FILED: NEW YORK COUNTY CLERK 11/08/2016 12:24 PM INDEX NO. 850271/2015 NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 11/08/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CSFB MORTGAGE-BACKED PASS-THROUGH, SERIES 2005-10, Index No. 850271/2015 -against- Plaintiff, CIVIL APPEAL PRE- ARGUMENT STATEMENT DAWN P. ROBERTSON, A/K/A DAWN P. ROBERTSON; NATIONAL CITY BANK; BOARD OF MANAGERS OF 395 BROADWAY CONDOMINIUM HOMEOWNERS ASSOCIATION; CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD; CITY OF NEW YORK PARKING VIOLATIONS BUREAU; CITY OF NEW YORK TRANSIT ADJUDICATION BUREAU, ET AL, Defendants. Full Names of the Parties: Defendant-Appellant: Dawn P. Robertson Plaintiff-Respondent: U.S. Bank National Association, As Trustee for CSFB Mortgage-Backed Pass-Through Series 2005-10 Changes in Parties: None Counsel to Defendant-Appellant: Matthew J. Press Press Law Firm PLLC 144 East 44 th Street,EighthFloor New York, NY 10017 tel: (212) 922-1111 fax: (347) 342-3882 cell: (347) 419-0983 mpress@presslawfirm.com 1 of 6
Counsel to Plaintiff-Respondent U.S. Bank National Association, As Trustee for CSFB Mortgage-Backed Pass-Through Series 2005-10: Kristina Brizee, Esq. Shapiro, DiCaro & Barak, LLC 175 Mile Crossing Boulevard Rochester, NY 14624 (518) 247-7380 Roce-filing@logs.com Method of Disposition in Trial Court Trial Court ordered Plaintiff-Respondent to file a motion for summary judgment before issue has been joined in this matter, due to a pending pre-answer motion to dismiss. Brief Description of Nature of the Cause of Action or Special Proceeding: Action for foreclosure on mortgage, based upon fatally flawed mortgage documents and assignments. State briefly the result below: Trial Court erroneously authorized Plaintiff to file a motion for summary judgment prior to any ruling on Defendant s pending pre-answer motion to dismiss; prior to joinder of issue; prior to the opportunity for Defendant to file counterclaims; and prior to the opportunity for Defendant to take discovery on any of the claims and defenses in this action. State whether any related action or proceeding is now pending in any court in this or any other jurisdiction, and if so the status thereof: No related action or proceeding is pending in any jurisdiction. 2 2 of 6
State briefly the grounds for seeking reversal, annulment or modification: The Trial Court should not have authorized a motion for summary judgment by Plaintiff prior to joinder of issue. See, e.g., Stone Column Trading House Ltd. v. Beogradska Banka A.D., 139 A.D.3d 577, 578, 30 N.Y.S.3d 817 (1 st Dep t 2016) (finding motion for summary judgment made prior to joinder of issue premature); Myung Chun v. N. Am. Mortg. Co., 285 A.D.2d 42, 45, 729 N.Y.S.2d 716, 718 (1 st Dep t 2001) ( The court was without power to grant summary judgment before joinder of issue on plaintiff's complaint. ); Leff v. Leff, 182 A.D.2d 401, 402, 581 N.Y.S.2d 348, 348 (1 st Dep t 1992) (stating the rule prohibiting the grant of summary judgment prior to joinder of issue is strictly adhered to ). Issues proposed to be raised on appeal: Did the Trial Court have the power or authority to authorize a motion for summary judgment by Plaintiff prior to joinder of issue, particularly where there is a pending pre-answer motion to dismiss? Defendant respectfully submits that the answer is no. 3 3 of 6
Attach a copy of the opinion, if any, or if applicable a short form order which contains a memorandum. State whether there is any additional appeal pending in the same action: See attached. There is no other appeal pending in this action. DATED: New York, New York November 8, 2016 PRESS LAW FIRM PLLC BY: /s/matthew J. Press Matthew J. Press 144 East 44 th Street,EighthFloor New York, NY 10017 tel: (212) 922-1111 fax: (347) 342-3882 cell: (347) 419-0983 mpress@presslawfirm.com Counsel to Defendant Dawn P. Robertson NOTICE TO: Kristina Brizee, Esq. Shapiro, DiCaro & Barak, LLC 175 Mile Crossing Boulevard Rochester, NY 14624 (518) 247-7380 Roce-filing@logs.com Counsel to Plaintiff 4 4 of 6
ATTORNEY S CERTIFICATION The undersigned hereby certifies that, to the best of the undersigned s knowledge, information and belief, formed after a reasonable inquiry under the circumstances, the presentation of the within PRE-ARGUMENT STATEMENT or the contentions contained herein is/are not frivolous as defined in 22 NYCRR 130-1.1(c). DATED: November, 2016 PRESS LAW FIRM PLLC BY: /s/matthew J. Press Matthew J. Press 144 East 44 th Street,EighthFloor New York, NY 10017 tel: (212) 922-1111 fax: (347) 342-3882 cell: (347) 419-0983 mpress@presslawfirm.com Counsel to Defendant Dawn P. Robertson 5 5 of 6
INDEX NO. 850271/2015 NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 10/19/2016 61 of 61