Central Mortgage Co. v. JahnsenCentral Mortgage Co. v. Jahnsen
Ordered that the appeals by the defendant Antonio J. Ferrara are dismissed as abandoned; and it is further,
Ordered that the appeal by the defendant Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile, from the order is dismissed; and it is further,
Ordered that the judgment of foreclosure and sale is affirmed on the appeal by the defendant Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known
Ordered that one bill of costs is awarded to the plaintiff.
The appeals by the defendant Antonio J. Ferrara must be dismissed as abandoned, as the brief submitted by the appellants does not request reversal of any portion of the order or judgment of foreclosure and sale with respect to him. The appeal from the order by the defendant Susan Jahnsen, also known as Susan E. Jahnsen, also known as Susan Ferrara, also known as Susan Gulotta, also known as Susan Gentile (hereinafter the appellant), must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see
On March 17, 2005, the appellant executed an adjustable rate note promising to repay Downey Savings and Loan Association, F.A. (hereinafter the original lender) the principal sum of $337,500. The loan was secured by a duly recorded mortgage on a residential property in Center Moriches. The note was later transferred to the plaintiff by physical delivery. The appellant defaulted on the loan by failing to make her monthly mortgage payment that became due on September 1, 2009, and each month thereafter. The plaintiff sent the appellant notice of her default, but she did not cure the default.
The plaintiff commenced this foreclosure action in June 2011, and the appellant filed an answer. The plaintiff moved, inter alia, for summary judgment on the complaint, but withdrew the motion after the appellant filed for bankruptcy and an automatic stay of the action went into effect. After the stay was lifted in December 2012, the plaintiff re-filed its motion. The appellant cross-moved, inter alia, for additional discovery pursuant to
The primary issue presented on this appeal is whether the plaintiff established standing to foreclose the mortgage on the appellant‘s property. Where, as here, standing is put into issue by the defendant, the plaintiff must prove its standing in order to be entitled to relief (see Deutsche Bank Natl. Trust Co. v Brewton, 142 AD3d 683, 684 [2016]; Deutsche Bank Trust Co.
In support of that branch of its motion which was for summary judgment on the complaint, the plaintiff submitted the summons and complaint, the note and mortgage, proof of the appellant‘s default, and an affidavit of its vice president. The vice president averred that the plaintiff “had physical possession of the Note prior to the commencement of this action,” but he did not set forth the specific date that the plaintiff obtained the note or the date that the action was commenced (cf. Deutsche Bank Natl. Trust Co. v Idarecis, 133 AD3d 702, 703 [2015]; Flagstar Bank, FSB v Anderson, 129 AD3d 665, 665-666 [2015]; Wells Fargo Bank, NA v Burke, 125 AD3d 765, 766 [2015]). However, the summons demonstrated that the action was commenced on June 13, 2011.
In opposition to the plaintiff‘s motion, the appellant raised various arguments challenging the plaintiff‘s standing, including that the plaintiff never had possession of the note.
In reply, the plaintiff submitted an affidavit from its assistant vice president (hereinafter the reply affidavit), which provided the specific date that the note was delivered to the plaintiff in order to clarify that the note was indeed delivered prior to the commencement of the action. As part of her job responsibilities, the assistant vice president was familiar with the records maintained by the plaintiff in connection with the subject loan and the procedures for creating these records in the regular course of the plaintiff‘s business. These records were made at or near the time of the occurrence of the matters recorded by persons with personal knowledge of the information, or based on information transmitted by persons with
Based on these submissions, we agree with the Supreme Court‘s determination that the plaintiff established its prima facie entitlement to summary judgment, and the appellant failed to raise a triable issue of fact in opposition (see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361-362; JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 645 [2016]; Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899-900 [2016]; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1207 [2015]; Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 207 [2009]).
Contrary to the appellant‘s contention, it was not error for the Supreme Court to consider the reply affidavit, which was submitted in reply to the appellant‘s opposition. A party moving for summary judgment generally cannot meet its prima facie burden by submitting evidence for the first time in reply (see Citimortgage, Inc. v Espinal, 134 AD3d 876, 879 [2015]; Arriola v City of New York, 128 AD3d 747, 749 [2015]; 6014 Eleventh Ave. Realty, LLC v 6014 AH, LLC, 114 AD3d 661, 662 [2014]; Tingling v C.I.N.H.R., Inc., 74 AD3d 954, 956 [2010]). However, there are exceptions to this general rule, including when the evidence is submitted in response to allegations raised for the first time in the opposition papers or when the other party is given an opportunity to respond to the reply papers (see Citimortgage, Inc. v Espinal, 134 AD3d 876, 879 [2015]; Pennachio v Costco Wholesale Corp., 119 AD3d 662 [2014]; David v Chong Sun Lee, 106 AD3d 1044, 1045 [2013]). Further, “[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant” (Matter of Harleysville Ins. Co. v Rosario, 17 AD3d 677, 677-678 [2005] [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Marchione, 69 AD3d 204, 206 [2009]; Dannasch v Bifulco, 184 AD2d 415, 417 [1992]).
Here, the Supreme Court properly considered the reply affidavit because the affidavit was offered in response to the appellant‘s allegation in opposition to the motion that the plaintiff never had possession of the note, and merely clarified the
Further, the Supreme Court properly determined that there is no merit to the appellant‘s contention that the plaintiff‘s motion should have been denied to afford her an opportunity to obtain discovery. The appellant failed to sufficiently demonstrate that she had made reasonable attempts to discover facts which would give rise to a triable issue or that further discovery might lead to relevant evidence (see
AUSTIN, J.P.
COHEN, MALTESE AND DUFFY, JJ., CONCUR.