TD Bank, NA v Tiska

[*1] TD Bank, NA v Tiska 2018 NY Slip Op 51442(U) Decided on October 5, 2018 Supreme Court, Suffolk County Whelan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2018
Supreme Court, Suffolk County

TD Bank, NA, successor by merger to Commerce Bank, NA, Plaintiff,

against

Patricia M. Tiska and COMMISSIONER OF TAXATION AND FINANCE, Defendants.



618214/16 E



DUANE MORRIS LLP

Attys. For Plaintiff

1540 Broadway

New York, NY 10036

CHARLES WALLSHEIN, ESQ.

Atty. For Defendant Tiska

35 Pinelawn Rd. - Ste. 106E

Melville, NY 11747
Thomas F. Whelan, J.

Upon the following papers numbered 1 to 9read on this motionfor Judgment of Foreclosure and Sale, among other things and cross motion to dismiss; Notice of Motion/Order to Show Cause and supporting papers 1 - 4; Notice of Cross Motion and supporting papers:5-7; Opposing papers: 8-9; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,

ORDERED that this motion (#002) by the plaintiff for leave to enter a judgment of foreclosure and sale, pursuant to Real Property Actions and Proceedings Law (RPAPL) §1351, is granted; and it is further

ORDERED that the cross motion (#003) by the defendant, Patricia Tiska, seeking a referee's hearing pursuant to CPLR § 4313 is denied in its entirety; and it is further

ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further

ORDEREDthat plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).

Familiarity with this Court's Order of March 7, 2018 is presumed, wherein the Court granted plaintiff's motion for a default judgment as against non-appearing defendants, Patricia Tiska and Commissioner of Taxation and Finance, and the appointment of a referee to compute. The plaintiff now moves (#002) for confirmation of referee Christopher Modelewski, Esq.'s report and leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. The defendant, Patricia Tiska, opposes the motion and cross moves (#003) for a referee's hearing or, in the alternative, recalculation of the amounts owed.[FN1]

The Court notes that the defendant remains in default in this action as adjudicated in this Court's March 27, 2018 Order, as she failed to answer or otherwise respond to the complaint. By doing so, she has waived any and all potential defenses (see Washington Mutual Bank, FA v Milford-Jean-Gille, 153 AD3d 754, 59 NYS3d 781 [2d Dept 2017]; MidFirst Bank v Ajala, 146 AD3d 875, 44 NYS3d 771 [2d Dept 2017]; Emigrant Bank v Marando, 143 AD3d 856, 39 NYS3d 83 [2d Dept 2016]; HSBC Bank USA, Natl. Assn. v Hasis, 154 AD3d 832, 62 NYS3d 467 [2d Dept 2017]; Bank of America, N.A. v Agarwal, 150 AD3d 651, 57 NYS3d 153 [2d Dept 2017]). Consequently, it was incumbent upon the defendant to establish grounds for a vacatur of her default prior to opposing the instant motion. Here, no grounds for such a vacatur are discernable from the [*2]defendant's papers.

Notwithstanding, the defendant's claims are rejected, and the cross motion denied. First, defendant's inference regarding CPLR § 4313 is incorrect, as the terms of that provision do not unequivocally require the scheduling of a hearing. CPLR 4313 states that "(u)nless the order of reference otherwise provides, the referee shall forthwith notify the parties of a time and place for the first hearing to be held within twenty days after the date of the order or shall forthwith notify the court that he declines to serve" (CPLR 4313, emphasis added).Here, the Court's March 27, 2018 Order did indeed provide otherwise, as it states that the referee in this action "is hereby directed to ascertain the sums due and owing to the plaintiff and to determine whether the premises can be sold in parcels. No hearing shall be required as the referee is appointed to hear and report, which is purely a ministerial act." Thus, the referee was not required to conduct a hearing prior to issuing the report (see Deutsche Bank Natl. Trust Co. v Williams, 134 AD3d 981, 20 NYS3d 907 [2d Dept 2015]; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 13 NYS3d 97 [2d Dept 2015]; Capital One, NA v Knollwood Prop. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]).

The defendant's contentions regarding the admissibility of evidence relied upon by the referee in ascertaining the amounts due to plaintiff are also unsupported. Plaintiff submits the Affidavit of Sums of Sean Boulanger, an officer for the plaintiff herein, which was sworn to on July 6, 2018. A business record will be admissible if that record "was made in the regular course of any business and ... it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (One Step Up, Ltd. v Webster Bus. Credit Corp., 87 AD3d 1, 925 NYS2d 61 [1st Dept 2011]; see CPLR 4518[a]). Here, Mr. Boulanger states that his averments in the affidavit are based on his own review and personal knowledge of the plaintiff's business records which are created and maintained in the regular course of plaintiff's business, and that it is the regular practice of plaintiff to make such records. The affidavit adequately sets forth the basis of Mr. Boulanger's knowledge, establishes the admissibility of the documents appended to the affidavit as business records, and comports with the dictates of both Nationstar Mtge., LLC v LaPorte (162 AD3d 784, 79 NYS3d 70 [2d Dept 2018]) and HSBC Bank USA v Ozcan (154 AD2d 822, 64 NYS3d 38 [2d Dept 2017]) (see also Bank of America, Natl. Assn. v Brannon, 156 AD3d 1, 63 NYS3d 352 [1st Dept 2017]; Olympus America, Inc. v Beverly Hills Surgical Inst., 110 AD3d 1048, 974 NYS2d 89 [2d Dept 2013]; DeLeon v Port Auth. of NY & N.J., 306 AD2d 146, 761 NYS2d 54 [2d Dept 2003]), and satisfies the admissibility requirements of CPLR 4518(a) (see City Natl. Bank v Foundry Dev. Group, LLC, 160 AD3d 920, 72 NYS3d 491 [2d Dept 2018]; Stewart Title Ins. Co. v Bank of New York Mellon, 154 AD3d 656, 61 NYS3d 634 [2d Dept 2017]; Citigroup v Kopelowitz, 147 AD3d 1014, 1015, 48 NYS3d 223 [2d Dept 2017]; see generally Citimortgage, Inc. v Espinal, 134 AD3d 876, 23 NYS3d 251 [2d Dept 2015]).

The referee attested to his review of plaintiff's Affidavit of Sums in the Schedule of Documentary Evidence. His computation was premised upon business records produced by plaintiff in support of the instant motion (see Galasso, Langione & Botter, LLP v Galasso, 89 AD3d 897, 933 NYS2d 73 [2d Dept 2011]; cf. Citimortgage, Inc. v Kidd, 148 AD3d 767, 49 NYS3d 482 [2d Dept 2017]). Although the court is not bound by the referee's findings, the report of a referee should be confirmed whenever the findings are substantially supported by the record (see Citimortgage, Inc. v Kidd, 148 AD3d 767, supra; Matter of Cincotta, 139 AD3d 1058, 32 NYS3d 610 [2d Dept 2016]; Hudson v Smith, 127 AD3d 816, 4 NYS3d 894 [2d Dept 2015]). In response to the defendant's [*3]allegations regarding the figures and amount due, the plaintiff notes that upon a subsequent review, it was revealed that the amount enumerated as "taxes" in plaintiff's Affidavit of Sums was misstated. First, the payments are not taxes, but are homeowner association fees which plaintiff must pay to protect plaintiff's lien on the premises. More importantly, though, one check payment that was made to the homeowner association was returned to plaintiff and, therefore, the plaintiff is not entitled to that amount as part of the judgment of foreclosure and sale. As such, the plaintiff requests that the amount due to plaintiff for principal and interest through April 10, 2018 as noted in the Report of Amount Due Plaintiff be amended to reflect $60,461.81. The Court grants this request.

Under the circumstances of this case, the referee was not required to conduct a hearing prior to issuing the report (see Deutsche Bank Natl. Trust Co. v Williams, 134 AD3d 981, 20 NYS3d 907 [2d Dept 2015]; Wachovia Mtge. Corp. v Lopa, 129 AD3d 830, 13 NYS3d 97 [2d Dept 2015]; Capital One, NA v Knollwood Prop. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). The defendant has been provided an opportunity to raise and submit proof on all issues before this Court (see Deutsche Bank Natl. Trust Co. v Zlotoff, 77 AD3d 702, 908 NYS2d 612 [2d Dept 2010]; Federal Deposit Ins. Corp. v 65 Lenox Road Owners Corp., 270 AD2d 303, 704 NYS2d 613 [2d Dept 2000]; Adelman v Fremd, 234 AD2d 488, 651 NYS2d 604 [2d Dept 1996]; Stein v American Mtge. Banking, Ltd., 216 AD2d 458, 628 NYS2d 162 [2d Dept 1995]). However, the defendant has failed to do so with her opposition, as she has provided nothing more than conclusory assertions and no admissible evidence contradicting the referee's finding. There is no prejudice to the defendant.

The portion of plaintiff's motion seeking attorney's fees is also granted, as the terms of the subject loan documents allows for same. Here, plaintiff has supplied the Court with an affirmation of services and is requesting a total of $22,782.00. However, these fees are not supported by detailed billing sheets specifying the hours reasonably expended or the prevailing hourly rate for similar legal work in the community (see People's United Bank v Patio Gardens III, LLC, 143 AD3d 689, 38 NYS3d 262 [2d Dept 2016]; SO/Bluestar, LLC v Canarsie Hotel Corp., 33 AD3d 986, 988, 825 NYS2d 80, [2d Dept 2006]). Notwithstanding the foregoing, the Court finds $8,000.00 to be reasonable, and will award plaintiff same (see Vigo v 501 Second Street Holding Corp., 121 AD3d 778, 994 NYS2d 354 [2d Dept 2014]).

In accordance with the above, the Court grants plaintiff's motion (#002) in its entirety, denies defendant's cross motion (#003), and signs the proposed Order, as modified.

DATED: October 5, 2018

____________________________

THOMAS F. WHELAN, J.S.C. Footnotes

Footnote 1:The Court notes that on September 24, 2018, the parties filed a stipulation which purported to withdraw plaintiff's motion (#002) and defendant's cross motion (#003) and noted that the parties would be seeking a hearing before the referee within the next thirty days. Such arrangement is contrary to the directives of the Court's prior Order, and therefore, is not recognized by the Court.