HSBC Bank USA, N.A. v Bluestein
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HSBC Bank USA, N.A. v Bluestein 2020 NY Slip Op 34020(U) December 7, 2020 Supreme Court, Suffolk County Docket Number: 27824/2013 Judge: Robert F. Quinlan 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. [* 1] cort SHORT FORM ORDER INDEX No. 27824/2013 SUPREME COURT - STA TE OF NEW YORK l.A.S. PART 27 - SUFFOLK COUNTY PRESENT: Hon. ROBERT f. OUfNLAN Justice of the Supreme Court ------------------------------------------------------------)( HSBC BANK USA, N.A. PlaintifL - against - BETH BLUESTEIN; BOARD OF DIRECTORS OF THE VILLAS AT WEST HILLS OWNER ASSOCIATION, fNC.; MA)(WELL BLUESTEIN. Defendants. ------------------------------------------------------------)( MOTION DATE: 08/29/ 19 ADJ DA TE: I 0/1 Oil 9 SUBM IT DATE: 10/24/ 19 Mot. Seq.: #004 - MG FEIN, SUCH & CRANE. LLP Allorneys for Plaint i.ff 1400 Old Country Road, Suite CI03 Westbury. NY 11590 CHARLES WALLSHEIN, ESQ. Allorneyfor Dt!fendant /Jt!th Bluestein 3 5 Pinelawn Road, Suite I 06E Melville. NY 11 747 DA YID C. NEVINS, P.C. Attorney for Defendant Bd of Dir of the Villas 500 North Broadway. Suite 140 Jericho, NY 11753 Upon the following papers 1-84 read on this motion to confirm referee's report and for judgment of foreclosure and sale; Notice of Motion and supporting papers: 1-65: Aflinnation in Opposition and supporting papers: 66-74; Reply and supporting papers: 75-84; and UPON the court having held a phone conference on this action on ovcmber 6. 2020 in compliance with the requirements of A0/ 157/20 of the Chief Administrative Judge of the Courts, dated July 23, 2020, and counsel for both parties having appeared. compliance with the requirements of A0/ 157/20 has been met; it is further ORDERED that pursuant to the pro\'isions of A0/ 115/20. A0/ 121 /20 and A0/254/20 of the Chief Administrative Judge o f the Courts. the parties are to immediately take all steps necessary to convert this action into one in conformity with the requirements for electronic filing pursuant to NYSCEF; and it is further ORDERED that plaintiff HSCB Bank USA. N. A's application for an order confirming the referee's report and for judgmt:nt of foreclosure and sale (Mot. Seq. #004) is granted ; and it is further [* 2] HSBC Bank v Bluestein Index No. 27824/2013 Page 2 ORDERED that plaintiffs proposed order of judgment of foreclosure and sale, as modified by the court, is signed contemporaneously herewith. This is an action to foreclose a mortgage on residential real property known as 5 Villas Circle, Melville, Suffolk County, New York given by defendant Beth Bluestein (..defendant") to plaint iff HSBC Bank USA, N. A. ("plaintiff'). The prior history of this action is contained in the court' s decision and order set forth on the rt!cord on December 12, 2016 after oral argument of plaintiffs lirst summary judgment motion (Mot. Seq. # 00 I), the written decision dated February 4, 2019 which denied both plaintiff's successive motion for summary judgment (Mot. Seq. # 002) and detendant's cross-motion to dismiss (Mot. Seq.# 003) and the court' s deci sion aficr trial dated Apri l 1, 2019. Plaintiff now submits its motion for a judgment of foreclosure and sale pursuant to RPAPL ~ 1351 in compliance with the conditions set forth in the court 's decision or April I, 20 19 and the order of reference of the same date. Defendant submits opposition objecting to the issuance of the judgment claiming plaintiff Yiolated the provisions of CPLR §§ 4313 , 4320 and 4403. and that the submissions made by plaintiff to the rderee were inadm issible pursuant to CPLR § 4518. DEFENDANT'S 08.JECTIONS DISMISSED Under the procedures set forth in the order of reference issued by the court on April 1, 2019, defendant's claims are without merit. In modifying plaintiffs proposed order of reference the court added, among other directives, the following provisions which are relevant here: 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 necessa1y fo r the referee to perform the determinations required by this order (plainti ffs subm issions): defendant(s) may s ubmit w ritten o bjectio ns and proof in surport the reof (defendant's objections) to the re feree within 14 days o f the mailing of plaintiff s submissions; and it is furthe r ORDERED that the referee' s report is to be prepared and submitted to plaintiff with in 30 days o f receipt of plaintiff s submissions. and the referee 's report is to be submitted by plainti fT with its application for a judgement of foreclosure and sa k ; and it is further ORDERED that the referee· s duties are defined by 1his order o f reference (CPLR ·D 11. RPAPL § 1321 ). and the referee has no po,, er beyond that which is limited by this order of reference to the min isterial functions of computing amounts due and owing to plaintiff and detennining whether the premises can be sold in parcel.; the refon:c shall hold no hearing. take no testimony or evidence other than by \vritten submission. and make 110 ruling on admissibility of evidence: the n:feree'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 furt her [* 3] HSBC Bank v Bluestein Index No. 27824r-O 13 Page 3 ORDERED that if defendanl(s) obje.:tions ha' e been submitted to the referee. defendant(s) shall also submit them to the court if opposing plaintiffs application for a judgment of foreclosure and !iale: 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 subm it defendant's objections made before the refrree in opposition to plaintiffs application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion: and it is further Plaintiff has provided a copy of a notice of computation dated July I I, 20 19 sent to defendant's counsel, along with an affidavit of service by mail. In his affirmation in opposition there is no claim by defendant's counsel that he did not receive the notice. nor that he fil ed "defendant's objections" with the referee as authorized by the order of reference. The court added the above directives to its orders of reference in 20 17. first to ensure all parties were provided with copies of the documents to be submitted to the referee, but also for an additional reason. Al that time certain defendants' counsels had attempted to turn hearing before a referee pursuant to RPAPL § 1321 into "mini-trials.., requiring the retention of stenographers from court reporting services, causing delay, as well as an unwarranted burden upon referees. To a,·oid such problems, the court designed these additional directives to strike a balance between protecting the rights of defendants, requiring counsel to submit reasonable objections and. if defendant challenged the sufficiency of plaintiff's submissions. having any necessary hearing before the court. not the referee. based upon framed issues. not speculation. Following the procedures set forth in the court's order of reference would avoid a report based upon conclusory and unsubstantiated affidavits. or records that were not produced. unless waived by defendant· s failure to object, which would otherwise be denied (see Citimortgage. Inc. ,. Kidd, 148 AD3d 767 [2d Dept 2017]; Bank of N. >'.Mellon v Gordon. 171 AD3d 197 f2d Dept 2019]; US Bank. N. A. ,. Calabro, 175 AD3d 1451 [2d Dept 20 19]). It has long been recognized that a referee ·s report is only ad\'isory and the court is the ultimate arbiter of the issues (see ,\,farshall v. Meech. 6 Sickels 140, 5 1 NY 140, 143-4, [1872]; In re Paul.Jones & Co.. 117 AD775 [:2d Dept 1907): Wells Fargo Bank. N.A. ,. Yesmin. 186 AD3d 1761 [2d Dept 2020)). It has been acknowledged thnt in engaging a referee to compute and report pursuant to RPAPL § 1321 (I), the court can define the scope of the referee·s duties in the order of reference and may specify and limit the duty to hold a hearing. leaving that authority to the court, thereby relieving the referee from that responsibility under CPLR Article 43 (see Shultis,. Wood'ilock Land Del'. Assoc.. 195 J\D1d 677,678 [2d Dept 1993]; Wells Fargo Bank. N.A . ,. Yi!smin. 186 AD3d at 1763). Here. although the submissions show plaintiff followed the d irectives of the order of reference, defendant chose to ignore them. In fail ing to file objections with the referee, as the directives mandated and made clear, defendant has waived any objections she may have to the plaintiffs submissions. In opposition to the present motion. defendant" s affidavit does not contest the validity of the computation of amounts due. claim that she made any payments that were not credited. contest any of the claimed expenses. costs or legal fees. Lnstead she merely renews her claims concerning the sufficiency of the RPAPL § 1304 notices and proof of their mailing. issues which arc not mentioned in her attorney's affirmation in opposition. Her counsel's atlirmation in opposition also fails to offer any evidence to contest [* 4] HSBC Bank v Bluestein Index No. 27824/2013 Page 4 plaintiff's submissions. only arguing that the referee failed to comply with provisions of the CPLR Article 43 in submitting his findings without holding a hearing and that plaintiffs submissions were insufficient to meet the requirements of CPLR § 4518. In his arguments, dcfendanr s counsel acknowledges that a referee need not notice a hearing within 20 days if ..the Order of Reference otherwise provides.'· If defendant's counsel had chosen to follow the directives of the court in the order of reference. his client \.vould have been afforded a hearing on the issues before the court, providing the "due process rights" he claims she was deprived. Instead , he chose to ignore those directives and wait to delay the judgment of foreclosure through opposition that raises no substantive claims challenging the validity of the proofoffered by plaintiff of the principal and interest due, costs, expenses and counsel fees. Defendant's untimely complaints fail to establish that she has been prejudiced in any way by these proceedings. other than any prejudice that she has brought upon herselr by failing to follow the directives of the order of reference and thereby waiving her rights. Defendant's counsel's argument that the affidavit of Teresa Magana, an officer of plaintiff, is inadmissible as it 'vvas ''prepared solely in anticipation of litigation'· is a confused interpretation of the principles set for in cases such as Cornier vSpagna, I 01 AD2d I 4 I (I st Dept 1984); Narional St mes Efl!c. C01p. v LFO Cons!. C01p .. 203 AD2d 49 (I 51 Dept 1994); 76-82 St. iHarh. LLC r Gluck. 14 7 AD3d 1011 (2d Dept 20 I 7) and Deutsche Bank Nari. Trust Co. ,. Kenny. 183 AD3d 865 (2d Dept 2020). Jn those cases documents which were specifically prepared for litigation were objected to and precluded because the documents were not made and maintained in the ordinary course of business and therefore not business records contemplated by CPLR § 4518. Here Ms. Magana ·s affidavit, signed May 16. 2019 after the trial, was obviously made for litigation, but that does not preclude her testimony. If the court were to accept defendant's counsel's argument, any affidavit prepared in support of a motion would be ..inadmissible" as it was prepared for the litigation in which it was submitted. Further, that affidavit establ ishes Ms. Magana ' s ability to tcsti fy to plaintiffs records and the records of other entities that had been incorporated therein (see Bank ofN. >'. ,\t/ellon v Gordon at 209-2 1 I) and as further noted in Gordon at 202: ···inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances. it may possess· (Rosenblau v. St. George Health & Racquetball Assoc.. 119 AD3d at 54-55, 948 N.Y.S.2d 401 , quoting Jerome Prince, Richardson on Evidence § 8-108 [ Farre II I I th ed 2008]; see /..,fatter of Findlay. 25 3 N. Y. I. 11, l 70 N. E. 4 71; Ford v. Snook, 205 App. Div 194, 198, 199N.Y.S. 630affd240N.Y. 624, 148 N.E.732)." As defendant defaulted in the procedures set by the order of reference to submit objections to the referee and then to the court, any objection that the Magana affidavit did not include copies of the actual records she reviewed has been waived. Defendant"s claim that the referees· report failed to assess whether this residential real property in a private residential community be sold as one parcel is unavailing as a reason to deny plaintiffs motion for a judgment of foreclosure and sale, as the court as the ultimate arbiter can make that detennination on the record before it (see L VB Props. v Greenport Dev. Corp., 188 AD2d 588 [2d Dept, 1992); Cenlar FSB ,. Glauber, _ AD3d_, 2020 NY Slip Op 07028 [2d Dept 2020]). Any other available objecti ons to these proceedings not raised by defendant in opposit ion have been waived. [* 5] HSBC Bank v Bluestein Index No. 27824 '2013 Page 5 Accordingly, the court grants plaintiffs motion for a judgment or foreclosure and sale, and signs plaintiffs proposed order, as modified by the court. contemporaneously herewith. This constitutes the decision and order of the ~ourt. Dated: December 7, 2020 Hon. Robert F. Quinlan, J.S.C. X FINAL DISPOSITION NON-FINAL DISPOSITION
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