Onewest Bank FSB v. Escobar

46 Misc. 3d 587, 995 N.Y.S.2d 476
CourtNew York Supreme Court
DecidedOctober 22, 2014
StatusPublished
Cited by1 cases

This text of 46 Misc. 3d 587 (Onewest Bank FSB v. Escobar) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Onewest Bank FSB v. Escobar, 46 Misc. 3d 587, 995 N.Y.S.2d 476 (N.Y. Super. Ct. 2014).

Opinion

OPINION OF THE COURT

Peter H. Mayer, J.

The motion is decided as follows: it is ordered that the plaintiffs motion (No. 004) which seeks, inter alia, an order vacating the court’s July 9, 2010 order of reference and granting a new order of reference, is hereby denied for the reasons set forth herein; and it is further ordered that the plaintiff shall appear by Gerald Roth, Esq. in the courtroom of the undersigned on December 18, 2014 at 9:30 a.m. for a hearing to determine what, if any, sanctions should be imposed by the court upon the plaintiff pursuant to 22 NYCRR 130-1.1 et seq.; and it is further ordered that at the time of the scheduled hearing, plaintiff shall produce for the court’s review those documents identified herein below; and it is further ordered that at the time of the hearing, plaintiff shall produce the individuals identified herein below for the purpose of providing sworn testimony upon inquiry by the court; and it is further ordered that counsel for the plaintiff shall serve a copy of this order upon all parties and the referee via first class mail, and shall promptly thereafter file the affidavit(s) of such service with the county clerk and provide to the court a copy of said affidavit(s) at the time of the scheduled hearing.

[589]*589The plaintiffs motion (No. 004) seeks an order vacating the court’s prior order of reference, granted on July 9, 2010 and filed with the county clerk on August 2, 2010, and upon vacatur, granting, inter alia, a new order of reference. The basis upon which the plaintiff seeks such relief is set forth solely in plaintiffs counsel’s affirmation in support, which states in relevant part:

“2. [W]e are unable to move forward with the action, as we cannot confirm that the affidavit submitted by plaintiff in support of its original application was properly executed and notarized, as required, inter alia, pursuant to the October 20, 2010 Administrative Order of the Chief Administrative Judge (AO/548/10, as amended by AO/431/11).
“3. As such, plaintiff seeks relief herein vacating and setting aside the Order of Reference signed by the court on July 09, 2010. In addition, this application seeks a new Order of Reference to be granted in its place, supported by the new affidavit of merit of Steve Irwin sworn to on September 13, 2012 and annexed hereto, as well as by the Attorney Affirmation required under AO/431/11.”

In addition to the attorney’s affirmation in support, counsel submits an attorney affirmation pursuant to AO/431/11 in which he refers to Steve Irwin as the representative with whom he communicated to confirm the purported factual accuracy of the allegations set forth in the complaint. In this regard, the affirmation states:

“3. Plaintiff’s representative can neither confirm nor deny the accuracy of the notarizations contained in the prior affidavit submitted in support of the prior applications made to the court. As such, the undersigned will be requesting the court to vacate the prior Order of Reference granted in this action. In furtherance thereof, Plaintiff’s representative has confirmed the factual accuracy of and the accuracy of the notarizations contained in the supporting affidavit and documents submitted in support of its application to vacate the prior Order of Reference, and in support of the application for a new Order of Reference.”

No factual basis is provided to explain why plaintiff “cannot confirm that the affidavit submitted by plaintiff in support of its original application was properly executed and notarized,” or [590]*590why “[p]laintiff s representative can neither confirm nor deny the accuracy of the notarizations contained in the prior affidavit submitted in support of the prior applications made to the court.”

Counsel’s representations in both of his affirmations refer to an affidavit of merit and perhaps another supporting affidavit from Steve Irwin. There are no such sworn statements from Mr. Irwin or any other plaintiff representative annexed to plaintiffs motion papers. Consequently, all of the purported facts in support of the specific relief sought in plaintiffs motion are set forth merely in an attorney affirmation. It is axiomatic that the affirmation of a party’s attorney, standing alone, is insufficient where he or she has no personal knowledge of the alleged facts set forth in support of a motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Currie v Wilhouski, 93 AD3d 816 [2d Dept 2012]; Warrington v Ryder Truck Rental, Inc., 35 AD3d 455 [2d Dept 2006]; Palo v Principio, 303 AD2d 478 [2d Dept 2003]; Falkowitz v Peters, 294 AD2d 330 [2d Dept 2002]).

Also absent from plaintiff’s current motion is a copy of plaintiff’s previous motion papers which plaintiff caused the court to rely upon in granting the July 9, 2010 order of reference. In relevant part, 22 NYCRR 202.7 (a) states that “[t]here shall be compliance with the procedures prescribed in the CPLR for the bringing of motions.” In this regard, CPLR 2214 sets forth the requirements for furnishing papers to the court. CPLR 2214 (a) requires that a “notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor” (emphasis added). Similarly, CPLR 2214 (c) states that “[e]ach party shall furnish to the court all papers served by that party. The moving party shall furnish all other papers not already in the possession of the court necessary to the consideration of the questions involved” (emphasis added). Notwithstanding these requirements, plaintiff fails to submit a copy of the prior motion papers, including the affidavit which plaintiff caused the court to rely on in granting the order of reference, but which plaintiff now admits was unreliable when submitted. Failure to submit the prior motion precludes the court from even knowing the identity of the affiant on the prior affidavit of merit.

With regard to plaintiffs notice of motion, it is devoid of any reference to a statute upon which plaintiff relies in seeking the requested vacatur. Counsel’s affirmations in support are also [591]*591devoid of any statute or case authority as a basis for the relief plaintiff seeks. Although there is no requirement that a notice of motion list the statute or regulation that is the basis of the motion, at least some grounds must be mentioned (see Shields v Carbone, 99 AD3d 1100 [3d Dept 2012]; Matter of Blauman-Spindler v Blauman, 68 AD3d 1105 [2d Dept 2009]). Here, plaintiff states no grounds for the vacatur in its notice of motion, and cites no statutory or case authority in support of the requested relief.

Notwithstanding the above, it appears that plaintiff is seeking CPLR 5015 (a) (5) vacatur of the original order of reference granted in plaintiffs favor. CPLR 5015 (a) (5) states in relevant part that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of. . . reversal, modification or vacatur of a prior judgment or order upon which it is based.”

Generally, absent the circumstances outlined in CPLR 5015, such as newly discovered evidence, fraud, lack of jurisdiction, etc., a court order from which no appeal is taken ought to remain inviolate (Nash v Port Auth. of N.Y. & N.J., 22 NY3d 220 [2013];

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Cite This Page — Counsel Stack

Bluebook (online)
46 Misc. 3d 587, 995 N.Y.S.2d 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/onewest-bank-fsb-v-escobar-nysupct-2014.