AMOS Fin. LLC v. Crapanzano

• Decision Date: 30 July 2021
• Docket Number: 34327/2021
• Parties: AMOS FINANCIAL LLC, Plaintiff, v. Sharon K. CRAPANZANO, Union State Bank, Kristina Crapanzano, Miriam Rosenberg, Defendants.
• Court: New York Supreme Court

73 Misc.3d 448

154 N.Y.S.3d 366

AMOS FINANCIAL LLC, Plaintiff,

v.Sharon K. CRAPANZANO, Union State Bank, Kristina Crapanzano, Miriam Rosenberg, Defendants.

34327/2021

Supreme Court, Rockland County, New York.

Decided on July 30, 2021

Jason D. Silver, Esq., Greenspoon Marder, LLP, Attorneys for Plaintiff, Hamilton Avenue, Suite 1800, New York, New York 10022

By NYSCEF, Sharon K. Crapanzano, Defendant, 28 Eakman Drive, Garnerville, New York 10923

By U.S. Mail, Miriam Rosenburg, Defendant, 28 Eakman Drive, Garnerville, New York 10923

Robert M. Berliner, J.

The motion by plaintiff for an order pursuant to CPLR 3212 granting summary judgment against defendant Sharon Crapanzano, pursuant to CPLR 3215 granting default judgment against all other defendants, and pursuant to RPAPL 1321 appointing a computational referee, and for related relief is determined as follows:

Background

This tortured residential foreclosure action concerns the real property located at 28 Eakman Drive, Garnerville, New York. As plaintiff's motion papers correctly memorialize, plaintiff commenced this action in 2009 under the caption BAC Home Loans Servicing v. Crapanzano, et al. (Index No. 6759/2009), obtained default judgment, then moved this Court to vacate the same; this Court (Garvey, J.) granted that relief by Order dated November 18, 2010. For the next nine years, plaintiff let the action linger. Plaintiff then moved in 2019 to restore the action to an active calendar. The Court (Berliner, J.) granted that relief but directed plaintiff to show cause before Referee David Evan Markus why interest should not be tolled nunc pro tunc due to plaintiff's failure to proceed during the preceding nine years. Upon Referee Markus’ hearing, party submissions and his CPLR 4320 report, this Court (Berliner, J.), by Order dated March 3, 2020, tolled interest from January 1, 2011, and directed plaintiff to move for summary judgment within 45 days on pain of Rule 202.27 dismissal for unreasonably failing to proceed. In so doing, the Court specifically ratified Referee Markus’ findings of fact and conclusions of law that plaintiff had engaged in an extraordinary pattern of bad faith in this action and failed to satisfy not one but three mandates of this Court to proffer some non-trivial explanation for nine years of inaction at defendant's expense.

During the COVID-19 pandemic, plaintiff moved on December 4, 2020, for summary judgment and related relief. After mandatory proceedings related to the pandemic, this Court (Berliner, J.), by Decision and Order entered April 30, 2021, denied all branches of plaintiff's motion except to dismiss all affirmative defenses and amend the caption and substitute Amos Financial, the current loan servicer, as plaintiff. the Court's findings were that plaintiff's alleged proof of loan default was facially insufficient, and that plaintiff's evidentiary proffer lacked adequate foundation. Having denied plaintiff's summary judgment, the Court put the matter down for a trial scheduling conference.

Six weeks later, before that conference could occur, plaintiff brought the instant motion on June 11, 2021. Plaintiff's Notice of Motion styles itself as an application for summary judgment and default judgment, and to appoint a computational referee pursuant to RPAPL 1321 — the third such motion in this action. Plaintiff's affirmation in support, however, styles it as a "renewal" of plaintiff's prior summary judgment application (Pl's Aff in Support [Wynn], at ¶ 25). Plaintiff's papers include several hundred pages of advocacy and business records, including an affidavit by Mr. Brian Donegan, Amos Financial's general counsel (see Pl's Exh C). This affidavit, in turn, appends an estimated 100 pages of sub-exhibits appearing to originate from numerous prior holders and/or servicers of this loan that, he alleges, was serially assigned over the last 12 years among at least four holders.

At the trial scheduling conference of July 8, 2021, this Court directed plaintiff to file a Note of Issue and Certificate of Readiness by July 30, 2021, along with a letter application pursuant to Uniform Rule 202.5-b(b)(2)(iv) to convert this action to electronic filing with a new index number. Plaintiff complied that same day. Also on that date, this Court memorialized that "[p]laintiff's application to delay scheduling of trial and allow a third summary judgment motion is denied." Accordingly, this Court set this action down for trial on October 27, 2021.

Consistent with the foregoing, the Court denies plaintiff's current motion in its entirety.

Plaintiff's Violation of Uniform Rule 202.8-g

This Court denies this motion because it violates the Uniform Rules governing summary judgment applications. Effective February 1, 2021, every motion for summary judgment in this State, except in lieu of a complaint pursuant to CPLR 3213, must annex a "separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried" (22 NYCRR [Uniform Rules of Supreme and County Court] § 202.8-g[a] ; see also Siegel, NY Prac § 281 [2021 supp] ). Such numbered paragraphs must specifically cite to evidence separately submitted in support of the motion (see Uniform Rule 202.8-g[d] ). Uniform Rule 202.8-g took effect over four months before plaintiff brought this motion, yet here plaintiff offers no Statement of Material Facts at all — in direct violation of the Rule. Plaintiff's papers also appear to offer no explanation for why plaintiff did not and could not comply with this Rule, or any recognition that this Rule exists.

Uniform Rule 202.8-g is not precatory or discretionary in its application: it is a mandate on all summary judgment movants in this State. Consistent with Judiciary Law section 213(2)(b), the Chief Administrative Judge — on the advice and consent of the Administrative Board of the Courts, comprising the Chief Judge and the four Presiding Justices of the Appellate Divisions (see NY Const, art VI, § 30 ) — promulgated this rule of practice and procedure to vindicate substantial judicial economy interests for both bar and bench. These interests have been the focus of extensive discussion, and years of experience, concerning the Commercial Division predicate to Uniform Rule 202.8-g(a) (see 22 NYCRR [Uniform Rules of the Commercial Division] § 202.70, Rule 19-a). Plaintiff's motion ignores Uniform Rule 202.8-g entirely, along with its constitutional, statutory and administrative predicates, and its underlying policy objectives. Thus, plaintiff's motion is procedurally defective on its face.

Less immediately clear is what the remedy should be for such a facial violation of Uniform Rule 202.8-g — a question that appears to be one of first impression in this State. A recent trial court case held that a party admits all facts in a Rule 202.8-g Statement of Material Facts by failing to oppose it compatibly with that Rule (see Reus v. ETC Housing Corporation , 72 Misc. 3d 479, 148 N.Y.S.3d 663, 2021 NY Slip Op. 21130 [Sup. Ct. Clinton Co., 2021] [applying Uniform Rule 202.8-g(d) ]). That case also appeared to be one of first impression, and stands somewhat orthogonal to others arising under the Commercial Division Rule 19-a predicate for Uniform Rule 202.8-g. Those other cases have held that courts enjoy discretion to deem material facts admitted by respondents whose opposition failed to comply with Rule 19-a. Those cases declined to impose an inflexible mandate or even presumption to assume admission by Rule 19-a violation (see Abreu v. Barkin & Assocs. Realty, Inc. , 69 A.D.3d 420, 421, 893 N.Y.S.2d 25 [1st Dept. 2010] ), and specifically held that trial courts abuse their discretion by hyper-technically applying Rule 19-a so as to prejudice an otherwise responsive opposition to summary judgment (see e.g. Matter of Crouse Health Sys., Inc. v. City of Syracuse , 126 A.D.3d 1336, 8 N.Y.S.3d 502 [4th Dept. 2015] ).

Here, however, it is the movant rather than the respondent that fails to submit CPLR 3212 motion papers in the form and with the content that the Chief Administrative Judge mandated. This distinction makes a difference. Unlike a summary judgment respondent entitled to the benefit of every possible favorable inference in opposition to the motion (see e.g. 511 West 323 Owners Corp. v. Jennifer Realty Co. , 98 N.Y.2d 144, 152, 746 N.Y.S.2d 131, 773 N.E.2d 496 [2002] ; Sokoloff v. Harriman Estates Dev. Corp. , 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184 [2001] ; Leon v. Martinez , 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), a summary judgment movant enjoys no such presumption but rather must carry affirmatively its burden of proof.

This Court therefore credits Reus and applies its also to a moving party. If a respondent failing to oppose a Rule 202.8-g Statement of Material Facts in the manner that Rule prescribes thereby admits those facts, then a fortiori a CPLR 3212 movant whose papers fail to satisfy the condition precedent of a Uniform Rule 202.8-g Material Statement of Facts thereby fails properly to put those facts before the Court in the first instance.

This Court further holds that a summary judgment movant's total failure to submit a Uniform Rule 202.8-g Statement of Material Facts constitutes a violation that is neither merely technical nor without prejudice. Unlike minor technical "glitches," irregularities and harmless pleading errors that courts have substantial discretion to correct nunc pro tunc under CPLR 2101(f) and/or CPLR 2001 (see e.g. Status General Development, Inc. v. 501 Broadway Partners, LLC , 163 A.D.3d 740, 82 N.Y.S.3d 34 [2d Dept. 2018] ; Francis v. Midtown Express, LLC, 124 A.D.3d 493, 998 N.Y.S.2d 303 [1st Dept. 2015] ; Grskovic v. Holmes , 111 A.D.3d 234, 972 N.Y.S.2d 650 [2d Dept. 2013] ), the total absence of a Uniform Rule 202.8-g Statement of Material Facts constitutes a substantive defect in a motion for summary judgment...