| Flagstar Bank, FSB v Titus |
| 2014 NY Slip Op 05625 [120 AD3d 469] |
| August 6, 2014 |
| Appellate Division, Second Department |
[*1]
| Flagstar Bank, FSB, Respondent, v StanleyTitus et al., Appellants, et al., Defendants. |
Roach Bernard, PLLC, Lynbrook, N.Y. (Seidia Bernard and Anna-Kae Mais ofcounsel), for appellants.
Hogan Lovells US LLP, New York, N.Y. (Allison J. Schoenthal, Nicole E. Schiavo,Chava Brandriss, and Sean Marotta of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Stanley Titus and Rose M.Andre-Fleurisma appeal from an order of the Supreme Court, Nassau County (Adams,J.), dated June 27, 2012, which, after settlement conferences pursuant to CPLR 3408,denied their motion, inter alia, to restore the action to the mortgage foreclosure settlementconference part calendar.
Ordered that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in denying theappellants' motion, inter alia, to restore the action to the mortgage foreclosure settlementconference part calendar. Although CPLR 3408 (f) provides that "[b]oth the plaintiff anddefendant shall negotiate in good faith to reach a mutually agreeable resolution,including a loan modification, if possible" (see US Bank N.A. v Sarmiento,121 AD3d 187 [2014]; Wells Fargo Bank, N.A. vMeyers, 108 AD3d 9, 11 [2013]), the record does not support the appellants'contention that the plaintiff failed to act in good faith. Since the financial documentsrelied upon by the appellants in support of their application for a loan modification toestablish their monthly income surplus were not submitted to the Supreme Court insupport of the instant motion, the appellants cannot rely upon these documents on appeal(see CPLR 5526, 2214 [c]; Broida v Bancroft, 103 AD2d 88, 93 [1984];see also Biscone v JetBlueAirways Corp., 103 AD3d 158, 179-180 [2012]; Sheedy v Pataki, 236AD2d 92, 97-98 [1997]; Loeb v Tanenbaum, 124 AD2d 941, 942 [1986]). Nordid the affirmation of the appellants' attorney suffice as evidentiary proof of their income,as it was not based upon personal knowledge (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455,456 [2006]).
Moreover, the appellants' contentions that the plaintiff's counsel did not haveknowledge about the case, the proper authority to settle the matter, or the appropriatedocuments at the conferences are improperly raised for the first time on appeal and, thus,are not properly before this Court (see Arnold v New City Condominiums Corp.,88 AD2d 578, 579 [1982]). Mastro, J.P., Leventhal, Lott and Miller, JJ., concur.