Beneficial Homeowner Serv. Corp. v Jordon-Thompson

[*1] Beneficial Homeowner Serv. Corp. v Jordon-Thompson 2018 NY Slip Op 51962(U) Decided on December 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2018
Supreme Court, Suffolk County

Beneficial Homeowner Service Corporation, Plaintiff,

against

Juliet A. Jordon-Thompson A/K/A JULIET JORDON THOMPSON A/K/A JULIET A. JORDON THOMPSON; DUDLEY THOMPSON; BENEFICIAL HOMEOWNER SERVICE CORPORATION; IMAN LINDOW; OLIVE STEWART, Defendants.



60821/2014



FEIN, SUCH & CRANE, LLP

Attorneys for Plaintiff

1400 Old Country Road, Suite C103

Westbury, NY 11590

JULIET JORDON-THOMPSON and

DUDLEY THOMPSON

Pro Se Defendants

BENEFICIAL HOMEOWNERS SERVICE CORP

111 Eighth Avenue, 13th Floor

New York, NY 10011

IMAN LINDOW

OLIVE STEWART
Robert F. Quinlan, J.

Upon the following papers read on this application for an order for summary judgment, to strike the answer of defendant, default judgment, amend the caption and appointment of a referee to compute; Notice of Motion dated February 22, 2018 and supporting papers; it is

ORDERED that this motion by plaintiff Beneficial Home Owner Service Corporation for an order striking the answer and affirmative defenses and counterclaims of defendant, granting summary judgment, and for an order of reference appointing a referee to compute pursuant to RPAPL § 1321 is denied; and it is further

ORDERED that plaintiff's motion to amend the caption to substitute U. S. Bank Trust, N.A. as Trustee for LSF10 Master Participation Trust as plaintiff is granted and the caption is to hereinafter read as follows:

X

US. BANK TRUST, N.A., AS TRUSTEE FOR LSF10

MASTER PARTICIPATION TRUST,

Plaintiff,

- against -

JULIET A. JORDON-THOMPSON A/K/A

JULIET JORDON THOMPSON A/K/A JULIET

A. JORDON THOMPSON; DUDLEY

THOMPSON; BENEFICIAL HOMEOWNER

SERVICE CORPORATION; IMAN LINDOW;

OLIVE STEWART,

Defendants.

X; and it is further

ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within 30 days of this order and all further proceedings will appear under the caption as above; and it is further

ORDERED that the limited issue trial set by the court's order of March 19, 2018 is scheduled for February 4, 2019 at 9:30 AM in Part 27, the Arthur M. Cromarty Court Complex, 210 Center Drive, 4th Floor, Riverhead, NY.

This is an action to foreclose a mortgage on residential real property known as 106 Locust Drive, Amityville, Suffolk County, New York. Plaintiff Beneficial Home Owner Service Corporation ("plaintiff") previously moved for summary judgment which was opposed by defendant. By order dated August 30, 2017 the court granted plaintiff partial summary judgment on its first motion (Seq. No.001) pursuant to CPLR 3212 (g) and set the action for a limited issue trial on the single issue of whether plaintiff included a second notice in the envelope with the RPAPL §1304 notice in violation of RPAPL §1304(2). This issue was raised by defendants for the first time in opposition to plaintiff's motion and was not raised as an affirmative defense by [*2]defendants as part of their answer. As there was no need for discovery the court directed plaintiff file a note of issue. Plaintiff filed a note of issue January 22, 2018 and the present motion February 22, 2018.

SUCCESSIVE SUMMARY JUDGMENT MOTIONS

ALLOWED

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]; Graham v City of New York, 136 AD3d 754 [2d Dept 2016]; 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, as here, 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 [1st Dept 2012]).

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]).

PLAINTIFF'S SUBMISSION FAILS TO ESTABLISH ONE NOTICE

Defendants have filed no opposition to this motion contesting the claim that RPAPL § 1304 (2) has been violated. It could be said that where, as here, defendants defaulted by failing to submit opposition to a motion for summary judgment, there is, in effect, a concession that no question of fact exists, and the facts as alleged in the moving papers may be deemed admitted (Kuehne & Nagel v Baiden, 36 NY2d 539 [1975]; NY Comm'l Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756 [2d Dept 2013]), but as a result of the court's decision and the setting of the limited issue trial, that is not the case. As the court's decision of August 30, 2017 had denied plaintiff full summary judgment and set the issue as to whether plaintiff violated the prohibition of RPAPL § 1304 (2) that the notice shall be sent in a separate envelope from any other mailing or notice for trial pursuant to CPLR § 2218, that issue remains for plaintiff to establish. As with any motion for summary judgment, the burden is upon plaintiff to establish its entitlement to judgment by proof submitted in evidentiary form. The proponent of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, providing sufficient evidence in admissible form 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 plaintiff's submission has [*3]not met that burden of proof on the sole remaining issue.

In the decision of August 30, 2017, the court noted that "Here, if plaintiff had incorporated both notices into one RPAPL § 1304 notice, this court would have found that notice complied with the statute." Plaintiff attempts to establish proof that the enclosures were all one mailing through the affidavit of Kolette Modlin, sworn to on February 14, 2018. Ms. Modlin attests to the fact that she is an employee of plaintiff's present servicer, Caliber Home Loans, Inc. ("Caliber") and establishes her ability to testify as to Caliber's business records pursuant to CPLR 4518. Even if the court accepted the argument that by incorporating the business records of prior servicers into Caliber's business records, those records became Caliber's business records and that therefore Ms. Modlin was able to testify to them as if they were Caliber's business records, a proposition that the court does not accept (see Standard Textile Company, Inc. v National Equipment Rental, Ltd., 80 AD2d 911 [2d Dept 1981]), her testimony would still be insufficient to establish plaintiff's burden of proof. Additionally, although Ms. Modlin attests to the fact that records acquired from prior servicers are incorporated into Caliber's records, as indicated below, the records that she is referring to in support of plaintiff's motion are not records of a prior servicer, but plaintiff's records. Ms. Modlin makes no reference to Caliber incorporating plaintiff's records into their records.

The RPAPL § 1304 notices ("the notices") were prepared and apparently mailed by plaintiff. (The court noted in the decision of August 30, 2017, as defendants did not contest the sufficiency of the proof of mailing in their answer or their opposition to plaintiff's motion, they waived that issue and any objections as to plaintiff's proof of mailing.) Without providing any basis or foundation for her ability to testify as to plaintiff's policy and procedures for preparing and mailing the notices, Ms. Modlin provides her own hearsay conclusions as to how the notices were allegedly prepared by plaintiff as "one notice" with the bankruptcy disclaimer as part of "the 'signatory' section of the pre-foreclosure notice." She fails to provide any basis for her conclusions that this is the practice of plaintiff "and/or its prior servicer(s)" to continue the pre-foreclosure notice and "signatory section" on to a separate page if it cannot fit on to one page.

She also fails to define what is meant by the term "signatory section." If by that she means where the notice or letter is signed, then the submission of the "three page" notice seems to belie that conclusion. The purported "first page" of the notice appears to be an independent document containing information different from that required by RPAPL § 1304, addressed to each defendant individually, introducing an employee of plaintiff who was designated to assist defendants and contains a capitalized and bold notice that there is enclosed an important communication regarding defendants' account. As evidence that this is a separate letter from the notice, the letter ends with "Sincerely," the typed name of the employee and a place for her signature. Following this "signatory section" are capitalized warnings required by federal law. This letter then ends.

The "second page," also addressed to each defendant individually, contains the language required by RPAPL § 1304. Below that language is a separate "signatory section" that starts "Sincerely" and continues on to the "third page" with a federally required bankruptcy notice at the end. Ms. Modlins' arguments in her affidavit appear to be that these two documents are one document; the court agrees with that as from its formatting alone, these last two pages appear to be one document. But that is not the issue.

Ms. Modlin and plaintiff's counsel ignore the "first page" altogether. This was the document that the court was referring to, and quoting from, in the decision of August 30, 2017. This is a separate letter enclosed in the same envelope. It has a separate ending "signatory section," described above, affirming that the letter has ended. There is no attempt by plaintiff in this submission to explain how this is part of the "one notice," and not a separate enclosure in violation of RPAPL § 1304 (2). The Third Dept has held that where defendant contests the issue, RPAPL § 1304 (2) requires that the record establish that the mailing of the RPAPL § 1304 notice was in a separate envelope from any other mailing or notices (see Tuthill Finance v Candlin, 129 AD3d 1375 [3rd Dept 2015], cited with approval on the issue of the applicability of RPAPL § 1304 by the Second Department in U.S. Bank v Richard, 151 AD3d 1001 [2d Dept 2017]).

In any event, Ms. Modlin's testimony is not proof in evidentiary admissible form, or competent, and is insufficient to support a summary judgment motion. Affidavit of a representative which failed to establish affiant's personal knowledge of business practices and procedures of plaintiff or a prior servicer is inadmissable as it failed to comply with the requirements of the Business Records Rule (CPLR 4518), and as such failed to provide proof establishing mailing of the notices required by RPAPL § 1304 or other issues such as standing, based upon affiant's review of those business records (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]; Citimortgage, Inc. v Pappas, 147 AD3d 900 [2d Dept 2017],; M & T Bank v Joseph, 152 AD3d 579 [2d Dept 2017]; Bank of New York Mellon v Lopes, 158 AD3d 662 [2d Dept 2018]; One West Bank, FSB vv Berino, 158 AD3d 811 [2d Dept 2018]; Bank of NY Mellon v Selig, 165 AD3d 872 (2d Dept 2018]). Ms. Modlin made no attempt to establish her familiarity with plaintiff's business practices and procedures.

Although compliance with RPAPL § 1304 has been held to be a statutory condition precedent that can be raised at any time, it has also been determined not to be jurisdictional (see PHH Mortgage Corp. v Celestin, 130 AD3d 703 [2d Dept 2015]; U.S. Bank N.A. v Carey, 137 AD3d 894 [2d Dept 2016]), therefore as with standing which also is not a jurisdictional defect, a court is not warranted to sua sponte dismiss a case, and this court refuses to do so (see Nationstar Mortg., LLC v Wong, 132 AD3d 825 [2d Dept 2015]; First United Mortg. Banking Corp v Lawani, 147 AD3d 912 [2d Dept 2017]).

Plaintiff's submission have sufficiently established the entitlement to amend the caption to substitute U. S. Bank Trust, N.A. as Trustee for LSF10 Master Participation Trust as plaintiff, and that application is granted.

Although, as defendants have appeared to made a conscious decision to abandon their defense of this action and are unlikely to further appear, the court is compelled by the issues raised herein and the failure of plaintiff's proof upon this motion to set the action for trial on the limited issue. If defendants fail to appear for trial and answer the calendar call as "ready to proceed," the court will take appropriate action at that time.

This action is set for trial on February 4, 2019 at 9:30 AM in Part 27, the Arthur M. Cromarty Court Complex, 210 Center Drive, 4th Floor, Riverhead, NY.

This constitutes the Order and decision of the Court.

DATED: December 12, 2018

__________________________________

HON. ROBERT F. QUINLAN, J.S.C