Bank of N.Y. Mellon ( v. Albertini

• Decision Date: 09 January 2017
• Docket Number: No. 14–70319.,14–70319.
• Citation: 55 N.Y.S.3d 691 (Table)
• Parties: The BANK OF NEW YORK MELLON (FKA the Bank of New York) as Trustee for the Holders of MASTR Alternative Loan Trust 2006–2, Plaintiff, v. Cindy ALBERTINI; Mortgage Electronic Registration Systems, Inc., as Nominee for America Brokers Conduit, its Successors and Assigns, and John Doe and Jane Doe # 1 through # 7, the last seven (7) names being fictitious and unknown to the Plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants.
• Court: New York Supreme Court

55 N.Y.S.3d 691 (Table)

The BANK OF NEW YORK MELLON (FKA the Bank of New York) as Trustee for the Holders of MASTR Alternative Loan Trust 2006–2, Plaintiff,

v.Cindy ALBERTINI; Mortgage Electronic Registration Systems, Inc., as Nominee for America Brokers Conduit, its Successors and Assigns, and John Doe and Jane Doe # 1 through # 7, the last seven (7) names being fictitious and unknown to the Plaintiff, the persons or parties intended being the tenants, occupants, persons or parties, if any, having or claiming an interest in or lien upon the mortgaged premises described in the Complaint, Defendants.

No. 14–70319.

Supreme Court, Suffolk County, New York.

Jan. 9, 2017.

Clarfield, Okon, Salomone & Pincus, P.L., Uniondale, Attorneys for Plaintiff.

Charles Wallshein, Esq., Cindy Albertini, Melville, Attorney for Defendant.

DENISE F. MOLIA, J.

Upon the following papers on this unopposed motion for an order of reference: proposed order of reference, affirmation of plaintiff's counsel Erin O'Brien, Esq., dated June 27, 2016, with supporting exhibits A–J; affirmation in opposition of defendant's counsel Charles W. Marino, Esq. dated July 19, 2016, with supporting exhibits A–B; affirmation in reply of plaintiff's counsel Karen Wilson–Robinson, Esq. dated July 26, 2016, with supporting exhibits A–B; and upon due consideration and deliberation, it is

ORDERED that this motion by the plaintiff for, inter alia, an order fixing the defaults of the non-answering defendants, appointing a referee and amending the caption is denied without prejudice to renew within 120 days of the date herein; and it is further

ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon all parties which have appeared herein and not waived further notice within thirty (30) days of the date herein, and shall promptly file the affidavits of service with the Clerk of the Court.

This is a residential mortgage foreclosure action, concerning, inter alia, a mortgage and note, given by the defendant Cindy Albertini ("the defendant mortgagor") on January 11, 2006, as modified by agreement executed on May 24, 2010, on certain real property situate in Suffolk County, New York.

The defendant mortgagor allegedly defaulted on the note and mortgage by failing to make the monthly payment of principal and interest due on or about May 1, 2012, and each month thereafter. After the defendant mortgagor allegedly failed to cure the aforesaid default in payment, the plaintiff commenced the instant action by the filing of the lis pendens, summons and complaint on December 5, 2014. The defendant mortgagor filed a limited notice of appearance in this action, but never answered. The remaining defendants never answered and are also in default.

The plaintiff now moves for, inter alia, an order of reference pursuant to RPAPL 1321. In response, the defendant mortgagor has filed the affirmation of counsel in opposition to the motion.

It is well established that to be entitled to a default judgment, the movant must establish the existence of facts which constitute cognizable claims for the relief demanded against the defaulting defendants (see, CPLR 3215[f] ; Resnick v. Lebovitz, 28 AD3d 533, 813 N.Y.S.2d 480 [2d Dept 2006] ; Silberstein v. Presbyterian Hosp. in City of New York, 96 A.D.2d 1096, 463 N.Y.S.2d 254 [2d Dept 1983] ). While a default admits all factual allegations of the complaint and all reasonable inferences therefrom, it does not admit legal conclusions which are reserved for the court's determination (see, Silberstein v. Presbyterian Hosp. in City of New York, 96 A.D.2d 1096, supra ). While the proof required on an application for a default judgment is not as exacting as that required for a successful summary judgment motion, confirmation of the facts constituting the plaintiff's claims against the defaulting defendants must be set forth in a verified pleading or an affidavit by plaintiff or other person possessed of personal knowledge (see, Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 760 N.Y.S.2d 727 [2003] ; Cohen v. Schupler, 51 AD3d 706, 856 N.Y.S.2d 870 [2d Dept 2008] ).

This motion is denied with leave to renew upon presentation of an affidavit submitted either by an officer of the plaintiff, or of a person acting with a valid power of attorney from the plaintiff, with personal knowledge of the relevant facts constituting the claim, the default, and the amount due (see, Matone v. Sycamore Realty Corp., 31 AD3d 721, 818 N.Y.S.2d 463 [2d Dept 2006] ). The motion is also denied because the plaintiff failed to demonstrate its prima facie case as to the alleged default in payment because the affidavit in support of the motion is partially supported by inadmissible hearsay (see, CPLR 4518[a] ; Citibank, N.A. v. Cabrera, 130 AD3d 861, 14 NYS3d...