Bank of N.Y. Mellon v. Gordon

• Decision Date: 27 March 2019
• Docket Number: Index No. 15788/12,2015–10709
• Citation: 171 A.D.3d 197,97 N.Y.S.3d 286
• Parties: BANK OF NEW YORK MELLON, etc., Respondent, v. Dushaun GORDON, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

171 A.D.3d 197

97 N.Y.S.3d 286

BANK OF NEW YORK MELLON, etc., Respondent,

v.Dushaun GORDON, Appellant, et al., Defendants.

2015–10709

Index No. 15788/12

Supreme Court, Appellate Division, Second Department, New York.

Argued - January 8, 2019

March 27, 2019

David J. Broderick, P.C., Forest Hills, N.Y. (Kenneth R. Berman of counsel), for appellant.

Frankel Lambert Weiss Weisman & Gordon LLP, Bayshore, N.Y. (Christopher P. Kohn of counsel), for respondent.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

OPINION & ORDER

MILLER, J.

In the wake of the financial crisis that began in 2008, the trial courts of this state have faced an unprecedented spike in judicial foreclosure actions. The challenges presented by this dramatic increase in litigation have been compounded by poor record-keeping practices, a changing regulatory environment, inordinate delays, and inadequate legal representation. The sheer number of foreclosure cases has also resulted in a renewed focus on the legal principles underlying such actions and presented circumstances under which those principles must be extended and applied to new factual scenarios.

From an appellate perspective, the recent flood of foreclosure appeals has revealed consistent and repeated confusion about some of the most fundamental aspects of the procedural, substantive, and evidentiary law that must be routinely applied in a foreclosure context. In an effort to provide additional clarity in this important area of the law, we deem it appropriate to collect and reiterate some of these foundational principles in the hope that such clarity will eliminate many of the disputes that make up an ever-increasing proportion of trial-level dockets. For the reasons that follow, we modify the order appealed from.

1. Factual and Procedural Background

The plaintiff commenced this action to foreclose a mortgage. The defendant Dushaun Gordon interposed an answer which included 55 affirmative defenses, 5 counterclaims asserted against the plaintiff, and 2 cross claims asserted against the defendant Mortgage Electronic Registration Systems, Inc. (hereinafter MERS).

The plaintiff thereafter moved for, among other relief, summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due. Gordon opposed the plaintiff's motion and cross-moved pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS.

In a decision dated July 23, 2015, the Supreme Court determined, among other things, that the plaintiff was entitled to summary judgment on the complaint. A subsequent order entered August 7, 2015, upon the decision, inter alia, (1) granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due, and (2), in effect, denied Gordon's cross motion pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS. Gordon appeals from those portions of the order entered August 7, 2015. We modify.

2. Legal Analysis

A. General Principles

A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Such a motion must be supported "by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" ( CPLR 3212[b] ). To make a prima facie showing, the moving party must "demonstrate its entitlement to summary judgment by submission of proof in admissible form" ( Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d 498, 507, 14 N.Y.S.3d 283, 35 N.E.3d 451 ; see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ). Admissible evidence may include "affidavits by persons having knowledge of the facts [and] reciting the material facts" ( GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755 ; see CPLR 3212[b] ; Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d at 508, 14 N.Y.S.3d 283, 35 N.E.3d 451 ). "Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce ‘evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action’ " ( Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d 45, 50, 984 N.Y.S.2d 401, quoting Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

"In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party" ( Stukas v. Streiter, 83 A.D.3d 18, 22, 918 N.Y.S.2d 176 ; see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 ). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" ( Kolivas v. Kirchoff, 14 A.D.3d 493, 493, 787 N.Y.S.2d 392 ; see Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 ; Stukas v. Streiter, 83 A.D.3d at 23, 918 N.Y.S.2d 176 ). Accordingly, "[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" ( Glick & Dolleck v. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 239 N.E.2d 725 ; see 6243 Jericho Realty Corp. v. AutoZone, Inc., 27 A.D.3d 447, 449, 813 N.Y.S.2d 95 ). "[W]here credibility determinations are required, summary judgment must be denied" ( People v. Greenberg, 95 A.D.3d 474, 483, 946 N.Y.S.2d 1, affd 21 N.Y.3d 439, 971 N.Y.S.2d 747, 994 N.E.2d 838 ; see Pryor & Mandelup, LLP v. Sabbeth, 82 A.D.3d 731, 732, 918 N.Y.S.2d 165 ; Campbell v. Campbell, 43 A.D.3d 1264, 1266, 843 N.Y.S.2d 471 ).

In addition, " ‘[a] motion for summary judgment will not be granted if it depends on proof that would be inadmissible at the trial under some exclusionary rule of evidence’ " ( Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d at 52, 984 N.Y.S.2d 401, quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:18 at 27 [2005 ed]; see HSBC Mtge. Servs., Inc. v. Royal, 142 A.D.3d 952, 954, 37 N.Y.S.3d 321 ; Aurora Loan Servs., LLC v. Mercius, 138 A.D.3d 650, 652, 29 N.Y.S.3d 462 ; US Bank N.A. v. Madero, 125 A.D.3d 757, 758, 5 N.Y.S.3d 105 ). "Out-of-court statements offered for the truth of the matters they assert are hearsay and may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable" ( Nucci v. Proper, 95 N.Y.2d 597, 602, 721 N.Y.S.2d 593, 744 N.E.2d 128 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v. Country–Wide Ins. Co., 25 N.Y.3d at 508, 14 N.Y.S.3d 283, 35 N.E.3d 451 ).

However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d at 55, 984 N.Y.S.2d 401 ), for "[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" ( Misicki v. Caradonna, 12 N.Y.3d 511, 519, 882 N.Y.S.2d 375, 909 N.E.2d 1213 ). Indeed "in civil cases, ‘inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess’ " ( Rosenblatt v. St. George Health & Racquetball Assoc., LLC, 119 A.D.3d at 54–55, 984 N.Y.S.2d 401, quoting Jerome Prince, Richardson on Evidence § 8–108 [Farrell 11th ed 2008]; see Matter of Findlay, 253 N.Y. 1, 11, 170 N.E. 471 ; Ford v. Snook, 205 App.Div. 194, 198, 199 N.Y.S. 630, affd 240 N.Y. 624, 148 N.E. 732 ).

B. Standing

In this case, Gordon contends that the Supreme Court should not have awarded the plaintiff summary judgment on the complaint insofar as asserted against him because, in his view, there are triable issues of fact as to whether the plaintiff has standing to maintain this action. This contention is without merit.

"[W]here, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead lack of standing as an affirmative defense in the answer in order to properly raise the issue in its responsive pleading" ( US Bank N.A. v. Nelson, 169 A.D.3d 110, 142, 93 N.Y.S.3d 138 [2d Dept. 2019] ; see Matter of Fossella v. Dinkins, 66 N.Y.2d 162, 167, 495 N.Y.S.2d 352, 485 N.E.2d 1017 ; BAC Home Loans Servicing, LP v. Alvarado, 168 A.D.3d 1029, 1030, 93 N.Y.S.3d 127 ; see also Green Bus Lines v. Consolidated Mut. Ins. Co., 74 A.D.2d 136, 142–143, 426 N.Y.S.2d 981 ). Here, Gordon asserted standing as an affirmative defense in his answer. Accordingly, the issue of standing is properly before this Court (cf. US Bank N.A. v. Nelson, 169 A.D.3d 110, 93 N.Y.S.3d 138 ).

Where the issue of...