Decided on October 28, 2011

 The Bank of New York Mellon F/K/A THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATE HOLDERS CWABS, INC., ASSETBACKED CERTIFICATES, SERIES 2006-IMI 400 Countrywide Way Simi Valley, CA 93065, Plaintiff,

against

Nancy Martinez, ET.AL., Defendant.

21097/09

Attorney for Plaintiff:
Megan B. Szeliga, Esq.
Steven J. Baum, P.C.
220 Northpointe Parkway – Suite G
Amherst, New York 14228

Attorney for Defendant:
Steven Beispel, Esq.
20 W. 86 Street
New York, New York 10024

Phyllis Orlikoff Flug, J.

[*2]The following papers numbered 1 to 5 read on this motion

Notice of Motion1 – 2

Affirmation in Opposition3

Reply Affirmation (2)4 – 5

Defendant, Nancy Martinez, moves for summary judgment dismissing plaintiff’s complaint as asserted against her.

This is an action to foreclose a mortgage on the real property located at 37-54 98th Street, in the County of Queens, City and State of New York.

On a motion for summary judgment, the proponent “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate an material issues of fact from the case . . .” (Winegrad v. New York Univ. Med. Center, 64 NY2d 851, 852 [1985]). Once the proponent has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which requires a jury trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

Defendant contends she is entitled to judgment on the ground that plaintiff lacked standing at the time the action was commenced. Defendant, however, has waived this defense as she did not raise it in her answer or in a pre-answer motion to dismiss (See HSBC Bank, USA v. Dammond, 59 AD3d 679, 680 [2d Dept. 2009]). Notably, defendant has also failed to move to amend her answer to assert this as a defense (See Aurora Loan Services, LLC v. Thomas, 70 AD3d 986, 987 [2d Dept. 2010]).

Defendant also contends she is entitled to summary judgment and dismissal of the action due to a conflict of interest on behalf of plaintiff’s attorneys. An attorney employed by Steven J. Baum, the law firm representing plaintiff, Elpiniki Bechakas, executed an assignment in favor of plaintiff, on behalf of Mortgage Electronic Registration Systems (“MERS”), a defendant in this action.

These actions undoubtedly raise the appearance of impropriety. Indeed, these practices were the subject of the October 6, 2011 settlement agreement between Steven J. Baum and the United States Attorney’s Office for the Southern District of New York. Nevertheless, defendant has failed to establish that these actions breached a specific duty to plaintiff and require a dismissal of the action as a matter of law (See, e.g., Swift v. Ki Young Choe, 242 AD2d 188, 192 [1st Dept. 1988]). [*3]

Accordingly, plaintiff is hereby ordered to submit waivers of any potential conflict of interest from plaintiff, Bank of New York, and MERS no later than December 2, 2011. In addition, plaintiff shall refrain from relying on any documents that raise the appearance of impropriety, including the aforementioned assignment, in its prosecution of this action.

Defendant’s motion for summary judgment is denied, with leave to renewal, upon plaintiff’s failure to comply with this order or upon the completion of discovery and on the presentment of proper papers.

October 28, 2011 ____________________

J.S.C.

 

[ipaper docId=70693071 access_key=key-19lqjzi414aw7ehddkff height=600 width=600 /]