Hudson City Sav. Bank v. Gattegno
| Decision Date | 31 July 2018 |
| Docket Number | 601051-2016 |
| Citation | 60 Misc.3d 1220 (A),110 N.Y.S.3d 488 (Table) |
| Parties | HUDSON CITY SAVINGS BANK, Plaintiff, v. Liza Feldman GATTEGNO a/k/a Liza Feldman a/k/a Liza J. Gattegno a/k/a Liza Gattegno; Mortgage Electronic Registration Systems, Inc. as Nominee for Citibank, N.A.; National City Bank; Valley National Bank; "John Doe # 1-5" and "Jane Doe# 1-5", said names being fictitious, it being intent of Plaintiff to designate any and all occupants, tenants, persons or corporations, if any having or claiming an interest in or lien upon the premises being foreclosed herein, Defendant(s). |
| Court | New York Supreme Court |
FEIN, SUCH & CRANE, LLP, 1400 Old Country Road, Ste. C103, Westbury, NY 11590, Attorneys for Plaintiff.
TARBET & LESTER, PLLC, 132 North Main Street, East Hampton, NY 11937, Attorney for Defendant Gattegno.
Upon the following papers read on this motion for an order granting summary judgment pursuant to CPLR 3212, setting the default of the non-answering defendants, an order of reference pursuant to RPAPL § 1321 and amending the caption; Notice of Motion and supporting papers NYSCEF Docs # 26-34; Affirmation in Opposition and supporting papers NYSCEF Docs # 35-38; Affirmation in Reply and supporting papers NYSCEF Docs # 39-44, it is,
ORDERED that this motion by plaintiff Hudson City Savings Bank for an order striking the answer of defendant Liza Feldman Gattegno, awarding it summary judgment, appointing a referee to compute, granting default judgment against the non-appearing and non-answering defendants, and amending the caption, is granted as set forth below; and it is further
ORDERED that plaintiff's application to amend the caption of the complaint to substitute "John Doe (Refused Name)" and Oscar Rivera for "John Doe # 1 & 2" and to remove from the caption "John Doe # 3-5" and "Jane Doe # 1-5" is granted; and the caption shall now appear as follows:
; and it is further
ORDERED that plaintiff is to serve a copy of this order upon the calendar clerk of this part within thirty (30) days of this order, and all further proceedings are to be under the amended caption; and it is further
ORDERED that the default of the non-appearing and non-answering defendants are fixed and set; and it is further
ORDERED that plaintiff's application to appoint a referee pursuant to RPAPL§ 1321 is granted, as modified by the court and is signed contemporaneously with this order; and it is further
ORDERED that plaintiff is directed to serve an executed copy of the order of reference amending the caption of this action upon the Calendar Clerk of this Court within 30 days of the date of this order and all further proceedings are to proceed under that caption; and it is further;
ORDERED that plaintiff is to include in any proposed order of judgment of foreclosure and sale language complying with the Suffolk County Local Rule for filing of the Suffolk County Foreclosure Surplus Monies form contained in Suffolk County Administrative Order # 41-13; and it is further
ORDERED , that, if a prior notice of pendency is outdated, plaintiff is directed to file a successive notice of pendency at least twenty (20) days prior to the submission of any proposed judgment of foreclosure and sale, submitting a copy thereof with proof of filing with any proposed judgment of foreclosure and sale; and it is further.
ORDERED that within 30 days of the date of this order, plaintiff is to serve a copy of the order of reference upon all parties who have appeared in this action, as well as upon the referee and thereafter file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that within 60 days of the date of this order, plaintiff is to provide the referee, and defendants who have appeared, all papers and documents necessary for the referee to perform the determinations required by this order, "plaintiff's submissions"; defendant(s) may submit written objections and proof in support thereof, "defendant's objections," to the referee within 14 days of the mailing of plaintiff's submissions; and it is further
ORDERED that the referee's report is to be prepared and submitted to plaintiff within 30 days of receipt of plaintiff's submissions, and the referee's report is to be submitted by plaintiff with its application for a judgement of foreclosure and sale; and it is further
ORDERED that the referee's duties are defined by this order of reference ( CPLR 4311, RPAPL § 1321 ), and the referee has no power beyond that which is limited by this order of reference to the ministerial functions of computing amounts due and owing to plaintiff and determining whether the premises can be sold in parcels; the referee shall hold no hearing, take no testimony or evidence other than by written submission, and make no ruling on admissibility of evidence; the referee's report is merely advisory and the court is the ultimate arbiter of the issues, if defendant's objections raise issues as to the proof of amounts due and owing the referee is to provide advisory findings within his/her report; and it is further
ORDERED that if defendant's objections have been submitted to the referee, defendant(s) shall also submit them to the court if opposing plaintiff's application for a judgment of foreclosure and sale; failure to submit defendant's objections to the referee will be deemed a waiver of objections before the court on an application for a judgment of foreclosure and sale; failure to raise and submit defendant's objections made before the referee in opposition to plaintiff's application for a judgment of foreclosure and sale shall constitute a waiver of those objections on the motion; and it is further
ORDERED that plaintiff is to file an application for a judgment of foreclosure and sale within 120 days of the date of this order; and it is further
ORDERED that this action shall be calendared for a status conference on Wednesday, December 5, 2018 at 9:30 AM in Part 27 for the court to monitor the progress of this action. If a judgment of foreclosure and sale is filed with the court before that date, no appearance will be necessary; and it is further
ORDERED that failure to comply with any term of this order will not form the basis for a motion to dismiss the action, but will be the subject of the status conference at which future compliance will be determined; and it is further
ORDERED that the action is scheduled for a settlement conference on Wednesday, September 12, 2018 at 9:30 AM in Part 27 , at which the parties are to have representative present with authority to discuss potential settlement options for this action.
This is an action to foreclose a mortgage on residential real property known as 52 Winding Way, East Hampton, Suffolk County, New York ("the property"). On May 14, 2004 defendant Liza Feldman Gattegno ("defendant") executed a mortgage on the property to Mortgage Electronic Registration Systems, Inc. ("MERS") acting as nominee for Lehman Brothers Bank, FSB ("Lehman"), for the sole purpose of recording the mortgage to secure a note in the amount of $431,600.00 given that same day to Lehman. This mortgage was filed with the Suffolk County Clerk ("Clerk") on June 21, 2004. Subsequently, on June 1, 2007 MERS, acting as nominee for Lehman, assigned the mortgage to Citimortgage, Inc. ("Citi"), which assignment was filed with the Clerk on August 7, 2007. On May 17, 2007 defendant signed a note in the amount of $339,612.68 to Citi and gave a mortgage on the property that date to secure that note, which mortgage was field with the Clerk on June 21, 2007. Also on May 17, 2007, defendant executed a Consolidation, Extension and Modification Agreement ("CEMA") with Citi creating a single lien in the amount of $750,000.00, and executed a Consolidated Mortgage on the property to Citi to secure the CEMA. Both the CEMA and Consolidated Mortgage were filed with the Clerk on August 7, 2007. On July 7, 2015, Citi, through assignment of the Consolidated Mortgage and CEMA assigned both that mortgage and the note to plaintiff Hudson City Savings Bank ("plaintiff") which assignment was filed with the Clerk on September 12, 2015.
Defendant allegedly defaulted in the payment due April 1, 2011 and has remained in default. Plaintiff commenced this action by filing a summons, complaint and notice of pendency with the Clerk on January 25, 2016. Defendant filed an answer which raised only three affirmative defenses: first, a claim plaintiff lacked standing to bring the action; second, that plaintiff's claim should be denied because of "unclean hands of the Plaintiff and/ or its predecessors," and third, that defendant should be entitled to legal fees pursuant to RPL § 282. No other affirmative defenses were plead, and no counterclaims were raised.
The courts' computer records show that a conference was held in the court's dedicated Foreclosure Settlement Conference Part on June 10, 2016, at which time the court attorney referee released the action to an IAS part. Those same records indicate that the action was marked "not eligible," "not primary res." Compliance with CPLR 3408 has been established.
Plaintiff filed this motion, seeking summary judgment dismissing defendants affirmative defenses and striking her answer, setting the default of the non-answering defendants, amending the caption to substitute "John Doe (Name Refused)" and Oscar Rivera for the "John Doe" and "Jane Doe" defendants and appointing a referee to compute pursuant to RPAPL § 1321. In her opposition defendants only argues that plaintiff's submissions failed to meet the basic prima facie case for summary judgment, that plaintiff had not established its standing, and that...
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