FRANCIS M. CAESAR, ESQ. 19 HA YRAKE LANE CHAPP AQUA, NEW YORK 10514 914-772-7635 June 22, 2017 Hon. Nicholas Colabella, JHO Supreme Court of the State ofnew York County of Westchester 111 Dr. Martin Luther King Jr. Blvd. 12TH Floor White Plains, New York 10601 Re: HSBC Bank USA NA as Trustee v. Caesar, et al., Inde No. 70104/2015 -- Note of Issue Defects Your Honor: In the above captioned action, the Trial Readiness Referee Report & Order entered July 5, 2016 ("Trial Readiness Order;" NYSCEF Doc. No. 86) (EXHIBIT A) required the substitute plaintiff in this action, the HSBC Bank USA NA as Trustee etc. (the "HSBC Trustee"), to serve on all parties in this action the Certificate of Readiness and Note oflssue (collectively the "Note of Issue") and to file proof of service thereof in NYSCEF. The Trial Readiness Order was consistent with the epress requirements of 22 NYCRR 202.21 (a) which states: "No action or special proceeding shall be deemed ready for trial or inquest unless there is first filed a note of issue accompanied by a certificate of readiness, with proof of service on all parties entitled to notice, in the form prescribed by this section." [Emphasis added.] In review of the Court records in preparation for trial, the undersigned has noticed that the Note of Issue filed by the substitute plaintiff at NYSCEF Doc. No. 87 (EXHIBIT B) was not accompanied by proof of service thereof on all of the defendants in this action as required by both the Trial Readiness Order and 22 NYCRR 202.2l(a). Service upon Defendant Francis Caesar was made via NYSCEF. But the other defendants -- Citibank, N.A.; the United States of America; New York State Department of Labor; New York State Department of Taation and
Hon. Nicholas Colabella, JHO Supreme Court of the State of New York County of Westchester June 22, 2017 Page 2 Finance; and "John Doe #1" through "John Doe #10" -- have not consented to NYSCEF and apparently were not served at all. 1 The undersigned recently asked the Pincus Law Group PLLC and Ballard Spahr LLP - respectively the trial counsel and appellate counsel for the substitute plaintiff, the HSBC Trustee -- to eplain how the HSBC Trustee intends to address these problems. The undersigned eplained that the failure to serve all of the defendants in this matter will render the Note oflssue a nullity and subject to vacatur. On a practical level, it is unlikely that the other defendants in this action are aware this matter has been placed on the trial calendar. The undersigned also noticed that the Note of Issue contains the materially inaccurate claim that Defendants Francis and Lisa Caesar were served on April 22, 2015.2 Although we arguably waived our objection to lack of service of the original plaintiff's claims (i.e., the claims of the US Bank NA as Trustee) sity (60) days after our Answer was deemed interposed by order of the Court entered December 13, 2013, we were never served with any pleadings of the HSBC Trustee and we never waived our objection to the lack of service of the HSBC Trustee's unpleaded claims. Indeed, our contention is that if at trial the HSBC Trustee attempts to prosecute its unpleaded, unfiled and unserved claims, any order or judgment rendered in favor of the HSBC Trustee (other than in its capacity as substitute for the US Bank Trustee) will be subject to vacatur per CPLR 5015(a)(4). Given the failure of the Pincus Law Group and Ballard Spahr to respond to the undersigned's reasonable inquiry, the undersigned thought it appropriate to bring this to Your Honor's attention. These problems with the Note of Issue -- lack of service on all of the defendants and material inaccuracy of information -- must deem this action unready for trial and the Note of Issue subject to vacatur. (See e.g., Slevin v. City o[new York, 2014 N.Y. Slip Op 31665 (Sup. Ct. 2014) ("Since service 'on all parties entitled to notice' was not effectuated, this case cannot be 'deemed ready for trial'. 22 NYCRR 202.21(a).").) In fact, Hon. Lefkowitz noted in the Decision & Order entered February 10, 2017 (NYSCEF Doc. No. 164) (EXHIBIT C): "The plaintiff failed to address whether the defendants, other than Francis Caesar and Lisa Caesar, have answered the complaint or are in default." 2 In fact, the undersigned epressly noted this defect to Justin Angelo, Esq. of Ballard Spahr, counsel for the substitute plaintiff, the HSBC Trustee, by email dated July 26, 2016.
Hon. Nicholas Colabella, JHO Supreme Court of the State of New York County of Westchester June 22, 2017 Page 3 In addition to any other relief this Court may seem just and equitable, this Court may see fit, on its own motion, to direct all the parties to show cause why the Note of Issue should or should not be vacated and the action should or should not be stricken from the trial calendar on the ground that the substitute plaintiff, the HSBC Trustee, did not fully comply with either the Trial Readiness Order or 22 NYCRR 202.2l(a). Respectfully,. Caesar, Esq. Defen Pro Se and Attorney of Record for Defendant Lisa Caesar Enclosures cc: Danielle Mastriano, Esq. (VIA NYSCEF) The Pincus Law Group PLLC 425 RXR Plaza Uniondale, New York 11556 Attorneys for HSBC Bank USA NA as Trustee Kathleen A. Zebrowski, Esq. (VIA FAX) Assistant United States Attorney 86 Chambers Street New York, New York 10007 Fa: 212-637-2717 Attorneys for the United States Adam P. Hartley, Esq. (VIA FAX) Ballard Spahr LLP 919 3r d Avenue New York, New York 10022 Fa: 212-223-1942 Appellate Counsel for HSBC Bank USA NA as Trustee
EXHIBIT A
FILED: WESTCHESTER COUNTY CLERK INDEX 07/05/2016 NO. 70104/2015 02:41 SUPREME COURT OF THE STATE OF NEW YORK NYSCEF DOC. NO. 86 RECEIVED NYSCEF: 07/05/2016 COUNTY OF WESTCHESTER - COMPLIANCE PART ----------------------------------------------------------------------- -against- Plaintiff(s), UPLOAD TO NYSCEF TRIAL READINESS REFEREE REPORT & ORDER Defendant(s). Inde No. '1:o\o'\ \ ;2.61S- ----------------------------------------------------------------------- 1 MARKUS, C.A.R. In accordance with CPLR 3104 and the DCM Rules of this Court, and the parties and/or counsel having appeared for a Compliance Conference before me on I recommend that the Court confirm the following Trial Readiness Report: (,,\ <i \\\o It appearing that all discovery having been completed or waived, and the above referenced action is ready for trial: (I) NOTE OF ISSUE AND CERTIFICATE OF READINESS shall be served and filed by plaintiff via NYSCEF within twenty (20) days of the entry hereof; and (2) IF ANY PARTY HAS OPTED OUT OF NYSCEF, plaintiff shall also serve a copy of the Note of Issue and Certificate of Readiness within (20) days of entry hereof upon any party who has opted out ofnyscef, and shall file proof of service thereof via NYSCEF; and (3) SUMMARY JUDGMENT MOTIONS by any party must be served via NYSCEF within sity (60) days following the filing of the Note oflssue, and opposition papers must be served via NYSCEF within 30 days of service of motion papers, and reply papers, if any, must be served via NYSCEF within 10 days following service of any opposition papers; and (4) IF ANY PARTY HAS OPTED OUT OF NYSCEF, a copy of any motion for summary judgment, opposition papers or reply papers must be served upon that party by mail within the prescribed time periods and an affidavit of such service shall be uploaded to NYSCEF. The foregoing constitutes the Report of the Court Attorney-Referee. Dated: White Pl1ns, New York,201 w\ SO ORDERED. Dated: White Plains, New York /-5,2016 1 of 1
EXHIBIT B
FILED: WESTCHESTER COUNTY CLERK 07/18/2016 12:29 PM INDEX NO. 70104/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 07/18/2016 NOTE OF ISSUE Calendar No. (if any) Inde No. 10 10412015 ---- s up re m e Court, Westches t er County, N.Y. For use of Clerk Honorable Joan B. Lefkowitz Name of Justice Assigned HSBC BANK USA, N.A, SOLELY AS TRUSTEE OF THE J.P. MORGAN MORTGAGE TRUST 2007-A2 Plaintiff/Petitioner NOTICE FOR TRIAL 0Trial E, iury demanded l.!.i Of all issues Qof issues specified below r:"1.oar attached hereto L:.J..Trial without Jury -against- Filed by Pl a i n tiff Date summons servedap.;... n 122. 2 Date service completed Apn122,2015 0 15 Date Issue joineda.;... pn 1 12.2013 NATURE OF ACTION OR PROCEEDING FRANCIS M. CAESAR, LISA N. CAESAR Defendant/Respondent Oro rt Dviotor Vehicle Negligence 0,,edical Malpractice Q:>ther Tort Contract Contested Matrimonial Uncontested Matrimonial a Certiorari Condemnation./ Other (not itemized above) specify: Mo...; rtg ; a.;... gefo red o sure Qhis action is brought as a class action Amount Demanded$ 0th er Re Ii e f Judgment far foreclosure directing Iha! the Property may be sold. order refonning mortgage Special Preference claimed under Insurance carrier(s), if known: on the ground that Attorney for Plaintiff/Plaintiff Pro Se: Ju s u n An ge to.e sq. Address: Ballard Spahr, LL P, 9193rd Avenue, New York, NY 10022 Phone Number 64 s. 34s.eo 1 2 Attorney for DefendanUDefendant Pro Se: Francis M. Caesar Address: 19 H ayrake Lane, Chappaqua, NY 10514/ Phone Number914.11 2.1s3 5 1 1 of 2
CERTIFICATE OF READINESS FOR TRIAL 1. All pleadings served.... 2. Bill of particulars served.... 3. Physical eaminations completed.... 4. Medical reports echanged.... 5. Appraisal reports echanged.... 6. Compliance with rules in matrimonial actions.... 7. Discovery now know to be necessary completed... 8. There are no outstanding requests for discovery. (Items 1-7 must be checked) C O.!!J..E I e ted W..filY.ed Not Required - 9. There has been a reasonable opportunity to complete the foregoing proceedings. 10. There has been compliance with any order issued to Precalendar Rules (22 NYC RR 202.12) 11. If a medical malpractice action, there has been compliance with any d 202.56 12. The case is ready for trial. Dated: 111a1201s Signature Print NameJu...,-"--- Attorney for/party Pro SeP1a1nti1 Address 9193rd Avenue. NewYor1<. NY 10022 Phone Number 6'46.346.ao12 1 - State of New York County of ss: Q" ing dul9)sworn deposes and says: that deponent is not a p rty to the action, is over 18 years of age and resides at ' that on ;,the,day of, 20 dep 0ii'El t served the within Note of Issue and Certificate of Readiness on attorney(s) for herein at their office ---- located at---- - -- --...,.-...,...- ---,---,- during their absence from...,,... said..,...,...-= office (a) by then and there leaving a true copy of the same with the clerk; partner; person having charge of said office. (b) and said office being closed by depositing a true copy of same enclosed in a sealed wrapper directed to said attorney(s), in the office letter drop or bo Sworn before me on the day of, 20 State of New York County of New York ss: O""v -l1\'\ t\ n e\o being duly sw o n deposes and says: that depo.:; lot a party to the action, is over 18 years of age and vv - at BqllC1rcl S"f"' hr LLP, 91') 3rd Ave / New Yar k,n Y that on t he \ft day o Ju Iv, 20J.k. I 0022 deponent serve cf the within Note of Issue and Certificate of Readiness on attorney(s) Frc.mc1s M Co.e&ar. hg Lt.5q tf\. Ca.e o.r for Dijen<:\<'ln"4s. pro e. at i"l H"'yc111kr: 1L9 ke.. chrrq vl\, New York1 the address designated by said attorney(s) for that purpose by depositing a true copy of same enclosed in a postpaid properly address wrapper, in -a post office- official depository under the eclusive care and custody of the United States Postal Service within New York State. Sworn before me on the \'(f day of JU\ y,20 Notary Public ERODITA HERRERA Notary Public, State of New Yodc No. 01 HE6308604 Qualified In New York County Commission Epires JulY)a: 20 1 S Admission of Service Due service of a note of issue and certificate of readiness of which the within is a copy is admitted this 2 day of, 20 ---'Attorney(s) for 2 of 2
EXHIBIT C
FILED: WESTCHESTER COUNTY CLERK 02/10/2017 04:27 PM INDEX NO. 70104/2015 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 02/10/2017 SUPREME COURT: STATE OF NEW YORK las PART WESTCHESTER COUNTY PRESENT: HON. JOAN B. LEFKOWITZ, J.S.c. c )( HSBC BANK USA NA AS TRUSTEE OF THE J.P. MORGAN MORTGAGE TRUST 2007-A2, To comme~ce the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. Plaintiff, DECISION & ORDER -against- FRANCls M. CAESAR, LISA M. CAESAR A/KIA LISA N. CAESAR; CITIBANK, NA, UNITED STATES OF AMERICA, NEW YORK STATE DEPARTMENT OF LABOR, NEW YORK STATE DEPARTMENT OF TA)(ATION AND FINANCE, and 'JOHN DOE #1' through "john doe #10", THE LAST TEN NAMES BEING FICTITIOUS AND UNKNOWN TO THE Plaintiff, the person or parties intended being the person or parties, if an y, having or claiming an interest in or lien upon the mortgaged premises described in the complaint, Defendants. ---------------------------------------------------------------------)( Inde No: 70104/2015 Motion Return Date: November 4, 2016 Motion Seq. #12 The following papers (e-filed documents 135-157) were read on the E-filed motion by plaintiff for an order granting summary judgment and appointing a referee to compute. Notice of Motion, Affirmation (Ehibits 1-7) Affidavit (Ehibits 1-7) Memorandum of Law Affidavit in Opposition (Ehibits 17-18) Memorandum of Law in Opposition Reply Memorandum of Law Upon reading the foregoing papers it is ORDERED the motion is denied; and it is further ORDERED the parties are directed to appear on March 14, 2017, at 9: 15 a.m. in the Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, III Martin Luther King Boulevard, White Plains, New York, prepared to conduct a settlement conference. Plaintiffs failed to establish their entitlement to summary judgment. 1 of 2
FILED: WESTCHESTER COUNTY CLERK 02/10/2017 04:27 PM INDEX NO. 70104/2015 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 02/10/2017 The plaintiff failed to address whether the defendants, other than Francis Caesar and Lisa C~esar, have answered the complaint or are in default. The plaintiff failed to establish it has standing to commence the action. Defendants placed standing is issue. Accordingly, plaintiff is required to establish prima facie that it has standing. The affidavit of Jane Spare, the assistant vice-president of plaintiffs servicer was insufficient to establish HSBC had possession of the note at the time the action was commenced. While the affidavit establishes that Spare was familiar with PHH's record-keeping practices, she failed to state she was familiar with HSBC's record-keeping practices (Arch Bay Holdings, LLC v Albanese, 2017 Slip Op 00284 [2d Dept 2017]). Dated: White Plains, New York February 10,2017 ENTER, 2 of 2