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WELLS FARGO BANK, N.A. AS TRUSTEE, in Trust FOR the REGISTERED HOLDERS OF PARK PLACE SECURITIES, INC., Asset-Backed Pass-Through Certificates, Series 2004-WCW2, Plaintiff, v. Alexander RUBINSTEIN, Clerk of the Suffolk County District Court, United States of America - Internal Revenue Service, Defendants.
Upon the following papers read on plaintiff's motion for summary judgment on the limited issue set by the court's order of September 14, 2017 and appointment of a referee to compute pursuant to RPAPL § 1321 (Mot. Seq. # 005): NYSCEF Docs # 126-166; defendant's opposition and cross-motion of for summary judgment dismissing the action (Mot. Seq. # 006): NYSCEF Docs # 188-196; and plaintiff's opposition and reply: NYSCEF Docs # 198-206; and defendant's reply: NYSCEF Docs # 207-211; it is
ORDERED that defendant Alexander Rubinstein's application to file a successive summary judgment motion by cross-motion is granted; and it is further upon
ORDERED that defendant's cross-motion (Mot. Seq. # 006) seeking dismissal based upon plaintiff's failure to comply with RPAPL § 1303 is denied; and it is further
ORDERED that plaintiff Wells Fargo Bank, N.A. as Trustee, in trust for the registered holders of Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-WCW2's motion for summary judgment (Mot. Seq. # 005) on the limited issues remaining for trial after the decision of the court placed on the record after oral argument on September 14, 2017, and for an appointment of a referee pursuant to RPAPL § 1321, is granted; and it is further
ORDERED that defendant's 4th affirmative defense is dismissed and defendant's answer is dismissed and stricken; and it is further
ORDERED that plaintiff's proposed order submitted with this motion, as modified by the court, is signed contemporaneously with this order; and it further
ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED, that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
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 necessary for the referee to perform the determinations required by this order (plaintiff's submissions); defendant may submit written objections and proof in support thereof (defendant's objections) to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference (CPLR 4311, RPAPL § 1321), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee'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 further
ORDERED that if defendant's objections have been submitted to the referee, defendant shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Monday, July 1, 2019 at 9:30AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined; and it is further
ORDERED that the trial control date for this action previously set for April 3, 2019 is removed from the courts calendar.
The prior history of this action to foreclose a mortgage upon residential real property located at 31 Brooksite Drive, Smithtown, Suffolk County, New York (“the property”) given by defendant Alexander Rubinstein (“defendant”) to a predecessor in interest to plaintiff Wells Fargo Bank, N.A. as Trustee, in trust for the registered holders of Park Place Securities, Inc., Asset-Backed Pass-Through Certificates, Series 2004-WCW2 (“plaintiff”) is set forth in the transcript of the oral argument of August 17, 2017, as well as the decision of the court placed on the record on September 14, 2017 after continued oral argument of plaintiff's prior motion for summary judgment (Mot. Seq. # 003) and defendant's cross-motion for summary judgment dismissing the action (Mot. Seq. # 004). At that time the court denied defendant's cross-motion and granted plaintiff partial summary judgment pursuant to CPLR 3212 (g) setting and fixing the default of all non-appearing, non-answering defendants, amending the caption and dismissing all of defendant's affirmative defenses, except his 4th affirmative defense which raised the issue of plaintiff's proof of mailing of the notice of default required by the mortgage which was set for a limited issue trial pursuant to CPLR 2218. The court denied plaintiff's application for the appointment of a referee to compute pursuant to RPAPL § 1321, and issued a written discovery and scheduling order, authorizing limited discovery on the remaining issue, set a compliance/certification conference for December 20, 2017 and authorized the parties to file successive summary judgment motions on the remaining issue within 30 days of the filing of a note of issue.
Plaintiff filed a note of issue on January 25, 2018 and this authorized successive summary judgment motion (Mot. Seq. # 005) on February 6, 2018, originally returnable March 1, 2018 but adjourned to March 15, 2018. The motion was further adjourned by stipulation of the parties to April 15, 2018. Defendant filed his cross-motion on March 23, 2018, along with a letter from his counsel requesting permission from the court to make the cross-motion. Plaintiff submitted its reply and opposition to both the cross-motion and defendant's counsel's application for permission to file the cross-motion on April 12, 2018. Defendant filed his reply on April 17, 2018. Both motions were marked “fully submitted” on April 19, 2018.
DEFENDANT'S CROSS-MOTION CONSIDERED
The court's order of September 17, 2017 authorized only successive summary judgment motions on the remaining limited issue of proof of plaintiff's mailing of the notice of default required by the mortgage (defendant's 4th affirmative defense), and stated that no other motions would be authorized without permission of the court, which could be obtained by a letter to the court supporting such application and a phone or in court conference. The order also stated that any further summary judgment motions were to be made within 30 days of the filing of the note of issue. Defendant failed to comply with both requirements, filing his late summary judgment motion which did not address the limited issue but instead raised a claimed deficiency in plaintiff's RPAPL § 1303 notice ( RPAPL § 1303 compliance had been raised by defendant in Mot. Seq. # 004 and denied by the order of September 14, 2017), at the same time as filing a letter to the court asking permission to file the motion.
Any attempt by defendant to characterize his motion as one seeking renewal, rather than merely a successive summary judgment motion is unsuccessful. Leave to renew must be on new facts not available at the time of the prior motion (CPLR 2221 [e]  ), or, in the court's discretion, upon movant establishing a reasonable justification for presenting facts known to movant at the time of the first motion but not raised (CPLR 2221 [e] ; See Deutsche Bank Trust Co. v. Ghaness, 100 AD3d 585 [2d Dept 2012]; Wells Fargo Bank, N.A. v. Rooney, 132 AD3d 980 [2d Dept 2015]; Fed. Natl. Mtge. Assn. v. Sakizada, 153 AD3d 1236 [2d Dept 2017]; J. P. Morgan Chase Bank, N.A. v. Novis, 157 AD3d 776 [2d Dept 2018] ). Here the facts raised in defendant's present motion were clearly available to defendant when he raised compliance with RPAPL § 1303 in Mot. Seq. # 004. He provides no reasonable justification for not originally submitting the “new facts,” and therefore the court lacks discretion to grant renewal (see Worrell v. Parkway Estates, LLC, 43 AD3d 436 [2d Dept 2007]; Sobin v. Tylutki, 59 AD3d 701[2d Dept 2009; HSBC Bank USA, NA v. Nemorin,167 AD3d 855 [2d Dept 2018] ). Defendant's argument raising failure of a lawyer no longer with his counsel's law firm has been found insufficient to establish a reasonable justification for not submitting evidence on the original motion (see HSBC Bank USA, NA v. Nemorin, 167 AD3d 855 [2d Dept 2018] ).
As defendant's cross-motion raises RPAPL § 1303 compliance, an issue not addressed by plaintiff's motion, it is not based upon the identical facts as plaintiff's motion, and therefore does not fit the criteria set by case law which would allow the court to consider it on that basis (see Lennard v. Khan, 69 AD3d 812 [2d Dept 2010]; Snolis v. Clare, 81 AD3d 923 [2d Dept 2011]; Das v. Sun Wah Restaurants, 99 AD3d 752 [2d Dept 2012]; Sikorjak v. City of New York, ––– AD3d ––––, 2019 NY Slip Op 00157 [2d Dept 2019] ). As a successive summary judgment motion, defendant's cross-motion was untimely filed beyond the time limit set by the court (CPLR 3212 [a] ) and as such may not be considered by the court without a showing of good cause for the delay by defendant (see Goldin v. New York & Presbyt. Hosp., 112 AD3d 578 [2d Dept 2013] ).
Nevertheless, the court will consider defendant's motion for two reasons, both of which in the court's opinion compel it to consider defendant's motion.
The first reason is one that has frequently frustrated this court, the fact that defendants who are represented by experienced counsel often, as here, raise compliance with conditions precedent in RPAPL §§ 1303 and 1304 piecemeal in oral argument or successive summary judgment motions (see Citimortgage v. Bunger, 58 Misc 3d 333 [Sup Ct, Suffolk County 2017]; Bank of America, N.A. v. Settineri, 60 Misc 3d 1212 (A) [Sup Ct, Suffolk County 2018]; JPMorgan Chase Bank, N.A. v. Lebovic, 61 Misc 3d 1215 (A) [Sup Ct, Suffolk County 2018]; US Bank, N.A. v. Guercia, 61 Misc 3d 1220 (A) [Sup Ct, Suffolk County 2018] ). The court's inclination is that defendant's “new found” objections should be deemed waived, as defendant claims of RPAPL § 1303 deficiencies in Mot. Seq. # 004 were denied. It is a general principle of summary judgment that a moving party, as well as an opponent, is required to assemble and lay bare all its proof in support, or opposition, of the motion (see Maurice O'Meara Co. v. National Park Bank of New York, 239 NY 386 ; Dodwell & Co. Inc. v. Silverman, 234 AD 362 [1st Dept 1932]; M & S Mercury Air Conditioning Corp. v. Rodolitz, 24 AD2d 873 [2d Dept 1965] ). Failure to do so is done at the party's risk (see Deleon v. New York City Sanitation Dept., 25 NY3d 1102 (2015); Friends of Animals, Inc. v. Associated Fur Manufacturers, Inc. 46 NY2d 1065 ; Zuckerman v. City of New York, 49 NY2d 557 ; Morgan v. NY Tel., 220 AD2d 728 [2d Dept 1995]; Hovi v. City of New York, 226 AD2d 430 [2d Dept 1996] ). But the emphasis placed upon strict compliance with the requirements of RPAPL§§ 1303 and 1304 by appellate decisions compels the court to treat this motion otherwise. It has been held that these issues can be raised for the first time as late as opposition to a motion for a judgment of foreclosure and sale, in the discretion of the trial court (see Emigrant Mtge Co, Inc. v. Lifshitz, 143 AD3d 755 [2d Dept 2016] ) and that a clear waiver of these issues has been only held to have occurred when the first attempt to raise them is on appeal (see 40 B, LLC v. Katalikarn, 147 AD3d 710 [2d Dept 2017]; Bank of America, NA v. Barton, 149 AD3d 676 [2d Dept 2017]; Bank of America, N.A. v. Cudjoe, 157 AD3d 653 [2d Dept 2018] ). Therefore, the court believes it is compelled to consider defendant's “new found” arguments (see First Natl. Bank of Chicago v. Silver, 73 AD3d 162 [2d Dept 2010]; Aurora Loan Services v. Weisblum, 85 AD3d 95 [2d Dept 2011] ).
The second reason for considering the motion is that although defendant's application to file this successive summary judgment motion is made past the limit of 30 days after the filing of the note of issue set by the order of September 14, 2017, it is well within the 120 day limit set by CPLR 3212 (a). The court is aware of the line of cases which generally prevents a court from considering a summary judgment motion that was not timely filed as directed by the court (see Goldin v. New York & Presbyt. Hosp., supra ), as well as those refusing to consider “late” summary judgment motions made without a showing of good cause (see Brill v. City of New York, 2 NY3d 648 ; Nationstar Mtg., LLC v. Weisblum, 143 AD3d 866 [2d Dept 2016] ), but considering the statutory condition precedent the motion raises, as indicated above and the fact that it is within the general 120 day limit, the court finds it is must exercise its discretion to consider the motion. Further, the cases cited by plaintiff in opposition to defendant's application address the fact that the trial court did not improvidently exercise its discretion in denying a summary judgment motion for being outside a time limit set by the court (see G4 Noteholder, LLC ex rel Wells Fargo Bank, N. A. v. LDC Properties, LLC, 153 AD3d 1326 [2d Dept 2017] ) implicit in the holdings is that a court also has discretion to consider the motion. In light of the line of cases emanating from the holdings in First Natl. Bank of Chicago v. Silver, supra and Aurora Loan Services v. Weisblum, supra, the court believes it is compelled to exercise its discretion to consider defendant's motion.
DEFENDANT'S CROSS-MOTION DENIED
By letter to the court dated April 11, 2018, NYSCEF Doc. # 197, defendant withdrew his claim of a violation of RPAPL § 1306, limiting his motion to the single issue that the notice required by RPAPL § 1303 (“the notice”) served upon him was not on paper which was a different color than the summons and complaint.
Defendant's motion reveals a particular problem raised by mandatory “e-filing” in foreclosure actions. Prior to that requirement, when a defendant would claim that the notice was not served on paper of a different color than the summons and complaint, the court could usually resolve the issue by retrieving the Suffolk County Clerk's (“the Clerk”) file, where a copy in color was invariably filed along with the affidavit of service. Now, all the court can access is the “colorless” copy filed electronically with the Clerk.
The court agrees with plaintiff's position that the affidavit of service submitted by the now deceased process server provides sufficient proof of the service of the notice on paper of a different color that the summons and complaint. The affidavit, sworn to April 25, 2014, states that the notice “was printed on a colored piece of paper, which color differed from that of the color of the NOTICE OF COMMENCEMENT OF ACTION SUBJECT TO MANDATORY ELECTRONIC FILING, SUMMONS & COMPLAINT․” As with service of process, an affidavit of a process server constitutes prima facie evidence of proper service (see ACT Prop., LLC v. Ana Garcia, 102 AD3d 712 [2d Dept 2013]; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 AD3d 724 [2d Dept 2013] ), which in this case means service of the notice on colored paper. A defendant may rebut the process server's affidavit by an affidavit containing specific and detailed contradictions of the allegations in the process server's affidavit (see Deutsche Bank Natl. Trust Co. v. Pestano, 71 AD3d 1074 [2d Dept 2010]; US Bank, NA v. Tauber, 140 AD3d 1154 [2d Dept 2016]; Bank of Am, NA v. Tobing, 145 AD3d 941 [2d Dept 2016]; Bank of America, N.A. v. Moody, 147 AD3d 712 [2d Dept 2017]; Deutsche Bank Natl. Trust v. Saketos, 158 AD3d 610, [2d Dept 2018] ), but bare, conclusory and unsubstantiated denials of receipt of the notice served with a copy of the summons and complaint are insufficient to rebut the presumption of proper service created by the process server's affidavit (see U.S. Bank Natl. Assn. v. Tate, 102 AD3d 859 [2d Dept 2013]; BAC Home Loans Servicing, LP v. Carrasco, 160 AD3d 688 [2d Dept 2018];US Bank, N.A. v. Dedomenico, 162 AD3d 962 [2d Dept 2018] ).
The court questions whether defendant's affidavit actually contests service of the notice upon him on “white” paper, as he merely identifies the document attached as Exhibit “D” as a “copy,” not the actual document he claims was served. The rest of his affidavit is a statement of what is found in the electronically filed documents in the Clerk's records. In any event, his claims are akin to those of a defendant who merely claims he wasn't served with the summons and complaint and are as ineffective to raise an issue requiring a hearing, let alone to establish that the notice served was not on colored paper.
The court realizes that determining the issue of credibility is not its task on summary judgment (see Vega v. Restani Corp., 18 NY3d 499  ), but mentions that defendant never raised this claim in Mot. Seq. # 002, which although withdrawn is still available for review in NYSCEF, or in Mot. Seq. # 004 when he challenged RPAPL § 1303 compliance, a claim which should have been obvious at that time. There are rare instances when credibility should be determined by a court on summary judgment (see Loughlin v. City of New York, 186 AD2d 176 [2d Dept 1992]; Sullivan v. Pilevsky, 281 AD2d 410 [2d Dept 2001]; Dorazio v. Delbene, 37 AD3d 645 [2d Dept 2007]; Carthen v. Sherman, ––– AD3d ––––, 2019 NY Slip Op 00954 [1st Dept 2019] ).
As defendant has failed to meet his burden to challenge the facts presented in the affidavit of the process server which established the service of the notice on colored paper, his motion is without merit. The admissibility of an affidavit of an employee of the process serving company submitted in opposition by plaintiff is therefore irrelevant.
Defendant's cross-motion is denied.
MAILING OF NOTICE OF DEFAULT ESTABLISHED
Plaintiff provides an affidavit of an employee of Select Portfolio Servicing, Inc. (“SPS”), plaintiff's servicer at the time the notice of default required by the mortgage was mailed. He establishes his ability to testify to SPS' records pursuant to CPLR 4518. His affidavit also establishes his ability to testify as to SPS' mailing practices and procedures, establishing his familiarity with the mailing practices and procedures of SPS notices to insure that the notices were correctly addressed and mailed to defendant at the property in compliance with the requirements of the mortgage. A copy of the notice which was in compliance with the terms of the mortgage are referred to by him and attached as an exhibit. Additionally, copies of documents authorizing SPS to act as plaintiff's servicing agent with authority to send the notices are also provided.
To establish mailing, plaintiff 's servicer may provide proof of actual mailing or description of its office's practice and procedure for mailing (see New York & Presbyt. Hosp. v. Allstate Ins. Co. (29 AD3d 547 [2d Dept 2006]; Citibank, N.A. v. Wood, 150 AD3d 813 [2d Dept 2017]; Citimortgage Inc. v. Banks 155 AD3d 936 [2d Dept 2017] ). An affiant must show his familiarity with office practices and procedures to establish office practices and procedures to insure proper addressing and mailing (see US Bank v. Henry, 157 AD3d 839 [2d Dept 2018]; US Bank, NA v. Henderson, 163 AD3d 601[ 2d Dept 2018] ). Plaintiff has met the basic standards of proof of mailing set by the cases cited above, therefore plaintiff has established its prima facie proof of mailing of the notice in compliance with the mortgage.
Defendant's 4th affirmative defense is dismissed.
SUMMARY JUDGMENT GRANTED
Since all of defendant's affirmative defenses have been dismissed and plaintiff had previously established proof of the mortgage, note and default in payment by defendants in Mot. Seq. # 003, plaintiff is granted summary judgment dismissing and striking defendants' answer and the appointment of a referee pursuant to RPAPL § 1321.
Plaintiff's proposed order submitted with this motion, as modified by the court, is signed contemporaneously herewith.
The action shall be calendared for a status conference on Monday, July 1, 2019 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary.
This constitutes the Order and decision of the Court.
Robert F. Quinlan, J.
Response sent, thank you
Docket No: 62542-2014
Decided: February 21, 2019
Court: Supreme Court, Suffolk County, New York.
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