| Deutsche Bank Natl. Trust Co. v Otano |
| 2015 NY Slip Op 04805 [129 AD3d 770] |
| June 10, 2015 |
| Appellate Division, Second Department |
[*1]
| Deutsche Bank National Trust Company,Appellant, v Jacqueline Otano et al., Defendants. |
Sheldon May & Associates, P.C. (Stim & Warmuth, P.C., Farmingville,N.Y. [Glenn P. Warmuth], of counsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals, as limited by its brief, fromso much of an order of the Supreme Court, Kings County (Battaglia, J.), dated April 23,2013, as denied those branches of its renewed motion which were for leave to enter adefault judgment upon the defendants' failure to appear or answer the complaint and foran order of reference.
Ordered that the order is reversed insofar as appealed from, on the law, without costsor disbursements, and those branches of the plaintiff's renewed motion which were forleave to enter a default judgment upon the defendants' failure to appear or answer thecomplaint and for an order of reference are granted.
On May 4, 2007, the plaintiff commenced this foreclosure action. After thedefendants failed to appear or answer the complaint, the plaintiff made three unopposedmotions for leave to enter a default judgment and for an order of reference, which weredenied, with leave to renew. Thereafter, the plaintiff's current counsel reviewed thedocuments that had been submitted by the plaintiff's former counsel on the prior motions,and determined that the plaintiff was unable to confirm the accuracy of notarizationscontained in those documents or that the prior servicer of the mortgage loan hadundertaken a proper review of the records, as required by Administrative Orders of theChief Administrative Judge of the Courts AO/548/10 and AO/431/11. The plaintiff thensubmitted the renewed motion now under review, in which it sought, inter alia, leave toenter a default judgment and an order of reference based on new papers. Contrary to theSupreme Court's determination, the plaintiff complied with Administrative OrdersAO/548/10 and AO/431/11 by providing a new attorney affirmation and a new affidavitof merit confirming the accuracy of the plaintiff's pleadings and other documentssubmitted in support of the instant renewed motion (see generally U.S. Bank N.A. v Eaddy, 109 AD3d 908,909-910 [2013]).
The plaintiff demonstrated its entitlement to a default judgment against thedefendants by providing proof of service of the summons and complaint, proof of thefacts constituting the claim, and proof of the defendants' failure to answer or appear(see CPLR 3215 [f]; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838,839-840 [2015]; U.S. Bank,N.A. v Razon, 115 AD3d 739, 740 [2014]; Mortgage Elec. Registration Sys., Inc. v Smith, 111 AD3d804, 806 [2013]). Similarly, the plaintiff established its [*2]entitlement to an order of reference (see RPAPL1321; Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 1226 [2014]; HSBC Bank USA, N.A. v Taher, 104 AD3d 815, 816[2013]; Bank of N.Y. vAlderazi, 99 AD3d 837, 838 [2012]).
Accordingly, the Supreme Court should have granted those branches of the plaintiff'srenewed motion which were for leave to enter a default judgment and for an order ofreference. Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur.