ADVERSE POSSESSION OR NEIGHBORLY ACCOMMODATION

CJA REALTY HOLDINGS, LP v. 14 PHILA ST. LLC, 2022 NY Slip Op 4208 - NY: Appellate Div., 3rd Dept. 2022:

"...An easement created by grant may be extinguished by adverse possession if the party seeking to extinguish the easement established, by clear and convincing evidence, that its use of the easement was hostile and under a claim of right, open and notorious, actual, exclusive and continuous for a period of 10 years (see Spiegel v Ferraro, 73 NY2d 622, 625 [1989]; EPG Assoc., LP v Cascadilla Sch., 194 AD3d 1158, 1163 [2021], lv dismissed 37 NY3d 1103 [2021]). A presumption that the use was hostile generally arises once all other elements of the adverse possession claim are established, thereby shifting the burden to the opposing party to demonstrate that the use was permissive (see Estate of Becker v Murtagh, 19 NY3d 75, 81-82 [2012]; Bekkering v Christiana, 180 AD3d 1276, 1279 [2020]). "However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise" (Schwengber v Hultenius, 160 AD3d 1083, 1084 [2018] [internal quotation marks and citations omitted]; accord Bekkering v Christiana, 180 AD3d at 1279-1280).

.....defendants' own submissions raise a question of fact as to whether use of the easement for enclosed outdoor seating and dining was permissive and under a claim of right (see Bekkering v Christiana, 180 AD3d at 1280-1281). Accordingly, Supreme Court properly denied defendants' motion for summary judgment (see id.; Kheel v Molinari, 165 AD3d 1576, 1578 [2018], lv denied 32 NY3d 1194 [2019]).

Turning to plaintiff's cross motion, relying on different proof than defendants, plaintiff has attempted to demonstrate that defendants' possession and use of the disputed portion of the easement was permissive, rather than hostile. However, plaintiff's submissions do not establish its entitlement to summary judgment as a matter of law, as a question of fact remains...."

ADVERSE POSSESSION AND A MOTION TO DISMISS

Halo v Schmidt, 2021 NY Slip Op 06609, Decided on November 24, 2021, Appellate Division, Second Department:

"The plaintiff and the defendant own adjacent parcels of real property in New City. In 2018, the plaintiff allegedly learned that his driveway encroached on the defendant's property and commenced the instant action, inter alia, in effect, for a judgment declaring that he owns the contested portion of the driveway by adverse possession. The defendant moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the complaint. By order entered May 24, 2019, the Supreme Court, inter alia, denied that branch of the defendant's motion. The defendant appeals.

"The sole consideration in determining a pre-answer motion to dismiss a declaratory judgment action is 'whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration'" (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 857, 858, quoting Minovici v Belkin BV, 109 AD3d 520, 524). Further, "where, as here, evidentiary material is submitted and considered on a motion pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and the motion should not be granted unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it" (Matter of Chet's Garage, Inc. v Village of Goshen, 161 AD3d 727, 731).

Here, the complaint alleged that the plaintiff's predecessor adversely possessed the subject property for more than 10 years prior to the commencement of this action, potentially implicating both the prior and current versions of RPAPL 522(1) (see Houdeck Real Estate Co., LLC v Bayport Postal Realty, LLC, 180 AD3d 761, 762; Hodges v Beattie, 68 AD3d 1597, 1598-1599). Accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible inference (see Leon v Martinez, 84 NY2d 83, 87), even under the current version of the RPAPL, we cannot say as a matter of law that the plaintiff does not have a cause of action for adverse possession (see Maya's Black Cr., LLC v Angelo Balbo Realty Corp., 82 AD3d 1175, 1177). The evidentiary materials submitted by the defendant in support of his motion do not, as a matter of [*2]law, resolve the parties' factual disputes such that it can be said that the allegations in the complaint as to the cause of action for adverse possession are not facts at all (see Mazzei v Metropolitan Transp. Auth., 164 AD3d 1227, 1228)."

WHEN DRAFTING A MOTION FOR SUMMARY JUDGMENT....

 ....remember that the rules of evidence still apply. The procedures to lay a foundation that apply to a trial also apply to the motion and appellate courts are addressing this especially in foreclosure matters. Thus, in BNH Milf, LLC v Milford St. Props., LLC, 2021 NY Slip Op 01742, Decided on March 24, 2021, Appellate Division, Second Department:

""In moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782). "On its motion for summary judgment, a plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law" (US Bank N.A. v Hunte, 176 AD3d 894, 896 [internal quotation marks omitted]). "A default is established by (1) an admission made in response to a notice to admit, (2) an affidavit from a person having personal knowledge of the facts, or (3) other evidence in admissible form" (Deutsche Bank Natl. Trust Co. v McGann, 183 AD3d 700, 702).

Here, the affidavits of Steve Hackel, an officer of the plaintiff, and John P. O'Gorman, a vice president of Capital One, submitted in support of the plaintiff's motion, inter alia, for summary judgment, failed to establish the defendants' default in payment under the note (see Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 782). While O'Gorman's affidavit refers to certain default and acceleration letters claimed to have been sent to the defendants, the default letters are conclusory, lack factual basis, and are without evidentiary value (see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719). Additionally, both affidavits failed to establish that Capital One's records were provided to the plaintiff and incorporated into the plaintiff's own records, or that the plaintiff routinely relied upon such records in its business. Thus, the affidavits failed to lay the proper foundation for the admission of Capital One's records (see id. at 720; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 783). Since the plaintiff failed to establish the defendants' default in payment under the note, it failed to establish its prima facie entitlement to judgment as a matter of law, as well as its entitlement to an order of reference and a judgment of foreclosure and sale (see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d at 720; Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d at 783).

The plaintiff's failure to establish its prima facie entitlement to judgment as a matter of law requires a denial of those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d at 721)."

SUPREME COURT OPEN TO COMMERCIAL LANDLORDS?

Rather than pursue a non-payment in housing court, this commercial landlord, due to Covid restrictions and considerations, commenced an action for money damages only in Supreme Court, NY County on August 4, 2020 seeking rent due since March 2020. An Answer was filed in October 2020 and landlord moved for summary judgment on December 10, 2020. Here is the decision.

111 FULTON ST. INVS., LLC v. FULTON QUALITY FOODS LLC, 2021 NY Slip Op 30348 - NY: Supreme Court February 5, 2021:

"The motion by plaintiff for summary judgment against defendant Fulton Quality Foods LLC ("Fulton Quality") and dismissing this defendant's counterclaims is granted.

Background

Plaintiff is the landlord for a commercial space located on the ground floor in a building in Manhattan. Fulton Quality entered into a lease for the premises in 2011 for a twelve-year term. Fulton Quality runs a restaurant at the site. Plaintiff insists that Fulton Quality is in default of the lease and points to an October 30, 2019 letter allegedly sent to Fulton Quality that sets forth the basis of the default. Fulton Quality later cured its defaults but stopped making payments in March 2020. Another default letter was sent in June 2020. Plaintiff moves for summary judgment seeking the amount it claims is due.

In opposition, Fulton Quality raises numerous reasons why the motion should be denied. Fulton Quality argues that plaintiff failed to attach the pleadings to the motion, that there is no affidavit of merit and that plaintiff did not send bills and notices to both the tenant and its attorney in accordance with the lease.

Fulton Quality also claims that it has meritorious defenses that should compel the Court to deny the instant motion. It claims that the ongoing pandemic forced it to shut down its restaurant and, therefore, the purpose of the lease was frustrated. Fulton Quality also points to a "casualty clause" and the "eminent domain clause" of the lease as reasons to deny the instant motion.

In reply, plaintiff claims that the frustration of purpose defense fails as a matter of law, that Covid-19 was not a "casualty" and it was not a "taking" under the eminent domain provision of the lease.

Discussion

To be entitled to the remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers (id.). When deciding a summary judgment motion, the court views the alleged facts in the light most favorable to the non-moving party (Sosa v 46th St. Dev. LLC, 101 AD3d 490, 492, 955 NYS2d 589 [1st Dept 2012]).

Once a movant meets its initial burden, the burden shifts to the opponent, who must then produce sufficient evidence to establish the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557, 560, 427 NYS2d 595 [1980]). The court's task in deciding a summary judgment motion is to determine whether there are bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v Restani Constr. Corp., 18 NY3d 499, 505, 942 NYS2d 13 [2012]). If the court is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied (Tronlone v Lac d'Amiante Du Quebec, Ltee, 297 AD2d 528, 528-29, 747 NYS2d 79 [1st Dept 2002], affd 99 NY2d 647, 760 NYS2d 96 [2003]).

Procedural Issues

As an initial matter, the Court finds that plaintiff has met its prima facie burden. The fact that plaintiff did not attach a copy of the pleadings to the motion is of no moment because this an e-filed case and the docket is readily accessible. The Court also finds that the "certification" of Mr. Rosenberg, officer for plaintiff, satisfies the requirement that plaintiff file an affidavit of merit in support of its motion. Moreover, plaintiff established that it sent the proper notices concerning a default pursuant to the lease and that it has standing to bring this case.

Frustration of Purpose

The doctrine of frustration of purpose requires that "the frustrated purpose must be so completely the basis of the contract that, as both parties understood, without it, the transaction would have made little sense"(Crown IT Services, Inc. v Koval-Olsen, 11 AD3d 263, 265, 782 NYS2d 708 [1st Dept 2004]). "[T]his doctrine is a narrow one which does not apply unless the frustration is substantial"(id.).

The Court finds that this doctrine is inapplicable. The record on this motion shows that Fulton Quality only made a partial payment of rent on March 1, 2020. Restaurants were not shuttered for indoor dining until March 20, 2020. Even if the Court were to entertain the notion that frustration of purpose could help a tenant avoid paying any rent while still operating a takeout business, it appears that Fulton Quality had financial issues before the pandemic devasted the restaurant industry. On March 1, 2020, the pandemic did not prevent Fulton Quality from paying its rent and it only paid $10,000 of the $34,097.23 due. While the pandemic certainly reduced Fulton Quality's ability to improve its business, it was not the cause of the initial failure to pay the full amount due. Therefore, this common law defense does not raise an issue of fact.

Casualty and Eminent Domain Clauses of the Lease

Fulton Quality insists that Section 10.1 of the lease (the casualty clause) renders its performance under the lease as impossible. The Court disagrees. That provision references damage to the building (such as a fire) that renders the commercial space unusable. A deadly infectious disease is not a "casualty." Throughout 2020, Fulton Quality was able to operate by doing takeout and delivery, outdoor dining if it acquired the proper permits and limited indoor dining during certain months. The physical space (and kitchen) was available to this defendant. That customers decided not to place as many orders does not lead to a conclusion that the pandemic qualifies as a casualty under the terms of the lease.

The Court also declines to find that pandemic-related restrictions qualifies as a taking sufficient to invoke Section 11.1 of the lease concerning Eminent Domain. No physical portion of the restaurant was taken for public or quasi-public use. Rather, governmental restrictions designed to save lives limited the operations of Fulton Quality. Under Fulton Quality's view, any regulation that limits the operation of a business would constitute a taking. The Court declines to endorse such a broad and expansive view of the definition of a taking.

Because Fulton Quality does not dispute the amount sought by plaintiff, the Court awards plaintiff the amount sought in its motion. The Court also dismisses the case against defendant Nikas as this Court has already found that plaintiff failed to properly serve this defendant (NYSCEF Doc. No. 26).

Accordingly, it is hereby

ORDERED that the motion by plaintiff for summary judgment, to strike the answer and counterclaims of defendant Fulton Quality Foods LLC is granted and the Clerk is directed to enter judgment in favor of plaintiff against this defendant in the amount of $410,864.71 plus interest from June 26, 2020 along with costs and disbursement upon presentation of proper papers therefor; and it is further

ORDERED that the issue of reasonable legal fees is severed and a hearing will be held by the court to determine the amount due to be scheduled by the clerk of this part; and it is further

ORDERED that the case is dismissed as against defendant Nikas for failure to timely serve this defendant."

THE QUESTION OF THE DOG IS ONE OF FACT NOT OF LAW

The dog will get its day in court.

Introna v. Importuna, NYLJ October 26, 2020 Date filed: 2020-10-16 Court: Supreme Court, Richmond Judge: Justice Wayne Ozzi Case Number: 150038/2019:

"This is an action in which Plaintiff claims to have been injured as a result of an attack by Defendants’ dog, a pit bull named Capone. In brief, Plaintiff claims that while she was walking her own dog on the sidewalk in front of Defendants’ residence, she was attacked by the dog and knocked to the ground, sustaining various fractures and lacerations.

Defendants have made a prima facie showing of entitlement to judgment as a matter of law, by presenting evidence that there were no prior incidents involving this dog, no growling or prior complaints, and no knowledge of any vicious propensities.

Evidence tending to prove that a dog has vicious propensities may include a prior attack, the dog’s tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, or a proclivity to act in a way that puts others at risk of harm. (see, Bard v. Jahnke, 6 NY 3d 592, 597).

In opposition, Plaintiff offers her previous testimony that she heard vicious growling as she passed Defendants’ house, that the dog broke its leash, and immediately broke through a hole in the fence and thereafter ran after Plaintiff and her dog. Plaintiff also points to testimony of Defendant Elizabeth Importuna that neither she nor her family members permit the dog to be let loose in the yard; they have to take him out on a leash notwithstanding that the yard is fenced in. On this point, she said that Defendants never take the dog for a walk outside of their yard. Also, there is testimony from Defendants’ son that two people are needed to take him for a walk.
Plaintiff has offered sufficient evidence in opposition to raise bona fide issues of fact. The dog’s growling, the manner in which he was restrained, as described hereinabove, a proclivity to put others at risk of harm by breaking his leash and breaking through a hole in the fence, are all indicia of vicious propensities (see, Hodgson-Romain v. Hunter, 72 AD 3d 741 (2d Dept.); Lina Thai Wong v. Largana, 170 AD 3d 700 (2d Dept.)). see also, Shuffian v. Garafola, 9 AD 2d 910 (2d Dept)). In particular, circumstances showing that the owner found it necessary to keep the dog tied up, and took precautions to restrain it, are further evidence of knowledge of the dog’s propensities (Lagoda v. Dorr, 28 AD 2d 208, 210, citing Brice v. Bauer 108 NY 428, 432, and Hahnke v. Friederich, 140 NY 224).

Although Defendant denied knowledge of the dog’s vicious propensities, asserting that there have been no prior incidents involving the dog, no prior complaints, and no growling, the evidence adduced convinces this Court that a jury may find that Defendants knew or should have known about it. Also, the parties provided conflicting testimony as to the nature of the contact between Plaintiff and the dog on the day in question (see, e.g. Lina Thai Wong v. Largana, supra.)

It must be remembered that the Court’s role in considering summary judgment motions is issue-finding, not issue-determination (Lui v. Park Ridge at Terryville Ass’n Inc., 196 AD 2d 579 (2d Dept.), and that the Court should not determine issues of credibility (Id.).

For these reasons, both the motion and cross-motion (Seq. 001, 002) are denied."

A SUMMARY JUDGMENT MOTION REQUIRES ADMISSABLE EVIDENCE

In this case, a foreclosure is delayed due to the bank's failure to submit proper evidence in its motion papers.

SELENE FIN., LP v. Coleman, 2020 NY Slip Op 5962 - NY: Appellate Div., 2nd Dept. October 21, 2020:

".....

However, we agree with the defendant that the Supreme Court also should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against him, to strike his answer and affirmative defenses, and for an order of reference. "On its motion for summary judgment, the plaintiff has the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law" (Tri-State Loan Acquisitions III, LLC v Litkowski, 172 AD3d 780, 782; see JPMorgan Chase Bank, N.A. v Akanda, 177 AD3d 718, 719). "In an action to foreclose a mortgage, a plaintiff establishes its case as a matter of law through the production of the mortgage, the unpaid note, and evidence of default" (MLCFC 2007-9 Mixed Astoria, LLC v 36-02 35th Ave. Dev., LLC, 116 AD3d 745, 746). Where, as here, a defendant places standing in issue, the plaintiff must prove standing as part of its prima facie case (see U.S. Bank N.A. v Auguste, 173 AD3d at 932-933).

Here, although the plaintiff established its standing, the plaintiff failed to establish, through admissible evidence, the defendant's default in payment under the note. For evidence of default, the plaintiff relied upon the affidavit of a foreclosure manager employed by the plaintiff, wherein she attested, among other things, that the defendant defaulted under the loan in February 2011. By attesting that she was familiar with the record-making practices of her employer, that the records were made in the regular course of business, that it was the regular course of such business to make the record, and that the records were made "at or about the time of the event being recorded" (People v Kennedy, 68 NY2d 569, 580), the foreclosure manager satisfied the requirements for establishing a foundation for the admission of business records (see CPLR 4518[a]; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205). However, since the foreclosure manager failed to submit any of the business records upon which she contends she relied in making her affidavit, her averment as to the defendant's purported default "`constitute[s] inadmissible hearsay and lack[s] probative value'" (Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139, 1141, quoting Bank of N.Y. Mellon v Gordon, 171 AD3d at 208-209). As "it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted" (Bank of N.Y. Mellon v Gordon, 171 AD3d at 205), and "a witness's description of a document not admitted into evidence is hearsay" (U.S. Bank N.A. v 22 S. Madison, LLC, 170 AD3d 772, 774), the assertions by the foreclosure manager as to the contents of the records were "inadmissible hearsay to the extent that the records she purport[ed] to describe were not submitted with her affidavit" (id. at 774; see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513, 1517).

Since the plaintiff failed to meet its prima facie burden, the Supreme Court should have denied those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer and affirmative defenses, and for an order of reference, without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

FAMILY COURT - SUMMARY JUDGMENT FOR DERIVATIVE NEGLECT

Derivative neglect means that if you are a danger to one child, then you are a danger to all children. It is basically an accusation that you are a bad parent and should not have any children in your care.

Matter of Elijah G. (Chastity G.), 2020 NY Slip Op 03511, Decided on June 24, 2020, Appellate Division, Second Department:

"As is relevant to these appeals, in 2012, the Administration for Children's Services (hereinafter ACS) filed a petition pursuant to article 10 of the Family Court Act against the mother and the father, alleging that they neglected their child—their only child at that time—based on, inter alia, their failure to follow up on mental health treatment and the extreme unsanitary conditions in the home. Thereafter, findings of neglect, on consent, were entered as to the mother and the father [*2]with respect to that child. Subsequent petitions were filed against the mother and the father shortly after the birth of each of two additional children (hereinafter, collectively with the oldest child, the three oldest children), based on allegations, inter alia, that the mother and the father were not compliant with therapy and mental health treatment. Findings of neglect as to the mother and the father with respect to the two additional children were entered on consent, and the fact-finding order pursuant to which the findings were entered specified that the neglect findings were entered as to all allegations in the petitions.

Thereafter, ACS filed additional petitions, in 2016 and 2018, respectively (hereinafter the 2016 and 2018 petitions), against the mother and the father, alleging that they derivatively neglected their two youngest children. The three oldest children had been and remained in foster care at the time the 2016 and 2018 petitions were filed and, by January 2017, ACS had filed petitions to terminate the parental rights of the mother and the father as to each of the three oldest children.

In September 2018, ACS moved for summary judgment on the 2016 and 2018 petitions alleging that the mother and the father derivatively neglected the two youngest children. ACS asserted that the conduct that formed the basis of the findings of neglect as to the three oldest children was so proximate in time to these derivative proceedings that it could reasonably be concluded that the condition still existed. The Family Court granted the motion for summary judgment, and the mother and the father separately appeal.

Although there is no express provision for a summary judgment procedure in a Family Court Act article 10 proceeding, summary judgment pursuant to CPLR 3212 may be granted in such a proceeding when there is no triable issue of fact outstanding (see Family Ct Act § 165[a]; Matter of Jaylhon C. [Candace C.], 170 AD3d 999, 1000-1001).

We agree with the Family Court's determination that ACS established its entitlement to judgment as a matter of law on the issue of whether the mother and the father derivatively neglected the two youngest children (see Family Ct Act § 1012[f][i]). In support of its motion, ACS submitted several prior orders of the court finding that the mother and the father neglected the three oldest children and that both the mother and the father suffered from mental health issues and continually failed to comply with recommended mental health services (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Shay-Nah FF. [Theresa GG.], 106 AD3d 1398, 1400). The orders submitted demonstrated that the none of the three oldest children were returned to the care of the mother and the father, and that the conditions that resulted in the removal of those children continued to exist at the time ACS filed its motion for summary judgment (see Matter of A'Nyia P.G. [Qubilah C.T.G.], 176 AD3d 495, 496). This evidence of neglect indicates a fundamental defect in the mother's and the father's understanding of the duties of parenthood, warranting a finding of derivative neglect as to the two youngest children (see Family Ct Act § 1046[a][i]; Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Hope P. [Stephanie B.], 149 AD3d 947, 947). The prior conduct was so proximate in time to the derivative neglect proceedings that it can reasonably be concluded that the conditions still exist (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Dayyan J.L. [Autumn M.], 131 AD3d 1243, 1244-1245).


Accordingly, ACS established, prima facie, that the mother and the father derivatively neglected the two youngest children through their failure to resolve the same issues that were the basis for the prior findings of neglect as to the three oldest children (see Matter of Jaylhon C. [Candace C.], 170 AD3d at 1001; Matter of Annalise L. [Jalise P.], 170 AD3d 835, 837). In response to ACS's prima facie showing of entitlement to judgment as a matter of law, the mother and the father failed to raise a triable issue of fact."

MORTGAGE FORECLOSURE: RPAPL1304 AND SUMMARY JUDGMENT

RPAPL 1304 must be proved by proper evidence in any foreclosure action and here the homeowner succeeded in defeating a summary judgment motion but the bank may be able to establish compliance at trial.

Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC v Williams, 2020 NY Slip Op 03561, Decided on June 24, 2020, Appellate Division, Second Department:

".....However, the plaintiff failed to establish its entitlement to judgment as a matter of law with respect to compliance with the notice requirement of RPAPL 1304. Proper service of RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of the foreclosure action, and failure of a plaintiff to make this showing requires denial of its motion for summary judgment (see Deutsche Bank Natl. Trust Co. v Spanos, 102 AD3d 909, 911). The lender must submit proof of mailing (such as an affidavit of service or domestic return receipts with attendant signatures) or an affidavit either from the individual who performed the actual mailing or an individual with personal knowledge of the lender's standard office mailing procedure (see JPMorgan Chase Bank, N.A. v Grennan, 175 AD3d 1513; Citibank, N.A. v Wood, 150 AD3d 813, 814). Here, the unsubstantiated and conclusory statement of the plaintiff's attorney in an affidavit submitted in support of the motion that RPAPL 1304 notice was properly mailed to the defendant is insufficient to establish compliance with the statute as a matter of law (see Central Mtge. Co. v Abraham, 150 AD3d 961, 962; Citibank, N.A. v Wood, 150 AD3d at 814)."

MORTGAGE FORECLOSURE - AGAIN THE EVIDENCE RULES APPLY IN SUMMARY JUDGMENT MOTIONS

American Home Mtge. Servicing, Inc. v Carnegie, 2020 NY Slip Op 01590, Decided on March 11, 2020, Appellate Division, Second Department:

"We agree with the Supreme Court's determination, upon reargument, that the plaintiff failed to establish, prima facie, that it had standing, as the plaintiff's asserted basis in its May 2016 motion—that standing was established through an affidavit of an employee of the plaintiff's current loan sub-servicer—is without merit (see Citibank, N.A. v Cabrera, 130 AD3d 861, 861; see also US Bank N.A. v Hunte, 176 AD3d 894, 896). The affidavit failed to lay the requisite foundation under the business records exception to the hearsay rule to support the admissibility of the records relied upon by the affiant for her assertion that the note was transferred to the plaintiff's custodian prior to the commencement of the action and remained in the possession of the plaintiff's custodian at the time of commencement (see US Bank N.A. v Hunte, 176 AD3d at 896; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 651-652). Moreover, the affiant's assertions as to the contents of the records were inadmissible without the submission of the records themselves (see Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 205)."

MORTGAGE FORECLOSURE- SUMMARY JUDGMENT DENIED

Reviewing this case on e courts, this foreclosure has been through several litigated motions. And even while the appeal of the 2017 decision was pending, the bank, in August 2019, applied for an order of reference and the homeowner cross-moved for a stay pending the appeal. Both motions were eventually withdrawn.

Wells Fargo Bank, N.A. v Bakth, 2020 NY Slip Op 01382, Decided on February 26, 2020, Appellate Division, Second Department:

"On its motion, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Achwad Bakth (hereinafter the defendant) and for an order of reference, the plaintiff, to establish its standing to commence this mortgage foreclosure action, submitted an affirmation of Amber A. Jurek, a lawyer with Gross Polowy, LLC (hereinafter Gross Polowy), the plaintiff's counsel. Jurek stated that she was familiar with Gross Polowy's records and record-keeping practices. Jurek stated that on January 28, 2015, Gross Polowy received the plaintiff's file, which included the original endorsed note. Gross Polowy commenced this action on the plaintiff's behalf on February 26, 2015. According to Jurek, "[o]n that date, Gross Polowy, on behalf of Plaintiff, remained in physical possession of the collateral file, including the original endorsed Note dated March 20, 2012." The plaintiff also submitted the note, which bore an undated endorsement to the plaintiff. However, Jurek did not set forth any facts based on her personal knowledge to support her statement that the note in the plaintiff's file was the original endorsed note. Further, the plaintiff failed to attach the business records upon which Jurek relied in her affirmation, and since Jurek did not state that she personally witnessed Gross Polowy receive the plaintiff's file, her statement is inadmissible hearsay (see Federal Natl. Mtge. Assn. v Brottman, 173 AD3d 1139; cf. Wells Fargo Bank, N.A. v Gonzalez, 174 AD3d 555; Bank of N.Y. Mellon v Gordon, 171 AD3d 197, 206-207).

The plaintiff also submitted an affidavit of April H. Hatfield, vice president of loan documentation for the plaintiff. Hatfield stated that she was familiar with the plaintiff's records and record-keeping practices. Although Hatfield attached the records upon which she relied, she did not [*2]state that the plaintiff had possession of the endorsed note at the time the action was commenced. Rather, she relied on Jurek's affidavit for that fact. Accordingly, Hatfield's affidavit was also insufficient to establish the plaintiff's standing.

Finally, the plaintiff did not attach a copy of the note to the complaint when commencing this action. Therefore, the plaintiff failed to establish, prima facie, that it had standing to commence this action, and those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference should have been denied."

SUMMARY JUDGMENT AND NOTE OF ISSUE

How many summary judgment motions can be made in a foreclosure action?

Wells Fargo Bank, NA v Madlen Apt, 2020 NY Slip Op 00640, Decided on January 29, 2020, Appellate Division, Second Department:

"On or about May 24, 2012, the plaintiff commenced this mortgage foreclosure action alleging that it was the holder of the subject note and mortgage, and that the defendant Madlen Apt (hereinafter the defendant) had defaulted upon her payment obligations. In an amended answer, the defendant alleged, inter alia, lack of standing as an affirmative defense. A note of issue was filed on or about July 26, 2013. In February 2014, almost seven months after the note of issue was filed, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and to appoint a referee to compute the sums due and owing under the note and mortgage (hereinafter the 2014 motion). In an order dated September 29, 2014 (hereinafter the September 2014 order), the Supreme Court denied the 2014 motion, determining, among other things, that the motion was untimely.

Thereafter, on October 15, 2014, the note of issue was vacated on consent of the parties. In 2016, the plaintiff, inter alia, again moved for summary judgment on the complaint [*2]insofar as asserted against the defendant (hereinafter the 2016 motion). In an order entered October 6, 2016 (hereinafter the October 2016 order), the Supreme Court described the 2016 motion as being "in essence a motion to reargue the [September 2014 order]," and denied that motion. The plaintiff appeals from so much of the September 2014 order and October 2016 order, respectively, as denied those branches of its motions which were for summary judgment on the complaint insofar as asserted against the defendant.

We agree with the Supreme Court's determination denying the branch of the plaintiff's 2014 motion as untimely on the ground that the plaintiff failed to demonstrate good cause for the delay in making its motion (see CPLR 3212[a]; Brill v City of New York, 2 NY3d 648, 652; Miller v Ball, 165 AD3d 920). CPLR 3212(a) provides that "[i]f no such date is set by the court, [a motion for summary judgment] shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown" (see Brill v City of New York, 2 NY3d at 651). Here, the 2014 motion was filed approximately seven months after the note of issue was filed and approximately 80 days after the deadline for making a motion for summary judgment. The plaintiff's failure to apply for leave to file the 2014 motion and failure to establish good cause for its delay warranted denial of the 2014 motion without consideration of its merits (see Arcamone-Makinano v Britton Prop., Inc., 156 AD3d 669; Nationstar Mtge., LLC v Weisblum, 143 AD3d 866, 869).

However, we do not agree with the Supreme Court's determination denying the plaintiff's 2016 motion. The plaintiff's motion did not violate the rule against successive motions for summary judgment. While the plaintiff had previously moved for summary judgment following the filing of a note of issue, and its motion was denied on the ground that it had not been made within the time allowed by CPLR 3212(a), the note of issue was subsequently vacated. The vacatur of the note of issue returned the case to its pre-note of issue status (see Montalvo v Episcopal Health Servs., Inc., 172 AD3d 1357, 1358; Montalvo v Mumpus Restorations, Inc., 110 AD3d 1045, 1046), and the plaintiff could again seek summary judgment (see Farrington v Heidkamp, 26 AD3d 459, 460)."

WHEN A JUDGMENT IS ISSUED BASED ON AN IMPROPERLY SERVED MOTION

MTGLQ Invs., L.P. v White, 2020 NY Slip Op 00269, Decided on January 15, 2020, Appellate Division, Second Department:

"In October 2014, Ocwen moved, inter alia, for summary judgment on the complaint insofar as asserted against White, to strike his answer, and for an order of reference (hereinafter the summary judgment motion). By order dated June 25, 2015, the Supreme Court granted the unopposed summary judgment motion. In April 2017, following additional assignments of the mortgage, the new holder, MTGLQ Investors, L.P. (hereinafter the plaintiff), moved, inter alia, for a judgment of foreclosure and sale. White opposed the motion, asserting, inter alia, that he never received the summary judgment motion. The court granted the motion and entered an order and judgment of foreclosure and sale on October 25, 2017. White appeals.

"The failure to give a party proper notice of a motion deprives the court of jurisdiction to entertain the motion and renders the resulting order void" (Citimortgage, Inc. v Reese, 162 AD3d 847, 848; see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d 906, 907; Nationstar Mtge., LLC v Chase, 147 AD3d 964, 965). White's opposition to the plaintiff's motion, inter alia, for a judgment of foreclosure and sale included his attorney's affirmation, wherein his attorney stated that the attorney never received the summary judgment motion. In reply, the plaintiff did not submit an affidavit of service or other proof of service demonstrating that the summary judgment motion had been served on White's counsel. The plaintiff's assertions are insufficient to raise a presumption that White was served with the summary judgment motion (see Davis v New York City Hous. Auth., 172 AD3d 815, 817, Berkowitz v Tolentino, 94 AD3d 797, 797; Bonik v Tarrabocchia, 78 AD3d 630, 632; cf. Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936, 936). At the time White's attorney brought to the Supreme Court's attention that the attorney had not received the motion for summary judgment and, in response, the plaintiff failed to submit any proof of service of the motion, the court was presented with evidence that the order dated June 25, 2015, was a nullity (see Prudence v Wright, 94 AD3d 1073, 1074). Under such circumstances, there was never a default in opposing the motion for summary judgment, and thus, there was no need for White to demonstrate a reasonable excuse or a potentially meritorious opposition to the motion (see Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907). Accordingly, the Supreme Court should have denied the plaintiff's motion, inter alia, for a judgment of foreclosure and sale and vacated so much of the order dated June 25, 2015, as granted the summary judgment motion (see Citimortgage, Inc. v Reese, 162 AD3d at 848; Wells Fargo Bank, N.A. v Whitelock, 154 AD3d at 907; Nationstar Mtge., LLC v Chase, 147 AD3d at 965)."

MORTGAGE FORECLOSURE - NECESSARY EVIDENCE FOR SUMMARY JUDGMENT

The rules of evidence do apply to summary judgment motions.

U.S. Bank N.A. v Cope, 2019 NY Slip Op 06111, Decided on August 7, 2019, Appellate Division, Second Department:

""Generally, in moving for summary judgment in an action to foreclose a mortgage, a plaintiff establishes its prima facie case through the production of the mortgage, the unpaid note, and evidence of default'" (Hudson City Sav. Bank v Genuth, 148 AD3d 687, 688-689, quoting Deutsche Bank Natl. Trust Co. v Abdan, 131 AD3d 1001, 1002). Pursuant to UCC 3-804, the owner of a lost note may maintain an action "upon due proof of [1] his [or her] ownership, [2] the facts which prevent his [or her] production of the instrument and [3] its terms" (UCC 3-804). The party seeking to enforce a lost instrument is required to "account for its absence" (UCC 3-804, Official Comment).

Here, although the plaintiff came forward with evidence establishing that the note was assigned to it and establishing the note's terms, the affidavit of lost note submitted in support of its motion failed to establish the facts that prevent the production of the original note (see UCC 3-804; Deutsche Bank Natl. Trust Co. v Anderson, 161 AD3d 1043, 1044-1045; US Bank N.A. v Richards, 155 AD3d 522, 524; Marrazzo v Piccolo, 163 AD2d 369; see also New York Community Bank v Jennings, 2015 NY Slip Op 31591[U], *4-5 [Sup Ct, Queens County]). Additionally, we note that Riley's out-of-state affidavit lacked a certificate of conformity as required by CPLR 2309(c), although such defect by itself would not be fatal to the plaintiff's motion (see Bank of N.Y. Mellon v Vytalingam, 144 AD3d 1070, 1071).

Further, the evidence submitted in support of the plaintiff's motion failed to establish, prima facie, that the plaintiff strictly complied with RPAPL 1304. Proper service of the RPAPL 1304 notice containing the statutorily mandated content is a condition precedent to the commencement of a foreclosure action (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103). The plaintiff failed to submit an affidavit of service or any proof of mailing by the post office [*2]demonstrating that it properly served the defendant pursuant to the terms of the statute (see U.S. Bank N.A. v Henry, 157 AD3d 839; Investors Sav. Bank v Salas, 152 AD3d 752; Citibank, N.A. v Wood, 150 AD3d 813; cf. Citimortgage, Inc. v Banks, 155 AD3d 936). Contrary to the plaintiff's contention, the affidavit of a representative of its loan servicer was insufficient to establish that the notice was sent to the defendant in the manner required by RPAPL 1304, as the representative did not provide evidence of a standard office mailing procedure and provided no independent evidence of the actual mailing (see Wells Fargo Bank, NA v Mandrin, 160 AD3d 1014; Bank of Am., N.A. v Wheatley, 158 AD3d 736; U.S. Bank N.A. v Henry, 157 AD3d at 842; Investors Sav. Bank v Salas, 152 AD3d at 754; Citibank, N.A. v Wood, 150 AD3d at 814; cf. Flagstar Bank, FSB v Mendoza, 139 AD3d 898).

Likewise, the plaintiff failed to establish, prima facie, that it complied with the condition precedent contained in the mortgage requiring it to give notice of default prior to demanding payment in full (see Emigrant Bank v Myers, 147 AD3d 1027). The affidavit of a representative of the plaintiff's loan servicer claiming that notice of default was sent to the defendant on November 7, 2012, was conclusory and unsubstantiated, and even when considered together with a copy of the notice of default, was insufficient to prove that the notice was sent in accordance with the terms of the mortgage (see id.; GMAC Mtge., LLC v Bell, 128 AD3d 772; Wells Fargo Bank, N.A. v Eisler, 118 AD3d 982).

Accordingly, since the plaintiff failed to meet its prima facie burden, those branches of its motion which were for summary judgment on the complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference should have been denied without regard to the sufficiency of the defendant's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). In light of the foregoing, we need not reach the defendant's contention that the plaintiff failed to establish that it had standing to commence the action."

DEED FRAUD NOT SAVED BY ADVERSE POSSESSION CLAIM

A real case of family feud.

Matthews v. Matthews, NYLJ April 11, 2019 ,  Date filed: 2019-03-01, Court: Supreme Court, Kings, 

Judge: Justice Richard Velasquez, Case Number: 501041/2018:

This action concerns real property in Kings County located at 212 Weirfield Street, Brooklyn, NY 11221 (herein after “premises”). The plaintiff in this action has made a claim of deed fraud against the defendant. The defendant is plaintiff’s aunt and the plaintiff’s deceased fathers’ sister. The following facts are undisputed and have previously been admitted by the defendant in a separate action for foreclosure brought against the defendant.

It is undisputed that the property in question was purchased by the defendant’s father in 1963. In 1967, the plaintiff’s father died intestate, and the property passed to the plaintiff’s mother by operation of law as his only living intestate distributees were his wife and his only daughter the plaintiff herein. In 1975, plaintiff’s mother died, and plaintiff was her sole heir. Therefore, the property then passed to the plaintiff by operation of law. In 1992, defendant admits she executed and recorded a false and fraudulent deed as sole heir to herself individually. Defendant was not an heir at law. Plaintiff is the only heir at law. Defendant at the same time mortgaged said property and within one year went into foreclosure. The defendant, by her own admission, in the previous foreclosure action in 2008, admitted she did not own the property, and that she could not legally convey an interest in the property, said foreclosure action was thereafter dismissed. Specifically, the foreclosure court issued a decision holding that the defendant did not and could not convey a valid security interest in the property. This action follows.

It is alleged that the plaintiff became aware of the issues with the defendant claiming she owned the property when she obtained an attorney in connection with her parents’ estate and went to defendant and demanded keys to the premises in 2012.

ARGUMENTS

Plaintiff, BETTY MATTHEWS, now moves for a preliminary injunction enjoining the defendant, her agents and servants, and all persons acting on her behalf, pursuant to CPLR 6301 from transferring, selling, conveying, leasing renting, alienating or encumbering real property located at 212 Weirfield Street, Brooklyn, New York 1122; Block 3404 Lot 23 contending said property is rightfully her property. Plaintiff also contends defendant cannot claim adverse possession.

Defendant contends she has acquired title to the property by adverse possession and the plaintiff is barred from bring this action against her as the six (6) year statute of limitations has expired.

ANALYSIS

This Court has jurisdiction in this matter to grant a Preliminary Injunction and enjoining and restraining the defendant from transferring, selling, conveying, leasing, renting, alienating, or encumbering the real property at 212 Weirfield Street pursuant to N.Y. C.P.L.R. §6301, as the plaintiff, BETTY MATTHEWS, will suffer irreparable harm should the defendant attempt to sell, rent or encumber said property.

The present case is similar to that of, the Cruz case, wherein; “The owner of the subject premises died intestate, was survived by six adult children who then became co-owners of the premises. Milton Brown, one of the surviving children, executed a deed conveying the entire premises to himself as sole heir, obtained a loan secured by a mortgage on the premises from the defendant Long Beach Mortgage Company (hereinafter Long Beach), and subsequently died.” In the Cruz case, the court found “A deed based on forgery or obtained by false pretenses is void ab initio, and a mortgage based on such a deed is likewise invalid (see Crispino v. Greenpoint Mtge. Corp., 304 AD2d 608, 608-609 [2003]; Yin Wu v. Wu, 288 AD2d 104, 105 [2001]; Rosen v. Rosen, 243 AD2d 618, 619 [1997]; Filowick v. Long, 201 AD2d 893 [1994]). In the Cruz case the Appellate division found; “the Supreme Court correctly cancelled the deed and mortgage which were obtained under false pretenses” (see Crispino v. Greenpoint Mtge. Corp., 304 AD2d 608, 608-609 [2003]); quoting Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2007).

It is well settled that a forged deed is a nullity. “Forged conveyances are void ab initio and do not transfer title”, Cruz v. Cruz, 37 A.D.3d 754, 832 N.Y.S.2d 217 (2007). “A forged deed is a void deed and transfers no interest”, quoting Faison v. Lewis, 25 N.Y.3d 220, 230, 32 N.E.3d 400 (2015). Therefore, in the present case it is clear and undisputed, and in fact, admitted that the deed in the present case is forged and therefore the deed is void abinitio.

Defendant contends that plaintiff’s claim is time-barred because forgery is a category of fraud, and, like any other claim based on fraud, an action challenging a forged deed is subject to the limitations period of CPLR 203. “A void deed is not subject to a statutory time bar.” Faison v. Lewis, 25 N.Y.3d 220, 230, 32 N.E.3d 400 (2015). Therefore, defendants Statute of Limitations argument is unavailing.

Next, we turn to defendants’ motion pursuant to 1) CPLR 3211(a)(1), (7), and (8)1; or (2) Alternatively, treating this motion as one for summary judgment in favor of defendants. Pursuant to CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v. Purdy, 29 NY2d 157, 324 NYS2d 47, 272 NE2d 550). Nevertheless, bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true (Gawrych v. Astoria Fed. Sav. & Loan, 148 AD3d 681, 684, 48 NYS3d 450, 455 (App Div 2d Dept, 2017). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211 (a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65).

In the present case, defendant, fails to offer any documentary proof in admissible form to support any allegation disproving the complaint. Moreover, defendant fails to establish what the documentary evidence is and how it proves allegations in the complaint false. Therefore, the branch of defendant’s motion to dismiss that is upon documentary evidence is hereby denied.

Pursuant to CPLR 3211 (a) (7). “The sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail (Gawrych v. Astoria Fed. Sav. & Loan, 148 AD3d 681, 684, 48 NYS3d 450, 455 (App Div, 2d Dept. 2017), quoting Guggenheimer v. Ginzburg, 43 NY2d 268, 275 [1977]). Further, “we accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Matter of Palmore v. Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072, 1073 [App Div, 2d Dept. 2016]); (Morone v. Morone, 50 NY2d 481, 484, 429 NYS2d 592, 413 NE2d 1154; Rovello v. Orofino Realty Co., 40 NY2d 633, 634, 389 NYS2d 314, 357 NE2d 970). Pursuant to CPLR §3211, the pleading is to be afforded a liberal construction (see, CPLR §3026). “In assessing a motion under CPLR §3211 (a)(7), however, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint” (Rovello v. Orofino Realty Co., 40 NY2d at 635, 389 NYS2d 314, 357 NE2d 970) and “the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one” (Guggenheimer v. Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 372 NE2d 17; Rovello v. Orofino Realty Co., 40 NY2d at 636, 389 NYS.2d 314, 357 NE2d 970). Further, “the court may consider any factual submissions made in opposition to a motion to dismiss a pleading in order to remedy pleading defects” (see Quinones v. Schaap, 91 AD3d 739, 740, 937 NYS2d 262; Daub v. Future Tech Enter., Inc., 65 AD3d at 1005, 885 NYS2d 115); Minovici v. Belkin BV, 109 AD3d 520, 521, 971 NYS2d 103, 106 (App Div 2d Dept. 2013). “[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion” (Palazzolo v. Herrick, Feinstein, LLP, 298 AD2d 372, 751 NYS2d 401). “If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a) (7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action” (see McGuire v. Sterling Doubleday Enters., LP, 19 AD3d 660, 661, 799 NYS2d 65). “Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims…plays no part in the determination of a pre-discovery 3211 [a] [7] motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38; see EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19).

In the present case, affording the complaint a liberal construction, accepting the facts as alleged therein as true, and granting plaintiff the benefit of every possible inference, it is the opinion of this Court that the complaint sufficiently states a cause of action for fraudulent deed (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 348, 27 NYS2d 231 at 38 (App Div, 2d Dept. 2006).

Now, turning to the defendant claim of adverse possession. Pursuant to CPLR 501 titled Adverse possession provides as follows; “(1) Adverse possessor. “A person or entity is an “adverse possessor” of real property when the person or entity occupies real property of another person or entity with or without knowledge of the other’s superior ownership rights, in a manner that would give the owner a cause of action for ejectment.” (2) Acquisition of title. “An adverse possessor gains title to the occupied real property upon the expiration of the statute of limitations for an action to recover real property pursuant to subdivision (a) of section two hundred twelve of the civil practice law and rules, provided that the occupancy, as described in sections five hundred twelve and five hundred twenty-two of this article, has been adverse, under claim of right, open and notorious, continuous, exclusive, and actual.” (3) Claim of Right. “A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the case may be. Notwithstanding any other provision of this article, claim of right shall not be required if the owner or owners of the real property throughout the statutory period cannot be ascertained in the records of the county clerk, or the register of the county, of the county where such real property is situated, and located by reasonable means.” NY Real Prop Acts Law §501 (McKinney)

To establish a claim to land by adverse possession, the adverse claimant must establish that possession has been “adverse, under claim of right, open and notorious, continuous, exclusive, and actual” (RPAPL 501 [2]; see Koudellou v. Sakalis, 29 AD3d 640 [2006]; Congregation Yetev Lev D’Satmar v. 26 Adar N.B. Corp., 192 AD2d 501, 503 [1993]). “A claim of right means a reasonable basis for the belief that the property belongs to the adverse possessor” (RPAPL 501 [3]); quoting Calder v. 731 Bergan, LLC, 83 A.D.3d 758, 759, 920 N.Y.S.2d 413 (2011). In the present case, the defendant has failed to establish that she has a claim of right in the property. In fact, in the previous foreclosure action she admits that she has no claim of right. Therefore, defendant claim of adverse possession in the present case is unavailing.

Next the court will address the Notice of Pendency. Pursuant to CPLR 6501; “A notice of pendency may be filed in any action in a court of the state or of the United States in which the judgment demanded would affect the title to, or the possession, use or enjoyment of, real property, except in a summary proceeding brought to recover the possession of real property. The pendency of such an action is constructive notice, from the time of filing of the notice only, to a purchaser from, or incumbrancer against, any defendant named in a notice of pendency indexed in a block index against a block in which property affected is situated or any defendant against whose name a notice of pendency is indexed. A person whose conveyance or incumbrance is recorded after the filing of the notice is bound by all proceedings taken in the action after such filing to the same extent as a party”, see NY CPLR 6501 (McKinney). In the present case it is appropriate for the Notice of Pendency to remain in place. Therefore, the defendants request to cancel the Notice of Pendency is hereby denied.

Accordingly, plaintiff’s request for a preliminary injunction enjoining the defendant, her agents and servants, and all persons acting on her behalf, pursuant to CPLR 6301 from transferring, selling, conveying, leasing renting, alienating or encumbering real property located at 212 Weirfield Street, Brooklyn, New York 1122; Block 3404 Lot 23, is hereby granted for the reasons stated above. Defendants request (1) CPLR 3211(a)(1), (7), and (8) are hereby denied, for the reasons stated above. Defendant’s request to dismiss pursuant to CPLR 203 based upon statute of Limitations is hereby denied for the reasons stated above. Defendant’s request to cancel the notice of pendency filed relating to this action and prohibiting plaintiff from filing any successive notices of pendency is hereby denied. Defendant’s request for a declaratory judgment declaring the property the sole ownership of defendant through adverse possession is hereby denied for the reasons stated above.

MORTGAGE FORECLOSURE - DOCUMENTS NEEDED FOR SUMMARY JUDGMENT ON STATUE OF LIMITATIONS DEFENSE

Wells Fargo Bank, N.A. v Lefkowitz, 2019 NY Slip Op 02584, Decided on April 3, 2019, Appellate Division, Second Department:

"On May 12, 2015, the plaintiff commenced this action to foreclose the mortgage. The defendant interposed an answer asserting several affirmative defenses, including the statute of limitations and the plaintiff's lack of standing. Thereafter, the defendant moved for summary judgment dismissing the complaint insofar as asserted against him on the grounds that the action was time-barred and the plaintiff lacked standing. The Supreme Court denied the motion, and the defendant appeals.

An action to foreclose a mortgage is subject to a six-year statute of limitations (see CPLR 213[4]). "[E]ven if a mortgage is payable in installments, once a mortgage debt is accelerated, [*2]the entire amount is due and the Statute of Limitations begins to run on the entire debt" (EMC Mtge. Corp. v Patella, 279 AD2d 604, 605; see Kashipour v Wilmington Sav. Fund Socy., FSB, 144 AD3d 985, 986; Wells Fargo Bank, N.A. v Burke, 94 AD3d 980, 982; Wells Fargo Bank, N.A. v Cohen, 80 AD3d 753, 754). An acceleration of a mortgage debt can occur "when a creditor commences an action to foreclose upon a note and mortgage and seeks, in the complaint, payment of the full balance due" (Milone v US Bank N.A., 164 AD3d 145, 152).

Contrary to the defendant's contention, he failed to sustain his initial burden of demonstrating, prima facie, that this action was untimely. In support of his motion, the defendant submitted, inter alia, the order dated May 1, 2008, discontinuing the first action, and what appears to be a printout of the docket from the first action. The printout indicates that the summons and complaint were filed on November 1, 2007. In his reply papers, the defendant submitted a copy of the summons and complaint filed in the first action. However, a party moving for summary judgment cannot meet his or her prima facie burden by submitting evidence for the first time in reply (see Arriola v City of New York, 128 AD3d 747, 749; 6014 Eleventh Ave. Realty, LLC v 6014 AH, LLC, 114 AD3d 661, 662; Cotter v Brookhaven Mem. Hosp. Med. Ctr., Inc., 97 AD3d 524, 525).

By failing to submit a copy of the summons and complaint filed in the first action along with his initial moving papers, the defendant failed to demonstrate that the first action, which apparently was commenced on November 1, 2007, constituted a valid election to accelerate the mortgage, since there was no evidence to demonstrate that the plaintiff's predecessor in interest elected to call due the entire amount secured by the mortgage. Inasmuch as the defendant failed to meet his prima facie burden on the issue of whether the action was untimely, it is unnecessary to consider whether the plaintiff's opposition papers were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853)."

THE SECOND DEPARTMENT ADDRESSES THE FORECLOSURE CRISIS

Here is a guide to pursuing and defending a foreclosure action.

Bank of N.Y. Mellon v Gordon, 2019 NY Slip Op 02306, Decided on March 27, 2019, Appellate Division, Second Department:

"In the wake of the financial crisis that began in 2008, the trial courts of this state have faced an unprecedented spike in judicial foreclosure actions. The challenges presented by this dramatic increase in litigation have been compounded by poor record-keeping practices, a changing regulatory environment, inordinate delays, and inadequate legal representation. The sheer number of foreclosure cases has also resulted in a renewed focus on the legal principles underlying such actions and presented circumstances under which those principles must be extended and applied to new factual scenarios.

From an appellate perspective, the recent flood of foreclosure appeals has revealed consistent and repeated confusion about some of the most fundamental aspects of the procedural, substantive, and evidentiary law that must be routinely applied in a foreclosure context. In an effort to provide additional clarity in this important area of the law, we deem it appropriate to collect and reiterate some of these foundational principles in the hope that such clarity will eliminate many of the disputes that make up an ever-increasing proportion of trial-level dockets. For the reasons that follow, we modify the order appealed from.

1. Factual and Procedural Background

The plaintiff commenced this action to foreclose a mortgage. The defendant Dushaun Gordon interposed an answer which included 55 affirmative defenses, 5 counterclaims asserted against the plaintiff, and 2 cross claims asserted against the defendant Mortgage Electronic [*2]Registration Systems, Inc. (hereinafter MERS).

The plaintiff thereafter moved for, among other relief, summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due. Gordon opposed the plaintiff's motion and cross-moved pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS.

In a decision dated July 23, 2015, the Supreme Court determined, among other things, that the plaintiff was entitled to summary judgment on the complaint. A subsequent order entered August 7, 2015, upon the decision, inter alia, (1) granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due, and (2), in effect, denied Gordon's cross motion pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS. Gordon appeals from those portions of the order entered August 7, 2015. We modify.

2. Legal Analysis

A. General Principles

A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212[b]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Such a motion must be supported "by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions" (CPLR 3212[b]). To make a prima facie showing, the moving party must "demonstrate its entitlement to summary judgment by submission of proof in admissible form" (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507; see Zuckerman v City of New York, 49 NY2d 557, 562). Admissible evidence may include "affidavits by persons having knowledge of the facts [and] reciting the material facts" (GTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965, 967; see CPLR 3212[b]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 508). "Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 50, quoting Alvarez v Prospect Hosp., 68 NY2d at 324).

"In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party" (Stukas v Streiter, 83 AD3d 18, 22; see Pearson v Dix McBride, LLC, 63 AD3d 895). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Kolivas v Kirchoff, 14 AD3d 493, 493; see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404; Stukas v Streiter, 83 AD3d at 23). Accordingly, "[t]he court may not weigh the credibility of the affiants on a motion for summary judgment unless it clearly appears that the issues are not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22 NY2d 439, 441; see 6243 Jericho Realty Corp. v AutoZone, Inc., 27 AD3d 447, 449). "[W]here credibility determinations are required, summary judgment must be denied" (People v Greenberg, 95 AD3d 474, 483, affd 21 NY3d 439; see Pryor & Mandelup, LLP v Sabbeth, 82 AD3d 731, 732; Campbell v Campbell, 43 AD3d 1264, 1266).
In addition, " [a] motion for summary judgment will not be granted if it depends on proof that would be inadmissible at the trial under some exclusionary rule of evidence'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 52, quoting David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:18 at 27 [2005 ed]; see HSBC Mtge. Servs., Inc. v Royal, 142 AD3d 952, 954; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650, 652; US Bank N.A. v Madero, 125 AD3d 757, 758). "Out-of-court statements offered for the truth of the matters they assert are hearsay and may be received in evidence only if they fall within one of the recognized exceptions to the hearsay rule, and then only if the proponent demonstrates that the evidence is reliable" (Nucci v Proper, 95 NY2d 597, 602 [internal quotation marks omitted]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 508).
However, as a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion (see Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d at 55), for "[w]e are not in the business of blindsiding litigants, who expect us to decide their appeals on rationales advanced by the parties, not arguments their adversaries never made" (Misicki v Caradonna, 12 NY3d 511, 519). Indeed "in civil cases, inadmissible hearsay admitted without objection may be considered and given such probative value as, under the circumstances, it may possess'" (Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 54-55, quoting Jerome Prince, Richardson on Evidence § 8-108 [Farrell 11th ed 2008]; see Matter of Findlay, 253 NY 1, 11; Ford v Snook, 205 App Div 194, 198, affd 240 NY 624).

B. Standing

In this case, Gordon contends that the Supreme Court should not have awarded the plaintiff summary judgment on the complaint insofar as asserted against him because, in his view, there are triable issues of fact as to whether the plaintiff has standing to maintain this action. This
contention is without merit.

"[W]here, as here, standing is not an essential element of the cause of action, under CPLR 3018(b) a defendant must affirmatively plead lack of standing as an affirmative defense in the answer in order to properly raise the issue in its responsive pleading" (US Bank N.A. v Nelson, ___ AD3d ___, ___, 2019 NY Slip Op 00494, *2-3 [2d Dept 2019]; see Matter of Fossella v Dinkins, 66 NY2d 162, 167; BAC Home Loans Servicing, LP v Alvarado, 168 AD3d 1029, 1030; see also Green Bus Lines v Consolidated Mut. Ins. Co., 74 AD2d 136, 142-143). Here, Gordon asserted standing as an affirmative defense in his answer. Accordingly, the issue of standing is properly before this Court (cf. US Bank N.A. v Nelson, ___ AD3d ___, 2019 NY Slip Op 00494).

Where the issue of standing is raised by a defendant in a mortgage foreclosure action, a plaintiff must prove its standing in order to be entitled to relief against that defendant (see HSBC Bank USA, N.A. v Roumiantseva, 130 AD3d 983, 983-984; HSBC Bank USA, N.A. v Calderon, 115 AD3d 708, 709; Bank of N.Y. v Silverberg, 86 AD3d 274, 279). "A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it is either the holder or assignee of the underlying note at the time the action is commenced" (Wells Fargo Bank, N.A. v Gallagher, 137 AD3d 898, 899; see Aurora Loan Servs., LLC v Taylor, 25 NY3d 355, 360-362). "Either a written assignment of the underlying note or the physical delivery of the note prior to the commencement of the foreclosure action is sufficient to transfer the obligation, and the mortgage passes with the debt as an inseparable incident" (U.S. Bank, N.A. v Collymore, 68 AD3d 752, 754; see JPMorgan Chase Bank, N.A. v Weinberger, 142 AD3d 643, 644-645).

Here, the plaintiff established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the note, which had been endorsed in blank, at the time the action was commenced. In this regard, the plaintiff submitted the affidavit of its attorneys' employee, Kyra Schwartz, who stated that certain business records, which were maintained by her employer and attached to her affidavit, demonstrated that the plaintiff's attorneys were in possession of the original note endorsed in blank since August 19, 2011, a date which was prior to the commencement of this action (see Bank of Am., N.A. v Tobing, 163 AD3d 518, 519-520; U.S. Bank, N.A. v Cardenas, 160 AD3d 784, 785; PennyMac Corp. v Chavez, 144 AD3d 1006, 1007; M & T Bank v Cliffside Prop. Mgt., LLC, 137 AD3d 876, 877).

In opposition, Gordon failed to raise a triable issue of fact with respect to the issue of standing. Inasmuch as the mortgage "passes with the debt as an inseparable incident" (U.S. Bank,
N.A. v Collymore, 68 AD3d at 754; see Aurora Loan Servs., LLC v Taylor, 25 NY3d at 361), Gordon's arguments regarding the validity and timing of the mortgage assignment failed to raise a triable issue of fact in opposition (see Wells Fargo Bank, N.A. v Heiney, 168 AD3d 1126, 1127; Aurora Loan Servs., LLC v Vrionedes, 167 AD3d 829, 830; Flagstar Bank, FSB v Mendoza, 139 AD3d 898, 900).

Gordon further contends that Schwartz's affidavit was insufficient to lay a proper foundation for the admissibility of the business records that she attached to it. This contention is also without merit.
"Records made in the regular course of business are hearsay when offered for the truth of their contents" (Jerome Prince, Richardson on Evidence § 8-301 [Farrell 11th ed 1995]). "The statutory business records rule, now CPLR 4518(a), was originally enacted in 1928 to overcome the [*3]deficiencies of common law rules which severely hampered proof of many valid claims" (id.; see People v Kennedy, 68 NY2d 569, 578; Johnson v Lutz, 253 NY 124, 127-128).

The current version of the business records rule provides that

"[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible in evidence in proof of that act, transaction, occurrence or event, if the judge finds that it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (CPLR 4518[a]).
An "electronic record . . . shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record" (id.). A court "may consider the method or manner by which the electronic record was stored, maintained or retrieved in determining whether the exhibit is a true and accurate representation of such electronic record" (id.). However, "[a]ll other circumstances of the making of the memorandum or record, including lack of personal knowledge by the maker, may be proved to affect its weight, but they shall not affect its admissibility" (id.; see People v Kangas, 28 NY3d 984, 985-986; cf. Fed Rules Evid rule 803[6]).

Accordingly, to establish a foundation for the admission of a business record, the proponent of the record must satisfy the requirements identified in the statute (see CPLR 4518[a]). First, the proponent must establish "that the record be made in the regular course of business—essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business" (People v Kennedy, 68 NY2d at 579). Second, the proponent must also demonstrate "that it be the regular course of such business to make the record . . . essentially, that the record be made pursuant to established procedures for the routine, habitual, systematic making of such a record" (id. at 579-580). Third, the proponent must establish "that the record be made at or about the time of the event being recorded—essentially, that recollection be fairly accurate and the habit or routine of making the entries assured" (id. at 580).

In addition to these statutory requirements, the Court of Appeals has held that "[u]nless some other hearsay exception is available, admission may only be granted where it is demonstrated that the informant has personal knowledge of the act, event or condition and he [or she] is under a business duty to report it to the entrant" (Matter of Leon RR, 48 NY2d 117, 123 [citation omitted]; see People v Patterson, 28 NY3d 544, 550; Johnson v Lutz, 253 NY at 127-128; Murray v Donlan, 77 AD2d 337, 346). That said, "[i]t would clearly defeat the utility of CPLR 4518 to require the testimony of all persons involved in creating the record" (Jerome Prince, Richardson on Evidence § 8-306 [Farrell 11th ed 1995]).

Finally, under the circumstances here, it bears noting that the business record exception to the hearsay rule applies to a "writing or record" (CPLR 4518[a]). Although "[t]he foundation for admission of a business record usually is provided by the testimony of the custodian, the author or some other witness familiar with the practices and procedures of the particular business" (Jerome Prince, Richardson on Evidence § 8-306 [Farrell 11th ed 1995]), it is the business record itself, not the foundational affidavit, that serves as proof of the matter asserted (see generally Great Am. Ins. Co. v Auto Mkt. of Jamaica, N.Y., 133 AD3d 631, 632-633; 35 Carmody-Wait 2d § 194:94 [2019]; cf. 9 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 4518.20). Accordingly, "[e]vidence of the contents of business records is admissible only where the records themselves are introduced" (35 Carmody-Wait 2d § 194:94 [2019]; see People v Barnes, 177 AD2d 989; see also People v Olivero, 27 Misc 3d 1218[A], 2010 NY Slip Op 50794[U] [Civ Ct, Kings County]; People v Ross, 12 Misc 3d 755, 764 [Crim Ct, Kings County 2006]). "Without their introduction, a witness's testimony as to the contents of the records is inadmissible hearsay" (35 Carmody-Wait 2d § 194:94 [2019]; see U.S. Bank Natl. Assn. v 22 S. Madison, LLC, ___ AD3d ___, ___, 2019 NY Slip Op 01635, *2 [2d Dept 2019]; People v Barnes, 177 AD2d 989). Of course, generally speaking, a witness may always testify as to matters which are within his or her personal knowledge through personal observation (see Jerome Prince, Richardson on Evidence §§ 4-301, 6-210 [Farrell 11th ed 1995]; see also People v Daddona, 81 NY2d 990, 992; Pease v Smith, 61 NY 477, 484-485; People v Duffy, 124 AD2d 258, 260; Levy v Huwer, 80 App Div 499, 501-502, affd 176 NY 612).

Here, Schwartz stated in her affidavit that she was employed by the law firm that represented the plaintiff in this action. Schwartz stated that she was "employed as the manager of a group of employees . . . that is responsible for receiving original loan documents from the firm's clients [and] documenting the receipt of [those] original loan documents." She stated that, when a client forwards a file containing original loan documents, "[her] staff makes a computer entry . . . confirming [their] receipt." These entries were made "at or about the time of the receipt of the original loan documents," and the records of such events were "created and maintained in the ordinary course of [the] business" of the plaintiff's attorneys. Finally, Schwartz stated that "[i]t was the normal course of [the firm's] business to store these records as computer entries."

Schwartz further stated that she reviewed the firm's business records relative to this case, which records showed that the original note was received on August 19, 2011. Attached to Schwartz's affidavit was "a true and accurate printout [she] made of the computer entry confirming the receipt . . . of the original note." Schwartz also attached a copy of the original note to her affidavit, and affirmed that she had compared this copy "to the original note which remains in storage under the custody of [her] team" and that the copy was "a true and accurate copy of the original note."
Contrary to Gordon's contention, Schwartz did not need to demonstrate her familiarity with the record-keeping practices and procedures of the plaintiff, the original lender, Countrywide Home Loans, Inc. (hereinafter Countrywide), or MERS, in order to lay a proper foundation for the admission of the business record attached to her affidavit. Schwartz sought to lay a foundation for the admission of a business record maintained by her employer, the plaintiff's attorneys. She did not seek to lay a foundation for business records produced or maintained by any of the other entities identified by Gordon. As this Court has previously observed, "[t]here is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon" (Citigroup v Kopelowitz, 147 AD3d 1014, 1015; see HSBC Bank USA, N.A. v Ozcan, 154 AD3d 822, 826). Accordingly, under the circumstances, since Schwartz only sought to lay a foundation for a business record produced and maintained by her own employer, she was only required to set forth her familiarity with her employer's record-keeping practices and procedures (see generally CPLR 4518[a]; People v Kennedy, 68 NY2d at 579-580; cf. Aurora Loan Servs., LLC v Baritz, 144 AD3d 618; US Bank N.A. v Handler, 140 AD3d 948; Aurora Loan Servs., LLC v Mercius, 138 AD3d 650).

Gordon's remaining arguments relating to the issue of standing are either improperly raised for the first time on appeal or without merit. Accordingly, since Gordon failed to raise a triable issue of fact with respect to the issue of standing in opposition to the plaintiff's prima facie showing, we agree with the Supreme Court's determination to grant those branches of the plaintiff's motion which were for summary judgment dismissing the affirmative defenses that raised the issue of standing, to wit, the 1st, 2nd, 3rd, 4th, 5th, 14th, 15th, 26th, 27th, and 36th affirmative defenses (see Aurora Loan Servs., LLC v Vrionedes, 167 AD3d at 830; cf. US Bank N.A. v Weinman, 123 AD3d 1108, 1109-1110).

C. Default

Although vague and inartfully drafted, Gordon's brief, liberally construed, in effect, contends that the Supreme Court should not have awarded the plaintiff summary judgment on the complaint insofar as asserted against him and dismissing the 20th affirmative defense because, in his view, the plaintiff failed to sustain its initial burden of demonstrating that he defaulted in the repayment of the subject note. This contention has merit.

To establish a prima facie case in an action to foreclose a mortgage, a plaintiff must produce the mortgage, the unpaid note, and evidence of default (see Aurora Loan Servs., LLC v Vrionedes, 167 AD3d at 830; Giller v Weiss, 140 AD3d 1117, 1118; HSBC Bank USA, N.A. v Spitzer, 131 AD3d 1206, 1206-1207). A plaintiff may establish a payment default by an admission made in response to a notice to admit (see CPLR 3212[b]; 3123), by an affidavit from "a person having [personal] knowledge of the facts" (CPLR 3212[b]), or by other evidence "in admissible form" (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d at 507). Here, as Gordon correctly contends, the plaintiff's submissions failed to lay a proper foundation for the admission of the business records relied upon by the plaintiff to establish Gordon's default in the repayment of the subject loan.
The plaintiff relied upon the affidavit of Rosalind Carroll to lay a foundation for the [*4]admission of business records purporting to show that Gordon had defaulted under the terms of the subject note by failing to make required monthly payments. Carroll stated that she was a "document coordinator" for an entity named "Bayview Loan Servicing, LLC" (hereinafter Bayview), which was identified by Carroll as a "servicer for the plaintiff." Carroll went on to state: "According to the business records I have reviewed, [Gordon] defaulted on the loan by failing to make monthly payments due on May 1, 2008 and continuing to the present."

Although Carroll adequately described the record-keeping practices and procedures utilized by Bayview, and adequately stated her familiarity with those practices, she did not actually attach or otherwise incorporate any of Bayview's business records to her affidavit. Accordingly, to the extent that Carroll's purported knowledge of Gordon's default was based upon her review of unidentified business records created and maintained by Bayview, her affidavit constituted inadmissible hearsay and lacked probative value (see Flick Lbr. Co. v Breton Indus., 223 AD2d 779, 780; People v Barnes, 177 AD2d 989; Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479; see also 35 Carmody-Wait 2d § 194:94 [2019]).

The only purported business record specifically identified by Carroll as demonstrating Gordon's default is a document dated June 16, 2008. The record indicates that this document was annexed to Carroll's affidavit. However, Carroll does not specifically allege that Bayview created the document. Furthermore, the document, on its face, indicates that it was created by Countrywide, the original lender, and Carroll does not allege that she is personally familiar with that entity's record-keeping practices and procedures. As previously noted, "[a] proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures" (Citibank, N.A. v Cabrera, 130 AD3d 861, 861 [emphasis added]).

Of course, Carroll's status as an employee of Bayview does not necessarily mean that she is incompetent to lay a foundation for the admission of business records that were created by another entity (see People v Cratsley, 86 NY2d 81, 90). It is true that as a general rule, "the mere filing of papers received from other entities, even if they are retained in the regular course of business, is insufficient to qualify the documents as business records" (Standard Textile Co. v National Equip. Rental, 80 AD2d 911, 911; see People v Cratsley, 86 NY2d at 90). However, such records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures, or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business (see People v Cratsley, 86 NY2d at 90-91; Bank of Am., N.A. v Brannon, 156 AD3d 1, 8; State of New York v 158th St. & Riverside Dr. Hous. Co., Inc., 100 AD3d 1293, 1296; People v DiSalvo, 284 AD2d 547, 548-549; Plymouth Rock Fuel Corp. v Leucadia, Inc., 117 AD2d 727, 728; cf. United States v Jakobetz, 955 F2d 786, 800 [2d Cir]; Matter of Ollag Constr. Equip. Corp., 665 F2d 43, 46 [2d Cir]). Indeed, "[t]he reports of an independent contractor regularly relied on by the business may qualify as the business' record" (Jerome Prince, Richardson on Evidence § 8-307 [Farrell 11th ed 1995]; cf. General Ins. Co. of Am. v United States Fire Ins. Co., 886 F3d 346, 358 [4th Cir]; Cocroft v HSBC Bank USA, N.A., 796 F3d 680 [7th Cir]).

Here, however, Carroll failed to attest to her personal knowledge of Countrywide's record-keeping practices, and failed to allege that the document that she attached to her affidavit was incorporated into Bayview's records and routinely relied upon by Bayview in its business. Accordingly, under the circumstances, Carroll's affidavit was insufficient to lay a proper foundation for the admission of the document dated June 16, 2008 (see e.g. Aurora Loan Servs., LLC v Baritz, 144 AD3d at 619-620; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954; Aurora Loan Servs., LLC v Mercius, 138 AD3d at 652; Citibank, N.A. v Cabrera, 130 AD3d at 861-862).

Moreover, as Gordon correctly contends, certain factual assertions made by Carroll in her affidavit which are relevant to the issue of Gordon's default are directly contradicted by the documents that she attached to her affidavit. Other factual assertions made by Carroll in her affidavit are contradicted by other portions of her own affidavit. These contradictions raise issues of credibility (see e.g. Taieb v Hilton Hotels Corp., 131 AD2d 257, 261), and, as such, Carroll's affidavit failed to eliminate all triable issues of fact with respect to the issue of Gordon's default (see Cristescu v Gasparis, 148 AD3d 669; see generally Pryor & Mandelup, LLP v Sabbeth, 82 AD3d at 732).

We note that the plaintiff did actually submit payment records relating to Gordon's mortgage in support of its motion. However, these payment records were not attached to, or [*5]otherwise incorporated into, Carroll's affidavit, and she did not identify these records or make specific reference to them. Rather, the plaintiff inexplicably attached these payment records as an exhibit to its attorney's affirmation. The plaintiff's attorney does not allege personal knowledge of the record-keeping practices and procedures of the entity that created these payment records (see generally Zuckerman v City of New York, 49 NY2d at 563). Since the plaintiff failed to lay the proper foundation for the admission of the payment records into evidence, those records do not constitute admissible evidence and cannot serve to establish, prima facie, Gordon's default in the repayment of the subject loan (see generally Mallen v Farmingdale Lanes, LLC, 89 AD3d 996, 997; Roldan v New York Univ., 81 AD3d 625, 627; Toussaint v Ferrara Bros. Cement Mixer, 33 AD3d 991, 992; Daliendo v Johnson, 147 AD2d 312, 321).

In sum, since the plaintiff failed to establish, prima facie, Gordon's default in the repayment of the subject loan through the submission of evidence in admissible form, the Supreme Court should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Gordon and dismissing the 20th affirmative defense asserted by that defendant, and to appoint a referee to compute the amount due (see Fulton Holding Group, LLC v Lindoff, 165 AD3d 1045, 1047-1048; HSBC Mtge. Servs., Inc. v Royal, 142 AD3d at 954).
D. Gordon's Remaining Contentions
Addressing the remaining affirmative defenses asserted in his answer, Gordon contends that they should not have been dismissed by the Supreme Court, sua sponte. Contrary to Gordon's contention, the court did not "sua sponte" strike Gordon's answer and counterclaims. Rather, this relief was specifically requested in the plaintiff's motion papers.

Further, we agree with the Supreme Court's determination to deny those branches of Gordon's cross motion which were pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him, as he failed to demonstrate his entitlement to such relief. Gordon argues that the plaintiff's general denials of the allegations underlying his counterclaims constituted judicial admissions that prove fatal to the plaintiff's complaint. Formal judicial admissions include facts that are "admitted" by a party's pleadings (Zegarowicz v Ripatti, 77 AD3d 650, 653). To constitute a judicial admission, a statement must be "deliberate, clear, and unequivocal" (Rahman v Smith, 40 AD3d 613, 615). The plaintiff's general denials do not meet these criteria.

Gordon also contends that the Supreme Court should not have, in effect, denied that branch of his cross motion which was for leave to enter a default judgment on his cross claims asserted against MERS. To be entitled to such relief, Gordon was required to demonstrate, inter alia, "proof of service" of the cross claims on MERS (CPLR 3215[f]). Although Gordon's counsel affirmed that proof of service of the answer with cross claims upon MERS had been submitted in connection with Gordon's cross motion, the record on appeal does not support this assertion. Since Gordon failed to submit proof of service of process on MERS, he failed to satisfy the requirements for demonstrating his entitlement to leave to enter a default judgment on his cross claims asserted against that defendant (see generally Stevens v Law Off. of Blank & Star, PLLC, 155 AD3d 917, 918).

3. Conclusion

In light of the foregoing, we modify the order appealed from, insofar as described below. Inasmuch as the Supreme Court's denial of that branch of Gordon's cross motion which was to compel disclosure, in effect, pursuant to CPLR 3124 appears to have been premised on its granting of that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against Gordon, we remit the matter to that court for a new determination of the branch of the defendant's cross motion which was to compel discovery (see Bank of N.Y. Mellon v Cutler, 154 AD3d 910, 912).

Accordingly, the order is modified, on the law, (1) by deleting the provisions thereof granting those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the defendant Dushaun Gordon and dismissing the 20th affirmative defense asserted by that defendant, and to appoint a referee to compute the amount due, and substituting therefor a provision denying those branches of the plaintiff's motion, and (2) by deleting the provision thereof, in effect, denying that branch of the cross motion of the defendant Dushaun Gordon which was to compel disclosure, in effect, pursuant to CPLR 3124; as so modified, the order is affirmed insofar as appealed from, and the matter is remitted to the Supreme Court, Nassau County, for a new determination of that branch of the cross motion of the defendant Dushaun [*6]Gordon which was to compel disclosure, in effect, pursuant to CPLR 3124."