Bank of N.Y. Mellon v. Deloney

197 A.D.3d 548

153 N.Y.S.3d 64

BANK OF NEW YORK MELLON, etc., respondent,

v.Roger DELONEY, appellant, et al., defendants.

2018–04854

Index No. 504313/13

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

Submitted—April 6, 2021

August 11, 2021

Roger DeLoney, Brooklyn, NY, appellant pro se.

Druckman Law Group PLLC, Westbury, N.Y. (Richard J. Pelliccio of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Roger DeLoney appeals from an amended order and judgment of foreclosure and sale (one paper) of the Supreme Court, Kings County (Noach Dear, J.), dated February 13, 2018. The amended order and judgment of foreclosure and sale, insofar as appealed from, upon an order of the same court (Mark Partnow, J.) dated September 27, 2016, granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Roger DeLoney, to strike his answer, and for an order of reference, and denying that branch of that defendant's cross motion which was, in effect, to dismiss the complaint insofar as asserted against him, granted the plaintiff's motion for a judgment of foreclosure and sale, confirmed the report of the referee, and directed the sale of the premises.

ORDERED that the amended order and judgment of foreclosure and sale is reversed insofar as appealed from, on the law, with costs, those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Roger DeLoney, to strike his answer, and for an order of reference are denied, and the order dated September 27, 2016, is modified accordingly.

In June 2013, the plaintiff, a successor in interest to nonparty American Mortgage Express Corp., commenced this action against, among others, Roger DeLoney to foreclose a mortgage securing real property in Brooklyn. Thereafter, the plaintiff moved, among other things, for summary judgment on the complaint insofar as asserted against DeLoney, to strike DeLoney's answer, and for an order of reference. In support, the plaintiff submitted the affidavit of a foreclosure specialist for the plaintiff's purported assignee, New Point Financial, LLC, doing business as Shellpoint Mortgage Servicing (hereinafter Shellpoint). DeLoney opposed and cross-moved, inter alia, in effect, to dismiss the complaint insofar as asserted against him. In an order dated September 27, 2016 (hereinafter the September 2016 order), the Supreme Court, among other things, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against DeLoney, to strike his answer, and for an order of reference, and denied that branch of DeLoney's cross motion which was, in effect, to dismiss the complaint insofar as asserted against him.

Thereafter, in January 2017, the plaintiff moved for a judgment of foreclosure and sale. As is relevant to this appeal, in an amended order and judgment of foreclosure and sale dated February 13, 2018, the Supreme Court, inter alia, granted the plaintiff's motion for a judgment of foreclosure and sale, confirmed the report of the referee, and directed the sale of the premises. DeLoney appeals.

" ‘In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default’ " ( BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d 960, 962, 146 N.Y.S.3d 166, quoting Tri–State Loan Acquisitions III, LLC v. Litkowski, 172 A.D.3d 780, 782, 100 N.Y.S.3d 356 ). The plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d at 962, 146 N.Y.S.3d 166 ; US Bank N.A. v. Hunte, 176 A.D.3d 894, 896, 110 N.Y.S.3d 53 ). Among other things, a plaintiff can establish a default by submission of an affidavit from a person having personal knowledge of the facts, or other evidence in admissible form (see BNH Milf, LLC v. Milford St. Props., LLC, 192 A.D.3d at 962, 146 N.Y.S.3d 166 ; Deutsche Bank Natl. Trust Co. v. McGann, 183 A.D.3d 700, 702, 122 N.Y.S.3d 76 ).

Here, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against DeLoney, to strike his answer, and for an order of reference, as the plaintiff failed to show proof of DeLoney's default in payment of the note (see Tri–State Loan Acquisitions III, LLC v. Litkowski, 172 A.D.3d at 782, 100 N.Y.S.3d 356 ). The affidavit of an employee of Shellpoint, which the plaintiff submitted in support of its motion, was insufficient to establish DeLoney's default. The Shellpoint employee, who averred that DeLoney defaulted by failing to make the payments due under the note and mortgage on January 1, 2010, and thereafter, did not attest that he was personally familiar with the record-keeping practices and procedures of the plaintiff or those of the plaintiff's predecessor in interest, or that the records generated by the plaintiff's predecessor in interest were incorporated into the plaintiff's own records or routinely relied upon in its business (see CPLR 4518[a] ; SMS Fin. XXXI, LLC v. Hutson, 190 A.D.3d 1002, 1003, 136 N.Y.S.3d 776 ), and failed to...