Preview
FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020
NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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DEUTSCHE BANK TRUST COMPANY
AMERICAS, AS TRUSTEE FOR RESIDENTIAL
ACCREDIT LOANS, INC., MORTGAGE ASSET-
BACKED PASS-THROUGH CERTIFICATES,
SERIES 2007-QS7,
Plaintiff, AFFIRMATION IN OPPOSITION
TO DEFENDANT’S MOTION
-against-
CAROLYN MCKELVEY; RICHARD MCKELVEY;
MORTGAGE ELETRONIC REGISTRATION
SYSTEMS INC.; HOMECOMINGS FINANCIAL,
LLC (F/K/A HOMECOMINGS FINANCIAL
NETWORK, INC); AMERICAN EXPRESS
CENTURION BANK; JOSEPH VENTO; KIM
VENTO; JOHN VENTO,
''JOHN DOE #4'' through ''JOHN DOE #12'', the last
nine names being fictitious and unknown to plaintiff,
the persons or parties intended being the tenants,
occupants, persons or corporations, if any, having or
claiming an interest in or lien upon the premises
described in the Complaint,
Defendants.
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Brandon M Wrazen, an attorney duly admitted to practice law before the Courts of the
State of New York, respectfully affirm under the penalty of perjury:
1. That I am an associate with the law firm of Robertson, Anshutz, Schneid, Crane &
Partners PLLC, the attorneys for the plaintiff DEUTSCHE BANK TRUST COMPANY
AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE
ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-QS7 (“Plaintiff”), and as
such I am fully familiar with the facts hereinafter set forth based upon a review of the file
maintained by my office.
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2. This affirmation is submitted in opposition to the Motion (hereinafter, “Defendants’
Motion”) filed by the Defendants Carolyn and Richard McKelvey (“Defendants”), who seeks an
order (1) Vacating and setting aside the Default Judgment and Order of Reference pursuant to
CPLR 5015(a), and (2) such other and further relief as the Court may seem just and proper.
3. This Court should deny Defendants’ Motion because (1) Defendants fail to present
a reasonable excuse for their failure to timely answer Plaintiff’s Complaint; (2) Defendants do not
present a meritorious defense to the foreclosure action; and (3) Defendants’ failed to plead their
affirmative relief in the Notice of Motion.
4. Furthermore, Defendants’ claims disputing their default are unsupported and they
have otherwise failed to rebut Plaintiff’s prima facie case.
5. The Court found Plaintiff established its prima facie entitlement to the remedy
sought granting Order of Reference on October 12, 2021.
6. Therein, Plaintiff has shown the existence of the obligation, the proper parties, the
undisputed default, and the remedy to which it is entitled.
7. In their Motion, Defendants fail to offer any evidence which would support denial
of Plaintiff’s Motion for Judgment of Foreclosure and Sale, or the granting of the improperly
sought relief by Defendant.
8. As a consequence, Plaintiff’s Motion should be granted in all respects and
Defendant’s improperly sought relief disregarded.
BACKGROUND AND PROCEDURAL HISTORY
9. This is an action to foreclose a residential mortgage, secured by real property
known as 45 Plandome Road, Sound Beach, NY 11789 (the "Property”).
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10. For purposes of brevity, your affiant refers to the Court to Plaintiff’s Motion to
Confirm the Referee’s Report and Judgment of Foreclosure and Sale. See NYSCEF Doc. 68.
11. Thereafter, the Parties adjourned Plaintiff’s Motion wherein Defendants’
Opposition was to be filed no later than October 31, 2022. See NYCEF Doc. 91.
12. Subsequent to the return date, Defendants filed the present Motion seeking to vacate
their default in answering, vacate the Order of Reference, and submit a late Answer to Plaintiff’s
complaint which is returnable the same date as Plaintiff’s Motion for Judgment. See NYSCEF
Docs. 92-105.
13. Defendant thereafter filed a Cross-Motion to Plaintiff’s Judgment Motion seeking
a stay of Plaintiff’s Motion pending the outcome of an unrelated action. See NYSCEF. Docs. 106-
109.
STANDARD OF LAW
14. CPLR § 5015, entitled Relief from Judgment or Order, states in pertinent part:
“(a) On motion. The court which rendered a judgment or order may
relieve a party from it upon such terms as may be just, on motion of
any interested person with such notice as the court may direct, upon
the ground of: … 1. excusable default, if such motion is made
within one year after service of a copy of the judgment or order with
written notice of its entry upon the moving party, or, if the moving
party has entered the judgment or order, within one year after such
entry; or 2. newly-discovered evidence which, if introduced at the
trial, would probably have produced a different result and which
could not have been discovered in time to move for a new trial
under section 4404; or 3. fraud, misrepresentation, or other
misconduct of an adverse party …”
15. Here, Order of Reference was granted on October 12, 2021. See NYSCEF Doc. 60.
16. Defendants have not produced any newly found evidence that would have changed
the Court’s determination, and their time to do so has passed.
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17. Further, Defendant fails to show fraud, misrepresentation, or other misconduct on
the part of Plaintiff. Defendant further fails to provide a reasonable excuse for her default in
answering the Complaint or a potentially meritorious defense to the action.
18. Should the Court entertain Defendants’ request for relief under CPLR 3012(d)
despite not pleading it in their notice of motion, as more fully outlined below, pursuant to CPLR
§3012(d), “[U]pon the application of a party, the court may extend the time to appear or plead, or
compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a
showing of reasonable excuse for delay or default.”
19. Extensions of time are not free for the asking, the movant must show “good cause.”
In exercising its discretion, the court may consider such factors as length of the delay, reason or
excuse for the delay, and prejudice to the opponent. Tewari v. Tsoutsouras, supra, 75 N.Y.2d at
12, 550 N.Y.S.2d at 577, 549 N.E.2d at 1148.
20. It has been held, under CPLR §3012(d), that in order to compel the acceptance of a
late answer, or to justify the vacatur of default, the defendant must show (1) that the default was
excusable and (2) that a meritorious defense exists. Guido v. New York Telephone Company, 133
A.D.2d. 1005, 521 NYS2d. 155 (3rd Dept. 1987); Vega Capital Corp v. W.K.R. Development, 98
AD2d. 627, 469 NYS2d. 380 (1st Dept. 1983).
21. Moreover, the burden is on the movant not only to establish an absence of
willfulness, but also a valid excuse, a meritorious defense and probability of success on the merits.
Union National Bank v. O’Donnell, 101 AD2d 676, 475 NYS 2d 573 (3rd Dept. 1984); Larny v.
Sni Lefkowitz, 251 AD 404, 296 NYS 679 (1937).
THE COURT CANNOT GRANT RELIEF NOT SOUGHT IN DEFENDANT’S NOTICE
OF MOTION
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22. Defendant’s notice of motion seeks an order (1) Vacating and setting aside the
Default Judgment and Order of Reference pursuant to CPLR 5015(a), and (2) such other and
further relief as the Court may seem just and proper. However, in counsel’s affirmation in support,
Defendant appears to be seeking an order granting Defendants an opportunity to submit a late
Answer pursuant to CPLR § 3012. See NYSCEF Doc. Nos. 92-93.
23. However, it would be an error to grant a party relief not set forth in said party’s
notice of motion. See, J. A. Valenti Electric Co. v Power Line Constructors, Inc., 123 A.D.2d 604,
506 NYS2d 769 (2d Dept. 1986) (a party is not entitled to relief where it failed to serve notice of
motion or notice of cross-motion demanding such relief). See also, Blaikie v Borden Co., 47 Misc
2d 180, 262 NYS2d 8 (1965); Phoenix Enterprises Ltd. Partnership v Insurance Co. of North
America, 130 A.D.2d 406, 515 NYS2d 443 (1st Dept. 1987); Kantor v Pavelchak, 134 A.D.2d
352, 520 NYS2d 830 (2d Dept. 1987); Potter v Blue Shield, 216 A.D.2d 773, 629 NYS2d 93 (3d
Dept. 1995).
24. Based on the foregoing, Defendants are not entitled to an order granting leave to
file a late Answer as Defendants failed to properly notice their intention to seek such relief by
including same in their notice of motion.
25. Accordingly, Plaintiff’s Motion should be granted in its entirety and Defendants’
Cross-Motion and Motion should be denied in its entirety.
DEFENDANT FAILS TO PRESENT A REASONABLE EXCUSE FOR DEFENDANT’S
FAILURE TO TIMELY ANSWER PLAINTIFF’S COMPLAINT
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26. Defendants allege as Defendants’ reasonable excuse for the failure to answer the
Complaint was that they were served during the height of Covid.
27. Defendant does not state how the time the Complaint was served serves as an
excuse to delay filing an Answer and readily admits that his Answer was filed late. See NYSCEF
Doc. 105 para. 6.
28. However, courts have specifically held that the content and warning contained in
the specialized foreclosure summons, mandated by RPAPL §1320, belies a defendant’s claim that
he did not understand that an answer was required to be served. HSBC Bank, NA v. Lafazan, 115
AD3d 647, 983 NYS2d 32 (2nd Dept. 2014).
29. It is well settled that a defendant’s contention that he did not know he was supposed
to file an answer and did not understand the court’s process does not constitute a reasonable excuse
for default. HSBC Bank, NA v. Lafazan; Id.; US Bank National Association v. Slavinski, 78 AD3d
1167, 912 NYS2d 285 (2nd Dept. 2010); Dorrer v. Berry, 37 AD3d 510, 830 NYS2d 277 (2nd Dept.
2007); Voss Dental Lab v. Surgitex, 210 AD2d 985, 621 NYS2d 1000 (4th Dept. 1994).
30. Here, Plaintiff’s Complaint contained the required warning mandated by RPAPL
§1320. See NYSCEF Doc. No. 1.
31. Where the movant fails to demonstrate a reasonable excuse for the default, there is
no need to consider whether he has proffered a potentially meritorious defense. Reich v. Redley,
96 A.D.3d 1038 (2d Dept. 2012); Fremont Investment & Loan v. Bertram, 90 A.D.2d 988 (2d
Dept. 2011); General Elec. Tech. Servs. Co. v. Perez, 156 A.D.2d 781, 783 (3d Dept. 1989) (“If
there is a failure to establish either a reasonable excuse or a meritorious defense, it is an
improvident exercise of discretion to vacate the default judgment”) citing Roundout Val. Pub. Co.
v. AM Int., 93 A.D.2d 912 (3d Dept. 1983).
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32. Accordingly, as Defendants failed to demonstrate a reasonable excuse for their
default, there is no need to consider whether they have proffered a potentially meritorious defense.
33. Therefore, Defendants’ Motion should be denied in its entirety.
DEFENDANT FAILS TO PRESENT A MERITORIOUS DEFENSE TO THE FORECLOSURE
ACTION
34. Assuming, arguendo that the Court finds that Defendant provided a reasonable
excuse for its default, a point which Plaintiff vehemently denies, the “meritorious defenses”
alleged in Defendant’s Cross-Motion are meritless.
PLAINTIFF HAS DEMONSTRATED ITS STANDING AND COMPLIANCE WITH
RPAPL 3012 IN THIS FORECLOSURE ACTION
35. Plaintiff has demonstrated its standing in this matter upon commencing this action.
36. Plaintiff would initially note that Defendants’ are precluded from raising standing,
or any other non-jurisdictional defense, until Defendants’ default is vacated. See Deutsche Bank
National Trust Company v. Hall, 185 A.D.3d 1006, 129 N.Y.S.3d 146 (2nd Dept., 2020)
37. Notwithstanding, Plaintiff established its standing prima facie by annexing to its
complaint and Certificate of Merit a copy of the endorsed Note in blank. See NYSCEF Docs. 1
and 3. See U.S. Bank National Association v Auguste, 173 A.D.3d 930, 103 N.Y.S.3d 481 (2nd
Dept., 2019) (“Here, contrary to Auguste's contention, the plaintiff established, prima facie, that it
had standing to prosecute this action by demonstrating that it was in physical possession of the
note and the blank-endorsed allonge, which were annexed to the complaint, at the time this action
was commenced”); U.S. Bank National Association v. Haughton, 189 A.D.3d 1305, 134 N.Y.S.3d
201 (Mem) (2nd Dept., 2020) (“ Here, the plaintiff established, prima facie, its standing to
commence this action by attaching to the complaint a copy of the note with an allonge containing
an endorsement in blank executed by an officer of the original lender.”)
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38. Thus, the filing of a copy of the note at the time of filing of the complaint is
sufficient to establish plaintiff’s standing to foreclose prima facie.
39. Furthermore, if the Note is attached to the Complaint at the time of filing, “it is
unnecessary to give factual details of the delivery in order to establish that possession was obtained
prior to a particular date.” Bank of New York Mellon v. Knowles, 151 A.D.3d 596, 57 N.Y.S.3d
473 (1st Dep’t 2017); Deutsche Bank Nat. Trust Co. v. Logan, 146 A.D.3d 861, 45 N.Y.S.3d 189
(2d Dep’t 2017); U.S. Bank Nat. Ass’n v. Saravanan, 146 A.D.3d 1010, 45 N.Y.S. 3d 547 (2d
Dep’t 2017); Nationstar Mortgage, LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d 315 (2d Dep’t
2015); Deutsche Bank National Trust Co. v. Leigh, 137 A.D.3d 841, 28 N.Y.S.3d 86 (2d Dep’t
2016); Federal National Mortgage Ass’n v. Yakaputz II, Inc., 141 A.D.3d 506, 35 N.Y.S.3d 236
(2nd Dep’t 2016); JPMorgan Chase Bank, Nat. Ass'n v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d
286 (2d Dep’t 2016).
40. Furthermore, any challenge to Plaintiff’s compliance with RPAPL 3012(b) is
without merit as Plaintiff filed its Certificate of Merit at the outset of this foreclosure on August
24, 2022. See NYSCEF Doc. 3.
41. Therefore, Plaintiff has established its standing to commence the instant action by
attaching a copy of the fully endorsed Note to the Complaint and full compliance with RPAPL
3012.
RPAPL §1304 IS NOT APPLICABLE AS THE SUBJECT LOAN IS NOT A HOME LOAN
42. Contrary to Defendant’s allegations, RPAPL §1304 is not applicable to the instant
matter as the subject loan is not a home loan for purposes of RPAPL §1304 because the Subject
Premises was not Defendant’s principal dwelling prior to the commencement of the action.
Nationstar Mortgage, LLC v. Gayle, 143 N.Y.S.3d 78, 191 A.D.3d 1003 (2nd Dept. 2021).
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43. Defendants admit in their Answer and Affirmation that they never resided at the
Property as it was purchased for their daughter who resided there for the last 15 years. See
NYSCEF Docs 15 & 105.
44. Further, Defendant was served with the Summons and Complaint at 19 Daytona
Beach Place, Coram, NY 11727. See NYSCEF Docs. 6 & 9.
45. Therefore, as Defendant was served at an address other than the Subject Premises,
RPAPL §1304 is inapplicable to this matter as the loan is not a home loan. Nationstar Mortgage,
LLC v. Gayle, 143 N.Y.S.3d 78, 191 A.D.3d 1003 (2nd Dept. 2021).
46. Based on the foregoing, as RPAPL §1304 is inapplicable to this matter as the loan
is not a home loan pursuant to the Second Department’s decision in Gayle, Defendant’s Motion
should be denied in its entirety as they have failed to provide a meritorious defense to the action.
IT IS DEFENDANT’S BURDEN TO PROVE PAYMENT
47. Contrary to Defendant’s allegations, Plaintiff demonstrated Defendant’s default on
the subject loan in Plaintiff’s Motion for Order of Reference, notwithstanding the fact that it is
Defendant’s burden to prove payment.
48. When a loan is in arrears, as is the case here, the mortgagee has the right to insist
upon payment of the full arrears. Accordingly, the mortgagee has the right to reject payment if it
is insufficient to cure the default. (First Federal Savings Bank v. Midura, 264 A.D.2d 407, 694
N.Y.S.2d 121 (2nd Dept. 1999)(“A valid tender requires an actual proffer of all mortgage arrears”);
see also United Companies Lending Corp. v. Hingos, 283 A.D.2d 764, 724 N.Y.S.2d 134 (3rd
Dept. 2001); Hudson City Savings Inst. v. Burton, 88 A.D.2d 728, 451 N.Y.S.2d 855 (3rd Dept.
1982)).
49. In National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, 582 N.Y.S.2d 523
(3rd Dept. 1992), the Third Department held:
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“Plaintiff clearly supported its motion with a prima facie
showing of entitlement to judgment as a matter of law, thereby
shifting the burden to defendants (see, Winegrad v. New York Univ.
Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d
642). In opposition, defendants came forward with only their
verified answer and an attorney's affidavit, neither of which sufficed
to raise a legitimate factual issue (see, Zuckerman v. City of New
York, 49 N.Y.2d 557, 562–563, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Although there is no question that plaintiff was entitled to and did
accelerate the loan on February 1, 1991, it is defendants' position
that they made a valid tender of the overdue payment on the same
day, prior to their receipt of notice of plaintiff's election to accelerate
the obligation. The only factual support for this position, however,
is found in the allegations of paragraphs 13 through 15 of the
verified answer “[t]hat on the 1st day of February, 1991, William
Hartmann approached the National Savings Bank, Saratoga Branch,
with certified funds, ready willing and able to pay the January and
February 1991 payments * * * [t]hat said funds were tendered to
plaintiff * * * [and] [t]hat on said date, plaintiff failed and refused
to accept said valid tender”. In our view, even treating these
allegations as an affidavit (see, CPLR 105[t]; Bethlehem Steel Corp.
v. Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015, 414 N.E.2d 395),
they are wholly inadequate.
“As a general rule, a tender must include everything to which
the creditor is entitled, including interest to the time the tender is
made, or else itis not legally effective” (83 N.Y.Jur.2d, Payment
and Tender, § 151, at 38), and “[t]he burden of showing tender and
refusal * * * is on the party pleading the tender” (83 N.Y.Jur.2d,
Payment and Tender, § 143, at 30). Here, defendants' answer makes
no reference to the actual amount of the tender which, in order to be
valid, must have included interest and any late fees (see, 83
N.Y.Jur.2d, Payment and Tender, § 151, at 38). In the absence of an
affidavit detailing the amount and form of the “certified funds”
which were purportedly tendered, no legitimate factual issue has
been raised.”
50. A defendant only has a defense to a foreclosure if the full quantum of the arrears is
tendered. Rejection of a partial tender is authorized. (Marine Midland Bank v. Malmstrom, 186
A.D.2d 722, 588 N.Y.S.2d 655 (2nd Dept. 1992))
51. It is the defendant’s burden to prove payment. (Smith v. Roberts, 46 Sickels 470,
1883 WL 12538 (N.Y. 1883) and Redmond v. Hughes, 151 A.D. 99, 135 N.Y.S. 843 (2nd Dept.
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1912)[Where payment is an affirmative defense, the burden of pleading and proving the same is
upon the defendant].
52. In this case, Defendants vaguely allege that they made some amount of payments
that were not being accepted.
53. However, Defendants do not provide a shred of evidence supporting this claim.
Surely, if Defendants had continued to tender payments, they would have copies of the canceled
checks for the correct amount, or proof of rejected payments for the correct amount owed.
54. Defendant was served with the Notice of Default on December 24, 2019, which
advised Defendants that in order to cure the default, Defendants were required to remit a payment
of $4,673.40. See NYSCEF Doc. 43.
55. However, Defendants do not state that they ever even attempted to remit payment
for that amount nor provide anything that would support that. Therefore, they never cured the
default and Plaintiff properly accelerated the debt.
56. Based on the foregoing, Defendants are in default on the subject loan and Plaintiff
was properly granted Order of Reference and Default Judgment.
PURPORTED VIOLATION FOR 12 CFR § 1024.39 DOES NOT RESTRICT A LENDER
OR SERVICER FROM COMMENCING A FORECLOSURE ACTION
57. Defendant’s next meritless argument is that Plaintiff violated the early intervention
requirements of RESPA.
58. However, any purported violation of 12 CFR § 1024.39 does not restrict a lender
or servicer from commencing a foreclosure action. 12 CFR § 1024.39 establishes early
intervention requirements for certain borrowers. Additionally, 12 CFR § 1024.35(i)(2) specifically
provides that a purported violation of 12 CFR § 1024.39 shall not restrict a lender or servicer from
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pursuing any remedy under applicable law, including initiating foreclosure or proceeding with a
foreclosure sale. As such, the proposed defense alleging that plaintiff failed to comply with such
requirements should be dismissed a matter of law.
59. Therefore, Defendant has not proven a meritorious defense and the Motion should
be denied.
WHEREFORE, it is respectfully requested that this Court deny Defendants’ Cross-
Motion in its entirety, grant Plaintiff’s Motion, and for such other and further relief which this
court may deem just, proper and equitable.
Dated: November 9, 2022
Westbury, New York
Brandon M Wrazen, Esq.
Word Count Certification
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The total number of words in the foregoing brief, memorandum, affirmation or affidavit
inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of
authorities, proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc. is 3,275.
The document complies with the applicable word count limit and is based on the word
count of the word-processing system used to prepare the document.
Date: November 9, 2022
Westbury, New York
_______________________
Brandon M. Wrazen, Esq.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, NY 11590
516-280-7675
bwrazen@raslg.com
Index No.: 611361/2020
SUPREME COURT OF THE STATE OF NEW YORK
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COUNTY OF SUFFOLK
=====================================================================
DEUTSCHE BANK TRUST COMPANY AMERICAS,
AS TRUSTEE FOR RESIDENTIAL ACCREDIT
LOANS, INC., MORTGAGE ASSET-BACKED
PASS-THROUGH CERTIFICATES, SERIES 2007-
QS7
Plaintiff
- Against -
CAROLYN MCKELVEY; RICHARD MCKELVEY;
MORTGAGE ELETRONIC REGISTRATION
SYSTEMS INC.; HOMECOMINGS FINANCIAL,
LLC (F/K/A HOMECOMINGS FINANCIAL
NETWORK, INC); AMERICAN EXPRESS
CENTURION BANK; JOSEPH VENTO; KIM
VENTO; JOHN VENTO,
''JOHN DOE #4'' through ''JOHN DOE #12'', the last
nine names being fictitious and unknown to plaintiff, the
persons or parties intended being the tenants, occupants,
persons or corporations, if any, having or claiming an
interest in or lien upon the premises described in the
Complaint,
Defendants,
=====================================================================
AFFIRMATION IN OPPOSITION TO DEFENDANTS’ MOTION TO VACATE
=====================================================================
Robertson, Anschutz, Schneid, Crane & Partners, PLLC
Attorney(s) for Plaintiff
900 Merchants Concourse
Westbury, NY 11590
(516) 280-7675
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FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK --------------------------------------------------------------------X Index No.: 611361/2020 DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET- BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-QS7, Plaintiff, AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION -against- CAROLYN MCKELVEY; RICHARD MCKELVEY; MORTGAGE ELETRONIC REGISTRATION SYSTEMS INC.; HOMECOMINGS FINANCIAL, LLC (F/K/A HOMECOMINGS FINANCIAL NETWORK, INC); AMERICAN EXPRESS CENTURION BANK; JOSEPH VENTO; KIM VENTO; JOHN VENTO, ''JOHN DOE #4'' through ''JOHN DOE #12'', the last nine names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants. --------------------------------------------------------------------X Brandon M Wrazen, an attorney duly admitted to practice law before the Courts of the State of New York, respectfully affirm under the penalty of perjury: 1. That I am an associate with the law firm of Robertson, Anshutz, Schneid, Crane & Partners PLLC, the attorneys for the plaintiff DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-QS7 (“Plaintiff”), and as such I am fully familiar with the facts hereinafter set forth based upon a review of the file maintained by my office. 1 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 2. This affirmation is submitted in opposition to the Motion (hereinafter, “Defendants’ Motion”) filed by the Defendants Carolyn and Richard McKelvey (“Defendants”), who seeks an order (1) Vacating and setting aside the Default Judgment and Order of Reference pursuant to CPLR 5015(a), and (2) such other and further relief as the Court may seem just and proper. 3. This Court should deny Defendants’ Motion because (1) Defendants fail to present a reasonable excuse for their failure to timely answer Plaintiff’s Complaint; (2) Defendants do not present a meritorious defense to the foreclosure action; and (3) Defendants’ failed to plead their affirmative relief in the Notice of Motion. 4. Furthermore, Defendants’ claims disputing their default are unsupported and they have otherwise failed to rebut Plaintiff’s prima facie case. 5. The Court found Plaintiff established its prima facie entitlement to the remedy sought granting Order of Reference on October 12, 2021. 6. Therein, Plaintiff has shown the existence of the obligation, the proper parties, the undisputed default, and the remedy to which it is entitled. 7. In their Motion, Defendants fail to offer any evidence which would support denial of Plaintiff’s Motion for Judgment of Foreclosure and Sale, or the granting of the improperly sought relief by Defendant. 8. As a consequence, Plaintiff’s Motion should be granted in all respects and Defendant’s improperly sought relief disregarded. BACKGROUND AND PROCEDURAL HISTORY 9. This is an action to foreclose a residential mortgage, secured by real property known as 45 Plandome Road, Sound Beach, NY 11789 (the "Property”). 2 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 10. For purposes of brevity, your affiant refers to the Court to Plaintiff’s Motion to Confirm the Referee’s Report and Judgment of Foreclosure and Sale. See NYSCEF Doc. 68. 11. Thereafter, the Parties adjourned Plaintiff’s Motion wherein Defendants’ Opposition was to be filed no later than October 31, 2022. See NYCEF Doc. 91. 12. Subsequent to the return date, Defendants filed the present Motion seeking to vacate their default in answering, vacate the Order of Reference, and submit a late Answer to Plaintiff’s complaint which is returnable the same date as Plaintiff’s Motion for Judgment. See NYSCEF Docs. 92-105. 13. Defendant thereafter filed a Cross-Motion to Plaintiff’s Judgment Motion seeking a stay of Plaintiff’s Motion pending the outcome of an unrelated action. See NYSCEF. Docs. 106- 109. STANDARD OF LAW 14. CPLR § 5015, entitled Relief from Judgment or Order, states in pertinent part: “(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of: … 1. excusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party, or, if the moving party has entered the judgment or order, within one year after such entry; or 2. newly-discovered evidence which, if introduced at the trial, would probably have produced a different result and which could not have been discovered in time to move for a new trial under section 4404; or 3. fraud, misrepresentation, or other misconduct of an adverse party …” 15. Here, Order of Reference was granted on October 12, 2021. See NYSCEF Doc. 60. 16. Defendants have not produced any newly found evidence that would have changed the Court’s determination, and their time to do so has passed. 3 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 17. Further, Defendant fails to show fraud, misrepresentation, or other misconduct on the part of Plaintiff. Defendant further fails to provide a reasonable excuse for her default in answering the Complaint or a potentially meritorious defense to the action. 18. Should the Court entertain Defendants’ request for relief under CPLR 3012(d) despite not pleading it in their notice of motion, as more fully outlined below, pursuant to CPLR §3012(d), “[U]pon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” 19. Extensions of time are not free for the asking, the movant must show “good cause.” In exercising its discretion, the court may consider such factors as length of the delay, reason or excuse for the delay, and prejudice to the opponent. Tewari v. Tsoutsouras, supra, 75 N.Y.2d at 12, 550 N.Y.S.2d at 577, 549 N.E.2d at 1148. 20. It has been held, under CPLR §3012(d), that in order to compel the acceptance of a late answer, or to justify the vacatur of default, the defendant must show (1) that the default was excusable and (2) that a meritorious defense exists. Guido v. New York Telephone Company, 133 A.D.2d. 1005, 521 NYS2d. 155 (3rd Dept. 1987); Vega Capital Corp v. W.K.R. Development, 98 AD2d. 627, 469 NYS2d. 380 (1st Dept. 1983). 21. Moreover, the burden is on the movant not only to establish an absence of willfulness, but also a valid excuse, a meritorious defense and probability of success on the merits. Union National Bank v. O’Donnell, 101 AD2d 676, 475 NYS 2d 573 (3rd Dept. 1984); Larny v. Sni Lefkowitz, 251 AD 404, 296 NYS 679 (1937). THE COURT CANNOT GRANT RELIEF NOT SOUGHT IN DEFENDANT’S NOTICE OF MOTION 4 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 22. Defendant’s notice of motion seeks an order (1) Vacating and setting aside the Default Judgment and Order of Reference pursuant to CPLR 5015(a), and (2) such other and further relief as the Court may seem just and proper. However, in counsel’s affirmation in support, Defendant appears to be seeking an order granting Defendants an opportunity to submit a late Answer pursuant to CPLR § 3012. See NYSCEF Doc. Nos. 92-93. 23. However, it would be an error to grant a party relief not set forth in said party’s notice of motion. See, J. A. Valenti Electric Co. v Power Line Constructors, Inc., 123 A.D.2d 604, 506 NYS2d 769 (2d Dept. 1986) (a party is not entitled to relief where it failed to serve notice of motion or notice of cross-motion demanding such relief). See also, Blaikie v Borden Co., 47 Misc 2d 180, 262 NYS2d 8 (1965); Phoenix Enterprises Ltd. Partnership v Insurance Co. of North America, 130 A.D.2d 406, 515 NYS2d 443 (1st Dept. 1987); Kantor v Pavelchak, 134 A.D.2d 352, 520 NYS2d 830 (2d Dept. 1987); Potter v Blue Shield, 216 A.D.2d 773, 629 NYS2d 93 (3d Dept. 1995). 24. Based on the foregoing, Defendants are not entitled to an order granting leave to file a late Answer as Defendants failed to properly notice their intention to seek such relief by including same in their notice of motion. 25. Accordingly, Plaintiff’s Motion should be granted in its entirety and Defendants’ Cross-Motion and Motion should be denied in its entirety. DEFENDANT FAILS TO PRESENT A REASONABLE EXCUSE FOR DEFENDANT’S FAILURE TO TIMELY ANSWER PLAINTIFF’S COMPLAINT 5 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 26. Defendants allege as Defendants’ reasonable excuse for the failure to answer the Complaint was that they were served during the height of Covid. 27. Defendant does not state how the time the Complaint was served serves as an excuse to delay filing an Answer and readily admits that his Answer was filed late. See NYSCEF Doc. 105 para. 6. 28. However, courts have specifically held that the content and warning contained in the specialized foreclosure summons, mandated by RPAPL §1320, belies a defendant’s claim that he did not understand that an answer was required to be served. HSBC Bank, NA v. Lafazan, 115 AD3d 647, 983 NYS2d 32 (2nd Dept. 2014). 29. It is well settled that a defendant’s contention that he did not know he was supposed to file an answer and did not understand the court’s process does not constitute a reasonable excuse for default. HSBC Bank, NA v. Lafazan; Id.; US Bank National Association v. Slavinski, 78 AD3d 1167, 912 NYS2d 285 (2nd Dept. 2010); Dorrer v. Berry, 37 AD3d 510, 830 NYS2d 277 (2nd Dept. 2007); Voss Dental Lab v. Surgitex, 210 AD2d 985, 621 NYS2d 1000 (4th Dept. 1994). 30. Here, Plaintiff’s Complaint contained the required warning mandated by RPAPL §1320. See NYSCEF Doc. No. 1. 31. Where the movant fails to demonstrate a reasonable excuse for the default, there is no need to consider whether he has proffered a potentially meritorious defense. Reich v. Redley, 96 A.D.3d 1038 (2d Dept. 2012); Fremont Investment & Loan v. Bertram, 90 A.D.2d 988 (2d Dept. 2011); General Elec. Tech. Servs. Co. v. Perez, 156 A.D.2d 781, 783 (3d Dept. 1989) (“If there is a failure to establish either a reasonable excuse or a meritorious defense, it is an improvident exercise of discretion to vacate the default judgment”) citing Roundout Val. Pub. Co. v. AM Int., 93 A.D.2d 912 (3d Dept. 1983). 6 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 32. Accordingly, as Defendants failed to demonstrate a reasonable excuse for their default, there is no need to consider whether they have proffered a potentially meritorious defense. 33. Therefore, Defendants’ Motion should be denied in its entirety. DEFENDANT FAILS TO PRESENT A MERITORIOUS DEFENSE TO THE FORECLOSURE ACTION 34. Assuming, arguendo that the Court finds that Defendant provided a reasonable excuse for its default, a point which Plaintiff vehemently denies, the “meritorious defenses” alleged in Defendant’s Cross-Motion are meritless. PLAINTIFF HAS DEMONSTRATED ITS STANDING AND COMPLIANCE WITH RPAPL 3012 IN THIS FORECLOSURE ACTION 35. Plaintiff has demonstrated its standing in this matter upon commencing this action. 36. Plaintiff would initially note that Defendants’ are precluded from raising standing, or any other non-jurisdictional defense, until Defendants’ default is vacated. See Deutsche Bank National Trust Company v. Hall, 185 A.D.3d 1006, 129 N.Y.S.3d 146 (2nd Dept., 2020) 37. Notwithstanding, Plaintiff established its standing prima facie by annexing to its complaint and Certificate of Merit a copy of the endorsed Note in blank. See NYSCEF Docs. 1 and 3. See U.S. Bank National Association v Auguste, 173 A.D.3d 930, 103 N.Y.S.3d 481 (2nd Dept., 2019) (“Here, contrary to Auguste's contention, the plaintiff established, prima facie, that it had standing to prosecute this action by demonstrating that it was in physical possession of the note and the blank-endorsed allonge, which were annexed to the complaint, at the time this action was commenced”); U.S. Bank National Association v. Haughton, 189 A.D.3d 1305, 134 N.Y.S.3d 201 (Mem) (2nd Dept., 2020) (“ Here, the plaintiff established, prima facie, its standing to commence this action by attaching to the complaint a copy of the note with an allonge containing an endorsement in blank executed by an officer of the original lender.”) 7 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 38. Thus, the filing of a copy of the note at the time of filing of the complaint is sufficient to establish plaintiff’s standing to foreclose prima facie. 39. Furthermore, if the Note is attached to the Complaint at the time of filing, “it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date.” Bank of New York Mellon v. Knowles, 151 A.D.3d 596, 57 N.Y.S.3d 473 (1st Dep’t 2017); Deutsche Bank Nat. Trust Co. v. Logan, 146 A.D.3d 861, 45 N.Y.S.3d 189 (2d Dep’t 2017); U.S. Bank Nat. Ass’n v. Saravanan, 146 A.D.3d 1010, 45 N.Y.S. 3d 547 (2d Dep’t 2017); Nationstar Mortgage, LLC v. Catizone, 127 A.D.3d 1151, 9 N.Y.S.3d 315 (2d Dep’t 2015); Deutsche Bank National Trust Co. v. Leigh, 137 A.D.3d 841, 28 N.Y.S.3d 86 (2d Dep’t 2016); Federal National Mortgage Ass’n v. Yakaputz II, Inc., 141 A.D.3d 506, 35 N.Y.S.3d 236 (2nd Dep’t 2016); JPMorgan Chase Bank, Nat. Ass'n v. Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286 (2d Dep’t 2016). 40. Furthermore, any challenge to Plaintiff’s compliance with RPAPL 3012(b) is without merit as Plaintiff filed its Certificate of Merit at the outset of this foreclosure on August 24, 2022. See NYSCEF Doc. 3. 41. Therefore, Plaintiff has established its standing to commence the instant action by attaching a copy of the fully endorsed Note to the Complaint and full compliance with RPAPL 3012. RPAPL §1304 IS NOT APPLICABLE AS THE SUBJECT LOAN IS NOT A HOME LOAN 42. Contrary to Defendant’s allegations, RPAPL §1304 is not applicable to the instant matter as the subject loan is not a home loan for purposes of RPAPL §1304 because the Subject Premises was not Defendant’s principal dwelling prior to the commencement of the action. Nationstar Mortgage, LLC v. Gayle, 143 N.Y.S.3d 78, 191 A.D.3d 1003 (2nd Dept. 2021). 8 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 43. Defendants admit in their Answer and Affirmation that they never resided at the Property as it was purchased for their daughter who resided there for the last 15 years. See NYSCEF Docs 15 & 105. 44. Further, Defendant was served with the Summons and Complaint at 19 Daytona Beach Place, Coram, NY 11727. See NYSCEF Docs. 6 & 9. 45. Therefore, as Defendant was served at an address other than the Subject Premises, RPAPL §1304 is inapplicable to this matter as the loan is not a home loan. Nationstar Mortgage, LLC v. Gayle, 143 N.Y.S.3d 78, 191 A.D.3d 1003 (2nd Dept. 2021). 46. Based on the foregoing, as RPAPL §1304 is inapplicable to this matter as the loan is not a home loan pursuant to the Second Department’s decision in Gayle, Defendant’s Motion should be denied in its entirety as they have failed to provide a meritorious defense to the action. IT IS DEFENDANT’S BURDEN TO PROVE PAYMENT 47. Contrary to Defendant’s allegations, Plaintiff demonstrated Defendant’s default on the subject loan in Plaintiff’s Motion for Order of Reference, notwithstanding the fact that it is Defendant’s burden to prove payment. 48. When a loan is in arrears, as is the case here, the mortgagee has the right to insist upon payment of the full arrears. Accordingly, the mortgagee has the right to reject payment if it is insufficient to cure the default. (First Federal Savings Bank v. Midura, 264 A.D.2d 407, 694 N.Y.S.2d 121 (2nd Dept. 1999)(“A valid tender requires an actual proffer of all mortgage arrears”); see also United Companies Lending Corp. v. Hingos, 283 A.D.2d 764, 724 N.Y.S.2d 134 (3rd Dept. 2001); Hudson City Savings Inst. v. Burton, 88 A.D.2d 728, 451 N.Y.S.2d 855 (3rd Dept. 1982)). 49. In National Sav. Bank of Albany v. Hartmann, 179 A.D.2d 76, 582 N.Y.S.2d 523 (3rd Dept. 1992), the Third Department held: 9 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 “Plaintiff clearly supported its motion with a prima facie showing of entitlement to judgment as a matter of law, thereby shifting the burden to defendants (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642). In opposition, defendants came forward with only their verified answer and an attorney's affidavit, neither of which sufficed to raise a legitimate factual issue (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562–563, 427 N.Y.S.2d 595, 404 N.E.2d 718). Although there is no question that plaintiff was entitled to and did accelerate the loan on February 1, 1991, it is defendants' position that they made a valid tender of the overdue payment on the same day, prior to their receipt of notice of plaintiff's election to accelerate the obligation. The only factual support for this position, however, is found in the allegations of paragraphs 13 through 15 of the verified answer “[t]hat on the 1st day of February, 1991, William Hartmann approached the National Savings Bank, Saratoga Branch, with certified funds, ready willing and able to pay the January and February 1991 payments * * * [t]hat said funds were tendered to plaintiff * * * [and] [t]hat on said date, plaintiff failed and refused to accept said valid tender”. In our view, even treating these allegations as an affidavit (see, CPLR 105[t]; Bethlehem Steel Corp. v. Solow, 51 N.Y.2d 870, 872, 433 N.Y.S.2d 1015, 414 N.E.2d 395), they are wholly inadequate. “As a general rule, a tender must include everything to which the creditor is entitled, including interest to the time the tender is made, or else itis not legally effective” (83 N.Y.Jur.2d, Payment and Tender, § 151, at 38), and “[t]he burden of showing tender and refusal * * * is on the party pleading the tender” (83 N.Y.Jur.2d, Payment and Tender, § 143, at 30). Here, defendants' answer makes no reference to the actual amount of the tender which, in order to be valid, must have included interest and any late fees (see, 83 N.Y.Jur.2d, Payment and Tender, § 151, at 38). In the absence of an affidavit detailing the amount and form of the “certified funds” which were purportedly tendered, no legitimate factual issue has been raised.” 50. A defendant only has a defense to a foreclosure if the full quantum of the arrears is tendered. Rejection of a partial tender is authorized. (Marine Midland Bank v. Malmstrom, 186 A.D.2d 722, 588 N.Y.S.2d 655 (2nd Dept. 1992)) 51. It is the defendant’s burden to prove payment. (Smith v. Roberts, 46 Sickels 470, 1883 WL 12538 (N.Y. 1883) and Redmond v. Hughes, 151 A.D. 99, 135 N.Y.S. 843 (2nd Dept. 10 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 1912)[Where payment is an affirmative defense, the burden of pleading and proving the same is upon the defendant]. 52. In this case, Defendants vaguely allege that they made some amount of payments that were not being accepted. 53. However, Defendants do not provide a shred of evidence supporting this claim. Surely, if Defendants had continued to tender payments, they would have copies of the canceled checks for the correct amount, or proof of rejected payments for the correct amount owed. 54. Defendant was served with the Notice of Default on December 24, 2019, which advised Defendants that in order to cure the default, Defendants were required to remit a payment of $4,673.40. See NYSCEF Doc. 43. 55. However, Defendants do not state that they ever even attempted to remit payment for that amount nor provide anything that would support that. Therefore, they never cured the default and Plaintiff properly accelerated the debt. 56. Based on the foregoing, Defendants are in default on the subject loan and Plaintiff was properly granted Order of Reference and Default Judgment. PURPORTED VIOLATION FOR 12 CFR § 1024.39 DOES NOT RESTRICT A LENDER OR SERVICER FROM COMMENCING A FORECLOSURE ACTION 57. Defendant’s next meritless argument is that Plaintiff violated the early intervention requirements of RESPA. 58. However, any purported violation of 12 CFR § 1024.39 does not restrict a lender or servicer from commencing a foreclosure action. 12 CFR § 1024.39 establishes early intervention requirements for certain borrowers. Additionally, 12 CFR § 1024.35(i)(2) specifically provides that a purported violation of 12 CFR § 1024.39 shall not restrict a lender or servicer from 11 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 pursuing any remedy under applicable law, including initiating foreclosure or proceeding with a foreclosure sale. As such, the proposed defense alleging that plaintiff failed to comply with such requirements should be dismissed a matter of law. 59. Therefore, Defendant has not proven a meritorious defense and the Motion should be denied. WHEREFORE, it is respectfully requested that this Court deny Defendants’ Cross- Motion in its entirety, grant Plaintiff’s Motion, and for such other and further relief which this court may deem just, proper and equitable. Dated: November 9, 2022 Westbury, New York Brandon M Wrazen, Esq. Word Count Certification 12 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 The total number of words in the foregoing brief, memorandum, affirmation or affidavit inclusive of point headings and footnotes and exclusive of the caption, table of contents, table of authorities, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 3,275. The document complies with the applicable word count limit and is based on the word count of the word-processing system used to prepare the document. Date: November 9, 2022 Westbury, New York _______________________ Brandon M. Wrazen, Esq. Robertson, Anschutz, Schneid, Crane & Partners, PLLC Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, NY 11590 516-280-7675 bwrazen@raslg.com Index No.: 611361/2020 SUPREME COURT OF THE STATE OF NEW YORK 13 of 14 FILED: SUFFOLK COUNTY CLERK 11/10/2022 04:09 PM INDEX NO. 611361/2020 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 11/10/2022 COUNTY OF SUFFOLK ===================================================================== DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., MORTGAGE ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007- QS7 Plaintiff - Against - CAROLYN MCKELVEY; RICHARD MCKELVEY; MORTGAGE ELETRONIC REGISTRATION SYSTEMS INC.; HOMECOMINGS FINANCIAL, LLC (F/K/A HOMECOMINGS FINANCIAL NETWORK, INC); AMERICAN EXPRESS CENTURION BANK; JOSEPH VENTO; KIM VENTO; JOHN VENTO, ''JOHN DOE #4'' through ''JOHN DOE #12'', the last nine names being fictitious and unknown to plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants, ===================================================================== AFFIRMATION IN OPPOSITION TO DEFENDANTS’ MOTION TO VACATE ===================================================================== Robertson, Anschutz, Schneid, Crane & Partners, PLLC Attorney(s) for Plaintiff 900 Merchants Concourse Westbury, NY 11590 (516) 280-7675 14 of 14