CitiMortgage, Inc. v Bronner 2024 NY Slip Op 32572(U) July 22, 2024 Supreme Court, Kings County Docket Number: Index No. 4370/2014 Judge: Carolyn Walker-Diallo Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 07/26/2024 04:02 PM INDEX NO. 4370/2014 NYSCEF DOC. NO. 66 RECEIVED NYSCEF: 07/26/2024
At an IAS Tenn, Part FRP4, of the PRESENT: Supreme Court of the State of New York, held in and for the County of HON. CAROLYN WALKER-DIALLO, J.S.C. Kings, at the Courthouse at 320 Jay Street, Brooklyn, New York, on the 22 nd day of July 2024. ---------------------------------------- .---------------------- X CITIMORTGAGE, INC.,
Plaintiff, Index No.: 4370/2014
- against: DECISION AND ORDER MARY BRONNER et al.,
Defendants. --------------------------------------------------------------- X
Recitation, as required by CPLR 2219 (a), of the papers considered in the review of this motion:
Papers Numbered
Plaintiffs Notice of Motion, affinnations, exhibits NYSCEF Doc. No(s). 32-45 Notice of Cross-Motion, affirmation, affidavits, exhibits NYSCEF Doc. No(s). 47-56 Affirmation in Opposition to Cross-Motion, exhibits NYSCEF Doc. No(s). 59-61 Affirmation in Reply NYSCEF Doc. No(s). 62 Affirmation in Reply NYSCEF Doc. No(s). 63-64
Papers considered: Motion Seq~enc~::J:}~ g INTRODUCTION - Plaintiff moves for an order pursuant to CPLR 3215 and RPAPL 1321 seeking: (1) leave
to fix defaults of non-appearing defendants; (2) issuance of an order of reference to compute sums
due under a mortgage; and (3) any other relief that may be just and proper. Defendant 245
Montauk Holding Corp. ("245 Montauk'') opposes Plaintiff's motion on the grounds that Plaintiff
lacks standing, fails to attach the pleadings, and fails to demonstrate that the documents submitted
in support of its motion are admissible. Defendant 245 Montauk cross-moves for an order pursuant
to CPLR 2004 and 3012 (d)(l) seeking to extend its time to answer, and other and different relief
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the court-~eems just, proper, and equitable. For the reasons set forth below, Plaintiff's motion is
DENIED in its entirety. Defendant's Cross-Motion is DENIED in its entirety.
FACTUAL AND PROCEDURAL HISTORY
This residential mortgage foreclosure proceeding was commenced on March 21, 2014, with
the filing of a Summons and Complaint (NYSCEF Doc. No. 1). Plaintiff CitiMortgage
("CitiMortgage") seeks to foreclose on the mortgage lien for 245 Montauk Avenue, Brooklyn,
New York 11208 ("subject premises").
Defendant Mary Bronner ("Bronner") .executed a promissory note and mortgage with
Argent Mortgage Company, LLC, in the amount of $496,000 on May 19, 2006, for the subject
premises. The mortgage was recorded on May 31, 2006 (NYSCEF Doc. No. 1). ~ubsequently, the
mortgage was assigned by Argent Mortgage Coh1pany, LLC, to U.S. Bank National Association,
as Trustee of Citigroup Mortgage Loan Trust Inc. U.S. Bank then assigned the mortgage to
CitiMortgage, Inc. on August 21, 2013 (NYSCEF Doc. No. l at 44, 47). The loan is currently ) being serviced by Cenlar FSB, a sub-servicer of CitiMortgage.
The instant action was commenced by CitiMortgage after Bronner defaulted on her I repayment obligations. Bronner has made no payments on the loan since September I, 2007, and
the unpaid principal balance is currently $492,439.64. See Amended Complaint, at ,i 18 (NYSCEF
Doc. No. 24). Defendant Glen Battles (John Doe# 1) and Defendant Myrtle Antoine (Jane Doe · 1
' #2) were served personally on April 3, 2014. Bernice Battles (Jane Doe·# 1) was served via
substitute service on the same day. All three Defendants defaulted. As none of these Defendants
appeared, CitiMortgage sought a reference on default by notice of motion dated July 29, 2015,
which the court then granted on March 3, 20 I 6. See Order of Reference issued by the Honorable
Noach Dear (NYSCEF Doc. No. I at 114-117). This Order of reference fixed the defaults of
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current named defendants other than 245 Montauk Holding Corp. ("245 Montauk") and
Mohammed K. Hossain.
Bronner conveyed title to the subject premises on December 2, 2017 to 1580 Metropolitan
Holding Corp. while approval for a sh01i sale of the property was pending (NYSCEF Doc. No.
12). CitiM01igage was unaware of the transfer of title and granted approval for a short sale on
December 4, 2017. See Affinnation of Terry White, at ~9; Correspondence from CitiMortgage to
Defendant Bronner (NYSCEF Doc. Nos. 33 and 38). 1580 Metropolitan Holding Corp.
subsequently conveyed title to Mahfuza Akhter by deed dated February 28, 2021, and the deed
was recorded on April 2, 2021 (NYSCEF Doc. No. 13). Mahfuza Akhter then transferred title to
245 Montauk by deed dated July 16, 2021, which was recorded on September 7, 2021 (NYSCEF
Doc. No. 14).
CitiMortgage moved to remove Bronner from this action and to add 245 Montauk and
Mohammed K. Hossain as pa11ies on May 4, 2023 (NYSCEF Doc. No. 5). This unopposed motion
was granted on July 24, 2023 by order of the Honorable Larry Martin (NYSCEF Doc. No. 22).
CitiMortgage filed a Supplemental Summons and Amended Complaint on July 31, 2023
(NYSCEF Doc. Nos. 23-24). Mohammed K. Hossain was served at his dwelling place on August
3, 2023, via substitute service, and mailed papers on August 7, 2023. Mr. Hossain did not respond
to the complaint. 245 Montauk was served via the New York Secretary of State on August 11, I 2023 (NYSCEF Doc. Nos. 26-27). 245 Montauk served an answer on December 13, 2023 I . I
(NYSCEF Doc. No. 29). CitiMortgage rejected this answer as untimely (NYSCEF Doc. No. 31).
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DISCUSSION
I. Plaintiff's Motion For an Order of Reference is DENIED.
A plaintiff establishes its entitlement to "an order of reference (see RPAPL 1321) through
the submission of, inter alia, the affidavit of an employee of the loan servicer which set fotih the
facts establishing the cause of action, the note and mortgage, proof that the defendant defaulted
under the tenns of the note and mortgage, as well as proof that the defendant failed to answer or
appear within the time allowed." .1umra Loan Servs., LLC v. Colleluori, 170 A.D.3d I 097, I 098
(2d Dep't 2019), quoting Nationstur Mtge., LLC v. Kami!, I 55 A.D.3d 968, 968 (2d Dep't 2017);
see also Wells Fargo Bank, NA. v. Webster, 61 A.D.3d 856 (2d Dep't 2009); Swedbank, AB, iv'. Y.
v. Hale Ave. Borrower, LLC, 89 A.D.3d 922,923 (2d Dep't 2011). Here, Plaintiff has submitted
an affidavit of Terry White, Vice President and Senior Recovery Analyst for CitiMortgage, Inc.,
as well as, the note, mortgage, and transfer/assignment documents. In opposition to the motion,
Defendant 245 Montauk argues that Plaintiff lacks standing, has failed to attached pleadings, and
has submitted documents that are inadmissible.
A. Defendant 245 Montauk Fails To Demonstrate That Plaintiff Lacks Standing.
"Standing in residential mortgage foreclosure actions may be established any of three ways.
One is where the plaintiff is the original lender in direct privity with the defendant.[ ... ] The second
basis for standing is where the plaintiff is a holder in physical possession of the note prior to the
commencement of the action, with an allonge or indorsement in blank. [ ... ] The third is when the
note underlying an action was assigned to the plaintiff prior to the date of commencement of the
action." Wilmington Sav. Fund Socy., FSB v. Matamoro, 200 A.D.3d 79, 90-91 (2d Dep't 2021).
"Either a written assignment of the underlying note or the physical delivery of the note prior to the
commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage
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passes with the debt as an inseparable incident." U.S. Bank Nat'! Ass'n v. Rozo-Castellanos, 201
A.D.3d 995, 998 (2d Dep't 2022). "To defeat a de_fendant's motion to dismiss, the plaintiff has no
burden of establishing its standing as a matter of law; rather the motion· will be defeated if the
plaintiffs submissions raise a question of fact as to its standing." Deutsche Bank Natl. Trust Co.
v. Vitellas, 131 A.D.3d 52, 60 (2d Dep't 2013).
Here, Plaintiff's exhibits to its motion show a chain of assignments from the original
Mortgagee, Argent Mortgage, to CitiMortgage, Inc. (NYSCEF Doc. Nos. 36-37). The chain
appears to be complete and unbroken. If Defendant 245 Montauk has evidence showing that there
have been further transfers or assignments that would substantiate its claim that Plaintiff
CitiMortgage lacks standing to bring this action, and thus make out a prima facie case, it must
produce that evidence. Conclusory statements are not sufficient to establish a prima fade lack of I standing. Therefore, the argument that Plaintiff lacks standing is insufficient.
B. Defendant 245 Montauk Fails To Demonstrate That Plaintiff Failed to Properly Support Its Motion.
Defendant 245 Montauk alleges that CitiMortgage fails to support its motion by annexing
a copy_ of the pleadings as required by CPLR 3212 (b). However, this omission is properly
disrega:ded here because: ( 1) the pleadings are_ electronically filed and available to the Court and
parties; and (2) Defendant 245 Montauk does not allege that it was prejudiced by the omission.
See Sensible Choice Contr., LLC v. Rodgers, 164 A.D.3d 705, 707 (2d Dep't 2018). Accordingly,
Defendant 245 Montauk's argument that Plaintiffs failure to attach pleadings requires denial of
Plaintiffs motion is without merit.
. 5
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C. Defendant 245 Montauk Has Established That Plaintiffs Business Records Dated After April 1, 2019 Fails To Meet the Business Records Admissibility Standard.
In addressing the admissibility of business records, it is necessary to ascertain how and
when the documents at issue were created. Under CPLR 4518 (a), as the New York Court of
Appeals detailed in People v. Kennedy, 68 N.Y.2d 569, 579-80 (1986), the requirements are as
follows: "(a): first, that the record be made in the regular course of business-essentially, that it
reflect a routine, regularly conducted business activity, and that it be needed and relied on in the
performance of functions of the business; second, that it be the regular course of such business to
make the record (a double requirement of regularity)-essentially, _that the record be made
pursuant to established procedures for the routine, habitual, systematic making of such a record;
and third, that the record be made at or about the time of the event being recorded-essentially,
that recollection be fairly accurate and the habit or routine of making the entries assured." Further,
as regards admissibility, "'[A] proper foundation for the admission of a business record must be
provided by someone with personal knowledge of the maker's business practices and
procedures' ... " Citibank, N.A. v. Cabrera, 130 A.D.3d. 861,861 (2d Dep't 2015). See also Aurora
Loan Servs., LLC v. Mercius, 138 A.D.3d 650 (2d Dep't 2016). That said, "[i]t would clearly defeat
the utility of CPLR 4518 to require the testimony of all persons involved in creating the record.,,
Jerome Prince, Richardson on E~idence § 8-306 (Farrell 11th ed 1995).
"It is true that as a general rule, 'the mere filing of papers received from other entities, even
if they are retained in the regular course of business, is insufficient to qualify the documents as
business records'[ ... ] However, such records may be admitted into evidence if the recipient can
establish personal knowledge of the maker's business practices and procedures, or establish that
the records provided by the maker were incorporated into the recipient's own records and
routinely relied upon by the recipient in its own business." (Internal citations
I! 6
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omitted)( emphasis added); Bank of New York Mellon v. Gordon, 171 A.D.3d 197, 205 (2d Dep 't
2019). See also Burgess v. Leon's Auto Collission Inc., 87 Misc. 2d 351, 354 (Civ Ct 1976); Bank
of Am., NA. v Huertas, 195 A.D.3d 89 I (2d Dep 't 2021 ); Tri-State Loan Acquisitions Ill, LLC v
Litkowski, 172 A.D.3d 780 (2d Dep't 2019).
Here, the affirmation and reply affirmation of Terry White, CitiMortgage Vice President
and Recovery Senior Analyst, demonstrate sufficient knowledge of CitiMortgage's business
practice of creating and maintaining business records related to mortgages and mortgage servicing
(NYSCEF Doc. Nos. 33 and 62). Such records are created and maintained for the purpose of
documenting mortgage information and are generally prepared contemporaneously with the events
memorialized in such documents, pursuant to established internal and regulatory banking
procedures. However, Mr. White's personal knowledge suffices only through April 1, 2019, when
the mortgage servicing was transferred to subservicer Cenlar FSB. As such, Mr. White's
affirmations meet the CPLR 4518 requirements to have CitiMortgage's records (NYSCEF Doc.
No. 39) admitted as business records for review before this Court under the business records
exception to the hearsay rule through April 1, 2019.
With respect to mortgage servicing from April 2, 2019 onward, the records submitted
(NYSCEF Doc. No. 40) are not in the same format and do not contain the same information as
Plaintiffs own internal documents. Though CitiMortgage may have received such records from
Cenlar FSB, Mr. White does not establish their incorporation into Plaintiffs records and Plaintiff's
routine reliance on such documents received. Merely stating in his Reply Affirmation that
"CitiMortgage relies on the business records of its subservicer" is conclusory and lacks the
specificity to establish such a claim. See Reply Affirmation of Terry White, dated April 25, 2024,
at ,9 (NYSCEF Doc. No. 62). Mr. White does not describe any procedure by which documents
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are received or incorporated into CitiMortgage's record, nor does he specify a date or regular
timeline on which Cenlar FSB's records are received and incorporated into CitiMortgage's own
business records. This demonstrates a lack of knowledge of CitiMortgage's procedure for
incorporating and relying on the records of its sub-servicer Cenlar FSB. Furthermore, the later
records provided from Cenlar FSB do not contain any readily identifying information showing the
account to which the figures belong, nor is Bronner's name anywhere within the forty-five pages
of the proffered exhibit.
Accordingly, the records CitiMortgage annexes as NYSCEF Document Number 39 are
admissible as CitiMortgage's business records and the records attached as NYSCEF Document
Number 40 are inadmissible, as CitiMortgage has not laid a foundation of admissibility for the
proffered records relating to April 2, 2019, and onward.
IL Defendant 245 Montauk's Cross-Motion To Extend Its Time To Answer Is DENIED.
"In order to successfully oppose a motion for leave to enter a default judgment, a defendant
who has failed to timely appear or answer the complaint must provide a reasonable excuse for the
default and demonstrate the existence of a potentially meritorious defense to the action." Cartessa
Aesthetics, LLC v. Demko, 217 A.D.3d 821, 821-822 (2d Dep't 2023), quoting Maldonado v.
Mosquera, 186 A.D.3d 1352, 1353 (2d Dep't 2020); see Rosenzweig v. Gubner, 194 A.D.3d 1086,
1088 (2d Dep't 2021); see also Nowakowski v. Stages, 179 A.D.3d 822, 823 (2d Dep't 2020); see
generally CPLR 5015[ a][ 1]). "The detern1ination of what constitutes a reasonable excuse lies
within the sound discretion of the Supreme Court." Deutsche Bank Trust Co. Ams. v. Marous, 127
A.D.3d 1012 (2d Dep't 2015); see also Duprat v. BMW Fin. Servs., NA, LLC, 142 A.D.3d 946,
947 (2d Dep 't 2016). "A Defendant is not required to establish its defense as a matter of law; it
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need only set forth facts to make out a prima facie showing of a meritorious defense." Quis v.
Bolden, 298 A.D.2d 375 (2d Dep't 2002).
The discretionary nature of deciding a motion to extend time to answer is balanced against
the Appellate Division, Second Department's interpretation of statutes governing service of
process. In HSBC Bank USA, N.A. v. Powell, 148 A.D.3d 117, 118 (2d Dep't 2017), the Second
Department held that "bare denial of service of the summons and complaint [does] not constitute
a reasonable excuse for [a defendant's] delay in answering, so as to entitle [a defendant] to serve
a late answer." See also Wells Fargo Bank, N.A. v. Hernandez, 204 A.D.3d 958, 960 (2d Dep't
2022). Moreover, the Second Depa11ment has found that a plaintiff may establish that service was
effected upon Defendant "by delivering copies of the summons and complaint to the Secretary of
State ... and the defendant's mere denial of receipt, in opposition, was insufficient to rebut the
presumption of proper service created by service upon the Secretary of State." NYCTL 2013-A Tr.
v. Heights Houses Corp., 172 A.D.3d 1078, 1079 (2d Dep't 2019).
Here, Plaintiff provides proof that it served Defendant 245 Montauk by serving the New
York Secretary of State on August 11, 2023 (NYSCEF Doc. No. 27). Plaintiff further asserts that
it also served Defendant's attorney, Biolsi Law Group, P.C., via mail, at the time the order granting
leave to amend the caption and issue a supplemental summons, along with the notice of entry,
were filed, on July 31, 2023 (NYSCEF Doc. No. 25). As to service on the law firm, Biolsi Law
Group, P.C., was counsel to Bronner at the time she was removed as a defendant in this action,
and the firm now represents Defendant 245 Montauk. While the fim1 would have had notice of the
addition of 245 Montauk as a defendant, as well as access to the supplemental summons and
amended complaint, it is unclear when Biolsi Law Group, P.C. was retained to represent Defendant
245 Montauk in this action. As such, although Plaintiff argues 'that Defendant 245 Montauk had
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notice (see NYSCEF Doc. No. 59 at ,i 38-39), it is not clear that the firm already represented
Defendant 245 Montauk in their present capacity as its counsel, nor that the fom had the obligation
to inform Defendant 245 Montauk of the present proceeding. Thus, this portion of Defendant's
argument fails.
Turning to the issue of service upon the Secretary of State, Defendant 245 Montauk does
not attempt to refute this service; it simply denies having received notice from the Secretary of
State of the present proceeding due to unspecified delays admitted to by the Secretary of State's
office (NYSCEF Doc. Nos. 50-51). To support its argument, Defendant submits the affidavit of
Jahangir Mohammed Alam, a resident of the subject premises who affirms that he accepts mail on
behalf of Defendant 245 Montauk and has not received any pleadings in this action. See
Affomation of Truth of Jahangir Mohammed Alam, dated April 18, 2024, at ilil4-7 (NYSCEF Doc.
No. 51 ). Defendant also submits the affidavit of its president, Parvin Islam, who asserts that her
attorneys infonned her that the Secretary of State "has had increased processing delays."
Affirmation of Truth of Parvin Islam, dated April 20, 2024, at iJl 0 (NYSCEF Doc. No. 50). In
addition, Mrs. Islam asserts that Defendant 245 Montauk had no notice of this proceeding until
"November or December" of 2023, when she started receiving calls from investors seeking to
acquire the subject property. See Id. at iJ6 (NYSCEF Doc. No. 50). As such, upon learning of the
suit, Defendant 245 Montauk attempted to interpose an answer on December 13, 2023, which was I r then rejected by Plaintiff. See Id. at iJ7.
It is established that service is valid upon delivery of the papers to the Secretary of State t and the filing of an affidavit of service. See BCL 306(b ); see also Shimel v. 5 S. Fulton Ave. Corp., I I
11 A.D.3d 527 (2d Dep't 2004). Therefore, it is within the discretion of this Court to consider
circumstances such as delay in delivery when determining whether to grant an extension of time
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to answer. See Deutsche Bank Trust Co. v. Marous, 127 A.D.3d 1012. In State Farm Fire & Cas.
Co. v. Gantt, 2021 N.Y. Misc. LEXIS 3133 (Sup. Ct. Kings Co. 2021) and State Farm Fire & Cas.
Co. v. Pettaway, 2021 N.Y. Misc. LEXIS 3127 (Sup. Ct. Kings Co. 2021), Justice Lawrence
Knipel found that the .Defendants provided a reasonable excuse for default by submitting an
affidavit from the law firm's former paralegal, who attested that while employed with the firm,
she "contacted the office of the Secretary of State and was informed that it was experiencing a
backlog of pleadings causing a delay in service." Id. at *3. These cases are distinguishable from
the instant matter.
Here, Defendant 245 Montauk provides an affidavit from its president that its attorneys
informed her that there were "increased processing delays, which is likely why [she] never
received the Summons and Amended Complaint." See Islam Affidavit, ,it 0. In addition,
Defendant submits the Attorney Affinnation of Kyra Mercadier, who merely affirms that
"Defendant should be reasonably excused from its default in appearance as it did not receive any
documents from the Secretary of State, which admitted to lengthy delays in processing service."
See Affirmation of Kyra Mercadier, dated April 22, 2024, iJ3 (NYSCEF Doc. No. 48). Neither
affirmation provides that the facts upon which they rely are based on personal knowledge or
information as the affinnations in the State Farm cases cited above.
Furthermore, Defendant 245 Montauk's inclusion of language from the Department of
State website concerning processing delays fails to provide a date as to when this ~anguage was
placed on the website and if such processing_ delays were in existence in August 2023,-when the
Secretary of State was served in this matter. Moreover, Defendant 245 Montauk's reference to
Prof. Patrick M. Connors' commentary on CPLR 3212 in its Memorandum of Law, which advises
that Courts "should be sensitive to this problem and be more forgiving to a corporate defendant
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who has failed to timely answer after being served through BCL 306(b), is unpersuasive and
unavailing as the commentary discusses issues with service of process in 2022, not 2023. See
Defendant 245 Montauk Memorandum of Law, Page 4-5 (NYSCEF Doc. No. 49). While this
Couti has exercised its discretion to deten11ine if a reasonable cause for delay exists, Defendant
245 Montauk simply fails to provide a reasonable excuse for its delay in answering.
Therefore, as the Coun has found that Defendant 245 Montauk did not provide a reasonable
excuse for the delay in ans\\'ering, the Cou1i finds it unnecessary to consider whether Defendant
245 Montauk sufficiently demonstrated the existence of a potentially meritorious defense. See
Deutsche Bank Trust Co. v. lvfarous, 127 A.D.3d 1012; See also BA C Home Loans Servicing, LP
v. Reardon, 132 A.D.3d 790 (2d Dep't 2015); HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647,
648 (2d Dep't 2014); Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890 (2d Dep't
2010).
CONCLUSION
Accordingly, based on the foregoing, Plaintiff's motion for leave to fix defaults of non-
appearing defendants and issuance of an order of reference to compute surµs due under a mortgage
is DENIED. Defendant 245 Montauk's cross-motion for an extension of time to answer is
DENIED.
This constitutes the Dec1s1on and Order of the Cr::urt. -,,------- 1 -- ~-- ENTE :
Hon.
'
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