Wilmington Sav. Fund Socy., FSB v Omar

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Wilmington Sav. Fund Socy., FSB v Omar 2019 NY Slip Op 33640(U) December 12, 2019 Supreme Court, New York County Docket Number: 850100/2017 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 12/13/2019 09:18 AM NYSCEF DOC. NO. 63 INDEX NO. 850100/2017 RECEIVED NYSCEF: 12/13/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH IAS MOTION 32 Justice -------------------------------------------------------------------------------X WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST A, . Plaintiff, INDEX NO. 850100/2017 MOTION DATE N/A MOTION SEQ. NO. 001 -vDECISION + ORDER ON MOTION, ORDER OF REFERENCE ZEKI I. OMAR AKA ZEKI OMAR, GUN ES A. OMAR AKA GUNES OMAR, FERIDE OMAR, BOARD OF MANAGERS OF TRUMP TOWER CONDOMINIUM, JOHN DOE ) Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39,41,42,43,44,45,46,47,48,49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60,61 JUDGMENT - SUMMARY were read on this motion to/for 1~ The motion by plaintiff for summary judgment is granted. Background In this mortgage foreclosure action, plaintiff seeks to foreclose on a property located at 721 5th Avenue, Unit 33C in Manhattan. Plaintiff contends that the borrowers (Zeki and Gunes Omar) stopped making payments in January 2013. In opposition, Zeki and F.eride Omar claim that plaintiff lacks standing, plaintiff did not comply with R.PAPL § 1304 (the 90-day notice) and that it did not comply with the contractual notice requirements. In reply, plaintiff points out that defendants did not actually deny receipt of the 90-day or contractual default notices. Plaintiff insists that the affidavit of Laura Hovis establishes its prima facie burden to show it mailed the required notices. 850100/2017 WILMINGTON SAVINGS FUND vs. OMAR, ZEKI I. Motion No. 001 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 12/13/2019 09:18 AM NYSCEF DOC. NO. 63 INDEX NO. 850100/2017 RECEIVED NYSCEF: 12/13/2019 Discussion The Court grants the motion. To extent that defendants challenge standing, plaintiff attached the notes that are subject of this action to the complaint (NYSCEF Doc. No. 1) thereby establishing its standing to prosecute this case (Bank ofNew York Mellon v Knowles, 151 AD3d 596, 596-97, 57 NYS3d 473 [1st Dept 2017]). The Court also finds that the affidavit of Ms. Hovis (NYSCEF Doc. No. 31) is sufficient to establish that the RP APL § 1304 and default notices were properly mailed. In fact, Ms. Hovis claims she has personal knowledge that the contractual notice was sent (id. il 8). Defendants failed to raise an issue of fact in opposition. Defendants did not attach any affidavits denying that they received the 90~day or contractual notices. Only an attorney affirmation is submitted. That is not enough to rebut plaintiffs prima facie showing that it mailed the required notices. Accordingly, it is hereby ORDERED that the motion by plaintiff for summary judgment is granted and the answer and affirmative defenses of defendants ZEKI I. OMAR AKA ZEKI OMA,R and FERIDE OMAR are severed and dismissed; and it is further · ORDERED that plaintiff is awarded a default judgment against the non-appearing defendants; and it is further ORDERED that l~o (\'W)lSlY' Ave 8L~on fvr ,.... IS~ f'{cef . lNU1 f (5~ · ~4rJ1 l<)()L (, .. . J._1;)_- whh an address of 6C'-f- 'f<f oo is hereby appointed Referee in accordance with RP APL § 1321 to compute the amount due to Plaintiff and to examine whether the tax parcel can be sold in parcels; and it is further .850100/2017 WILMINGTON SAVINGS FUND vs. OMAR, ZEKI I. Motion No. 001 · 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 12/13/2019 09:18 AM NYSCEF DOC. NO. 63 INDEX NO. 850100/2017 RECEIVED NYSCEF: 12/13/2019 ORDERED that the Referee shall hold no hearing and take no testimony or evidence other than by written submission; the Court is the ultimate arbiter and the Referee's report is merely art advisory finding; and it is further ORDERED that by accepting this appointment the Referee certifies that 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 appointments based upon compensation"), and, if ~he 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 his report and the Referee shall not request or accept additional comp~nsation 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 himself or paying funds to himself 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·and to defendants who have appeared in this case 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 850100/2017 WILMINGTON SAVINGS FUND vs. OMAR,.ZEKI I. Motion No. 001 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 12/13/2019 09:18 AM NYSCEF DOC. NO. 63 INDEX NO. 850100/2017 RECEIVED NYSCEF: 12/13/2019 ORDERED that if defendant(s) have objections, they must submit them to the referee within 14 days of the mailing of plaintiff's submissions; and include these objections to the Court if opposing the motion for a judgment of foreclosure and sale; and it is further ORDERED the failure by defendants to submit objections to the referee shall be deemed a waiver of objections befor~ the Court on an application for a judgment of foreclosure and sale; 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 plaintiff's failure to move this litigation forward; and it further ORDERED that the John Doe defendants be removed from the caption, and the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------)( WILMINGTON SAVINGS FUND SOCIETY, FSB, AS TRUSTEE FOR STANWICH MORTGAGE LOAN TRUST A, Plaintiff, v. ZEKI I. OMAR AKA ZEKI OMAR, GUNES A. OMAR AKA GUNES OMAR, FERIDE OMAR, BOARD OF MANAGERS OF TRUMP TOWER CONDOMINIUM Defendant(s). ----------------------------------------------------------------)( and it is further 850100/2017 WILMINGTON SAVINGS FUND vs. OMAR, ZEKI I. Motion No. 001 4 of 5 Page 4 of.5 [*FILED: 5] NEW YORK COUNTY CLERK 12/13/2019 09:18 AM NYSCEF DOC. NO. 63 INDEX NO. 850100/2017 RECEIVED NYSCEF: 12/13/2019 ORDERED that counsel for plaintiff shall serve a copy of this orde~ 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 removed pursuant hereto; 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: April 21, 2020 @ 2: 15 p.m. If a motion for judgment of foreclosure and sale has been filed, plaintiff may seek an adjournment of the conference. Please ~onsult this part's·rules for information on how to obtain an adjournment. If a motion has been made, then a conference is required to explore the reasons for the delay. \L· \2-·l 9 DATE CHECK ONE: CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: D NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES FIDUCIARY APPOINTMENT TRANSl'FR/RFASSlr.N 850100/2017 WILMINGTON SAVINGS FUND vs. OMAR, ZEKI I. Motion No. 001 5 of 5 D D OTHER REFERENCE . Page 5 of 5

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