| Emigrant Sav. Bank-Brooklyn/Queens v Makinano |
| 2015 NY Slip Op 02448 [126 AD3d 934] |
| March 25, 2015 |
| Appellate Division, Second Department |
[*1]
| Emigrant Savings Bank-Brooklyn/Queens, as Assigneeof Emigrant Mortgage Company, Inc., Appellant, v Bonifacio Makinano,Respondent, et al., Defendants. |
Borchert & LaSpina, P.C., Whitestone, N.Y. (Helmut Borchert of counsel), forappellant.
Bonifacio Makinano, Woodside, N.Y., respondent pro se.
In an action to foreclose a mortgage, the plaintiff appeals (1) from an order of theSupreme Court, Queens County (Flug, J.), entered September 6, 2013, and (2), as limitedby its brief, from so much of an order of the same court entered January 10, 2014, asdenied its motion for summary judgment on the complaint, for an order of reference, ineffect, to dismiss the affirmative defenses of the defendant Bonifacio Makinano, and forleave to amend the caption.
Ordered that the appeal from the order entered September 6, 2013, is dismissed; andit is further,
Ordered that the order entered January 10, 2014, is reversed insofar as appealedfrom, and the plaintiff's motion for summary judgment on the complaint, for an order ofreference, in effect, to dismiss the affirmative defense of the defendant BonifacioMakinano, and for leave to amend the caption is granted; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order entered September 6, 2013, must be dismissed, as thatorder was superseded by the order entered January 10, 2014.
In May 2012, the plaintiff commenced this mortgage foreclosure action against,among others, the defendant Bonifacio Makinano. Also in May 2012, the plaintiff'scounsel filed an attorney affirmation in accordance with Administrative Order of theChief Administrative Judge of the Courts AO/548/10, which was issued by ChiefAdministrative Judge of the Courts on October 20, 2010. Administrative Order 548/10,which has since been replaced by Administrative Order 431/11 (hereinafter theAdministrative Order), requires the plaintiff's counsel in a residential mortgageforeclosure action to file with the court an affirmation confirming the accuracy of theplaintiff's pleadings (see Wells[*2]Fargo Bank, NA v Ambrosov, 120 AD3d1225, 1226 [2014]).
In June 2013, the plaintiff moved for summary judgment on the complaint, for anorder of reference, in effect, to dismiss Makinano's affirmative defenses, and for leave toamend the caption. In support of its motion, the plaintiff submitted, inter alia, an affidavitfrom an employee of the plaintiff. In an order entered January 10, 2014, the SupremeCourt, among other things, denied the plaintiff's motion on the ground that the plaintiff'scounsel had not submitted an attorney affirmation pursuant to the Administrative Orderconfirming the accuracy of the affidavit of the plaintiff's employee which the plaintiffhad submitted in support of its motion. This was error.
Where, as here, a plaintiff commences a residential mortgage foreclosure action afterthe Administrative Order's effective date, the attorney affirmation must be filed at thetime of the filing of the request for judicial intervention (see AdministrativeOrder). As the plaintiff had previously filed the attorney affirmation, the plaintiff was notrequired by the Administrative Order to submit an additional attorney affirmationpursuant to the Administrative Order confirming the accuracy of the affidavit submittedin support of its motion.
Further, the Supreme Court erred in denying the plaintiff's motion. The plaintiff metits prima facie burden of demonstrating its entitlement to summary judgment on thecomplaint by submitting, among other things, a written assignment from the originallender, the note, and an affidavit attesting to Makinano's failure to make payments dueunder the mortgage (see BaronAssoc., LLC v Garcia Group Enters., Inc., 96 AD3d 793, 793 [2012]). Inopposition, Makinano failed to raise a triable issue of fact. Likewise, the plaintiff met itsinitial burden of demonstrating its prima facie entitlement to judgment as a matter of lawdismissing Makinano's affirmative defenses, and Makinano failed to raise a triable issueof fact.
In addition, the Supreme Court should have granted those branches of the plaintiff'smotion which were for an order of reference (see RPAPL 1321; Deutsche Bank Natl. Trust Co. vIslar, 122 AD3d 566, 568 [2014]; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]), and toamend the caption (see CPLR 1024; Deutsche Bank Natl. Trust Co. vIslar, 122 AD3d at 568; Flagstar Bank v Bellafiore, 94 AD3d 1044 [2012]).
Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the complaint, for an order of reference, in effect, to dismissMakinano's affirmative defenses, and for leave to amend the caption. Leventhal, J.P.,Hall, Maltese and Barros, JJ., concur.