Bank of Am., N.A. v. Settineri

60 Misc.3d 1212 (A)

107 N.Y.S.3d 619 (Table)

BANK OF AMERICA, N.A., Plaintiff,

v.Anthony SETTINERI; The Bank of New York Mellon f/k/a The Bank of New York, as trustee for the holders of CWHEQ, Inc. Home Equity Loan Asset Backed Certificates, Series 2006-S9, SIM 3 Management Corp. d/b/a Empire Bonding Agency, Defendants.

31170-2013

Supreme Court, Suffolk County, New York.

Decided on April 24, 2018

BERKMAN, HENOCH, PETERSON, PEDDY & FENCHEL, P.C., Attorneys for Plaintiff, 100 Garden City Plaza, Garden City, NY 11530

Donna M. Fiorelli, P.C., Attorney for Defendant, 41 Front Street, 2nd Floor, Rockville Center, NY 11570

Robert F. Quinlan, J.

Upon the following papers read on this application for an order granting summary judgment dismissing defendants 4th and 10th affirmative defenses, dismissing and striking defendant's answer and appointment of a referee ; plaintiff's Notice of Motion dated May 23, 2017, affirmations of counsel, affidavits, memorandum of law and attached exhibits; defendant's Notice of Cross Motion and opposition dated July 13, 2017 consisting of an affirmation of counsel and affidavit of defendant and attached exhibits; and plaintiff's memorandum of law in opposition to cross-motion and in reply dated July 26, 2017; it is,

ORDERED that plaintiff Bank of America, N. A.'s motion for full summary judgment dismissing defendant Anthony Settineri's 4th and 10th affirmative defenses, striking and dismissing his answer and for appointment of a referee to compute pursuant to RPAPL § 1321 is granted to the extent that defendant's 10th affirmative defense is dismissed, but defendant's 4th affirmative defense cannot be dismissed on this submission; and it is further

ORDERED that defendant Anthony Settineri's cross-motion to dismiss is denied; and it is further

ORDERED that this action is scheduled for limited issue trial before this part in accordance with this order on June 15, 2018 at 9:30 AM , Cromarty Court Complex, 210 Center Drive, 4th floor, Rm 17, Riverhead, NY.

This is an action to foreclose a mortgage on residential real property known as 41 Glenmere Lane, Coram, Suffolk County, New York ("the property") given by defendant Anthony Settineri. ("defendant") to Concord Mortgage Corp. ("Concord"), an alleged predecessor in interest to plaintiff Bank of America, N.A. ("plaintiff"). Plaintiff previously moved for summary judgment dismissing defendants' affirmative defenses and answer, appointment of a referee pursuant to RPAPL § 1321, fixing the default of the non-appearing, non-answering defendants, and other ancillary relief (Mot. Seq. # 001), and defendant filed opposition. After oral argument of the motion on October 20, 2016, the court issued a decision on the record which, among other things, granted plaintiff partial summary judgment dismissing all of defendant's affirmative defenses except his 4th affirmative defense, which raised a claim of compliance with the notice requirement of RPAPL § 1304 and his 10th affirmative defense which raised the issue of plaintiff's standing to bring the action, as questions of fact remained as to these issues based upon the proof before the court, and set those issues for a trial pursuant to CPLR § 2218. The court granted plaintiff's application to fix the default of the non-answering, non-appearing defendants and to amend the caption by removing the "John Doe" defendants. The court also authorized successive motions for summary judgment by the parties after the discovery period and the filing of a note of issue.

Upon completion of discovery and filing of a note of issue, plaintiff filed a second motion for summary judgment addressing the issues set for the limited issues trial. Defendant opposed the motion and cross-moved to dismiss based upon plaintiff's lack of standing to bring the action (10th affirmative defense), failure to comply with the notice requirements of RPAPL § 1304, and for the first time, failure to establish compliance with RPAPL § 1306 (both 4th affirmative defense). Plaintiff filed a memorandum of law in opposition and reply.

Although both parties style their motions as seeking leave to renew, renewal is unnecessary as in its order of October 20, 2016 the court had granted them the right to successive summary judgment motions after the filing of the note of issue. Although multiple summary judgment motions are discouraged without a showing of newly discovered evidence, or other sufficient cause, a court may properly entertain a subsequent summary judgment motion when it is substantively valid and when granting the motion will further the ends of justice while eliminating an unnecessary burden on court resources that would otherwise require a trial (see Detko v. McDonald's Restaurants of New York, Inc , 198 AD2d 208 [2d Dept 1993] ; Rose v. Horton Med. Ctr. , 29 AD3d 977 [2d Dept 2006] ; Landmark Capital Investments, Inc. v. Li-Shan Wang , 94 AD3d 418 [1st Dept 2012] ; Valley National Bank v. INI Holding, LLC, 95 AD3d 1108 [2d Dept 2012] ; American Equity Insurance Co. v. A & B Roofing, Inc., 106 AD3d 762 [ 2d Dept 2013] ; Kolel Damsek Eliezer, Inc. v. Schlesinger , 139 AD3d 810 [2d Dept 2016] ). Here the court had concluded that by allowing successive summary judgment motions, the court could eliminate the need for a trial.

PLAINTIFF ESTABLISHES STANDING

Where plaintiff's standing has been placed in issue by defendant's answer, plaintiff must establish its standing as part of its prima facie showing (see Aurora Loan Servs., LLC v. Taylor , 25 NY3d 355 [2015] ; US Bank, NA v. Richard , 151 AD3d 1001 [2d Dept 2017] ; US Bank, N. A. v. Cohen , 156 AD3d 844 [2d Dept 2017] ). Plaintiff establishes its standing by demonstrating that, when the action was commenced, it was either the holder or assignee of the underlying note (see Aurora Loan Servs., LLC v. Taylor , supra ; Wells Fargo Bank, NA v. Rooney , 132 AD3d 980 [2d Dept 2015] ). A written assignment or physical delivery of the note prior to the commencement of the action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident thereto (see U.S. Bank, NA v. Collymore , 68 AD3d 752 [2d Dept 2009] ; Bank of NY Mellon v. Gales , 116 AD3d 723 [2d Dept 2014] ). A "holder" of the note is a person in possession of the negotiable instrument that is payable either to bearer or an identified person in possession ( UCC 1-201 [b] [21], 3-202 [1], 3-204 [2]; see Deutsche Bank Natl. Trust Co. v. Brewton , 142 AD3d 683 [2d Dept 2016] ; US Bank Natl. Assoc. v. Cruz , 147 AD3d 1103 [2d Dept 2017] ).

Here to establish its standing, in addition to counsel's affirmation and submissions, plaintiff submits the affidavit of an officer of plaintiff, who establishes her ability to testify to plaintiff's business records pursuant to CPLR 4518. Defendant in his opposition argues that the affiant never reveals the office she holds; that is of no moment. There is no requirement that an employee of a business who establishes her ability to testify to the business records and practices of that business hold any particular position/office. It is enough, as here, that the affiant testifies that she is employed/holds a position with the business, that she is familiar with the records maintained by the business, that she has personal knowledge of the business's practices and procedures for creating and maintaining the records, that the records were made at or about the time of the occurrences by someone with personal knowledge of the events, that they are kept in the regular course of the business and that it was the regular course of the business to make such records. The affidavit of plaintiff's employee submitted in support of this motion satisfied these requirements. Her review of plaintiff's records reveals that the original note, indorsed by Concord on the back of the last page of the note, in blank and undated was in plaintiff's possession as of December 7, 2006, well before the filing of this action in 2013. She refers to, and identifies in her affidavit, a copy of a print-out from plaintiff's records, attached as an exhibit to her affidavit, which confirms the date of the possession of the note, and also identifies copies of the indorsed note and the original mortgage, also attached to her affidavit. Her affidavit, attachments thereto, and plaintiff's submissions, establish plaintiff's standing as holder of the note prior to commencement of the action. An affidavit of plaintiff's representative based upon personal knowledge and review of books and business records maintained by plaintiff in the ordinary course of business that establishes the facts of plaintiff's possession of the indorsed note on a date prior to commencement of the action are sufficient to establish plaintiff's standing (see Aurora Loan Services, LLC v. Taylor , supra; Wells Fargo Bank, N.A. v. Charlaff , 134 AD3d 1099 [2d Dept 2015] ; Wells Fargo Bank, N.A. v. Joseph , 137 AD3d 896 [2d Dept 2016] ; Flagstar Bank v. Mendoza , 139 AD3d 898 [2d Dept 2016] ; US Bank, NA v. Ellis , 154 AD3d 710 [2d Dept 2017] ).

Further, an indorsement in blank specifies no particular indorsee and may consist of a mere signature. An instrument payable to order and indorsed in blank becomes payable to bearer and may be negotiated by delivery alone until specially indorsed ( UCC 3-204[2] ). "Bearer" means a person in possession of a negotiable instrument (UCC1-201[b][5] ). There is no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it ( UCC 3-204[2] ). It is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date (see Aurora Loan Services, LLC v. Taylor, 25 NY3d at 362 ; JPMorgan Chase Bank, NA v. Weinberger , 142 AD3d 643 [2d Dept 2016] ; Deutsche Bank Natl. Trust Co. v. Logan , 146 AD3d 861 [2d Dept 2017] ; US Bank...