Midfirst Bank v. Agho

• Decision Date: 13 August 2014
• Citation: 2014 N.Y. Slip Op. 05778,991 N.Y.S.2d 623,121 A.D.3d 343
• Parties: MIDFIRST BANK, appellant, v. Mable AGHO, et al., defendants.
• Court: New York Supreme Court — Appellate Division

121 A.D.3d 343

991 N.Y.S.2d 623

2014 N.Y. Slip Op. 05778

MIDFIRST BANK, appellant,

v.Mable AGHO, et al., defendants.

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

Aug. 13, 2014.

Frenkel, Lambert, Weiss, Weisman & Gordon, LLP, Bay Shore, N.Y. (Joseph F. Battista of counsel), for appellant.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, and COLLEEN D. DUFFY, JJ.

DILLON, J.

Introduction

Our Court is observing a significant upswing in the number of appeals where the parties are contesting the admissibility of affidavits executed outside of the state, without CPLR 2309(c) certificates of conformity. The issue has arisen in varied summary judgment and default motion contexts, including motions in residential mortgage foreclosure actions reliant upon affidavits of out-of-state bank employees ( see Freedom Mtge. Corp. v. Toro, 113 A.D.3d 815, 979 N.Y.S.2d 622; U.S. Bank N.A. v. Dellarmo, 94 A.D.3d 746, 942 N.Y.S.2d 122), motions in medical malpractice actions reliant upon out-of-state physician experts ( see Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232; Bey v. Neuman, 100 A.D.3d 581, 953 N.Y.S.2d 266), motions in slip-and-fall actions reliant upon out-of-state witnesses ( see Betz v. Daniel Conti, Inc., 69 A.D.3d 545, 892 N.Y.S.2d 477; Falah v. Stop & Shop Cos., Inc., 41 A.D.3d 638, 838 N.Y.S.2d 639), motions in actions brought pursuant to Insurance Law § 3420(a) ( see Smith v. Allstate Ins. Co., 38 A.D.3d 522, 832 N.Y.S.2d 587), motions in motor vehicle negligence actions reliant upon out-of-state experts ( see Matos v. Salem Truck Leasing, 105 A.D.3d 916, 963 N.Y.S.2d 366; Fredette v. Town of Southampton, 95 A.D.3d 940, 944 N.Y.S.2d 206), and motions in contract actions reliant upon out-of-state expert contractors ( see Mack–Cali Realty, L.P. v. Everfoam Insulation Sys., Inc., 110 A.D.3d 680, 972 N.Y.S.2d 310). We use the instant appeal as an occasion to clarify the law relating to the conformity of out-of-state affidavits as required by CPLR 2309(c).

Facts

On July 6, 1999, the defendants Mabel Agho and Rita Fashek (hereinafter together the defendants), obtained a home loan in the sum of $202,190, secured by a mortgage on their residence in Brooklyn. The lender, Brucha Mortgage Bankers Corp. (hereinafter Brucha), assigned the mortgage and note to Homeside Lending, Inc. (hereinafter Homeside), which, in turn, on May 31, 2002, assigned the mortgage and note to the plaintiff, Midfirst Bank. The defendants defaulted in their payment obligations beginning with the installment payment due on August 1, 2009. On June 24, 2010, the plaintiff commenced this mortgage foreclosure action in the Supreme Court, Kings County. The defendant Rita Fashek served an appearance but did not answer. The defendant Mabel Agho interposed an answer denying material allegations set forth in the complaint and asserting two affirmative defenses.

The defendants failed to appear at four settlement conferences scheduled pursuant to CPLR 3408. The plaintiff thereafter moved, inter alia, for summary judgment on the complaint and to appoint a referee to compute the sums due and owing under the subject note and mortgage. The plaintiff's Senior Foreclosure Litigation Specialist, Josh Mills, submitted an affidavit in support of the motion that summarized, from his personal knowledge and business records, the execution of the mortgage and note, the assignments of the mortgage and note from Brucha to Homeside to the plaintiff, the defendants' default in payments and amounts due, and the plaintiff's documented compliance with various residential mortgage foreclosure notice requirements relative to Agho's affirmative defenses.

Mills's affidavit was executed in the County of Oklahoma, State of Oklahoma, on September 20, 2012. The jurat reads:

“JURAT

State of Oklahoma

County of Oklahoma

Subscribed and sworn to (or affirmed) before me this 20th [sic] of September, 2012, by Josh Mills, [who] provided to me the basis of satisfactory evidence to be the person(s) who appeared before me.

Signature Mark R. Pitts (Notary Seal)

Notary Public”

The Notary Seal contained Pitts's name and notary number, and the future expiration date of his notary license.

The affidavit and jurat were accompanied by a further document called a “Uniform, All Purpose Certificate of Acknowledgment.”

The Certificate of Acknowledgment read:

UNIFORM, ALL PURPOSE CERTIFICATE OF ACKNOWLEDGMENT

(Must sign in addition to Jurat if signed outside of New York State)

“State of Oklahoma

County of Oklahoma

On the 20th day of September in the year of 2012 before me, the undersigned, personally appeared Josh Mills, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed same in his/her/their capacity(ies) and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in Oklahoma City, Oklahoma (insert the city or other political subdivision and the state or county or other place the acknowledgment was taken).

Notary Seal Mark R. Pitts

Notary Public”

The plaintiff's counsel argued in a supporting affirmation that on the basis of Mills's affidavit and related exhibits, the plaintiff was entitled to summary judgment on the complaint and that Agho's two affirmative defenses were without merit. The defendants submitted no papers in opposition to the plaintiff's motion.

The Supreme Court denied the plaintiff's motion in a handwritten, three-sentence decision and order. The Court held that “the affidavit relied upon had an out of state notary, w/o a certificate of conformity.” The Supreme Court did not discuss the “Uniform, All Purpose Certificate of Acknowledgment” that accompanied Mills's affidavit.

For the reasons set forth below, we reverse the order insofar as appealed from, and grant those branches of the plaintiff's motion which were for summary judgment on the complaint and to appoint a referee to compute the sums due and owing under the subject note and mortgage.

Legal Analysis

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). The evidence submitted in support of summary judgment must be in a form admissible at trial ( see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067–1068, 416 N.Y.S.2d 790, 390 N.E.2d 298; Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). In residential mortgage foreclosure actions, as here, a plaintiff establishes its prima facie entitlement to judgment as a matter of law by producing the mortgage and the unpaid note, and evidence of the default ( see W & H Equities LLC v. Odums, 113 A.D.3d 840, 978 N.Y.S.2d 910; Washington Mut. Bank v. Schenk, 112 A.D.3d 615, 616, 975 N.Y.S.2d 902; Wells Fargo Bank, N.A. v. Webster, 61 A.D.3d 856, 877 N.Y.S.2d 200). Where the plaintiff is not the original lender and standing is at issue, the plaintiff seeking summary judgment must also provide evidence that it received both the mortgage and note by a proper assignment ( see Citimortgage, Inc. v. Stosel, 89 A.D.3d 887, 888, 934 N.Y.S.2d 182; CitiMortgage, Inc. v. Rosenthal, 88 A.D.3d 759, 761, 931 N.Y.S.2d 638; Deutsche Bank Natl. Trust Co. v. Barnett, 88 A.D.3d 636, 637, 931 N.Y.S.2d 630; Wells Fargo Bank v. Marchione, 69 A.D.3d 204, 207, 887 N.Y.S.2d 615), which can be established by the production of a written assignment of the note ( see Aurora Loan Servs., LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475; Homecomings Fin., LLC v. Guldi, 108 A.D.3d 506, 969 N.Y.S.2d 470; Deutsche Bank Natl. Trust Co. v. Whalen, 107 A.D.3d 931, 932, 969 N.Y.S.2d 82; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609) or by physical delivery to the plaintiff of the mortgage and note ( see Kondaur Capital Corp. v. McCary, 115 A.D.3d 649, 981 N.Y.S.2d 547; Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d at 108, 923 N.Y.S.2d 609; U.S. Bank, N.A. v. Collymore, 68 A.D.3d 752, 890 N.Y.S.2d 578). If the plaintiff fails to satisfy its prima facie burden, the papers submitted in opposition to the motion need not be considered ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). If the plaintiff makes a prima facie showing, the burden shifts to the defendants to demonstrate “ ‘the existence of a triable issue of fact as to a bona fide defense to the action’ ” (Baron Assoc., LLC v. Garcia Group Enters., Inc., 96 A.D.3d 793, 793, 946 N.Y.S.2d 611, quoting Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345).

Here, the affidavit of Josh Mills was necessary for the plaintiff to establish the assignment to it of the subject mortgage and note and the defendants' default in payment. The primary issue on this appeal is whether Mills's out-of-state affidavit was sworn to and conformed in a manner rendering it admissible in this state under CPLR 2309(c).

CPLR 2309(c) provides that an “oath or affirmation taken without the state shall be treated as if taken within the state if it is accompanied by [a] certificate ... as would be required to entitle a deed acknowledged without the state to be recorded within the state.” The obvious purpose of CPLR 2309(c) is to assure that sworn documents executed outside of New York, perhaps...