The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee on behalf of

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Madeleine Spencer
5 years ago
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1 PRESENT: At IAS/Civil Part of the Supreme Court of the State of New York, County of Westchester, 111 Dr Martin Luther King, Jr, Boulevard, White Plains, New York 10601, on the day of, 2017 HON LEWIS J LUBELL, JSC THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE ON BEHALF OF CIT MORTGAGE LOAN TRUST, , vs Plaintiff, Index No 65030/2015 ORDER JOSE PERDOMO, CIBAO CARGO, INC, CITIBANK SOUTH DAKOTA NA, CAPITAL ONE BANK USA NA, PORTFOLIO RECOVERY ASSOC LLC, HSBC BANK USA NATIONAL ASSOCIATION, JOHN DOE (being fictitious, the names unknown to Plaintiff intended to be tenants, occupants, persons or corporations having or claiming an interest in or lien upon the property described in the complaint or their heirs at law, distributes, executors, administrators, trustees, guardians, assignees, creditors or successors) Defendant(s) The Bank of New York Mellon, f/k/a The Bank of New York, as Trustee on behalf of CIT Mortgage Loan Trust, ( Plaintiff ), having moved by Notice of Motion, dated September 6, 2016 ( Plaintiff s Motion ), for an Order (a) pursuant to Rule 3212 of the New York Civil Practice Law and Rules ( CPLR ): (i) directing the entry of summary judgment in favor of Plaintiff and against defendant Jose Perdomo ( Defendant ) for the relief demanded in Plaintiff s Complaint, and (ii) striking the affirmative defenses and dismissing the counterclaims raised in Defendant s Verified Answer with Set-Offs and Counterclaims (the Answer );

2 (b) directing the entry of default judgment against all other parties in default of answering; (c) directing the appointment of a referee to compute; (d) amending the caption of this action to substitute Lesley Rodriguez for John Doe 1 and Jose Perdomo, Jr for John Doe 2 as named defendants; and (e) for such other relief as may be just and proper NOW UPON reading and filing Plaintiff s Motion, the Affirmation of Joseph S Jacobs dated September 6, 2016, and the exhibits annexed thereto, the Affidavit of Joshua Cantu, sworn to on August 19, 2016, and the exhibits annexed thereto, and the Memorandum of Law dated September 6, 2016, submitted in support of Plaintiff s Motion, and the Affirmation of Jessica L Chirichella in Opposition to Plaintiff s Motion for Summary Judgment dated October 18, 2016, and the exhibits annexed thereto, and the Reply Affidavit of Joshua Cantu, sworn to on October 26, 2016, and the Reply Memorandum of Law dated November 2, 2016, submitted in further support of Plaintiff s Motion, and on the Summons, Complaint, and Notice of Pendency of this action filed in the Office of the Westchester County Clerk on September 14, 2015, and the remaining defendants having defaulted in appearance, and due consideration having been had, and it appearing that this action was brought to foreclose a mortgage on real property known as 1077 Nepperhan Avenue, Yonkers, NY (Section 3, Block 3401, Lot 47), by reason of certain defaults as alleged in the Complaint, that all of the defendants have been duly served with the Summons and Complaint, and it appearing that none of the defendants is an infant, incompetent, an absentee, or presently within the service of the military, and that since the filing of the Notice of Pendency of this action on September 14, 2015, the Complaint has not been amended in any manner whatsoever, and on all the pleadings and papers heretofore filed herein, and the proceedings heretofore had herein NOW, upon motion of Day Pitney LLP, co-counsel for Plaintiff with Gross Polowy, LLC, it is hereby -2-

3 ORDERED, that Plaintiff s Motion is granted in its entirety; and it is further ORDERED, that Defendant s Answer is hereby stricken and the Defendant s affirmative defenses and counterclaims are dismissed with prejudice; and it is further ORDERED, that Plaintiff is awarded summary judgment for the relief demanded in the Complaint; and it is further ORDERED, that the caption of this action be amended to substitute Lesley Rodriguez and Jose Perdomo, Jr, tenants and/or co-occupants of the mortgaged premises, having been duly served with copies of the Summons and Complaint, as named defendants in place of John Doe 1 and John Doe 2, respectively, and their names be added to the caption as necessary party defendants; and it is further ORDERED, that Plaintiff is awarded default judgment against defendants Cibao Cargo, Inc, Citibank South Dakota NA, Capital One Bank USA NA, Portfolio Recovery Assoc LLC, HSBC Bank USA National Association, Lesley Rodriguez, and Jose Perdomo, Jr; and it is further ORDERED, that the defendant captioned John Doe, not having been served with copies of the Summons and Complaint, is not a necessary party defendant, and his name is hereby stricken from all the proceedings and papers hereafter to be filed, all without prejudice to any of the prior proceedings had herein or to be had herein; and it is further ORDERED, that the caption of this action as amended shall read as follows, and the Clerk of the Court is directed to note such change in its records: [THIS SPACE INTENTIONALLY LEFT BLANK] -3-

4 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER THE BANK OF NEW YORK MELLON, F/K/A THE BANK OF NEW YORK, AS TRUSTEE ON BEHALF OF CIT MORTGAGE LOAN TRUST, , Index No 65030/2015 vs Plaintiff, JOSE PERDOMO, CIBAO CARGO, INC, CITIBANK SOUTH DAKOTA NA, CAPITAL ONE BANK USA NA, PORTFOLIO RECOVERY ASSOC LLC, HSBC BANK USA NATIONAL ASSOCIATION, LESLEY RODRIGUEZ, AND JOSE PERDOMO, JR, Defendants and it is further ORDERED, that, having offices at, is hereby appointed Referee to ascertain and compute the amount due to the Plaintiff herein for principal, interest, real estate taxes, assessments, water charges, sewer rents, insurance premiums, and all other charges under the Note and Mortgage which this action was brought to foreclose, including the cost of preserving or protecting the mortgaged premises, and to examine and report whether the mortgaged premises should be sold in one or more parcels, and that the Referee make his/her report to this Court with all convenient speed; and it is further ORDERED, that, if required, said Referee take testimony pursuant to New York Real Property Actions and Proceedings Law ( RPAPL ) 1321; 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 362(c) ( Disqualifications from appointment ), and Section 362(d) ( Limitations on appointments based upon compensation ); and it is further -4-

5 ORDERED, that the Referee s computation may be had in any County of the State of New York, and that on the coming in of the report of the Referee and on the confirmation of said report of the Referee, and upon an additional affirmation of regularity, Plaintiff upon proper application shall have the usual judgment of foreclosure and sale, and for costs and additional allowances as allowed by law; and it is further ORDERED, that pursuant to CPLR 8003(a), in the discretion of the Court, the statutory fee of $5000 (in the discretion of the Court, a fee of $ ) shall be paid to the Referee for the computation stage and upon the filing of his/her report; 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 E N T E R : LEWIS J LUBELL, JSC

Plaintiff, REFEREE TO COMPUTE LORIANN GAMBINO; MARIA MONTANINO; NEW Property Address: 267 WOODS OF

Plaintiff, REFEREE TO COMPUTE LORIANN GAMBINO; MARIA MONTANINO; NEW Property Address: 267 WOODS OF At an IAS Term, Part, of the Supreme Court of the State of New York, held in and for the County of Richmond, at the Courthouse located at 26 Central Avenue, Staten Island, NY 10301 on the F day P R E S