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M & T Bank v. Improta

Supreme Court, Suffolk County

September 17, 2018

M & T Bank, Plaintiff,
v.
Dominick Improta, CHRISTINE IMPROTA Improta f/k/a CHRISTINE CORAGGIO a/k/a CHRISTINE CRAGGIO, GREEN TREE SERVICING, LLC, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, CIVIL ENFORCEMENT CO-ATC, "JOHN DOE #1-50" and "MARY ROE #1-50", the last two names being fictitious, said parties intended to name all other parties who may have some interest in, or lien upon the premises described in the complaint, Defendants.

          Attys. For Plaintiff PAUL H. RETHIER, ESQ.

          Atty. For Defendant Dominick Improta

          JAMES SPIESS, ESQ., Guardian Ad Litem for Christine Improta

          THOMAS F. WHELAN, J.S.C.

         Upon the following papers numbered 1 to 7 read on this motion to appoint a referee among other things; Notice of Motion/Order to Show Cause and supporting papers 1 - 3; Notice of Cross Motion and supporting papers:; Opposing papers: 4-6; Reply papers 7; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that this motion (#003) by the plaintiff for summary judgment, accelerated judgments, amendment of the caption to reflect all served defendants, and the appointment of a referee to compute, is granted; and it is further

         ORDERED that the branch of plaintiff's motion seeking a declaratory judgment regarding the lien position of the funds disbursed pursuant to the defendants' separate Loan Modification Agreement with co-defendant Green Tree Servicing is denied with leave to renew; and it is further

         ORDERED that the proposed Order submitted by plaintiff, as modified by the court, is signed simultaneously herewith; and it is further

         ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).

         This is an action to foreclose a mortgage on residential property situate in Rocky Point, NY. In essence, on, defendant Christine Improta, borrowed $109, 000.00 from plaintiff and executed a Home Equity Account Agreement ("HEAA") and a Home Equity Line of Credit Account Individual Mortgage ("HELCAIM"). Defendant, Dominick Improta, also signed the HEAA and HELCAIM solely in his capacity of property owner. The defendants defaulted on December 9, 2014, by failing to pay the monthly installments due and owing. This action was commenced by filing on June 15, 2016. Defendant, Dominick Improta, appeared by filing an answer, through counsel, alleging five affirmative defenses. The plaintiff filed a motion (#001) seeking leave serve the summons and complaint upon defendant, Christine Improta, by publication, and for the appointment of a Guardian ad Litem. The motion was denied by Order dated May 3, 2017 (Mayer, J.S.C.). The plaintiff filed a new motion (#002) on May 10, 2017, which was granted by Order dated September 13, 2017 (Mayer, J.S.C.). Service was thereafter completed by publication. The appointed guardian ad litem filed an answer on Ms. Improta's behalf, containing general denials. Because Ms. Improta, the sole borrower, was not a resident of the property, no foreclosure settlement conference was held.

         On March 5, 2018, plaintiff moved (#003) for summary judgment as against the answering defendants, default judgments against the remaining defendants, amendment of the caption, and the appointment of a referee to compute. The matter was subsequently reassigned to this Part pursuant to Administrative Order No. 32-18 dated April 19, 2018, and the motion was submitted for decision on August 3, 2018.

         In the moving papers on this summary judgment motion, plaintiff addresses its burden of proof and refutes the affirmative defenses of the answer. Therefore, plaintiff has satisfied its prima facie burden on this summary judgment motion (see HSBC Bank USA, Natl. Assn. v Espinal, 137 A.D.3d 1079, 28 N.Y.S.3d 107');">28 N.Y.S.3d 107');">28 N.Y.S.3d 107');">28 N.Y.S.3d 107 [2d Dept 2016]; U.S. Bank Natl. Assn. v Cox, 148 A.D.3d 692, 49 N.Y.S.3d 527');">49 N.Y.S.3d 527 [2d Dept 2017]). The burden then shifts to the defendants (see Bank of America, N.A. v DeNardo, 151 A.D.3d 1008, 58 N.Y.S.3d 469');">58 N.Y.S.3d 469 [2d Dept 2017]) and it was incumbent upon the answering defendants to submit proof sufficient to raise a genuine question of fact rebutting plaintiff's prima facie showing or in support of the affirmative defenses asserted in the answer or otherwise available to defendants (see Flagstar Bank v Bellafiore, 94 A.D.3d 1044, 943 N.Y.S.2d 551 [2d Dept 2012]; Grogg Assocs. v South Rd. Assocs., 74 A.D.3d 1021, 907 N.Y.S.2d 22');">907 N.Y.S.2d 22 [2d Dept 2010]; Wells Fargo Bank v Karla, 71 A.D.3d 1006, 896 N.Y.S.2d 681 [2d Dept 2010]; Washington Mut. Bank v O'Connor, 63 A.D.3d 832, 880 N.Y.S.2d 696');">880 N.Y.S.2d 696 [2d Dept 2009]; J.P. Morgan Chase Bank, NA v Agnello, 62 A.D.3d 662, 878 N.Y.S.2d 397');">878 N.Y.S.2d 397 [2d Dept 2009]; Aames Funding Corp. v Houston, 44 A.D.3d 692, 843 N.Y.S.2d 660');">843 N.Y.S.2d 660 [2d Dept 2007]).

         Where a defendant fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists (see Kuehne & Nagel, Inc. v Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; see also Madeline D'Anthony Enter., Inc. v Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591[2d Dept 2010]). In addition, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus without any efficacy (see New York Commercial Bank v J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 796');">969 N.Y.S.2d 796 [2d Dept 2013]; Starkman v City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609');">965 N.Y.S.2d 609 [2d Dept 2013]).

         Defendant, Dominick Improta's opposition alleges that plaintiff has failed to negotiate in good faith and requests the Court to direct plaintiff to take part in further settlement conferences. The Court addresses this allegation herein, however, in accordance with the above, all affirmative defenses raised in the answer and not addressed in the opposition are dismissed as abandoned (see JPMorgan Chase Bank, Natl. Assn. v Hua, 160 A.D.3d 821, 2018 WL 1833244 [2d Dept 2018]). Defendant, Christine Improta's answer, which consists of a general denial, is thus dismissed in total.

         CPLR 3408(a) requires a court-supervised foreclosure settlement conference take place in "any residential foreclosure action involving a home loan," which term is defined in RPAPL § 1304 as, inter alia, a loan in which "[t]he borrower is a natural person" (RPAPL § 1304[6][a][1], emphasis added). With regards to participation in the conferences, CPLR 3408(f) requires the parties to negotiate in good faith to reach a mutually agreeable resolution (see Citimortgage, Inc. v Nimkoff, 159 A.D.3d 869, 869-870, 73 N.Y.S.3d 577');">73 N.Y.S.3d 577 [2d Dept 2018]; CPLR 3408 [f]; U.S. Bank N.A. v Sarmiento, 121 A.D.3d 187, 200, 991 N.Y.S.2d 68');">991 N.Y.S.2d 68 [2d Dept 2014]; Wells Fargo Bank, N.A. v Meyers, 108 A.D.3d 9, 966 N.Y.S.2d 108');">966 N.Y.S.2d 108 [2d Dept 2013]). To conclude that a party failed to negotiate in good faith during foreclosure settlement conferences, a court must determine that "the totality of the circumstances demonstrates that the party's conduct did not constitute a meaningful effort at reaching a resolution" (Citimortgage, Inc. v Nimkoff, 159 A.D.3d at 870, supra, citing U.S. Bank N.A. v Sarmiento, 121 A.D.3d at 203, supra; Aurora Loan ...


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