| J.P. Morgan Mtge. Acquisition Corp v Kagan |
| 2018 NY Slip Op 00416 [157 AD3d 875] |
| January 24, 2018 |
| Appellate Division, Second Department |
[*1]
| J.P. Morgan Mortgage Acquisition Corp,Plaintiff, v Michelle H. Kagan, Appellant, et al., Defendants. Wilmington Savings FundSociety, FSB, Nonparty Respondent. |
Michelle Kagan, sued herein as Michelle H. Kagan, Rhinebeck, NY, appellant pro se.
Friedman Vartolo LLP, New York, NY (Oran Schwager of counsel), fornonparty-respondent.
Appeal from an order of the Supreme Court, Dutchess County (Christine A. Sproat, J.), datedFebruary 17, 2015. The order, insofar as appealed from, granted those branches of the motion ofnonparty Wilmington Savings Fund Society, FSB, as assignee of the plaintiff, which were forsummary judgment on the complaint insofar as asserted against the defendant Michelle H.Kagan, to strike her answer with affirmative defenses and counterclaims, and to appoint areferee, and denied those branches of the cross motion of the defendant Michelle H. Kagan whichwere for summary judgment dismissing the complaint insofar as asserted against her or, in thealternative, to compel discovery.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the motion of nonparty Wilmington Savings Fund Society, FSB, which werefor summary judgment on the complaint insofar as asserted against the defendant Michelle H.Kagan, to strike her answer with affirmative defenses and counterclaims, and to appoint areferee, and substituting therefor a provision denying those branches of the motion; as somodified, the order is affirmed insofar as appealed from, without costs or disbursements.
In December 2005, Michelle H. Kagan (hereinafter the defendant) borrowed the sum of$500,000 from M&T Mortgage Corporation (hereinafter M&T). The loan wasmemorialized by an adjustable rate note and secured by a mortgage delivered to MortgageElectronic Registration Systems, Inc., as nominee for M&T. In 2012, the plaintiff, J.P.Morgan Mortgage Acquisition Corp (hereinafter JP Morgan), commenced this action to foreclosethe mortgage.
Thereafter, nonparty Wilmington Savings Fund Society, FSB (hereinafter Wilmington), as JPMorgan's assignee, moved, inter alia, for summary judgment on the complaint insofar as assertedagainst the defendant, to strike her answer with affirmative defenses and counterclaims, and toappoint a referee. The defendant cross-moved, among other things, for summary judgmentdismissing the complaint insofar as asserted against her or, in the alternative, to compeldiscovery. In the order appealed from, the Supreme Court, inter alia, granted those branches[*2]of Wilmington's motion and denied those branches of thedefendant's cross motion. The defendant appeals.
In support of its motion, Wilmington submitted an affidavit of the managing director of itsloan servicer, who attested to the defendant's default in payment. While he attested to the mailingof a notice of default in accordance with the mortgage and a 90-day notice in accordance withRPAPL 1304, his affidavit did not contain a statement that he was familiar with JP Morgan'smailing practices and procedures, and therefore did not establish proof of a standard officepractice and procedure designed to ensure that items are properly addressed and mailed (see CitiMortgage, Inc. v Pappas, 147AD3d 900, 901 [2017]). Accordingly, the Supreme Court should have denied those branchesof Wilmington's motion which were for summary judgment on the complaint insofar as assertedagainst the defendant, to strike her answer with affirmative defenses and counterclaims, and toappoint a referee, without regard to the sufficiency of the defendant's opposing papers (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Despite the aforementioned deficiencies in Wilmington's proof, the defendant failed todemonstrate, prima facie, JP Morgan's lack of standing (see Filan v Dellaria, 144 AD3d 967, 975 [2016]), or that the actionshould be dismissed based upon JP Morgan's failure to comply with conditions precedent (cf.CitiMortgage, Inc. v Pappas, 147 AD3d at 902; Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106 [2011]).The defendant's remaining contentions are either without merit or not properly before this Court.Accordingly, the Supreme Court properly denied those branches of the defendant's cross motionwhich were for summary judgment dismissing the complaint insofar as asserted against her or, inthe alternative, to compel discovery. Balkin, J.P., Hall, Hinds-Radix and Christopher, JJ.,concur.