Preview
FILED: NEW YORK COUNTY CLERK 01/10/2019 08:28 PM INDEX NO. 850250/2017
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/10/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------------------------------------X
BERKSHIRE BANK, successor by merger to
FIRST CHOICE BANK, Index No. 850250/2017
Plaintiff,
ATTORNEY
AFFIRMATION IN
-against- OPPOSITION TO
PLAINTIFF’S MOTION
FOR SUMMARY
JUDGMENT
MELISSA FAWER, MARK FAWER a/k/a MARK S.
FAWER, SANTANDER BANK, N.A., KEY GROWTH
INVEST LP, NEW YORK STATE DEPARTMENT OF
TAXATION AND FINANCE, UNITED STATES OF
AMERICA – INTERNAL REVENUE SERVICE,
BOARD OF MANAGERS OF 52 EAST END AVENUE
CONDOMINIUM, AND “JOHN DOE”, SAID NAME
BEING FICTITIOUS AND INTENDED TO INCLUDE
ANY AND ALL PARTIES HAVING AN INTEREST IN
THE MORTGAGED PREMISES AND NOT
OTHERWISE IDENTIFIED ABOVE,
Defendants.
---------------------------------------------------------------------X
Arthur Lebedin, an attorney duly licensed to practice law in the State of New
York, affirms the following to be true under penalty of perjury:
1. I am the attorney for Melissa Fawer and Mark Fawer a/k/a Mark S. Fawer
(collectively, “the Fawers”), defendants in the above-captioned action, and I am making
this affirmation in opposition to Plaintiff’s Motion for Summary Judgment.
2. I have personal knowledge of the facts stated herein.
3. On November 17, 2017, the Fawers were served in this matter with the Summons
and Complaint, Certificate of Merit, and Notice of E-Filing.
4. On December 15, 2017, the Fawers, through their attorneys, filed an Answer to the
Summons and Complaint.
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6. In his Answer, Defendant denied Plaintiff’s allegations and asserted affirmative
defenses in response to the Plaintiff’s Complaint.
7. On August 29, 2018, a Mortgage Foreclosure Settlement Conference was held, and
Plaintiff was ordered to file a motion on notice for the appointment of a referee to compute
within 90 days of the Order.
8. On November 29, 2018, Plaintiff filed the present Motion for Summary Judgment
to Strike Answer and Appoint Referee to Compute.
9. This matter has not yet entered the discovery phase as the Fawers have not served
discovery demands, nor have any parties been deposed.
10. Plaintiff’s motion for summary judgment fails to establish prima facie entitlement
to judgment as a matter of law because Plaintiff’s affidavit has no probative value. The
affidavit of Mark Omolino (hereinafter “Mr. Omolino”) (“Omolino Affidavit”) is not based
on personal knowledge of the operative facts nor does it demonstrate that the affiant
possesses sufficient personal knowledge of plaintiff’s office practices and procedures so as
to lay a foundation for the admission of the annexed documents as business records as
corroboration of his statements.
11. Moreover, the documents submitted with Plaintiff’s motion are inadmissible as
hearsay because both the Omolino Affidavit and attorney affirmation of Kelly C. Griffith,
Esq. (“Griffith Affidavit”) fail to meet the requirements for the business records exception
to admit the documents as evidence.
12. First, the Omolino Affidavit fails to establish personal knowledge of any of the
documents or operative facts and to show knowledge of Plaintiff’s business practices and
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procedures, as he does not specifically testify as to how he is familiar with the production
of these the types of records attached as exhibits thereto.
13. Second, Ms. Griffith attempts to introduce facts to which she has no personal
knowledge as she is not competent to testify to anything that took place between the parties
or anything that took place before her appearance in the case.
14. Further, Plaintiff lacks standing to bring this action. Upon information and belief,
Plaintiff was not in possession of the note at the time of commencement of this action, and
by reason thereof, the plaintiff did not own the purported debt. The only proof of such
offered by Plaintiff is in the attorney affirmation; however, as stated above, Plaintiff’s
counsel does not have the requisite personal knowledge to establish possession, and the
statement is conclusory.
15. Additionally, Plaintiff failed to prove that it complied with RPAPL § 1304, which
is a condition precedent to this action. Plaintiff does not provide an affidavit of service of
the required mailings. The Omolino Affidavit fails to overcome the business records
exception to hearsay as Mr. Omolino does not have personal knowledge of the alleged
mailings nor does he sufficiently lay a foundation for admission of the documents
purporting to evidence said mailings.
16. Plaintiff fails to satisfy the “best evidence rule” as it has not produced the original
note. Plaintiff became the alleged note-holder of the latest Consolidated Adjustable Rate
Note following a merger with First Choice Bank. Plaintiff has failed to provide an affidavit
of anyone with knowledge to testify to the documents and, as such, the provided documents
are inadmissible as set forth in detail above. The provided documents are inadmissible as
described above and, thus, the authenticity of the documents is in question and Plaintiff
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should be required to produce and authenticate the original Mortgage and Note, and all
original assignments.
17. Moreover, summary judgment is premature and should be denied pursuant to CPLR
3212(f).
18. Finally, Plaintiff’s motion for summary judgment should be denied in the interest
of equity. The Fawers, through their attorneys, apprised Plaintiff of their intention to
modify the loan along with their hardship and supporting documents in an effort to reach a
reasonable resolution. As such, the Fawers’ respectfully request that the case be set for a
final settlement conference between the parties.
Dated: January 10, 2018
New York, NY
_/s/ ARTHUR LEBEDIN_
Arthur Lebedin, Esq.
Lebedin Kofman LLP
Attorney(s) for Defendant
26 Broadway, Suite 2100
New York, NY 10004
T: 212-500-3273
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Preview
FILED: NEW YORK COUNTY CLERK 01/10/2019 08:28 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/10/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------X BERKSHIRE BANK, successor by merger to FIRST CHOICE BANK, Index No. 850250/2017 Plaintiff, ATTORNEY AFFIRMATION IN -against- OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT MELISSA FAWER, MARK FAWER a/k/a MARK S. FAWER, SANTANDER BANK, N.A., KEY GROWTH INVEST LP, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, UNITED STATES OF AMERICA – INTERNAL REVENUE SERVICE, BOARD OF MANAGERS OF 52 EAST END AVENUE CONDOMINIUM, AND “JOHN DOE”, SAID NAME BEING FICTITIOUS AND INTENDED TO INCLUDE ANY AND ALL PARTIES HAVING AN INTEREST IN THE MORTGAGED PREMISES AND NOT OTHERWISE IDENTIFIED ABOVE, Defendants. ---------------------------------------------------------------------X Arthur Lebedin, an attorney duly licensed to practice law in the State of New York, affirms the following to be true under penalty of perjury: 1. I am the attorney for Melissa Fawer and Mark Fawer a/k/a Mark S. Fawer (collectively, “the Fawers”), defendants in the above-captioned action, and I am making this affirmation in opposition to Plaintiff’s Motion for Summary Judgment. 2. I have personal knowledge of the facts stated herein. 3. On November 17, 2017, the Fawers were served in this matter with the Summons and Complaint, Certificate of Merit, and Notice of E-Filing. 4. On December 15, 2017, the Fawers, through their attorneys, filed an Answer to the Summons and Complaint. 1 of 4 FILED: NEW YORK COUNTY CLERK 01/10/2019 08:28 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/10/2019 6. In his Answer, Defendant denied Plaintiff’s allegations and asserted affirmative defenses in response to the Plaintiff’s Complaint. 7. On August 29, 2018, a Mortgage Foreclosure Settlement Conference was held, and Plaintiff was ordered to file a motion on notice for the appointment of a referee to compute within 90 days of the Order. 8. On November 29, 2018, Plaintiff filed the present Motion for Summary Judgment to Strike Answer and Appoint Referee to Compute. 9. This matter has not yet entered the discovery phase as the Fawers have not served discovery demands, nor have any parties been deposed. 10. Plaintiff’s motion for summary judgment fails to establish prima facie entitlement to judgment as a matter of law because Plaintiff’s affidavit has no probative value. The affidavit of Mark Omolino (hereinafter “Mr. Omolino”) (“Omolino Affidavit”) is not based on personal knowledge of the operative facts nor does it demonstrate that the affiant possesses sufficient personal knowledge of plaintiff’s office practices and procedures so as to lay a foundation for the admission of the annexed documents as business records as corroboration of his statements. 11. Moreover, the documents submitted with Plaintiff’s motion are inadmissible as hearsay because both the Omolino Affidavit and attorney affirmation of Kelly C. Griffith, Esq. (“Griffith Affidavit”) fail to meet the requirements for the business records exception to admit the documents as evidence. 12. First, the Omolino Affidavit fails to establish personal knowledge of any of the documents or operative facts and to show knowledge of Plaintiff’s business practices and 2 of 4 FILED: NEW YORK COUNTY CLERK 01/10/2019 08:28 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/10/2019 procedures, as he does not specifically testify as to how he is familiar with the production of these the types of records attached as exhibits thereto. 13. Second, Ms. Griffith attempts to introduce facts to which she has no personal knowledge as she is not competent to testify to anything that took place between the parties or anything that took place before her appearance in the case. 14. Further, Plaintiff lacks standing to bring this action. Upon information and belief, Plaintiff was not in possession of the note at the time of commencement of this action, and by reason thereof, the plaintiff did not own the purported debt. The only proof of such offered by Plaintiff is in the attorney affirmation; however, as stated above, Plaintiff’s counsel does not have the requisite personal knowledge to establish possession, and the statement is conclusory. 15. Additionally, Plaintiff failed to prove that it complied with RPAPL § 1304, which is a condition precedent to this action. Plaintiff does not provide an affidavit of service of the required mailings. The Omolino Affidavit fails to overcome the business records exception to hearsay as Mr. Omolino does not have personal knowledge of the alleged mailings nor does he sufficiently lay a foundation for admission of the documents purporting to evidence said mailings. 16. Plaintiff fails to satisfy the “best evidence rule” as it has not produced the original note. Plaintiff became the alleged note-holder of the latest Consolidated Adjustable Rate Note following a merger with First Choice Bank. Plaintiff has failed to provide an affidavit of anyone with knowledge to testify to the documents and, as such, the provided documents are inadmissible as set forth in detail above. The provided documents are inadmissible as described above and, thus, the authenticity of the documents is in question and Plaintiff 3 of 4 FILED: NEW YORK COUNTY CLERK 01/10/2019 08:28 PM INDEX NO. 850250/2017 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 01/10/2019 should be required to produce and authenticate the original Mortgage and Note, and all original assignments. 17. Moreover, summary judgment is premature and should be denied pursuant to CPLR 3212(f). 18. Finally, Plaintiff’s motion for summary judgment should be denied in the interest of equity. The Fawers, through their attorneys, apprised Plaintiff of their intention to modify the loan along with their hardship and supporting documents in an effort to reach a reasonable resolution. As such, the Fawers’ respectfully request that the case be set for a final settlement conference between the parties. Dated: January 10, 2018 New York, NY _/s/ ARTHUR LEBEDIN_ Arthur Lebedin, Esq. Lebedin Kofman LLP Attorney(s) for Defendant 26 Broadway, Suite 2100 New York, NY 10004 T: 212-500-3273 4 of 4