BANK OF NEW YORKMELLON v. HOSHMAND

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Supreme Court, Appellate Division, Second Department, New York.

BANK OF NEW YORKMELLON, etc., respondent, v. Gila HOSHMAND, et al., appellants, et al., defendants.

2016–00149

Decided: February 07, 2018

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, HECTOR D. LASALLE, JJ. The Schwartz Law Group, P.C., Bethpage, N.Y. (Kenneth B. Schwartz of counsel), for appellants. Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Jason P. Dionisio of counsel), for respondent.

DECISION & ORDER

Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), dated November 20, 2015.  The order, insofar as appealed from, granted those branches of the plaintiff's motion which were to confirm a referee's report and for a judgment of foreclosure and sale.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants Gila Hoshmand and Samuel Hoshmand (hereinafter together the appellants) defaulted on their consolidated mortgage loan.  The plaintiff, the holder of the consolidated mortgage and consolidated note, commenced this action to foreclose the consolidated mortgage against, among others, the appellants.  The appellants did not appear in the action or answer the complaint.  On November 18, 2014, the Supreme Court granted the plaintiff's motion for an order of reference and denied the appellants' cross motion to vacate their default.  Subsequently, the plaintiff moved, inter alia, to confirm the referee's report and for a judgment of foreclosure and sale, and the appellants opposed the motion.  In the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.

Contrary to the appellants' contention, the Supreme Court properly considered a renewed power of attorney submitted by the plaintiff in reply to the appellants' opposition to its motion.  “The function of reply papers is to address arguments made in opposition to the position taken by the movant” (Central Mtge. Co. v. Jahnsen, 150 A.D.3d 661, 664, 56 N.Y.S.3d 107 [internal quotation marks omitted];  see OneWest Bank, FSB v. Simpson, 148 A.D.3d 920, 923, 49 N.Y.S.3d 523).  Here, the renewed power of attorney submitted by the plaintiff was offered in response to the appellants' argument made in opposition that the plaintiff's affidavit of merit, signed by the assistant vice president of its servicing agent, was invalid because it was signed after the original power of attorney submitted by the plaintiff had expired.  The renewed power of attorney merely clarified that the plaintiff's servicing agent continued to have the authority to act on behalf of the plaintiff at the time the affidavit was signed (see Central Mtge. Co. v. Jahnsen, 150 A.D.3d at 664, 56 N.Y.S.3d 107;  OneWest Bank, FSB v. Simpson, 148 A.D.3d at 923, 49 N.Y.S.3d 523).

The Supreme Court properly confirmed the referee's report.  Contrary to the appellants' contention, under the circumstances of this case, the referee was not required to conduct a hearing before issuing her report (see Deutsche Bank Natl. Trust Co. v. Williams, 134 A.D.3d 981, 20 N.Y.S.3d 907;  Wachovia Mtge. Corp. v. Lopa, 129 A.D.3d 830, 831, 13 N.Y.S.3d 97;  Capital One, N.A. v. Knollwood Props. II, LLC, 98 A.D.3d 707, 708, 950 N.Y.S.2d 482;  Dune Deck Owners Corp. v. J.J. & P. Assoc. Corp., 85 A.D.3d 1091, 926 N.Y.S.2d 318;  Deutsche Bank Natl. Trust Co. v. Zlotoff, 77 A.D.3d 702, 908 N.Y.S.2d 612;  Deutsche Bank Natl. Trust Co. v. Jackson, 68 A.D.3d 805, 889 N.Y.S.2d 477).

Accordingly, the Supreme Court properly granted those branches of the plaintiff's motion which were to confirm the referee's report and for a judgment of foreclosure and sale.

DILLON, J.P., BALKIN, MILLER and LASALLE, JJ., concur.

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