| U.S. Bank, N.A. v Ramjit |
| 2015 NY Slip Op 00870 [125 AD3d 641] |
| February 4, 2015 |
| Appellate Division, Second Department |
[*1]
| U.S. Bank, N.A., Appellant, v Wayne Ramjit,Respondent, et al., Defendants. |
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino ofcounsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from so much of an orderof the Supreme Court, Kings County (Schack, J.), dated December 12, 2011, as, in effect,denied that branch of its renewed motion which was for an order of reference and, suasponte, directed the dismissal of the complaint, with prejudice, and the cancellation of acertain notice of pendency filed against the subject property on the ground that theplaintiff failed to file an attorney's affirmation in accordance with Administrative Order548/10 of the Chief Administrative Judge of the State of New York, as replaced byAdministrative Order 431/11 of the Chief Administrative Judge of the State of NewYork, as directed in a prior order of the same court dated July 28, 2011.
Ordered that on the Court's own motion, the notice of appeal from so much of theorder dated December 12, 2011, as, sua sponte, directed the dismissal of the complaint,with prejudice, and the cancellation of a certain notice of pendency filed against thesubject property is deemed to be an application for leave to appeal from those portions ofthe order, and leave to appeal is granted (see CPLR 5701 [c]); and it isfurther,
Ordered that the order dated December 12, 2011, is reversed insofar as appealedfrom, on the law, without costs or disbursements, and that branch of the plaintiff'srenewed motion which was for an order of reference is granted; and it is further,
Ordered that the matter is remitted to the Supreme Court, Kings County, for furtherproceedings before a different Justice.
The plaintiff commenced this mortgage foreclosure action in June 2008, alleging thatthe defendant Wayne Ramjit failed to comply with the conditions of the mortgage by notmaking the payments due thereunder. Ramjit did not appear or answer the complaint. OnJuly 9, 2009, the plaintiff moved, inter alia, for an order of reference (see RPAPL1321). Thereafter, in an order dated July 28, 2011, the Supreme Court directed theplaintiff, within 60 days, to file an attorney's affirmation in accordance withAdministrative Order 548/10, (hereinafter the Administrative Order), which was issuedby the Chief Administrative Judge of the State of New York on October 20, 2010, andhas since been replaced by Administrative Order 431/11. In the order dated July 28,2011, the court stated that the action would be dismissed with prejudice if the plaintiffdid not file the [*2]attorney's affirmation within theallotted time.
By notice of motion dated September 22, 2011, the plaintiff renewed its motion foran order of reference. In the order appealed from, which was dated December 12, 2011,the Supreme Court, in effect, denied the plaintiff's renewed motion and, sua sponte,directed the dismissal of the complaint, with prejudice, and the cancellation of a certainnotice of pendency filed against the subject property, concluding that the plaintiff'sfailure to file the attorney's affirmation contemplated by the Administrative Orderwarranted that result.
The Administrative Order requires the counsel for the plaintiff in a residentialmortgage foreclosure action to file with the court an affirmation confirming the accuracyof the plaintiff's pleadings. Where a residential mortgage foreclosure action was pendingon the effective date of the Administrative Order, and no judgment of foreclosure hasbeen entered, the Administrative Order provides that the affirmation must be filed "at thetime of filing either the proposed order of reference or the proposed judgment offoreclosure." This mortgage foreclosure action was commenced in June 2008. On orabout July 9, 2009, the plaintiff moved for an order of reference, submitting motionpapers that included a proposed order of reference. The Administrative Order did notbecome effective until October 20, 2010. Since the Administrative Order had not yetbeen promulgated when the plaintiff filed its proposed order of reference, there was norequirement that the plaintiff file an attorney's affirmation to accompany the proposedorder of reference. Rather, based on the plain language of the Administrative Order, theplaintiff is not required to file the attorney's affirmation until it files a proposed judgmentof foreclosure (see Wells FargoBank, NA v Ambrosov, 120 AD3d 1225, 1226 [2014]; Flagstar Bank v Bellafiore, 94AD3d 1044, 1045 [2012]; US Bank, N.A. v Boyce, 93 AD3d 782, 782 [2012]).
Under the circumstances of this case, the Supreme Court erred in, in effect, denyingthat branch of the plaintiff's renewed motion which was for an order of reference. Theplaintiff showed that the defendants failed to answer the complaint, and the plaintiffsubmitted the mortgage, the underlying unpaid note, the complaint setting forth the factsestablishing the claim, and an affidavit of its employee attesting to the default (see USBank, N.A. v Boyce, 93 AD3d at 783; Emigrant Mtge. Co., Inc. v Fisher, 90 AD3d 823 [2011]).Since the plaintiff established its entitlement to an order of reference, the court erred in,sua sponte, directing the dismissal of the complaint, with prejudice, and the cancellationof the notice of pendency that the plaintiff filed against the subject property.
For the reasons set forth in Deutsche Bank Natl. Trust Co. v Islar (122 AD3d 566[2014]), we remit this matter to the Supreme Court, Kings County, for furtherproceedings before a different Justice. Dillon, J.P., Leventhal, Chambers and Duffy, JJ.,concur. [Prior Case History: 33 Misc 3d 1232(A), 2011 NY Slip Op52215(U).]