 23, 2017, there is no claim that plaintiff resided at the property at the time of the action.
To establish mailing, plaintiff may provide proof of actual 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 mailing can be established 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]; U.S. Bank, N.A. v Sims, [*4]162 AD3d 825 [2d Dept 2018]). Here, Ms. Williams' affidavit, and attached exhibits, show her familiarity with office practices and procedures of plaintiff for mailing of the notices, establishing those practices and procedures necessary to insure proper addressing and mailing the notices (see CitiMortgage, Inc v Pappas, 147 AD3d 900 [2d Dept 2017]; Wells Fargo Bank, NA v Trupia, 150 AD3d 1049 [2d Dept 2017]; J.P. Morgan Mtge. Acquistion Corp v Kagan, 157 AD3d 875 [2d Dept 2018]; US Bank, NA v Henderson, 163 AD3d 601[ 2d Dept 2018] ). Internal tracking records of plaintiff, supplied by an affiant, such as Ms. Williams, who is able to testify as to plaintiff's business records pursuant to CPLR 4518 (a) which show the notices were mailed, have been held sufficient to demonstrate that the notices were indeed mailed to defendants (see One West Bank, FSB v Simpson, 148 AD3d 920 [2d Dept 2017]; Citimortgage, Inc. v Wallach, 163 AD3d 520 [2d Dept 2018]).
DEFENDANTS' OPPOSITION FAILS TO RAISE A QUESTION OF FACT
As plaintiff's submissions demonstrated its entitlement to judgment as a matter of law, the burden of proof shifted to defendants to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action (see HSBC Bank USA v Merrill, 37 AD3d 899 [3d Dept 2007]; 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]). Accordingly, it was incumbent upon defendant 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., 64 NY2d 851 [1985]; Zuckerman v. City of New York, 49 NY2d 557 [1980]).
Defendant's submission, which consists merely of an affirmation of counsel, fails to meet this burden. There is no affidavit from defendant to contradict the fact that he had provided plaintiff with a mailing address other than the property, to claim that he did not reside at either the property or the mailing address, to deny that he did not sign the "return receipt," or to deny that he did not receive the default notice. Counsel attempts to raise a false issue as to the validity of plaintiff's business records by referring to the fact that there is a notation on one of the exhibits to Ms. Williams' affidavit that shows a 2017 computer program was used by plaintiff to produce that business record in 2017 for this motion. Counsel had been given the opportunity to have discovery on the issue of mailing, and perhaps if defendant's counsel had done so he could have found some facts to support his speculation that there is something here that either violates CPLR 4518 or is a "fraudulent document." In any event an affirmation of defendant's counsel who has no personal knowledge of the facts is without probative value, is not sufficient to a raise triable issue of fact and insufficient to defeat summary judgment (see Matter of Zlomek, 40 AD3d 774 [2d Dept 2007]; Barcov Holding Corp. v Bexin Realty Corp., 16 AD3d 282 [1st Dept 2005]; US National Bank Assn. v Melton, 90 AD3d 742 [2d Dept 2011]; Bank of NY Mellon v Aiello, _AD3d_, 2018 NY Slip Op 05741 [2d Dept, 2018]).
SUMMARY JUDGMENT GRANTED
Plaintiff's motion is granted as the affidavit of Ms. Williams and proof submitted by plaintiff have established the mailing of the notice of default required by the mortgage. As defendant's affirmative defenses had previously been dismissed, defendants' answer is now dismissed and stricken, plaintiff is granted judgment on its complaint, and plaintiff's application for the appointment of a referee to compute pursuant to RPAPL § 1321 is granted. Plaintiff's proposed order submitted with this motion, as modified by the court, is signed contemporaneously herewith.
This constitutes the Order and decision of the Court.
Dated: September 20, 2018
_______________________________________
Hon. Robert F. Quinlan, J.S.C.
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