| Wells Fargo Bank, NA v Ambrosov |
| 2014 NY Slip Op 06077 [120 AD3d 1225] |
| September 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Wells Fargo Bank, NA, Trustee under Pooling andServicing Agreement Dated as of September 1, 2005 ABFC Asset-Backed Certificates,Series 2005-WMC1, Appellant, v Sergey Ambrosov et al.,Defendants. |
Houser & Allison, APC, New York, N.Y. (Mitra Paul Singh of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (F. Rivera, J.), dated August 26, 2011, which, in effect,denied its motion for an order of reference, to reform the subject mortgage to correct ascrivener's error in the legal description of the subject property, for leave to amend thecomplaint and notice of pendency, and for leave to amend the caption to remove thedefendants sued herein as "John Does" and "Jane Does," and, sua sponte, directed thedismissal of the complaint.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed the dismissal of the complaint is deemed an application forleave to appeal from that portion of the order, and leave to appeal is granted (seeCPLR 5701 [c]); and it is further,
Ordered that the order is reversed, on the law, without costs or disbursements, andthe plaintiff's motion for an order of reference, to reform the mortgage to correct ascrivener's error in the legal description of the subject property, for leave to amend thecomplaint and notice of pendency, and for leave to amend the caption to remove thedefendants sued herein as "John Does" and "Jane Does" is granted.
The Supreme Court erred in, in effect, denying the plaintiff's motion for an order ofreference, to reform a certain mortgage to correct a scrivener's error in the legaldescription of the subject property, for leave to amend the complaint and notice ofpendency, and for leave to amend the caption to remove the defendants sued herein as"John Does" and "Jane Does," and, sua sponte, directing the dismissal of the complainton 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 theState of New York on October 20, 2010. Administrative Order 548/10 (hereinafter theAdministrative Order), which has since been replaced by Administrative Order 431/11,requires the plaintiff's counsel in a residential mortgage foreclosure action to file with thecourt an affirmation confirming the accuracy of the plaintiff's pleadings. Where, as here,the action was pending on the Administrative Order's effective date and no judgment offoreclosure has been entered, the affirmation must be filed "at the time of filing either theproposed order of reference or the proposed judgment of foreclosure."
Here, as the plaintiff filed its motion and proposed order of reference before the[*2]Administrative Order took effect, it could not havefiled the newly required affirmation at the "time of filing . . . the proposedorder of reference." Thus, "[b]ased on the plain language of the Administrative Order,the plaintiff is . . . required to file the attorney affirmation at the time it filesthe proposed judgment of foreclosure" (US Bank, N.A. v Boyce, 93 AD3d 782, 782 [2012]; see Flagstar Bank v Bellafiore,94 AD3d 1044, 1045 [2012]).
Furthermore, the Supreme Court should have granted the plaintiff's motion in itsentirety. The plaintiff was entitled to a proposed order of reference inasmuch as, insupport of its motion, it submitted the mortgage, the underlying unpaid note, thecomplaint setting forth the facts establishing the claim, and an affidavit of its employeeattesting to the default, and the defendants did not answer within the time allowed(see RPAPL 1321; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 816[2013]; Bank of N.Y. vAlderazi, 99 AD3d 837, 838 [2012]; US Bank, N.A. v Boyce, 93 AD3dat 782).
The plaintiff established prima facie that, due to a scrivener's error, the Schedule Alegal description appended to the mortgage referenced incorrect tax lot numbers, andthat, in accordance with the intent of the parties, Schedule A should have referred to thetax lot number corresponding to the street address by which the mortgage described thesubject property (see Harris v Uhlendorf, 24 NY2d 463, 467 [1969]). Inasmuchas none of the defendants opposed the motion, no triable issue was raised as to whether aproperty other than the one described by the street address was the property the partiesintended the mortgage to cover. Accordingly, the plaintiff was entitled to reformation ofthe mortgage to accurately reflect the parties' agreement (see Baiting Hollow Props., LLC vKnolls of Baiting Hollow, LLC, 89 AD3d 776, 778 [2011]; Resource Fin. vPece, 195 AD2d 840, 841 [1993]; McPherson v Goldstein, 256 App Div1006 [1939]).
Likewise, the Supreme Court should have granted those branches of the plaintiff'smotion which were for leave to amend the complaint and notice of pendency to correctthe typographical errors in the legal description of the subject property (seeCPLR 2001; Schulman FamilyEnters. v Schulman, 104 AD3d 934, 935 [2013]; Key Bank Natl. Assn. v Stern,14 AD3d 656, 657 [2005]; LGD Assoc. v Hastingwood Trading, 220 AD2d350 [1995]).
Finally, the plaintiff demonstrated that the caption should be amended by removingthe defendants sued herein as "John Does" and "Jane Does" by showing that there wereno "John Does" or "Jane Does" occupying the premises (see Flagstar Bank vBellafiore, 94 AD3d at 1046; US Bank, N.A. v Boyce, 93 AD3d at 783; Neighborhood Hous. Servs. ofN.Y. City, Inc. v Meltzer, 67 AD3d 872, 873-874 [2009]). Skelos, J.P., Hall,Duffy and Barros, JJ., concur.