Deutsche Bank National Trust Company AS TRUSTEE FOR MASTR 2007-01, Plaintiff,
Kenneth Jimenez, DEBRA JIMENEZ A/K/A DEBRA LYNCH, MIDLAND FUNDING LLC D/B/A IN NEW YORK AS MIDLAND FUNDING OF DELAWARE LLC, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC. AS NOMINEE FOR E-LOANS, INC., JOHN DOE (SAID NAME BEING FICTITIOUS IT BEING THE INTENTION OF PLAINTIFF TO DESIGNATE ANY AND ALL OCCUPANTS OF PREMISES BEING FORECLOSED HEREIN, AND ANY PARTIES, CORPORATIONS OR ENTITIES, IF ANY, HAVING OR CLAIMING AN INTEREST OR LIEN UPON THE MORTGAGED PREMISES.), Defendants.
HINSHAW & CULBERTSON, LLP Attorneys for Plaintiff
J. CARACCIOLO, ESQ. Attorney for Defendants Jimenez
ROBERT F. QUINLAN, J.S.C.
the following papers read on these motions: for summary
judgment by defendants Jimenez dismissing the complaint (Mot.
Seq. #002): 1-41; plaintiff's submissions in
opposition including memorandum of law: 42-86;
plaintiff' summary judgment motion dismissing
defendants' remaining affirmative defenses, for
appointment of a referee and to amend the caption including
memorandum of law (Mot. Seq. #003): 87-130;
defendants' opposition: 131-142; plaintiff's
memorandum of law in reply: 143-170; it is
purposes of this decision, Mot. Seq. #002 and Motion Seq.
#003 have been consolidated by the court.
that defendants Kenneth and Debra Jimenez' motion for
summary judgment dismissing plaintiff Deutsche Bank National
Trust Company as Trustee for MASTR 2007-01's complaint
for failure to comply with proof of mailing of the notices of
default required by the mortgage as well as the notices
required by RPAPL§ 1304, for failure to prove its
standing and for violation of Judiciary§ 489 (Mot. Seq.
# 002) is granted to the extent set forth below; and it is
that plaintiff's motion seeking to dismiss those
affirmative defenses raised by defendants Kenneth and Debra
Jimenez' answer that were not dismissed by this
court's order of, to grant plaintiff full summary
judgment, to amend the caption, to appoint a referee to
compute pursuant to RPAPL§ 1321 and for the costs of the
motion (Mot. Seq. #003), upon the granting of defendants'
motion, is denied as moot.
prior history of this action to foreclose a mortgage on
residential real property located in Suffolk County, New York
is set forth in the court's decision placed on the record
on after oral argument of plaintiff's first motion for
summary judgment (Mot. Seq. #001). At that time the court
granted plaintiff Deutsche Bank National Trust Company as
Trustee for MASTR 2007-01's ("plaintiff")
defaults against the non-appearing, non-answering defendants,
partial summary judgment dismissing defendant Kenneth and
Debra Jimenez' ("defendants") first and fourth
through twelfth affirmative defenses raised in their answer,
but denied full summary judgment striking defendants'
answer and set the action for a limited issue trial on
plaintiff's proof of defendants' default in payment,
its standing to bring the action, its proof of mailing of the
notice of default required by the mortgage, and the
sufficiency of the notices required by RPAPL§ 1304, as
well as proof of their mailing.
time the court issued a written discovery and scheduling
order authorizing a limited period of discovery on those
issues, after which a certification/compliance conference
would be held, the case certified "ready" for trial
and a note of issue filed. As the court had granted partial
summary judgment and limited the issues for trial to a few,
the order further authorized the parties to file successive
summary judgment motions on those limited issues within
thirty days of the filing of the note of issue, in the hope
of eliminating the burden on judicial resources which would
otherwise be expended on a trial (CPLR 3212 [a]; see Rose
v Horton Med. Ctr., 29 A.D.3d 977');">29 A.D.3d 977 [2d Dept 2006];
Landmark Capital Investments, Inc. v Li-Shan Wang,
94 A.D.3d 418');">94 A.D.3d 418 [1st Dept 2012]; Detko v McDonald's
Restaurants of New York, Inc, 198 A.D.2d 208');">198 A.D.2d 208 [2d Dept
1993]; Valley National Bank v INI Holding, LLC, 95
A.D.3d 1108 [2d Dept 2012]; Graham v City of New
York, 136 A.D.3d 754');">136 A.D.3d 754 [2d Dept 2016] ; Kolel Damsek
Eliezer, Inc. v Schlesinger, 139 A.D.3d 810');">139 A.D.3d 810 [2d Dept
2016]). In the Compliance Conference Order (w/Cert) of August
16, 2017 signed by the court after conference with counsel,
the court modified the order of to allow the parties to file
all successive motions for summary judgment by December 18,
2017, three months after September 18, 2017, the date by
which the note of issue was to be filed (CPLR 3212 [a]). The
court's records show plaintiff filed the note of issue
filed their motion for summary judgment on December 12, 2017;
rather than cross-moving plaintiff filed opposition, to which
defendant did not reply. The court's records indicate
that plaintiff's motion for summary judgment was received
for filing by the court on December 19, 2017, defendant's
filed opposition and plaintiff replied. In opposition to
plaintiff's motion defendants did not raise a claim that
plaintiff's motion was untimely although it was filed one
day after the deadline set by the order of August 16, 2017.
As the delay of one day is de minimis, and as the court had
modified its original timetable for the motions at the
request of the parties at the Compliance Conference, the
court would have granted a one day extension to file the
motion which would still have been within the maximum period
of one hundred-twenty days set by CPLR 3212 (a); therefore,
the court will not consider this delay in filing sua
IN OPPOSITION" SUBMITTED PREMATURELY NOT
discussing the pending motions, the court must discuss an
odd, unexplained "pre-motion filing" by defendants.
Before the filing of defendants' motion on December 12,
2017 (Mot. Seq. #002), on December 11, 2017 the court
received papers from defendants' counsel John J.
Caracciolo, Esq. entitled "Affirmation In Opposition To
Motion For Summary Judgment," although no motion had yet
been filed by plaintiff. The submission consists of an
affirmation from Mr. Caracciolo dated December 8, 2017, an
affidavit from defendant Kenneth Jimenez also dated December
8, 2017 and attached exhibits. In the affirmation Mr.
Caracciolo refers to himself as "of counsel to Moodie
Law Group. P. C.," although the "blue back"
states the "Henry Law Group," who were counsel for
defendants at the time (court records show that Mr.
Caracciolo appeared for the Henry Law Group at the oral
argument on, but subsequently on April 11, 2018 a consent to
change counsel was filed substituting him individually as
defendants' counsel). This affirmation by Mr. Caracciolo
is the same one he submitted in opposition to plaintiff's
original motion (Mot. Seq. #001) executed June 30, 2016, a
copy of which is submitted as Exhibit 9 to plaintiff's
motion (Mot. Seq. #003), except for the change of date and
the deletion of paragraph 49 of that first affirmation. The
affidavit of Mr. Jimenez is the same as the one submitted in
opposition to Mot. Seq. #001, other than being "re-
sworn to" on December 8, 2017. Neither document refers
to the court's decision of, the limited issues trial set
by that decision, or the history of the case after the
court's decisions up to and including the filing of the
note of issue.
support of defendants' present motion (Mot. Seq. #002),
there is a "third affirmation" by Mr. Caracciolo
executed on December 12, 2017 which contains a fuller history
of the proceedings and addresses the limited issues set for
trial, as well as a new issue, along with another affidavit
from Mr. Jimenez notarized on December 12, 2017. Another
affirmation by a different attorney of the Henry Law Group
was submitted in opposition to plaintiff's motion (Mot.
Seq. #003), along with a new affidavit from Mr. Jimenez. No
where in defendants' submissions in Mot. Seq. #002 or
Motion Seq. #003 is the "Affirmation In Opposition"
filed December 11, 2017 mentioned or explained, nor does
plaintiff address it at anytime.
court will ignore what it assumes was the errant filing of
December 11, 2017 "affirmation in opposition" in
rendering its decision on Mot. Seq. #002 and 003, but ...