Deutsche Bank National Trust Co. v. Jimenez

          HINSHAW & CULBERTSON, LLP Attorneys for Plaintiff

          JOHN J. CARACCIOLO, ESQ. Attorney for Defendants Jimenez

          HON. ROBERT F. QUINLAN, J.S.C.

         Upon 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

         For the purposes of this decision, Mot. Seq. #002 and Motion Seq. #003 have been consolidated by the court.

         ORDERED 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 further

         ORDERED 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.

         The 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.

         At that 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 timely.

         Defendants 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 sponte.

         "AFFIRMATION IN OPPOSITION" SUBMITTED PREMATURELY NOT

         CONSIDERED

         Before 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.

         In 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.

         The 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 ...