| LaSalle Bank, NA v Pace |
| 2012 NY Slip Op 08101 [100 AD3d 970] |
| November 28, 2012 |
| Appellate Division, Second Department |
| LaSalle Bank, NA, Respondent, v James F. Pace et al.,Appellants, et al., Defendants. Attorney General of State of New York,Intervenor-Respondent. |
—[*1] Cullen and Dykman LLP, Garden City, N.Y. (Justin F. Capuano and James G. Ryan ofcounsel), for plaintiff-respondent. Eric T. Schneiderman, Attorney General, New York, N.Y. (Barbara D. Underwood, AndrewD. Bing, and Laura Etlinger of counsel), intervenor-respondent pro se.
In an action to foreclose a mortgage, the defendants James F. Pace and Linda Pace appealfrom an order of the Supreme Court, Suffolk County (Whelan, J.), dated February 28, 2011,which, upon a decision of the same court also dated February 28, 2011, granted the plaintiff'smotion, inter alia, for summary judgment on the complaint insofar as asserted against them andfor an order of reference.
Ordered that the order is affirmed, with costs payable to the plaintiff.
In this mortgage foreclosure action, the plaintiff moved, inter alia, for summary judgment onthe complaint insofar as asserted against the defendants James F. Pace and Linda Pace(hereinafter together the Paces) and for an order of reference. While the motion was pending, theChief Administrative Judge of the State of New York, at the direction of the Chief Judge of theState of New York, and with the consent of the Presiding Justices of the Appellate Divisions,issued Administrative Order 548/10. The administrative order requires a plaintiff's counsel in aresidential foreclosure action to certify the accuracy of the documents filed in support of theaction by filing an affirmation representing that counsel communicated with a representative ofthe plaintiff who reviewed the documents and records relating to the action, and the papers filedwith the court, and confirmed their factual accuracy. The plaintiff's counsel is further required torepresent that, based upon such communication and counsel's own inspection of the papers, to thebest of counsel's knowledge, information, and belief, the filed documents are complete andaccurate in all relevant respects. The attorney affirmation requirement was later amended slightlyby Administrative Order 431/11.
In opposition to the plaintiff's motion, the Paces argued, among other things, that the attorneyaffirmation had not been filed, and its filing was required prior to an award of summaryjudgment. The plaintiff's counsel then filed the required affirmation in surreply. The Supreme[*2]Court granted the plaintiff's motion, and the Paces appeal.
Contrary to the Paces' contention, the attorney affirmation required by the administrativeorder was not untimely submitted. In cases such as this, which were pending on the effective dateof the administrative order, but where no judgment of foreclosure has been entered, the plainlanguage of the administrative order requires its filing "at the time of filing either the proposedorder of reference or the proposed judgment of foreclosure." Here, the plaintiff's counsel timelyfiled the affidavit in surreply on its motion, inter alia, for summary judgment on the complaintinsofar as asserted against the Paces and for an order of reference. The attorney affirmation is notitself substantive evidence or a new argument supporting summary judgment, and thus, the Paceswere not prejudiced by the lack of opportunity to challenge counsel's representations therein (see generally Burlington Ins. Co. v GumaConstr. Corp., 66 AD3d 622 [2009]).
The Paces' remaining contention involves dicta and, in any event, is academic in light of ourdetermination. Dillon, J.P., Balkin, Leventhal and Hall, JJ., concur. [Prior Case History: 31Misc 3d 627.]