2012 NY Slip Op 51606(U)


Supreme Court, Kings County.

Attorney(s) appearing for the Case

V.S. Vikhu, Esq. , Fein, Such & Crane, LLP, 28 East Main Street, Suite 1800, Rochester, New York 14614, (585) 232-7400, Attorney for Plaintiff.

Ellias N. Sakalis, Esq. , 1377 Long Island Motor Parkway, Suite 305, Islandia, New York 11749, (631) 328-5040, Attorney for Defendant.


By notice of motion filed September 28, 2010, under motion sequence two, plaintiff, Residential Credit Solutions, Inc. (Residential Credit) has moved for an order striking the answer of defendant Lorna Amsterdam (Ms. Amsterdam), granting plaintiff summary judgment, ordering that the caption in the action be modified deleting "John Doe and Jane Doe" as defendants, inserting the names of the current tenants, and ordering a referee to compute pursuant to RPAPL on the grounds that Ms. Amsterdam has no valid defense to the cause of action and no triable issue of fact exists. Defendant, Ms. Amsterdam cross moves seeking denial of plaintiff's motion and dismissal of the complaint upon plaintiff's lack of standing.


On August 6, 2010, Residential Credit commenced the instant action by filing a summons and complaint and a notice of pendency with the King's County Clerk's office. The action is to foreclose upon real property located at Block 1971 Lot 38, commonly known as 147 Quincy Street, in Kings County. The complaint alleges that the defendant, Ms. Amsterdam entered into a mortgage agreement with the plaintiff or its assignor and that she defaulted on the agreement by failing to pay the interest and principal payments as they became due. By answer dated December 17, 2010, defendant Ms. Amsterdam responded to the complaint.


The plaintiff's motion contains an affidavit from Alicia Wood, Vice President of Residential Credit, an attorney affirmation as well as eleven exhibits. The exhibits are labeled A through K. Exhibit A is the notice of pendency, summons and complaint, the note, the mortgage and assignments. The parties to the note are American Brokers Conduit and Ms. Amsterdam. Exhibit B consists of affidavits of service. Exhibit C is Ms. Amsterdam's verified answer with affirmative defenses. Exhibit D is a purported notice of default. Exhibit E is a paper that is alleged to be the notice required by RPAPL 1304. Exhibit F is a document that contains Ms. Amsterdam's name and is labeled "loan application" dated June 29, 2007. Exhibit G is a HUD-1 form purported to be connected to the defendant's mortgage. Exhibit H is a document described as a Truth in Lending Disclosure. Exhibit I is a document described as a variable rate mortgage program disclosure. Exhibit J is labeled a "Power 10 Program" information sheet. Exhibit K is a form titled "notice of a right to rescind," which is dated June 29, 2007, and contains what appears to be Ms. Amsterdam's signature.

The defendant cross-moved by motion dated February 20, 2012. The cross-motion sought dismissal of the action and opposed the plaintiffs motion. The parties were scheduled to appear for oral argument on May 11, 2012. The defendant failed to appear and her cross-motion was marked off in its entirety. Plaintiff's motion is therefore deemed to be unopposed. Defendant's cross-motion and plaintiff's reply will not be considered.


The movant failed to specify the particular CPLR section that it is moving under. However, as the notice of motion requests summary judgment and Ms. Wood's affidavit is labeled as in support of summary judgment, the court will consider the motion as if it were a summary judgment motion made under CPLR 3212.

On a summary judgment motion the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there are any triable issues of fact outstanding (Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931 [2007]). The court must determine if the moving party's papers justify holding as a matter of law that the "cause of action or defense has no merit" (Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [1990]). It is well established that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a material issue of fact or where the issue is arguable (Stillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The role of the court in assessing a summary judgment motion is issue finding rather than issue determination (Esteve v. Abad, 271 A.D. 725 [1d 1947]).

To prevail on a summary judgment motion CPLR 3212 requires that the supporting proof include an affidavit by a person having knowledge of the facts in which all of the material facts are recited. Furthermore, the movant is required to show that there is no defense to the cause of action or that the cause of action or defense has no merit (see CPLR 3212 see also Stone v. Continental Ins. Co., 234 A.D.2d 282 [2d 1996]).

In a foreclosure action a plaintiff must submit the mortgage and unpaid note, along with evidence of default in order to establish prima facie entitlement to summary judgment (Capstone Business Credit, LLC v. Imperial Family Realty, LLC, 70 A.D.3d 882 [2d 2010]). The Second Department has also required a showing that the mortgage was valid (Washington Mut. Bank, FA v. Peak Health Club, Inc., 48 A.D.3d 793 [2d 2008]).

In support of this motion, Alicia Wood, Vice President of Residential Credit provides an affidavit which attests to her "personal knowledge and/or an independent examination of the financial books and business records made in the ordinary course of business maintained by or on behalf of plaintiff." Ms. Wood further attests that Lorna Amsterdam borrowed $625,000.00 from American Brokers Conduit on June 29, 2007, evidenced by a note and mortgage. The mortgage was allegedly assigned by MERS to Residential Funding on July 22, 2010. The note is endorsed in blank making it a bearer instrument. Ms. Wood also attests that plaintiff has physical possession of the note. While she does not specify the date upon which plaintiff obtained the note she does state that as of the filing of the summons and complaint which was on August 6, 2010, the note was in the plaintiff's possession.

In order to determine whether plaintiff meets the prima facie burden on a summary judgment motion it is imperative to determine the admissibility of the documents upon which the affidavit in support relies upon and seeks to admit.

The note is self admitting because it is the instrument giving rise to the defendant's liability. Further, the signature thereon is presumed to be genuine unless specifically denied. See CPLR 3015(d). However, the remaining records which Ms. Wood relies upon to meet Residential Credit's prima facie burden lack a proper foundation.

There are three foundation requirements for the admission of a business record. The first is that the record must be made in the regular course of business reflecting a routine, regularly conducted business activity, needed and relied on in the performance of the function of the business. The second is that it must be the regular course of business to make the record, in other words, the record was made pursuant to an established procedure for the routine, habitual, systematic making of such a record. And finally, the record must have been made at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter, assuring the recollection is fairly accurate and the entries routinely made (see CPLR 4518(a)). Also, 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 (see Sebatino v. Turf House, 76 A.D.2d 945, 946). The general rule is that business papers received from another business entity do not qualify for admissibility as business records of the recipient even if the recipient regularly files the papers (Standard Textile Co., Inc. v. National Equipment Rental, Ltd. 80 A.D.2d 911 [2d 1981]).

The documents that plaintiff relies upon were created prior to the commencement of this action, and as attested to by Ms. Wood, by a different entity. Ms. Wood has failed to explain the basis of her knowledge of the business practices of any other entity and therefore cannot lay a proper foundation for the documents.

Therefore, the court cannot assume that Ms. Wood has personal knowledge to establish the prima facie elements required for summary judgment in a foreclosure action. Accordingly, there is no admissible evidence supporting the claim of a default nor to support the finding of the requisite notices for a residential foreclosure proceeding.

Furthermore, as to that portion of the motion which requests striking Ms. Amsterdam's answer and the affirmative defenses, there is no admissible evidence warranting such relief. Ms. Wood has failed to establish that she has personal knowledge of the transactions or occurrences that took place prior to Residential Credit becoming the holder of the note. Therefore she is not in a position to affirmatively establish that the defenses lack merit.

That part of the which seeks to modify the caption by deleting the "John Doe" and "Jane Doe" defendants and inserting the tenants is denied because plaintiff failed to state a factual or legal basis for this relief as required by CPLR 2214(a).

Accordingly, the motion is denied with leave to renew upon properly authenticated documents and an affidavit of an individual with personal knowledge.


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