Preview
FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------X INDEX NO.: 520498/2021
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT RELATING TO IMPAC
SECURED ASSETS CORP., MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-1,
Plaintiff, AFFIRMATION IN
OPPOSITION
-against-
JAMES FREDERICK; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; NEW YORK
CITY PARKING VIOLATIONS BUREAU; NEW
YORK CITY TRANSIT ADJUDICATION BUREAU;
"JOHN DOE" (REFUSED NAME); "JOHN DOE"
(REFUSED NAME); "JOHN DOE" (REFUSED NAME);
SAMANTHA "DOE" (REFUSED LAST NAME);
"JOHN DOE" (REFUSED NAME); "JOHN DOE"
(REFUSED NAME); "JOHN DOE" (REFUSED NAME);
"JOHN DOE" (REFUSED NAME); "JOHN" JENNINGS
(REFUSED FIRST NAME),
Defendants.
---------------------------------------------------------------------X
I, Brandon M Wrazen, Esq., pursuant to CPLR § 2106[NYCLS] and under the penalties of
perjury, affirms as follows:
1. I am an attorney with ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS,
PLLC, attorneys for the Plaintiff herein.
2. I am fully familiar with the facts and circumstances of the case, the basis of my
knowledge being the file maintained by the office with respect to this matter.
3. The above-entitled action is for the foreclosure of a mortgage on the premises
known as 639 Hendrix Street, Brooklyn, NY 11213 (hereinafter referred to as the “Property”).
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4. I make this Affirmation in Opposition to the Motion of James Frederick
(“Defendant”) to reargue, in relevant part, Plaintiff’s motion for Summary Judgment pursuant to
CPLR §2221(d) (“Defendant’s Motion”).
5. This Court should deny Defendant’s Motion because Defendant fails to
persuasively dispute Plaintiff’s standing, the sufficiency of Plaintiff’s Affirmation of Shana
Golding, or provide any evidence that the court misapprehended or misapplied the law in rendering
its decision. Rather, Defendant comes now putting forth the same conclusory claims and attempts
to relitigate what has already been decided.
6. As a consequence, Defendant’s Motion must be denied in its entirety.
PROCEDURAL POSTURE
7. For the sake of brevity, the procedural posture and background facts as set forth in
the Plaintiff’s Motion for Summary Judgment and supporting papers dated July 13, 2022 that were
filed with this Court are expressly incorporated by reference herein and will not be repeated. See
NYSCEF Doc. 47-66.
8. Thereafter, Defendant filed opposition and Plaintiff replied. By Decision and
Order, the Court found Plaintiff had standing and established its prima facie entitlement to
judgment as a matter of law. The Court also noted that Plaintiff adequately explained the default
date The Court finally dismissed the remaining affirmative defenses of Defendant. Notice of Entry
was filed on October 21, 2022. See NYSCEF Docs. 82-84.
9. Defendant filed a Notice of Appeal on November 18, 2022 and the present Motion
on October 17, 2022. See NYSCEF Docs. 88-90.
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STANDARD OF LAW
REARGUMENT
10. CPLR § 2221(d) states in pertinent part:
A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly overlooked
or misapprehended by the court in determining the prior motion, but
shall not include any matters of fact not offered on the prior
motion; and
3. shall be made within thirty days after service of a copy of the
order determining the prior motion and written notice of its entry.
This rule shall not apply to motions to reargue a decision made by
the appellate division or the court of appeals.
11. A motion for leave to reargue may be granted upon a showing that the court
overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier
decision. See CPLR § 2221(d); see also Loland v. City of New York, 212 A.D.2d 674, 622 N.Y.S.2d
762 (2d Dept. 1995); Bolos v. Staten Island Hospital, 217 A.D.2d 643, 629 N.Y.S.2d 809 (2d Dept.
1995); Porowski v. Mason, 238 A.D.2d 559, 657 N.Y.S.2d 71 (2d Dept. 1997). A motion for leave
to reargue shall not include new matters of fact not offered on the prior motion Grimm v.
Bailey, 105 A.D.3d 703, 704, 963 N.Y.S.2d 277, quoting CPLR 2221[d][2]; see Ahmed v.
Pannone, 116 A.D.3d 802, 984 N.Y.S.2d 104; Matter of American Alternative Ins. Corp. v.
Pelszynski, 85 A.D.3d 1157, 1158, 926 N.Y.S.2d 640.
12. The Appellate Division for the First Department held that “a motion for reargument,
addressed to the discretion of the court, is designed to afford a party an opportunity to establish
that the court overlooked or misapprehended the relevant facts, or misapplied any controlling
principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue
once again the very questions previously decided.” Pro Brokerage, Inc. v. Home Ins. Co., 99
A.D.2d 971, 472 N.Y.S.2d 661 (1st Dept. 1984).
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13. Defendant does not show any fact or law “overlooked or misapprehended” by the
Court “in determining the prior motion. . . .” as is required to establish grounds for reargument.
N.Y. CPLR 2221(d)(2) (McKinney 2010). A motion to reargue “is not designed to allow a litigant
to propound the same arguments the court has already considered, but to point out controlling
principles of law or fact that the court may have overlooked.” Simon v. Mehryari, 16 A.D.3d 664,
665 (2d Dep’t 2005) (citation omitted). This is precisely what the Motion does. Further, as shown
below, this Court considered and rejected each of the arguments and/or alleged facts Defendant
raises now.
14. A party moving to reargue must furnish all papers submitted on the original
motion. See Biscone v. JetBlue Airways Corp., 103 A.D.3d 158, 957 N.Y.S.2d 361 (2d Dept.
2012). See also CPLR § 2221(d).
15. Here, Defendant fails to include a complete copy of the all of the papers considered
in deciding Plaintiff’s Motion for Summary Judgment, nor any filed papers whatsoever.
16. Further, Defendant’s Motion fails to include an affidavit from Defendant.
17. The affirmation of counsel, without knowledge of the facts, has no probative value.
Brookman & Brookman, P.C. v. Schiavoni. 665 N.Y.S.2d 419 (1stDept. 1997) [Affirmation of
counsel lacking personal knowledge was insufficient to defeat motion for summary judgment];
Smith v. Johnson Products Co., 95 A.D.2d 675, 463 N.Y.S.2d 464 (1st Dept. 1983); Currie v.
Wilhouski, 93 A.D.3d 816, 941 N.Y.S.2d 218 (2nd Dept. 2012) [The affirmation of Amica’s
attorney was not based upon personal knowledge and thus was of no probative or evidentiary
significance (See U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352;
Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455 456, 826 N.Y.S.2d 152)]; Analisa Salon,
Ltd. v. Elide Properties, LLC, 848 N.Y.S.2d 693 (2nd Dept. 2007) [Affirmation from landlord’s
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attorney had no personal knowledge of the facts]; Bradt v. John Hancock Mut. Life Ins. Co., 470
N.Y.S.2d 872 (3rd Dept. 1983) [Everything attorney knew was predicated upon hearsay, rending
his affirmation, in opposition to motion for summary judgment, probatively valueless]; Verizon
New York Inc. v. ECSM Utility Contractors, Inc., 935 N.Y.S.2d 766 (4th Dept. 2011) [Plaintiff
moving for summary judgment on contract claim could not rely on its attorney’s affirmation, since
attorney did not have personal knowledge of material facts].
18. Therefore, Defendant’s opposition executed by Defendants’ attorney is not
substantiated by an affidavit of a person with firsthand knowledge of any of the arguments asserted
in Defendants’ opposition in admissible form.
19. Thus, Defendant’s attorney’s allegations as to facts are inadmissible hearsay and
should be disregarded.
20. Now, Defendant attempts to take a second bite of the proverbial apple by submitting
the same arguments that were submitted in opposition and fails to provide any excuse for not
submitting previously.
21. As Defendant failed to adhere to the black letter of the law, Defendant is precluded
from renewal of Plaintiff’s Motion.
ARGUMENT
DEFENDANT IDENTIFIES NO FACTS THE COURT OVERLOOKED OR
MISAPPREHENDED
22. “A motion for reargument, addressed to the discretion of the court, is designed to
afford a party an opportunity to establish that the court overlooked or misapprehended the relevant
facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to
permit the unsuccessful party to argue once again the very questions previously decided. Nor does
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reargument serve to provide a party an opportunity to advance arguments different from those
tendered on the original application.” Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 (1st Dept.,
1979).
23. Here, Defendant has raised identical arguments to what was previously raised in
Defendant’s opposition without explaining how the Court overlooked these issues other than
baldly stating they were overlooked. Specifically, the exact arguments concerning Plaintiff’s
standing and the Golding Affidavit were previously raised in Defendant’s Opposition are again
raised herein.
24. As noted above, the entire crux of Defendant’s position appears to be the incorrect
assumption that the Court did not consider Defendant’s arguments in his Opposition. However, a
review of the Decision clearly contradicts this position.
25. As the arguments raised concerning Standing are identical to what was raised in
opposition, Plaintiff incorporates by reference the arguments raised in its reply in further support
of summary judgment. See NYSCEF Doc. 79.
PLAINTIFF’S MOTION ESTABLISHED BOTH ITS PRIMA FACIE CASE AND
STANDING TO COMMENCE THIS ACTION AS A MATTER OF LAW
26. Defendant’s Motion attempts to poke holes asserting that the Court
misapprehended the law and that triable issues of fact exist as to Plaintiff’s standing. Specifically,
Defendant argues that because there were prior servicers, Plaintiff has not established its standing.
Defendant also argues that Plaintiff cannot rely upon the affidavit of Shana Golding (“Golding
Affidavit”) to establish its standing, or its prima facie case because the Golding Affidavit amounts
to inadmissible hearsay.
27. However, Plaintiff satisfied its standing prima facie upon commencing this action
by annexing a copy of the endorsed note in blank to its complaint. See NYSCEF Doc. 1. See also
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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.”) Nationstar Mtge., LLC v
Catizone 127 A.D.3d 1151, 9 N.Y.S.3d 315 (2nd Dept., 2015). As the Court rightly pointed out, this
is all that is required for Plaintiff to establish its standing.
28. Defendant attempts to merely poke holes in Plaintiff’s standing by attaching proof
of prior servicers of the loan arguing that Plaintiff cannot prove standing because others previously
may have possessed the Note. However, as the Court again rightly points out in its Decision and
Order, all that is required of Plaintiff is that it establishes its standing by demonstrating that it was
the holder of the Note at the time of commencement of the action. See Bank of America v Paulsen,
125 AD3d 909, 910 (2d Dept. 2015).
29. Furthermore, Defendant’s assertion that the Golding Affidavit cannot establish
standing and is not admissible, fails to recognize that the party in possession of the note endorsed
in blank is permitted to enforce it. See UCC 1-201(b)(21)(A) Deutsche Bank Nat. Trust Co. v.
Brewton, 142 A.D.3d 683, 37 N.Y.S.3d 25 (2nd Dept., 2016).
30. Moreover, the Golding Affidavit is in admissible form. In particular, Ms. Golding
attested that she is a Vice President of PHH Mortgage Corporation, servicer for Plaintiff, and
annexed an assignment of mortgage and power of attorney verifying her authority to attest on
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Plaintiff’s behalf. See NYSCEF Doc. 62. Contrary to Defendant’s claim, Ms. Golding further
attested to having personal knowledge of Plaintiff’s business records and record making practices,
that Plaintiff’s business records are created and maintained in the regular course of its business,
that Plaintiff relies upon its business records in the performance of functions of Plaintiff’s business,
that Plaintiff’s business records are manually entered and were made at or near the time that the
transactions were documented by a person with personal knowledge, and that Plaintiff’s business
records include prior servicer records that have been incorporated into Plaintiff’s records and relied
upon by Plaintiff in the ordinary course of business. See NYSCEF Doc. 62.
31. Thus, Ms. Golding undoubtedly set forth a proper foundation for her testimony to
be admissible under the business records exception to hearsay; especially considering she attested
to having personal knowledge of Plaintiff’s business records and record making practices. See
CPLR 4518. US Bank Nat. Ass’n v. Louis, 148 A.D.3d 758, 48 N.Y.S.3d 458 (2nd Dept., 2017)
(Holding that an affidavit of merit from plaintiff’s loan servicer with a power of attorney where
the representative attested that she acquired personal knowledge based on a review of the loan
servicer’s records, was competent evidence to establish a default.); Deutsche Bank National Trust
Company v. Silverman, 178 A.D.3d 898, 114 N.Y.S.3d 110 (2nd Dept., 2019).
32. Furthermore, Defendant’s claim that Ms. Golding has not laid a proper foundation
because there were prior servicers fails to acknowledge that she attested that Plaintiff’s business
records including prior servicer records that are incorporated into Plaintiff’s business records,
which are routinely relied upon by Plaintiff in the ordinary course of business. This affidavit
testimony is sufficient to lay a foundation for the introduction of prior servicer records. See Bank
of New York Mellon v. Gordon, 171 A.D.3d 197, 97 N.Y.S.3d 286 (2nd Dept,2019)
33. Upon providing a proper foundation for her testimony to be admissible, Ms.
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Golding attested that based on her review of Plaintiff’s business records that Defendant failed to
tender the installment due for October 1, 2015 and all subsequent installments. See Paragraph 7
of Golding Affidavit at NYSCEF Doc. 62. Moreover, Ms. Golding produced the business records
she relied upon in attesting to Defendant’s default – notably a copy of Plaintiff’s “Payment
History”, which discloses that the “due date” for Defendant. Id.
34. Therefore, by producing the actual business record relied upon, which business
record supports Ms. Golding’s testimony, this Court should find that Plaintiff has produced
evidence in admissible form as to Defendant’s default on his loan obligations. See Citigroup v.
Kopelowitz, 147 A.D.3d 1014, 48 N.Y.S.3d 223 (2nd Dept., 2017) (“There is no requirement that
a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima
facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and
the records themselves actually evince the facts for which they are relied upon”)
35. Ms. Golding also attested that Plaintiff was in physical possession of the original
Note on June 9, 2021 and remained in possession at the time this action was commenced. See
Paragraph 5 of Golding Affidavit at NYSCEF Doc. 62.
36. By providing a business record that includes a specific date as to when Plaintiff
acquired possession of the note, Plaintiff has established a second basis1 for its standing, as holder
of the note, to commence this action. See Aurora Loan Services, LLC v. Taylor, 114 A.D.3d 627,
980 N.Y.S.2d 475 (2nd Dept., 2014) aff’d 25 N.Y.3d 355, 12 N.Y.S.3d 612 (2015).Thus, Ms.
Golding has put forth a proper foundation for her testimony to be admissible under the business
records exception to hearsay, and otherwise establishes Plaintiff’s standing as a matter of law. See
CPLR 4518; Aurora Loan Services, LLC v. Mercius, 138 A.D.3d 650, 29 N.Y.S.3d 462 (2nd Dept.,
1
As discussed above, Plaintiff had also initially established its standing to commence this action upon annexing a
copy of the note to its complaint.
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2016); Aurora Loan Services, LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475, Affd. 25 N.Y.3d
355, 12 N.Y.S.3d 612 (2015).
37. Additionally, Plaintiff would emphasize that Plaintiff was not required to provide
any additional specifics beyond what Ms. Golding attested to with respect to possession of the
note. See JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286 (2nd Dept.,
2016) (“There is simply no requirement that an entity in possession of a negotiable instrument that
has been endorsed in blank must establish how it came into possession of the instrument in order
to be able to enforce it (see UCC 3–204[2] ). Moreover, it is unnecessary to give factual details of
the delivery in order to establish that possession was obtained prior to a particular date”).
38. Therefore, this Court should find that Plaintiff established its standing to commence
this action as the holder of the note as matter of law by annexing a copy of the Note endorsed in
blank to its complaint. Furthermore, the Golding Affidavit does not amount to inadmissible
hearsay as Defendant argues, but rather laid a proper foundation and produced the business records
that supported her testimony regarding Defendant’s default and Plaintiff’s standing, which
comports with the requirements of the business records exception as codified in CPLR § 4518.
DEFENDANT ABANDONED ALL REMAINING AFFIRMATIVE DEFENSES
39. Defendant also takes issue with the Court striking Defendant’s Answer; however,
Defendant’s opposition failed to support let alone address each and every purported affirmative
defense other than what the Court ruled upon and found had no merit.
40. Accordingly, the failure to raise pleaded affirmative defenses in opposition to a
motion for summary judgment renders those defenses abandoned and thus subject to dismissal (see
New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 7 96
[2d Dept. 2013]; Starkman v. City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept.
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2013]; Kuehne & Nagel Inc. v. Baiden, 36 N.Y.S.2d539 [1975]; Kronick v. L.P. Therault Co., Inc.,
70 A.D.3d 648 [2d Dept. 2010]; Katz v. Miller, 120 A.D.3d 768 [2d Dept. 2014]).
41. Therefore, each and every remaining purported affirmative defense was rightly
deemed abandoned by Defendant and stricken.
WHEREFORE, the Defendant’s Motion must be denied in its entirety together with such
other and further relief as the Court may deem just, equitable and proper.
Dated: January 5, 2023
Westbury, New York
ROBERTSON, ANSCHUTZ, SCHNEID,
CRANE & PARTNERS, PLLC
____________________________________
By: Brandon M Wrazen, Esq.
Attorneys for Plaintiff
900 Merchants Concourse, Suite 310
Westbury, New York 11590
Telephone: 516.280.7675
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 2,925.
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: January 5, 2023
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.: 520498/2021
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
=====================================================================
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE UNDER THE POOLING AND
SERVICING AGREEMENT RELATING TO IMPAC
SECURED ASSETS CORP., MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES 2006-1,
Plaintiff,
-against-
JAMES FREDERICK; NEW YORK CITY
ENVIRONMENTAL CONTROL BOARD; NEW YORK
CITY PARKING VIOLATIONS BUREAU; NEW
YORK CITY TRANSIT ADJUDICATION BUREAU;
"JOHN DOE" (REFUSED NAME); "JOHN DOE"
(REFUSED NAME); "JOHN DOE" (REFUSED NAME);
SAMANTHA "DOE" (REFUSED LAST NAME);
"JOHN DOE" (REFUSED NAME); "JOHN DOE"
(REFUSED NAME); "JOHN DOE" (REFUSED NAME);
"JOHN DOE" (REFUSED NAME); "JOHN" JENNINGS
(REFUSED FIRST NAME),
Defendants
=====================================================================
AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO REARGUE
=====================================================================
Robertson, Anschutz, Schneid, Crane & Partners, PLLC
Attorney(s) for Plaintiff
900 Merchants Concourse
Westbury, NY 11590
(516) 280-7675
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Preview
FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------X INDEX NO.: 520498/2021 DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT RELATING TO IMPAC SECURED ASSETS CORP., MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-1, Plaintiff, AFFIRMATION IN OPPOSITION -against- JAMES FREDERICK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); SAMANTHA "DOE" (REFUSED LAST NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN" JENNINGS (REFUSED FIRST NAME), Defendants. ---------------------------------------------------------------------X I, Brandon M Wrazen, Esq., pursuant to CPLR § 2106[NYCLS] and under the penalties of perjury, affirms as follows: 1. I am an attorney with ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC, attorneys for the Plaintiff herein. 2. I am fully familiar with the facts and circumstances of the case, the basis of my knowledge being the file maintained by the office with respect to this matter. 3. The above-entitled action is for the foreclosure of a mortgage on the premises known as 639 Hendrix Street, Brooklyn, NY 11213 (hereinafter referred to as the “Property”). 1 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 4. I make this Affirmation in Opposition to the Motion of James Frederick (“Defendant”) to reargue, in relevant part, Plaintiff’s motion for Summary Judgment pursuant to CPLR §2221(d) (“Defendant’s Motion”). 5. This Court should deny Defendant’s Motion because Defendant fails to persuasively dispute Plaintiff’s standing, the sufficiency of Plaintiff’s Affirmation of Shana Golding, or provide any evidence that the court misapprehended or misapplied the law in rendering its decision. Rather, Defendant comes now putting forth the same conclusory claims and attempts to relitigate what has already been decided. 6. As a consequence, Defendant’s Motion must be denied in its entirety. PROCEDURAL POSTURE 7. For the sake of brevity, the procedural posture and background facts as set forth in the Plaintiff’s Motion for Summary Judgment and supporting papers dated July 13, 2022 that were filed with this Court are expressly incorporated by reference herein and will not be repeated. See NYSCEF Doc. 47-66. 8. Thereafter, Defendant filed opposition and Plaintiff replied. By Decision and Order, the Court found Plaintiff had standing and established its prima facie entitlement to judgment as a matter of law. The Court also noted that Plaintiff adequately explained the default date The Court finally dismissed the remaining affirmative defenses of Defendant. Notice of Entry was filed on October 21, 2022. See NYSCEF Docs. 82-84. 9. Defendant filed a Notice of Appeal on November 18, 2022 and the present Motion on October 17, 2022. See NYSCEF Docs. 88-90. 2 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 STANDARD OF LAW REARGUMENT 10. CPLR § 2221(d) states in pertinent part: A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. 11. A motion for leave to reargue may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision. See CPLR § 2221(d); see also Loland v. City of New York, 212 A.D.2d 674, 622 N.Y.S.2d 762 (2d Dept. 1995); Bolos v. Staten Island Hospital, 217 A.D.2d 643, 629 N.Y.S.2d 809 (2d Dept. 1995); Porowski v. Mason, 238 A.D.2d 559, 657 N.Y.S.2d 71 (2d Dept. 1997). A motion for leave to reargue shall not include new matters of fact not offered on the prior motion Grimm v. Bailey, 105 A.D.3d 703, 704, 963 N.Y.S.2d 277, quoting CPLR 2221[d][2]; see Ahmed v. Pannone, 116 A.D.3d 802, 984 N.Y.S.2d 104; Matter of American Alternative Ins. Corp. v. Pelszynski, 85 A.D.3d 1157, 1158, 926 N.Y.S.2d 640. 12. The Appellate Division for the First Department held that “a motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided.” Pro Brokerage, Inc. v. Home Ins. Co., 99 A.D.2d 971, 472 N.Y.S.2d 661 (1st Dept. 1984). 3 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 13. Defendant does not show any fact or law “overlooked or misapprehended” by the Court “in determining the prior motion. . . .” as is required to establish grounds for reargument. N.Y. CPLR 2221(d)(2) (McKinney 2010). A motion to reargue “is not designed to allow a litigant to propound the same arguments the court has already considered, but to point out controlling principles of law or fact that the court may have overlooked.” Simon v. Mehryari, 16 A.D.3d 664, 665 (2d Dep’t 2005) (citation omitted). This is precisely what the Motion does. Further, as shown below, this Court considered and rejected each of the arguments and/or alleged facts Defendant raises now. 14. A party moving to reargue must furnish all papers submitted on the original motion. See Biscone v. JetBlue Airways Corp., 103 A.D.3d 158, 957 N.Y.S.2d 361 (2d Dept. 2012). See also CPLR § 2221(d). 15. Here, Defendant fails to include a complete copy of the all of the papers considered in deciding Plaintiff’s Motion for Summary Judgment, nor any filed papers whatsoever. 16. Further, Defendant’s Motion fails to include an affidavit from Defendant. 17. The affirmation of counsel, without knowledge of the facts, has no probative value. Brookman & Brookman, P.C. v. Schiavoni. 665 N.Y.S.2d 419 (1stDept. 1997) [Affirmation of counsel lacking personal knowledge was insufficient to defeat motion for summary judgment]; Smith v. Johnson Products Co., 95 A.D.2d 675, 463 N.Y.S.2d 464 (1st Dept. 1983); Currie v. Wilhouski, 93 A.D.3d 816, 941 N.Y.S.2d 218 (2nd Dept. 2012) [The affirmation of Amica’s attorney was not based upon personal knowledge and thus was of no probative or evidentiary significance (See U.S. Natl. Bank Assn. v. Melton, 90 A.D.3d 742, 743, 934 N.Y.S.2d 352; Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455 456, 826 N.Y.S.2d 152)]; Analisa Salon, Ltd. v. Elide Properties, LLC, 848 N.Y.S.2d 693 (2nd Dept. 2007) [Affirmation from landlord’s 4 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 attorney had no personal knowledge of the facts]; Bradt v. John Hancock Mut. Life Ins. Co., 470 N.Y.S.2d 872 (3rd Dept. 1983) [Everything attorney knew was predicated upon hearsay, rending his affirmation, in opposition to motion for summary judgment, probatively valueless]; Verizon New York Inc. v. ECSM Utility Contractors, Inc., 935 N.Y.S.2d 766 (4th Dept. 2011) [Plaintiff moving for summary judgment on contract claim could not rely on its attorney’s affirmation, since attorney did not have personal knowledge of material facts]. 18. Therefore, Defendant’s opposition executed by Defendants’ attorney is not substantiated by an affidavit of a person with firsthand knowledge of any of the arguments asserted in Defendants’ opposition in admissible form. 19. Thus, Defendant’s attorney’s allegations as to facts are inadmissible hearsay and should be disregarded. 20. Now, Defendant attempts to take a second bite of the proverbial apple by submitting the same arguments that were submitted in opposition and fails to provide any excuse for not submitting previously. 21. As Defendant failed to adhere to the black letter of the law, Defendant is precluded from renewal of Plaintiff’s Motion. ARGUMENT DEFENDANT IDENTIFIES NO FACTS THE COURT OVERLOOKED OR MISAPPREHENDED 22. “A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided. Nor does 5 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588 (1st Dept., 1979). 23. Here, Defendant has raised identical arguments to what was previously raised in Defendant’s opposition without explaining how the Court overlooked these issues other than baldly stating they were overlooked. Specifically, the exact arguments concerning Plaintiff’s standing and the Golding Affidavit were previously raised in Defendant’s Opposition are again raised herein. 24. As noted above, the entire crux of Defendant’s position appears to be the incorrect assumption that the Court did not consider Defendant’s arguments in his Opposition. However, a review of the Decision clearly contradicts this position. 25. As the arguments raised concerning Standing are identical to what was raised in opposition, Plaintiff incorporates by reference the arguments raised in its reply in further support of summary judgment. See NYSCEF Doc. 79. PLAINTIFF’S MOTION ESTABLISHED BOTH ITS PRIMA FACIE CASE AND STANDING TO COMMENCE THIS ACTION AS A MATTER OF LAW 26. Defendant’s Motion attempts to poke holes asserting that the Court misapprehended the law and that triable issues of fact exist as to Plaintiff’s standing. Specifically, Defendant argues that because there were prior servicers, Plaintiff has not established its standing. Defendant also argues that Plaintiff cannot rely upon the affidavit of Shana Golding (“Golding Affidavit”) to establish its standing, or its prima facie case because the Golding Affidavit amounts to inadmissible hearsay. 27. However, Plaintiff satisfied its standing prima facie upon commencing this action by annexing a copy of the endorsed note in blank to its complaint. See NYSCEF Doc. 1. See also 6 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 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.”) Nationstar Mtge., LLC v Catizone 127 A.D.3d 1151, 9 N.Y.S.3d 315 (2nd Dept., 2015). As the Court rightly pointed out, this is all that is required for Plaintiff to establish its standing. 28. Defendant attempts to merely poke holes in Plaintiff’s standing by attaching proof of prior servicers of the loan arguing that Plaintiff cannot prove standing because others previously may have possessed the Note. However, as the Court again rightly points out in its Decision and Order, all that is required of Plaintiff is that it establishes its standing by demonstrating that it was the holder of the Note at the time of commencement of the action. See Bank of America v Paulsen, 125 AD3d 909, 910 (2d Dept. 2015). 29. Furthermore, Defendant’s assertion that the Golding Affidavit cannot establish standing and is not admissible, fails to recognize that the party in possession of the note endorsed in blank is permitted to enforce it. See UCC 1-201(b)(21)(A) Deutsche Bank Nat. Trust Co. v. Brewton, 142 A.D.3d 683, 37 N.Y.S.3d 25 (2nd Dept., 2016). 30. Moreover, the Golding Affidavit is in admissible form. In particular, Ms. Golding attested that she is a Vice President of PHH Mortgage Corporation, servicer for Plaintiff, and annexed an assignment of mortgage and power of attorney verifying her authority to attest on 7 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 Plaintiff’s behalf. See NYSCEF Doc. 62. Contrary to Defendant’s claim, Ms. Golding further attested to having personal knowledge of Plaintiff’s business records and record making practices, that Plaintiff’s business records are created and maintained in the regular course of its business, that Plaintiff relies upon its business records in the performance of functions of Plaintiff’s business, that Plaintiff’s business records are manually entered and were made at or near the time that the transactions were documented by a person with personal knowledge, and that Plaintiff’s business records include prior servicer records that have been incorporated into Plaintiff’s records and relied upon by Plaintiff in the ordinary course of business. See NYSCEF Doc. 62. 31. Thus, Ms. Golding undoubtedly set forth a proper foundation for her testimony to be admissible under the business records exception to hearsay; especially considering she attested to having personal knowledge of Plaintiff’s business records and record making practices. See CPLR 4518. US Bank Nat. Ass’n v. Louis, 148 A.D.3d 758, 48 N.Y.S.3d 458 (2nd Dept., 2017) (Holding that an affidavit of merit from plaintiff’s loan servicer with a power of attorney where the representative attested that she acquired personal knowledge based on a review of the loan servicer’s records, was competent evidence to establish a default.); Deutsche Bank National Trust Company v. Silverman, 178 A.D.3d 898, 114 N.Y.S.3d 110 (2nd Dept., 2019). 32. Furthermore, Defendant’s claim that Ms. Golding has not laid a proper foundation because there were prior servicers fails to acknowledge that she attested that Plaintiff’s business records including prior servicer records that are incorporated into Plaintiff’s business records, which are routinely relied upon by Plaintiff in the ordinary course of business. This affidavit testimony is sufficient to lay a foundation for the introduction of prior servicer records. See Bank of New York Mellon v. Gordon, 171 A.D.3d 197, 97 N.Y.S.3d 286 (2nd Dept,2019) 33. Upon providing a proper foundation for her testimony to be admissible, Ms. 8 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 Golding attested that based on her review of Plaintiff’s business records that Defendant failed to tender the installment due for October 1, 2015 and all subsequent installments. See Paragraph 7 of Golding Affidavit at NYSCEF Doc. 62. Moreover, Ms. Golding produced the business records she relied upon in attesting to Defendant’s default – notably a copy of Plaintiff’s “Payment History”, which discloses that the “due date” for Defendant. Id. 34. Therefore, by producing the actual business record relied upon, which business record supports Ms. Golding’s testimony, this Court should find that Plaintiff has produced evidence in admissible form as to Defendant’s default on his loan obligations. See Citigroup v. Kopelowitz, 147 A.D.3d 1014, 48 N.Y.S.3d 223 (2nd Dept., 2017) (“There is no requirement that a plaintiff in a foreclosure action rely on any particular set of business records to establish a prima facie case, so long as the plaintiff satisfies the admissibility requirements of CPLR 4518(a), and the records themselves actually evince the facts for which they are relied upon”) 35. Ms. Golding also attested that Plaintiff was in physical possession of the original Note on June 9, 2021 and remained in possession at the time this action was commenced. See Paragraph 5 of Golding Affidavit at NYSCEF Doc. 62. 36. By providing a business record that includes a specific date as to when Plaintiff acquired possession of the note, Plaintiff has established a second basis1 for its standing, as holder of the note, to commence this action. See Aurora Loan Services, LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475 (2nd Dept., 2014) aff’d 25 N.Y.3d 355, 12 N.Y.S.3d 612 (2015).Thus, Ms. Golding has put forth a proper foundation for her testimony to be admissible under the business records exception to hearsay, and otherwise establishes Plaintiff’s standing as a matter of law. See CPLR 4518; Aurora Loan Services, LLC v. Mercius, 138 A.D.3d 650, 29 N.Y.S.3d 462 (2nd Dept., 1 As discussed above, Plaintiff had also initially established its standing to commence this action upon annexing a copy of the note to its complaint. 9 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 2016); Aurora Loan Services, LLC v. Taylor, 114 A.D.3d 627, 980 N.Y.S.2d 475, Affd. 25 N.Y.3d 355, 12 N.Y.S.3d 612 (2015). 37. Additionally, Plaintiff would emphasize that Plaintiff was not required to provide any additional specifics beyond what Ms. Golding attested to with respect to possession of the note. See JPMorgan Chase Bank, N.A. v Weinberger, 142 A.D.3d 643, 37 N.Y.S.3d 286 (2nd Dept., 2016) (“There is simply no requirement that an entity in possession of a negotiable instrument that has been endorsed in blank must establish how it came into possession of the instrument in order to be able to enforce it (see UCC 3–204[2] ). Moreover, it is unnecessary to give factual details of the delivery in order to establish that possession was obtained prior to a particular date”). 38. Therefore, this Court should find that Plaintiff established its standing to commence this action as the holder of the note as matter of law by annexing a copy of the Note endorsed in blank to its complaint. Furthermore, the Golding Affidavit does not amount to inadmissible hearsay as Defendant argues, but rather laid a proper foundation and produced the business records that supported her testimony regarding Defendant’s default and Plaintiff’s standing, which comports with the requirements of the business records exception as codified in CPLR § 4518. DEFENDANT ABANDONED ALL REMAINING AFFIRMATIVE DEFENSES 39. Defendant also takes issue with the Court striking Defendant’s Answer; however, Defendant’s opposition failed to support let alone address each and every purported affirmative defense other than what the Court ruled upon and found had no merit. 40. Accordingly, the failure to raise pleaded affirmative defenses in opposition to a motion for summary judgment renders those defenses abandoned and thus subject to dismissal (see New York Commercial Bank v. J. Realty F Rockaway, Ltd., 108 A.D.3d 756, 969 N.Y.S.2d 7 96 [2d Dept. 2013]; Starkman v. City of Long Beach, 106 A.D.3d 1076, 965 N.Y.S.2d 609 [2d Dept. 10 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 2013]; Kuehne & Nagel Inc. v. Baiden, 36 N.Y.S.2d539 [1975]; Kronick v. L.P. Therault Co., Inc., 70 A.D.3d 648 [2d Dept. 2010]; Katz v. Miller, 120 A.D.3d 768 [2d Dept. 2014]). 41. Therefore, each and every remaining purported affirmative defense was rightly deemed abandoned by Defendant and stricken. WHEREFORE, the Defendant’s Motion must be denied in its entirety together with such other and further relief as the Court may deem just, equitable and proper. Dated: January 5, 2023 Westbury, New York ROBERTSON, ANSCHUTZ, SCHNEID, CRANE & PARTNERS, PLLC ____________________________________ By: Brandon M Wrazen, Esq. Attorneys for Plaintiff 900 Merchants Concourse, Suite 310 Westbury, New York 11590 Telephone: 516.280.7675 Word Count Certification 11 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 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 2,925. 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: January 5, 2023 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.: 520498/2021 12 of 13 FILED: KINGS COUNTY CLERK 01/05/2023 02:51 PM INDEX NO. 520498/2021 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 01/05/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ===================================================================== DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER THE POOLING AND SERVICING AGREEMENT RELATING TO IMPAC SECURED ASSETS CORP., MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-1, Plaintiff, -against- JAMES FREDERICK; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); SAMANTHA "DOE" (REFUSED LAST NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN DOE" (REFUSED NAME); "JOHN" JENNINGS (REFUSED FIRST NAME), Defendants ===================================================================== AFFIRMATION IN OPPOSITION TO DEFENDANT’S MOTION TO REARGUE ===================================================================== Robertson, Anschutz, Schneid, Crane & Partners, PLLC Attorney(s) for Plaintiff 900 Merchants Concourse Westbury, NY 11590 (516) 280-7675 13 of 13