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DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee FOR PFCA HOME EQUITY INVESTMENT TRUST CERTIFICATES, SERIES 2003–IFC6, Plaintiff, v. Don A. WEINER, Maryann Weiner, Kenneth J. Weinstein, Portruch & Daab, LLC, Gary P. Field, Esq., Jack Smith, Defendants.
Upon the following papers numbered 1 to 7 read on this motion for judgment of foreclosure and sale and cross motion for dismissal Notice of Motion/Order to Show Cause and supporting papers 1–3; Notice of Cross Motion and supporting papers 4–5; Answering papers 6–7; Reply papers; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that this motion (# 004) by the plaintiff for, inter alia, 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 (# 005) by the defendant, Maryann Weiner, seeking dismissal of the complaint is denied; 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
ORDERED that 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)(3).
This is an action to foreclose a mortgage on residential property situate in the Town of Huntington, Suffolk County, NY. The action was commenced by filing on February 4, 2015. On March1, 2005, defendant Maryann Weiner moved (# 001) to dismiss the complaint pursuant to CPLR 3211(a)(1). The motion was denied by Order dated November 2, 2015 (Rebolini, J.S.C.). Pursuant to CPLR 3211(f), the defendant had ten days thereafter to file an answer, which she failed to do. On December 16, 2015, the plaintiff made a motion (# 002) for an order amending the complaint, which was granted by Order dated March 31, 2016 (Rebolini, J.S.C.). The plaintiff thereafter moved (# 003) for summary judgment against answering defendant Potruch & Daab, LLC, accelerated judgments against the non-answering defendants, and for the appointment of a referee to compute. The defendant, Maryann Weiner, opposed the motion. The motion was granted by Order dated July 31, 2017, which noted that the defendant had failed to answer the complaint and had not set forth a discretionary ground to vacate her default.
The plaintiff now moves (# 004) for confirmation of referee Mark Cuthbertson, Esq.'s report, and for leave to enter a judgment of foreclosure and sale of the subject property incorporating the referee's findings. In support of its motion, plaintiff submits, among other things, a Report of Amount Due dated December 11, 2017; copies of the note, mortgage, and consolidation, extension and modification agreement; and an accounting of plaintiff's attorneys' costs in prosecuting this action. The defendant opposes the motion and cross moves (# 005) for dismissal, challenging the plaintiff's compliance with RPAPL § 1304.
The defendant's cross motion is denied. Initially, the Court notes that the cross motion is based solely upon the attorney's affirmation. However, an affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595  ).
Notwithstanding the deficient pleading, the cross motion still fails. The Court notes that the defendant has again attempted to oppose a motion without vacating her default and, again, no grounds for vacatur are discernable from her papers. Thus, the cross-motion is procedurally infirm.
Further, the defendant's contention that she is entitled to raise the RPAPL § 1304 defense at this juncture is incorrect. The Court recognizes that the claim of non-compliance with RPAPL § 1304 is a “defense,” which is the manner in which it is characterized in RPAPL § 1302 (see Pritchard v. Curtis, 101 AD3d 1502, 957 NYS2d 440 [3d Dept 2011), which is not one that is jurisdictional in nature (see Flagstar Bank, FSB v. Jambelli, 140 AD3d 829, 32 NYS3d 625 [2d Dept 2016]; U.S. Bank N.A. v. Carey, 137 AD3d 894, 896, 28 NYS3d 68 [2d Dept 2016]; Citimortgage v. Espinal, 134 AD3d 876, 23 NYS3d 251 [2d Dept 2016]; cf., Wells Fargo Bank, N.A. v. Muricy, 135 AD3d 725, 24 NYS3d 137 [2d Dept 2016] ). It may be raised at any time during the action and, unlike the affirmative defenses of the type set forth in CPLR 3016, 3018 and 3211(a), is not subject to waiver if not raised in a timely served pre-answer motion to dismiss or in an answer timely served (see Flagstar Bank, FSB v. Jambelli, 140 AD3d 829, supra; U.S. Bank N.A. v. Carey, 137 AD3d 894, supra; Citimortgage v. Espinal, 134 AD3d 876, supra; cf., Bank of New York Trust Co., N.A. v. Chiejina, 142 AD3d 570, 36 NYS3d 512 [2d Dept 2016]; Deutsche Bank Trust Co. Americas v. Cox, 110 D3d 760, 973 NYS2d 662 [2d Dept 2013] ).
Nevertheless, the non-jurisdictional nature of the RPAPL § 1304 “super” defense does not render it immune from waiver entirely (see Emigrant Bank v. Marando, 143 AD3d 856, 39 NYS3d 83 [2d Dept 2016]; PHH Mtge. Corp. v. Celestin, 130 AD3d 703, 11 NYS3d 871 [2d Dept 2015]; Deutsche Bank Natl. Trust Co. v. Posner, 89 AD3d 674, 933 NYS2d 52 [2d Dept 2011] ). Here, as noted in the Court's previous decision, the defendant defaulted in answering the complaint, and failed to vacate her default. Plaintiff has “already established its entitlement to judgment as a matter of law on its motion for default judgment and an order of reference” (Bank of NY Mellon v. Loodus, ––– AD3d ––––;, 2018 WL 1833290 [2d Dept 2018] citing HSBC Bank USA NA v. Simmons, 125 AD3d 930, 932,5 NYS2d 175 [2d Dept 2015]. Thus, “by virtue of having failed to vacate her default in the action, the defendant is deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them (Bank of NY Mellon v. Loodus, ––– AD3d ––––, 2018 WL 1833290, supra, citing 425 E. 26th St. Owners Corp. v. Beaton, 128 AD3d 766, 769, 10 NYS2d 127 [2d Dept 2015], Mortgage Elec. Registration Sys., Inc. v. Smith, 111 AD3d 804, 806, 975 NYS2d 121 [2d Dept 2013].
Under these circumstances, the law of the case doctrine is applicable and precludes any further consideration of these allegations (see Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Dev., LLC, 134 AD3d 683, 20 NYS3d 418 [2d Dept 2015]; Certain Underwriters at Lloyd's London v. North Shore Signature Homes, Inc., 125 AD3d 799, 1 NYS3d 841 [2d Dept 2015] ).
The Court turns then to plaintiff's motion and the referee's findings and report (see US Bank N.A. v. Saraceno, 147 AD3d 1005, 48 NYS3d 163 [2d Dept 2017]; Mortgage Elec. Registration Sys., Inc. v. Holmes, 131 AD3d 680, 17 NYS3d 31 [2d Dept 2015]; HSBC Bank USA, N.A. v. Simmons, 125 AD3d 930, 5 NYS3d 175 [2d Dept 2015] ). 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, 49 NYS3d 482 [2d Dept 2017]; Matter of Cincotta, 139 AD3d 1058, 32 NYS3d 610 [2d Dept 2016]; Hudson v. Smith, 127 AD3d 816, 4 NYS3d 894 [2d Dept 2015] ).
Here, the referee submitted ample documentary evidence to support the amounts due and owing plaintiff. The computation was premised upon business records produced by plaintiff in support of its initial motion for summary judgment and 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, supra).
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 requesting a total of $2,900.00. The Court finds this amount 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 light of the foregoing, plaintiff's motion (# 004) is granted, defendant's cross motion (# 005) is denied, and the proposed order for judgment of foreclosure and sale, as modified by the Court, has been signed concurrently herewith.
Thomas F. Whelan, J.
Response sent, thank you
Docket No: 601120/15
Decided: May 10, 2018
Court: Supreme Court, Suffolk County, New York.
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