Ventures Trust 2013-1-H-R v Graffagnino
Index No. 605424/15
ORDERED that this motion (#003) by the plaintiff for, among other things, summary judgment, amendment “the caption and the appointment of a referee to compute, i, granted in it, entirety; and it is further ORDERED that the proposed Order submitted by plaintiff, as modified by the court, i, signed simultaneously herewith; and it is further
ORDERED that plaintiff is directed to tile a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR ~ 202.5-b(h)(3).
This foreclosure action was commenced by filing on May 21, 2015. Familiarity with the Court’s order of March 30, 2017 (Martin, AJ.S,C.), i, presumed. The matter was reassigned to this Part pursuant to Administrative Order No. 110-17, dated September 28, 2017 and submitted for decision (m December 8, 2017. In essence, on July 16, 2005, defendant, Kevin Graffagnino, borrowed $731,250.00 from the plaintiffs predecessor-in-interest and executed a promissory note and mortgage with the defendant, Mary Jo Graffagnino. The defendant, defaulted on September 1, 2009 by failing to pay the monthly installments due and owing. Defendants submitted an answer with seventeen affirmative defenses and six counter-claims.
In the moving papers, plaintiff addresses its burden of proof on this summary judgment motion and refutes the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, Natl. Assn. v Espinal, 137 AD3d 1079,28 NYS3d 107 [2d Dept 2016]; lJ.S. Bank Natl. Assn. v Cox, 148 AD3d 692, 49 NYS3d 527 [2d Dept 2017]).
The burden then shifts to defendants (see Bank of America, N.A. “DeNardo, 151 AD3d 1008.58 NYS3d 469 [2d Dept 2017]) and it was incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff’s prima facie showing or in support of the affirmative defenses asserted in the answer or otherwise available to each of them (see Flag .•tar Bank” Bella fiore, 94 AD3d 1044, 943 NYS2d 551 [2d Dept 2012]; Grogg A.Hocs. “South Rd. A.uocs., 74 AD3d 1021, 907 NYS2d 22 [2d Dept 201 OJ; Wells Fargo Bank “Karla, 71 AD3d 1006, 896 NYS2d 681 [2d Dept 2010J: Washington Milt. Bank” O’Connor, 63 AD3d 832,880 NYS2d 696 [2d Dept 2009J: J.P. Morgan Chase Bank, NA “Agnello, 62 AD3d 662,878 NYS2d 397 [2dDept 2009]; Aames Flllldillg Corp. v Hou.~101I,44AD3d 692, 843 NYS2d 660 [2d Dept 2007]).
Notably, affirmative defenses predicated upon legal conclusions that are not substantiated wilh allegations of fact are subject to dismissal (“ee CPLR 3013, 3018[bJ; Katz” Miller, 120 AD3d 768,991 NYS2d 346 [2d Dept 2014J; Beclter” Feller, 64 AD3 672, 677, 884 NYS2d 83 [2d Dept 2009]; Cohen Fashion Opt., Inc. v V & M Opl., Inc” 51 AD3d 619. 858 NYS2d 260 [2d Dept 2008]). Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant’s papers may be deemed admined as there is, in effect, a concession that no question of fact exists (see Kuehll<!& Nagel, Jm:. v Baidell, 36 NY2d 539, 369).
NYS2d 667 ; $~e al$o Madeline D’Ant/wny Enter., Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]; Argent Mtg. Co., LLC v Mentesana, 79 AD3d 1079,915 NYS2d 591 [2d Dept 2010]). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders these defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Really F Rockaway, Ltd., 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013]; Starkmon City of Long Beach, 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013]), Defendants’ opposition challenges plaintiff’s standiog to commence this action. In accordance with the above, all other affirmative defenses and counterclaims raised io the answer an not addrcsscd in the opposition arc dismissed as abandooed. The standing defense has lost its significance and vitality with the advent of CPLR 3012.b.
One of the various methods lhat standing may be established is by due proof that the plaintiff or its custodial agent was in possession of the nOlI’prior to the commencement of the action. The production of such proof is sufficient to establish, prima facie, the plaintiffs possession of the requisite slanding to prosecute its claims for foreclosure and sale (see Aurora 1.00″ Sen;s., LLC v Taylor, 25 NY3d 355,12 NYS3d 612 ; U.S, Bonk.’ Ehrenfeld, 144 AD3d 893, 41 NYS3d 269 (2d Dept 2016]; JPMorgall Cllase Bank, Natl. A.nn. v Weillberger, 142 AD3d 643, 37 NYS3d 286 [2d Dept 20161; Citimortgage, Till’. v Kleill, 140 AD3d 913, 33 NYS3d 432 [2d Dept 2016]; U.S. Bank Natl. A$$n. v Gmlwill, 137 AD3d 1260,28 NYS3d 450 [2d Dept 2016]; W••ll$ Fargo Bank, N.A, v Jos”p1l, 137 AD3d 896, 26 NYS3d 583 [2d Dept 2016J; Emigrant Bonk v Lariz<;a, 129 AOJd 904. 13 NYS3d 129 [2d Dept 2015]; Deutsche Bank Natl. Tru$t Co. v Whalf’ll, 107 AD3d 931, 969NYS2d 82 [2d Dept2013]). The affidavit ofJulic Burke, Assistant SccrctaryofFay Servicing, LLC, plaintiff s servicer, satisfies that condition.
Additionally, as o~curred in this action, the plaintitI’ s attachment of a duly indorsed mortgage note to its complaint or to the certificate of merit required by CPLR 3012~b ha~ been held to constirute due proof ofthe plaintiff’s possession ofthe note prior to the commencement ofthe action and thus its standing to prosecute its claim for foreclosure and sale ($ee Bank of NY M••llon v Burk ••, 2017 WL 5617560, 2017 NY Slip Op 08255 [2d Dept 2017], ciling W••lt$ Fargo Bank,NA. v Thoma .•, 150 AD3d 1312, 52 NYS3d 894 [2d Dept 2017]; D••ut$che Bonk Trust Co. AllIS, v Garri$on, 147 AD3d 725, 726, 46 NYS3d ]85 [2d Dept 2017J; US Bank NA. vSarovana”, 146 AD3d 1010, 1011, 45 NYS3d 547 [2d Dept 2017]; Deutsch ••Bank Natl, Tru.tCo. v Logan, 146 AD3d 861, 862-863. 45 NYS3d 189 [2d Dept 2017]; Nations!or Mtg”” LLC v Weisb/um, 143 AD3d 866, 39NYS3d 491, 494 [2d Dept 2016J; 05 •••• also HSBC Bank USA v O<;CUII1,54 AD3d 822,64 NYS3d 38 [2d Dept 2017]). Here, the plaintiff alleged in ilS complaint that it was thc current holder of the note and attached a copy of the endorsed note to the complaint Plaintiff has also demonstrated its standing by virtue of the merger with the original lender ($ee Banking Law ~602; see also Citimortgag ••, TnI’. v Goldb ••rg, 134 AD3d 880, 20 },ryS3d 906 [2d Dept 20151; CapitalOlle, NA. v Brooklyn Fla/iroll, LLC, 85 AD3d 837, 925 NYS2d 350 [2d Dept 2011]; Ladino v Balik oJAm., 52 AD3d 571, 861 NYS2d 683 [2d Dept 2008]).