Decided on March 25, 2015
Supreme Court, Kings County

Wells Fargo Bank, N.A. SUCCESSOR BY MERGER TO WELLS FARGO HOME MORTGAGE INC., Plaintiff,

against

Gaye Sylvester, NEW YORK CITY, ENVIRONMENTAL CONTROL BOARD, NEW YORK CITY PARKING VIOLATIONS BUREAU, NEW YORK CITY TRANSIT ADJUDICATION BUREAU, WELLS FARGO BANK, N.A., “JOHN DOE” said names being fictitious, it being the intention of plaintiff to designate fictitious, it being the intention of Plaintiffto designate any and all occupants of premises being foreclosed herein, and any parties, corporations or entities, if any, having or claiming an interest of lien upon the mortgaged premises, Defendants.

20589/2009

Atty for Plaintiff

Miranda L. Sharlette, Esq.

Fein, Such & Crane, LLP

28 East Main Street, Suite 1800

Rochester, NY 14614

(585) 232-7400

Atty for Defendant

George M. Gilmer, Esq.

943 Fourth Avenue

Brooklyn, NY 11232

(718) 788-0100

Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of Wells Fargo Bank, N.A. (hereinafter WFB or the plaintiff), filed on March 20, 2014, under motion sequence number two, for an order (1) granting relief to correct a mistake and extending [*2]time pursuant to CPLR 2001, 2004 and 2005 to move for an order striking the answer and counterclaims of defendant Gaye Sylvester (hereinafter Sylvester or the mortgagor); and (2) granting summary judgment in its favor as against Sylvester; (3) striking the John Doe defendants and replacing it with Tarik Sylvester; and (4) appointing a referee to compute pursuant to the RPAPL 1321.

Notice of Motion

Affirmation of regularity

Affidavit of plaintiff’s Vice-president

Exhibit A-J

Proposed order of reference

Affirmation in accordance with AO/431/11

Affirmation in opposition

Exhibit A-C

BACKGROUND

On August 14, 2009, WFB commenced the instant residential mortgage foreclosure action by filing a summons, complaint and a notice of pendency (hereinafter the commencement papers) with the Kings County Clerk’s office.

The complaint alleges in pertinent part that on July 1, 2003, Sylvester executed a note (the subject note) in favor of the WFB in the amount of $205,874.00 secured by a mortgage (the subject mortgage) on certain real property known as 1483 East 55th Street, Brooklyn, New York, Block 7880 Lot 27 (hereinafter the subject property). On April 27, 2007, the mortgage was modified or consolidated with another mortgage by a Consolidation, Extension and Modification Agreement (hereinafter CEMA) to form a single lien in the amount of $292,093.00 (hereinafter the CEMA mortgage). Thereafter, Sylvester defaulted on making payments due and owing on said note. WFB sent Sylvester a notice of his default and of its intent to accelerate the total amount due on the subject note if the default was not cured. Sylvester did not cure the default.

On or about September 3, 2009, Sylvester interposed an answer with counterclaim. Sylvester is the only defendant who has answered the complaint and who has submitted opposition to the instant motion.

At a status conference on the instant action conducted on December 12, 2013, Supreme Court Justice Knipel made a finding that more than one year had passed since joinder of issue and that the plaintiff had unreasonably neglected to prosecute the action. He issued an order dismissing the complaint and cancelling the notice of pendency pursuant to CPLR 3126 unless the plaintiff filed a note of issue or otherwise proceeds by motion for entry of judgment within 90 days. The order was entered on May 13, 2014.

Pursuant to CPLR 2221 (a), this Court issued an order referring the instant motion to Justice Knipel to address the first branch of WFB’s motion seeking to enlarge its time to avoid dismissal of the complaint pursuant to his order dated December 12, 2013 order. By order dated May 24, 2014, Justice Knipel vacated his prior order dated December 12, 2013 and referred the instant motion back to Part 52 to address the balance of the motion.

LAW AND APPLICATION

For the reasons set forth below, the Court grants that branch WFB’s motion seeking to amend the caption and denies the balance without prejudice.

WFB’s Motion to Substitute the John Doe Defendant

Through the affirmation of it counsel, WFB has demonstrated that Tarik Sylvester [FN1] was served the commencement papers and that there are no other “John Does” occupying the mortgaged premises. There is no opposition to this branch of WFB’s motion. Accordingly, its motion seeking to substitute John Doe with Tarik Sylvester is granted (Deutsche Bank Nat. Trust Co. v Islar, 122 AD3d 566 (2nd Dept 2014) citing CPLR 1024 and Flagstar Bank v Bellafiore, 94 AD3d 1044 at 1046 [2nd Dept 2012]).

WFB’s Motion to Appoint a Referee to Compute

RPAPL 1321 provides in pertinent part as follows:

If the defendant fails to answer within the time allowed or the right of the plaintiff is admitted by the answer, upon motion of the plaintiff, the court shall ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels and, if the whole amount secured by the mortgage has not become due, to report the amount thereafter to become due.

When seeking an order of reference to determine the amount that is due on an encumbered property, a WFB must show its entitlement to a judgment. That entitlement may be shown by demonstrating defendant’s default in answering the complaint, or by the plaintiff showing entitlement to summary judgment or by showing that the defendant’s answer admits plaintiff’s right to a judgment (see RPAPL 1321; 1—2 Bruce J. Bergman, Bergman on New York Mortgage Foreclosures, § 2.01 [4] [k] [note: online edition]).As a preliminary matter the Court reviews WFB’s compliance with the mandatory pre-commencement notices prior to reviewing the requirements for the appointment of a referee. RPAPL 1303 was enacted in July 2006, as part of the Home Equity Theft Prevention Act (hereinafter HETPA) (see First Natl. Bank of Chicago v Silver, 73 AD3d 162 (2nd Dept 2010); Senate Introducer Mem. in Support, Bill Jacket, L. 2006, ch. 308, at 7—8) (Board of Directors of House Beautiful at Woodbury Homeowners Ass’n, Inc. v Godt, 96 AD3d 983 [2nd Dept 2012]). As relevant here, that section provides that “[t]he foreclosing party in a mortgage foreclosure action, involving residential real property shall provide notice to … any mortgagor if the action relates to an owner-occupied one-to-four family dwelling” (RPAPL 1303 [1] [a]) (Id.). The statute “requires the foreclosing party in a residential mortgage foreclosure action to deliver statutory-specific notice to the homeowner, together with the summons and complaint” (First Natl. Bank of Chicago v Silver, 73 AD3d at 165, 899 NYS2d 256). “[T]he foreclosing party has the burden of showing compliance therewith and, if it fails to demonstrate such compliance, the foreclosure action will be dismissed” (Id. at 166).

The full text of RPAPL 1303 (1) now reads:

The foreclosing party in a mortgage foreclosure action, which involves residential real property consisting of owner-occupied one-to-four-family dwellings shall provide notice to the mortgagor in accordance with the provisions of this section with regard to information and assistance about the foreclosure process (Countrywide Loans v Taylor, 17 Misc 3d 595 [NY Sup Ct Suffolk Co. 2007]).

The statutorily required language of the notice is set forth in RPAPL 1303 (3), which became effective February 1, 2007. The appearance and procedural details of the notice are set forth in RPAPL 1303 (2), which also became effective February 1, 2007 and which states:

The notice required by this section shall be delivered with the summons and complaint to commence a foreclosure action. The notice required by this section shall be in bold, fourteen-point type and shall be printed on colored paper that is other than the color of the summons and complaint, and the title of the notice shall be in bold, twenty-point type. The notice shall be on its own page.

In this action, the WFB’s summons and complaint and notice of pendency were filed with the County Clerk on August 4, 2009, after the effective date of RPAPL 1303, thereby requiring compliance with the notice provisions set forth in the statute (WMC Mortg. Corp. v Thompson, 24 Misc 3d 738 [NY Sup Ct Kings Co. 2009]). Given the explicit statutory requirements regarding the content, type size and paper color of the notice, the WFB must submit proper evidentiary proof to establish full compliance with the substantive and procedural requirements of RPAPL 1303.

CPLR 2214 (c) requires the moving party to furnish to the court all other papers not already in the possession of the court necessary to the consideration of the questions involved. Here the WFB has annexed affidavits of service attesting to service of the summons, complaint and RPAPL 1303 notice on the defendants. However, WFB did not annex a copy of the RPAPL 1303 notice that was purportedly sent to the defendants. Accordingly, the WFB did not provide a sufficient basis upon which the court may conclude as a matter of law that the WFB has complied with the statute (Countrywide Loans v Taylor, 17 Misc 3d 595 [NY Sup. Ct. Suffolk Co. 2007]).

Since WFB has failed to establish compliance with the notice requirements of RPAPL 1303, its application for an order of reference must be denied (Id.). While this also serves as a basis for denying WFB’s motion for an accelerated judgment in its favor, certain issues in WFB’s motion papers warrant discussion for the purposes of addressing them in any future application for the same relief.

WFB’s Motion to Strike Sylvester’s Answer

Motions to strike a pleading are generally associated with sanctions for disclosure violations pursuant to CPLR 3126. WFB seeks to strike Sylvester’s answer contending that it is a general denial and, as such, serves as an admission of all allegation in the complaint pursuant to CPLR 3018. WFB’s conclusion is erroneous. When a specific denial is mandated, a general denial is an admission of that which should have been specifically denied (see Duban v Platt, 23 AD2d 660 [2nd Dept 1965]). However, in this case there is no allegation of fact that requires a specific denial.

Rule 103 of the old (pre-1963) Rules of Civil Practice authorized a motion to strike a denial if it was found to be sham. The CPLR has no such motion. There is no motion to strike denials, whether because sham or frivolous or interposed in bad faith or anything else (see Abrahao v Perrault, 147 AD2d 824, 824-25 [3rd Dept 1989]).

Pursuant to CPLR 3211 (b) a party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit. However, a CPLR 3211 (b) motion cannot be used to strike general denials as contrasted with specific [*3]defenses such as those contained in CPLR 3018 [b] (City of Rochester v Chiarella, 65 NY2d 92 [1985]).

WFB’s Motion to Strike Sylvester’s Counterclaims

Contrary to the requirements of CPLR 2214, WFB’s motion to strike Sylvester’s counterclaims does not set forth the procedural vehicle being utilized, rendering it ambiguous. It is unclear whether it is a request for sanction requests pursuant to CPLR 3126, a request for summary judgment motion pursuant to CPLR 3212, or a motion to dismiss pursuant to CPLR 3211 (a). Assuming it is meant to be a summary judgment motion, it must be denied due to WFB’s failure to join issue with a reply. A motion for summary judgment may not be made before issue is joined (CPLR 3212 [a]; City of Rochester v Chiarella, 65 NY2d 92 [1985]). “The appropriate response to a counterclaim is a reply (CPLR 3011; Siegel, N.Y.Prac. § 229). It serves the same function with relation to a counterclaim that an answer serves to a complaint and the requirement is strictly adhered to” (Id.). Assuming it is a pre-answer motion to dismiss pursuant to CPLR 3211 (a), WFB did not set forth which section it is applying and how it is applied.

In light of the foregoing ambiguity, this branch of WFB’s motion is denied without prejudice.

WFB’s Motion for Summary Judgment

As previously indicated, WFB has not interposed a reply to Sylvester’s counterclaims, and has not joined issue with respect to same. Accordingly, WFB’s motion for summary judgment foreclosing on the subject proporty to satisfy WFB’s mortgage is denied without prejudice as premature (Enriquez v Home Lawn Care and Landscaping, Inc., 49 AD3d 496, 497 [2nd Dept 2008]).

CONCLUSION

The portion of WFB’s motion seeking to strike Sylvester’s answer is denied.That portion of WFB’s motion seeking to strike Sylvester’s counterclaims is denied without prejudice.

That portion of WFB’s motion seeking to summary judgment in its favor as against Sylvester is denied without prejudice.

That portion of WFB’s motion seeking to substitute John Doe with Tarik Sylvester is granted.

That portion of WFB’s motion seeking the appointment of a referee to compute pursuant to RPAPL 1321 is denied without prejudice.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Footnotes

Footnote 1:Despite the same last name it’s a different individual from Gaye Sylvester.

http://www.courts.state.ny.us/reporter/3dseries/2015/2015_50425.htm

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