CARTER v. BANK TRUST (2023)

DECISION & ORDER

In an action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), dated January 27, 2021.  The order denied the plaintiff's motion for summary judgment on the complaint and granted the defendant's cross-motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In April 2018, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record a mortgage on certain property located in Brooklyn.  After issue was joined, the plaintiff moved for summary judgment on the complaint.  The defendant opposed the motion and cross-moved for summary judgment dismissing the complaint.  In support, the defendant submitted an affidavit from Tonya Tillman, a default servicing officer with Caliber Home Loans, Inc., the loan servicer and attorney-in-fact for the defendant.  In an order dated January 27, 2021, the Supreme Court denied the plaintiff's motion and granted the defendant's cross-motion.  The plaintiff appeals.

The plaintiff's contention that Tillman's affidavit was defective is without merit.  The affidavit, which was signed by Tillman and notarized by a notary public using an acknowledgment form, was presumed to be properly sworn (see Hudson City Sav. Bank v. DePasquale, 189 A.D.3d 1558, 1561, 139 N.Y.S.3d 645).  Further, any alleged defects pursuant to CPLR 2309 were mere irregularities and not fatal defects, and were properly disregarded in the absence of a showing of actual prejudice (see id. § 2001;  U.S. Bank Trust v. McGlone, 201 A.D.3d 999, 1001, 158 N.Y.S.3d 595).

The plaintiff's remaining contention is improperly raised for the first time on appeal.

Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the complaint and granted the defendant's cross-motion for summary judgment dismissing the complaint.

BRATHWAITE NELSON, J.P., IANNACCI, FORD and VOUTSINAS, JJ., concur.