| Flagstar Bank v Bellafiore |
| 2012 NY Slip Op 03135 [94 AD3d 1044] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Flagstar Bank, Appellant, v Lauren Bellafiore et al.,Defendants. |
—[*1]
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Suffolk County (Cohalan, J.), dated February 1, 2011, which denied its motion forsummary judgment on the complaint, to strike the answer of the defendant Lauren Bellafiore, foran order of reference, and for leave to amend the caption to delete the defendants sued herein as"John Does" and "Jane Does."
Ordered that the order is reversed, on the law, without costs or disbursements, and theplaintiff's motion for summary judgment on the complaint, to strike the answer of the defendantLauren Bellafiore, for an order of reference, and for leave to amend the caption to delete thedefendants sued herein as "John Does" and "Jane Does" is granted.
The Supreme Court improperly denied the plaintiff's motion for summary judgment on thecomplaint, to strike the answer of the defendant Lauren Bellafiore, for an order of reference, andfor leave to amend the caption to delete the defendants sued herein as "John Does" and "JaneDoes" on the ground that the plaintiff had not filed an attorney affirmation in accordance withAdministrative Order 548/10, which was issued by the Chief Administrative Judge of the State ofNew York on October 20, 2010. Administrative Order 548/10 (hereinafter the AdministrativeOrder), which has since been replaced by Administrative Order 431/11, requires the plaintiff'scounsel in a residential mortgage foreclosure action to file with the court an affirmationconfirming the accuracy of the plaintiff's pleadings. In cases pending on the effective date of theAdministrative Order, where no judgment of foreclosure has been entered, the attorneyaffirmation is required to be filed at the time of filing of either the proposed order of reference orthe proposed judgment of foreclosure (see Administrative Order 548/10, replaced byAdministrative Order 431/11).
This mortgage foreclosure action was pending at the time of the effective date of theAdministrative Order, and the plaintiff filed its motion, which included a proposed order ofreference, approximately five months before the Administrative Order was issued. Thus, theplaintiff could not have filed the attorney affirmation pursuant to the Administrative Order whenit filed its motion and proposed order of reference. Therefore, based on the plain language of theAdministrative Order, the plaintiff is required to file the attorney affirmation at the time it filesthe proposed judgment of foreclosure (see US Bank, N.A. v Boyce, 93 AD3d 782 [2012]).[*2]
Furthermore, the plaintiff made a prima facie showing ofentitlement to judgment as a matter of law by submitting the mortgage, the underlying note, andan affidavit of its Vice President attesting to the default (see HSBC Bank USA, NA v Schwartz, 88 AD3d 961 [2011]; JP Morgan Chase Bank, N.A. vAgnello, 62 AD3d 662, 663 [2009]; EMC Mtge. Corp. v Riverdale Assoc., 291AD2d 370 [2002]). Since no opposition was filed, no triable issue of fact was raised in responseto the plaintiff's prima facie showing or as to the merits of any of the defendant LaurenBellafiore's affirmative defenses (seeWells Fargo Bank Minn., N.A. v Perez, 41 AD3d 590 [2007]). Accordingly, thosebranches of the plaintiff's motion which were for summary judgment on the complaint, to strikethe answer of the defendant Lauren Bellafiore, and for an order of reference should have beengranted.
Additionally, as the plaintiff demonstrated that there were no "John Does" or "Jane Does"occupying the subject premises, that branch of the plaintiff's motion which was to amend thecaption to delete the defendants sued herein as "John Does" and "Jane Does" should have beengranted (see Neighborhood Hous. Servs.of N.Y. City, Inc. v Meltzer, 67 AD3d 872, 873-874 [2009]).
In light of our determination, we need not reach the plaintiff's remaining contention. Dillon,J.P., Dickerson, Hall and Austin, JJ., concur.