Bank of Am., N.A. v Bias

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Bank of Am., N.A. v Bias 2019 NY Slip Op 31528(U) May 29, 2019 Supreme Court, New York County Docket Number: 850066/2017 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 05/31/2019 11:10 AM NYSCEF DOC. NO. 90 INDEX NO. 850066/2017 RECEIVED NYSCEF: 05/31/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ARLENE P. BLUTH PART · IAS MOTION 32 Justice ------------------------------------------~-------------------------------------X BANK OF AMERICA, N.A., INDEX NO. MOTION DATE 850066/2017 N/A, N/A Plaintiff, MOTION SEQ. NO. 002 -vJERRY BIAS, LAUREN BIAS, JPMORGAN CHASE BANK, N.A., THE CITY OF NEW YORK, A MUNICIPAL CORPORATION ACTING BY AND THROUGH ITS DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, BOARD OF MANAGERS OF THE 1400 FIFTH AVENUE CONDOMINIUM, UNITED STATES OF AMERICA O/B/O INTERNAL REVENUE SERVICE, JOHN DOE #1 THROUGH #6, AND JANE DOE #1 THROUGH #6, THE . LAST TWELVE NAMES BEING FICTITIOUS, IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS, TENANTS, PERSONS OR CORPORATIONS, IF ANY, HAVING OR CLAIMING AN INTEREST IN OR LIEN UPON DECISION AND ORDER OF REFERENCE Defendant. ------------~--------------------------------~------------~c---------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 46, 47, 48, 49, 50, 51,52, 53, 54, 55, 56, 57, 58;59,60,61,62,63,64,65,66,67,68, 69, 70, 71, 72, 73, 74, 75, 76,.77, 78, 79,80,81, 82,83,84,85, 86, 87, 88, 89 . JUDGMENT-SUMMARY were read on this motion to/for The motion by plaintiff to deem defendant Jerry Bias timely served, for summary judgment and to appoint a referee to compute is granted. The cross-motion by defendant Lauren Bias to dismiss, or for a stay, is denied. Background In this mortgage foreclosure action, plaintiff seeks to recover on a note worth over $1 million to secure a property located at 1400 5th Avenue in Manhattan. Plaintiff claims that the Biases failed to make the monthly payments starting in March 2016. 850066/2017 BANK OF AMERICA, N.A. vs. BIAS, JERRY Motion No. 002 002 ; . 1 of 6 Page 1of6 [*FILED: 2] NEW YORK COUNTY CLERK 05/31/2019 11:10 AM NYSCEF DOC. NO. 90 INDEX NO. 850066/2017 RECEIVED NYSCEF: 05/31/2019 In opposition, defendant Lauren Bias observes that she has been attempting to get a loan modification but is unable to because she is divorced from defendant Jerry Bias (who is the borrower and sole signatory on the note). Ms. Bias claims that in the divorce, she agreed to take responsibility for the property but is unable to do so because there is an IRS lien owed by Jerry and he owes more than $400,000 in child support. Ms. Bias also contends that the 90-day notice was never sent and wonders why several copies of the notices were sent to an address other than the subject premises (219 East 31st Street C/O Deborah B. Kahn). Ms. Bias argues that plaintiff cannot establish with admissible evidence that the mailing was ever done. Discussion Plaintiff is entitled to summary judgment. As an initial matter, the fact that copies of the 90-day notice were sent to other addresses does not render service on the address invalid. Plaintiff simply sent additional notices to a different address. The Court also declines to grant a stay due to the alleged pending investigation into Mr. Bias; that has nothing to do with the instant foreclosure action. The Court also declines to dismiss the case because plaintiff failed to make a motion for summary judgment within 90 days as directed in the order dated August 1, 2018;. dismissal is too drastic of a remedy for missing a single deadline. . The Court also rejects Ms. Bias' claims with respectto plaintiff's proof of mailing. The fact is that the Walker affidav~t is sufficient to establish that the 90-day notices were sent to the subject premises (NYSCEF Doc. No. 61). Ms. Walker (VP for plaintiff) claims she is aware of plaintiff's mailing practices and that plaintiff images proof of mailing (id.). She also points the court to the bulk mailing receipt (NYSCEF Doc. No. 79). The fact is that plaintiff can rely on business records as an exception to the hearsay rule to establish mailing (see Bank of New York 850066/2017 BANK OF AMERICA, N.A. vs. BIAS, JERRY Motion No. 002 002 2 of 6 Page 2 of 6 [*FILED: 3] NEW YORK COUNTY CLERK 05/31/2019 11:10 AM NYSCEF DOC. NO. 90 INDEX NO. 850066/2017 RECEIVED NYSCEF: 05/31/2019 Mellon v Gordon, 97 NYS3d 286, 293-94, 2019 NY Slip Op 02306 [2d Dept 2019]). Ms. Walker need not have personally mailed the 90-day notice in order for plaintiff to meet its burden. Accordingly, it is hereby ORDERED that the motion by plaintiff for summary judgment is granted and the answer, affirmative defenses and counterclaims of defendant Lauren Bias a/k/a Lauren M. Bias a/k/a Lauren Maillan Bias a/k/a Lauren Maillan-Bias are severed and dismissed; and it is further ORDERED that the cross-motion by defendant Lauren Bias a/k/a Lauren M. Bias a/k/a Lauren Maillan Bias a/k/a Lauren Maillan-Bias to dismiss the complaint is denied; and it is further ORDERED that plaintiff is deemed to have timely served defendant Jerry Bias as of December 11, 2017 nunc pro tune; and it is further ORDERED that plaintiff is entitled to a default judgment against the non-answering defendants; and it is further ORDERED that Elaine Shay 800 Third Avenue, Suite 2800, New York, NY 10022, is hereby appointed Referee in accordance with RP APL § 1321 to compute the amount due to Plaintiff for principal, interest and other disbursements advanced as provided for in the note and mortgage upon which this action is brought, and to examine whether the mortgaged property can be sold in parcels; and it is further ORDERED that the Referee may take testimony pursuant to RP APL § 1321; and it is further ORDERED that by accepting this appointment the Referee certifies that she/he is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to §36.2 (c) ("Disqualifications from appointment"), and §36.2 (d) ("Limitations on 850066/2017 BANK OF AMERICA, N.A. vs. BIAS, JERRY Motion No. 002 002 3 of 6 Page 3 of6 [*FILED: 4] NEW YORK COUNTY CLERK 05/31/2019 11:10 AM NYSCEF DOC. NO. 90 INDEX NO. 850066/2017 RECEIVED NYSCEF: 05/31/2019 appointments based upon compensation"), and, if the Referee is disqualified from receiving an appointment pursuant to the provisions of that Rule, the Referee shall immediately notify the Appointing Judge; and it is further ORDERED that, pursuant to CPLR 8003(a), and in the discretion of the court, a fee of $350 shall be paid to the Referee for the computation of the amount due and upon the filing of her/his report and the Referee shall not request or accept additional compensation for the computation unless it has been fixed by the court in accordance with CPLR 8003(b); and it is further; ORDERED that the Referee is prohibited from accepting or retaining any funds for herself/himself or paying funds to him/herself without compliance with Part 36 of the Rules of the Chief Administrative Judge; and it is further ORDERED that plaintiff shall forward all necessary documents to the Referee within 30 days of the date of this order and shall promptly respond to every inquiry made by the referee (promptly means within two business days); and it is further ORDERED that plaintiff must bring a motion for a judgment of foreclosure and sale within 30 days of receipt of the referee's report; and it is further ORDERED that if plaintiff fails to meet these deadlines, then the Court may sua sponte vacate this order and direct plaintiff to move again for an order of reference and the Court may sua sponte toll interest depending on whether the delays are due to plaintiffs failure to move this litigation forward; and it further ORDERED that the caption be amended to remove John Doe #1 through John Doe #6 . and Jane Doe #1 through Jane Doe #6 from the caption, and the caption shall read as follows: 4 850066/2017 BANK OF AMERICA, N.A. vs. BIAS, JERRY ..................... r..1,.. nn? nn? of 6 Page 4 of 6 [*FILED: 5] NEW YORK COUNTY CLERK 05/31/2019 11:10 AM NYSCEF DOC. NO. 90 INDEX NO. 850066/2017 RECEIVED NYSCEF: 05/31/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------)( BANK OF AMERICA, N.A., Plaintiff, v. JERRY BIAS a/k/a JERRY B. BIAS, LAUREN BIAS a/k/a LAUREN M. BIAS a/k/a LAUREN MAILLIAN BIAS a/k/a LAUREN MAILLIANBIAS, JPMORGAN CHASE BANK, N.A., THE CITY OF NEW YORK, A MUNICIPAL CORPORATION ACTING BY AND THROUGH ITS DEPARTMENT OF HOUSING PRESERVATION AND DEVELOPMENT, BOARD OF MANAGERS OF THE 1400 FIFTH AVENUE CONDOMINIUM, UNITED STATES OF AMERICA OIB/O INTERNAL REVENUE SERVICE, Defendant(s). ----------------------------------------------------------------)( and it is further ORDERED that counsel for plaintiff shall serve a copy of this order with notice of entry upon the County Clerk (60 Centre Street, Room 141B) and the General Clerk's Office (60 Centre Street, Room 119), who are directed to mark the court's records to reflect the parties being added and removed; and it is further ORDERED that such service upon the County Clerk and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address (ww.nycourts.gov/supctmanh)]; and it is further ORDERED that Plaintiff shall serve a copy of this Order with notice of entry on all parties and persons entitled to notice, including the Referee appointed herein. Next Conference: November 12, 2019 at 2:15 p.m. If plaintiff has moved for a judgment of foreclosure and sale before the conference, then plaintiff can seek an adjournment. Please 850066/2017 BANK OF AMERICA, N.A. vs. BIAS, JERRY Motion No. 002 002 5 of 6 Page 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 05/31/2019 11:10 AM NYSCEF DOC. NO. 90 INDEX NO. 850066/2017 RECEIVED NYSCEF: 05/31/2019 consult the part's rules for information about how to obtain an adjournment. An appearance is required if a motion for a JFS has not been made; counsel appearing for plaintiff must come prepared to explain the delay or interest may be tolled. DATE CHECK ONE: ARL NE P. BLUTH, J.S.C. CASE DISPOSED GRANTED D ~· NON-Fl~ DENIED . 1 oARL.ENE P~ BLUTH GRANTED IN PART APPLICATION: SEITLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 850066/2017 BANK OF AMERICA, N.A. vs. BIAS, JERRY Motion No. 002 002 D D OTHER . REFERENCE Page 6 of 6 6 of 6 / \

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