Household Fin. Realty Corp. of N.Y. v Gangitano 2016 NY Slip Op 30013(U) January 5, 2016 Supreme Court, Suffolk County Docket Number:

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1 Household Fin. Realty Corp. of N.Y. v Gangitano 2016 NY Slip Op 30013(U) January 5, 2016 Supreme Court, Suffolk County Docket Number: Judge: Glenn A. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication.

2 [* 1] 8 SDORT FORM ORDf;R ~ INDEX NO., r,... '-'"' SUPREME COURT - STATE OF NEW YORK IASPART25 -SUFFOLKCOUNTY PRESENT: Hon. GLENN A. MURPHY Acting Justice of the Supreme Court MOTION DATE / ADJ. DATE x MOT. SEQ# 003- MD HOUSEHOLD FINANCE REALTY CORP. OF NEW # 004 -MG YORK, FEIN, SUCH & CRANE, LLP Plaintiff, Richard A. Gerbino, Esq. Attorneys for Plaintiff 1400 Old Country Rd, Suite Cl03 -against- Westbury, New York EDITH GANGITANO, JEROME GANGITANO, HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, UNITED STATES OF AMERICA O/B/O INTERNALREVENUESERVICE. "JOHNDOE#l-5" and "JANE DOE #1-5" said names being fictitious, it being the intention of Plaintiff to designate any and all occupants, tenants, persons or corporations if any, having or claiming an interest in or lien upn the premises being foreclosed herein, THE LAW OFFICE OF JAMIE LATHROP, PC Attorney for Defendants 641 President Street, Suite 202 Brooklyn, New York Defendants, Upon the following papers numbered 1 to 24 read on these motions 003 motion for dismissal and 004,motion for summary iud2ment and an order of reference; Notice of Motion/ Order to Sho" Caa:se and supporting papers 1-7; Notice of Cross Motion and supporting papers 8-24 ; Answe1 ing Mfida+its and suppot ting papen ;Replying Mfida+its and suppo1 ting papers ; Other ; (and aftet hea1 ing counsel in sa:ppo1 t and opposed to the motion) it is, UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is hereby ORDERED that defendant's motion (003) for dismissal pursuant to CPLR 3216 (c) is denied; and it is further ORDERED that plaintiffs motion (004), pursuant to CPLR 3212 for summary judgment on its complaint, to strike the answer and counter-claim of Edith and Jerome Gangitano, and, for an order of reference appointing a referee to compute pursuant to Real Property Actions and Proceedings Law (RPAPL) 1321, is granted; and it is further ORDERED that the plaintiffs application for leave to amend the caption of this action pursuant to CPLR 3025 (b ), is granted; and it is further

3 [* 2] Page No. 2 ORDERED that, U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSF8 MASTER PARTICIPATION TRUST, BY CALIBER HOME LOANS, INC., AS ITS ATTORNEY IN FACT, be substituted in the place and stead of HOUSEHOLD FINANCE REALTY CORPORATION OF NEW YORK, as plaintiff herein and that the caption of this action, the Summons and Complaint and Notice of Pendency are all deemed amended, accordingly, all without prejudice to any person, pleading, or proceedings, heretofore had herein' and it is further. ORDERED that the Summons and Complaint and Notice of Pendency ohhis action and all proceedings had herein be and the same hereby are deemed amended, by substituting the names od the defendants Bill Gangitano as JOHN DOE #1 and that the title of this action be and the same hereby amended accordingly, all without prejudice to the proceedings already had herein; and it is further ORDERED that the names "JOHN DOE E#2 through "JOHN DOE #5, inclusive, and "JANE DOE #1" through "JANE DOE #5, inclusive, be severed and stricken from the caption herein and that the action be discontinued as to them, all of the foregoing without prejudice to any of the proceedings heretofore had herein or to be had herein with the caption hereinafter ti read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ~~~~~~~~~~~~~~~~~~~x U.S. BANK TRUST, N.A., AS TRUSTEE FOR LSFB MASTER P ARTICIP A TI ON TRUST, BY CALIBER HOME LOANS, INC., AS ITS ATTORNEY IN FACT, Index No Plaintiff, -against- EDITH GANGITANO, JEROME GANGITANO, HOUSEHOLD FINANCE REAL TY CORPORATION OF NEW YORK, UNITED STATES OF AMERICA O/B/O INTERNAL REVEI\TUE SERVICE, BILLGANGITANO, Defendants. ORDERED that the plaintiff is directed to serve a copy of this order amending the caption of this action upon the Calendar Clerk of this Court. This is an action to foreclose a mortgage on premises known as 7 Richards Drive, Selden, New York. On November 10, 2004, the defendant executed a note and mortgage in favor of Household Finance Realty Group of New York (Household), agreeing to pay the sum of $33, The mortgage was recorded on November 12, 2004 in the Suffolk County Clerk's Office. On February 21, 2005, the defendant and Household entered into a mortgage and consolidation agreement. At that time the mortgage amount was increased to $62, On December 27, 2005, a second consolidation mortgage agreement was executed by the defendant and Household in the amount of $442,

4 [* 3] Page No. 3 The term thereon was for thirty (30) years at a rate of 8.54% (percent). The final agreement was filed with the Suffolk County Clerk on December 29, On April 11, 2014 Household modified by Caliber Home Loans Inc., as again in fact, assigned the mortgage to the plaintiff. A notice of default, dated March 17, 2010, was sent to the defendant stating that he had defaulted on his mortgage loan and that the amount past due was $12, On January 2,2010, the plaintiff sent by certified and regular mail a ninety (90) day notice pursuant to RP APL As a result of the defendant's continuing default, the plaintiff commenced this foreclosure action on October 19, In its complaint, the plaintiff alleges in pertinent part that the defendants breached their obligations under the terms of the note and mortgage by failing to make monthly payments. The summons and complaint comply with the requirement of RP APL The defendants interposed an answer consisting of general denials and six ( 6 ) affirmative defenses and four ( 4) counter-claims. The Court's computerized records indicate that three (3) foreclosure settlement conferences were held. The final one on May 29, 2012, at which time this matter was referred as an IAS case since a resolution or settlement had not been achieved. Thus, there has been compliance with CPLR 3408 and no further settlement conference is required. On September 27, 2003, the defendant filed a motion for dismissal pursuant to CPLR On April 10, 2014 the motion was denied. The Court found justifiable excuse for the delay and the absence of any prejudice to the defendant. The defendant's instant motion (003), seeks dismissal of the matter pursuant to CPLR It is based upon an April 22, 2014 denial filed by the defendant pursuant to CPLR 3216 seeking the plaintiff file a Note Oflssue (NOi). The plaintiff filed the NOI on July 24, The NOi was rejected by the clerk for two (2) reasons. The first, was due to the fact that the request was not accompanied by a certification/compliance order signed by an IAS Judge. However, the Court rules with regard to foreclosure matter do not require the execution of a compliance order. The second reason for objection involves the plaintiffs failure to include the full caption of all named parties in the NOI form. The plaintiffs' failure to complete the form including all named parties is a ministerial defect that did not prejudice the defendant. This Court finds the plaintiff made a good faith effort to file the NOi as requested by the defendant. Further, as the plaintiff has established a meritorious claim and the defendant cannot show prejudice resulting from the clerks rejection of the NOi based upon the totality of the record. The defendant's motion {003) is denied. The plaintiff filed a cross-motion (004) seeking denial of the defendants motion and summary judgment on its complaint. The plaintiff contends that the defendants failed to comply with the terms of the loan agreements and mortgages and, that the defendant's general denials raised no issues of fact for trial. In support of its motion, the plaintiff submits among other things: the sworn affidavit of Israel Trujillo, Default Service Officer, the servicer of the plaintiffs loan; the affirmations of Richard Gerbino in support of the instant motion together with his affirmation pursuant to the Administrative Order of the Chief Administrative Judge of the Courts (A0/431/11); the pleadings; the note, mortgage, and assignment of mortgage; notice of default; notices pursuant to RP APL 1320, 1304 and 1303; affidavits of service for the summons and complaint; and, an affidavit of service for the instant summary judgment motion upon the defendant's counsel. However, filed no opposition to the plaintiffs motion for summary judgment.

5 [* 4] Page No. 4 Plaintiffs motion sufficiently demonstrates its entitlement to the relief requested, (see Deutsche Bank Natl Trust Co. v Islar, 122 AD3d 566, 996 NYS2d 130 [2d Dept 2014]; Plaza Equities, LLC v Lamberti, 118 AD3d 688, 986 NYS2d 843 [2d Dept 2014]; Jessabell Realty Corp. v Gonzalez, 117 AD3d 908, 985 NYS2d 897 [2d Dept 2014]). Defendants' answer is insufficient, as a matter of law, to defeat plaintiff's unopposed motion (see Flagstar Bank v Bellafiore, 94 AD3d I 044, 943 NYS2d 551 [2d Dept 2012); Wells Fargo Bank Minn. Natl. Assn. v Perez, 41AD3d590, 837 N YS2d 877 [2d Dept 2007]). Where a defendant fails to oppose a motion for summary judgment, there is, in effect, a concession that no question of fact exists, and the facts as alleged in the moving papers may be deemed admitted (see Kuehne & Nagel v Baide11, 36 NY2d 539, 369 NYS2d 667 [1975]). In light of the foregoing, the motion for summary judgment is granted against the defendants and the defendant's answer is stricken. The plaintiffs request for an order of reference appointing a referee to compute the amount due plaintiff under the note and mortgage is also granted (see Vermont Fed. Bank v Chase, 226 AD2d 1034, 641NYS2d440 (3d Dept 1996]; Bank of East Asia, Ltd. v Smith, 201 AD2d 522, 607 NYS2d 431 [2d Dept 1994]). It is: ORDERED, further that this action is hereby referred to Paul R. Feuer Esq.. with an office located at 124 Medford A venue, Patchogue. New York Ph# who is hereby appointed Referee to ascertain and compute the total amount due plaintiff for unpaid principal, accrued interest and all (other disbursements advanced as provided for by statute) mortgage costs and expenses other than attorneys' fees secured by the note and mortgage set forth in the complaint, and to examine and report as to whether the mortgaged premises can be sold in one parcel; and it is further ORDERED, that plaintiff shall provide the Referee all required documents to compute within sixty (60) days from the date of this Order, and the Referee shall make his/her report no later than thirty (30) days thereafter and that, except for good cause shown, the plaintiff shall move for judgment no later than thirty (30) days of the date of the Referee's Report; and it is further ORDERED, that by accepting this appointment the Referee certifies that he/she is in compliance with Part 36 of the Rules of the Chief Judge (22 NYCRR Part 36), including, but not limited to section 36.2 (c) ("Disqualifications from appointment"), and section 36.2 (d) ("Limitations on appointments based upon compensation"); and it is further ORDERED, that upon submission of the Referee's Report, plaintiff shall pay pursuant to CPLR 8003 (a) $ to the Referee as compensation for his/her services, which sum may be recouped as a cost of litigation; and it is further ORDERED, that the Referee is prohibited from accepting.or retaining any funds for him/herself or paying funds to him/herself without compliance with Part 36 of the rules of the Chief Administrative Judge; and it is further ORDERED, that the Referee appointed herein is subject to the requirements of Rule 36.2 (c) of the Chief Judge, and if the Referee is disqualified from receiving an appointment pursuant to the provision of that Rule, the Referee shall notify the appointing Justice forthwith; and it is further

6 [* 5] Page No. 5 ORDERED, plaintiff is to include in any proposed order for a judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Foreclosure Action Surplus Monies form contained in Suffolk County Administrative Order #41-13; and it is further ORDERED, that a copy of this order with Notice of Entry shall be served upon the designated Referee, the owner of the equity of redemption, any tenants named in this action and any other party entitled notice within twenty (20) days of entry and no less than thirty (30) days prior to any hearing before the Referee. The Referee shall not proceed to take evidence as provided herein without proof of such service, which must accompany any application for Final Judgment of Foreclosure and Sale. JAN 0 S 201& FINAL DISPOSITION _ X_ NON-FINAL DISPOSITION