Preview
FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021
NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF DUTCHESS
HSBC Bank USA, National Association, as Trustee for Nomura Index No. 2021-80021 1
Asset Acceptance Corporation, Mortgage Pass Through Mot. Seq. No. 008
Certificates Series 2006-ARI,
Plaintiff, MEMORANDUM OF LAW
-against-
Arlene Gilbert, James Coffey, Mortgage Electronic Registration
Systems, Inc., as nominee for Homebridge Mortgage Bankers,
Mega Guido, Sue Thompson,
Defendants.
MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S FOURTH MOTION FOR
SUMMARY JUDGMENT
By: Justin F. Pane
80 Orville Drive, Suite 100
Bohemia, New York 11715-2505
Ph: (631) 244-1433
Em: jpane@panelaw.com
Attorneys for Defendants,
Arlene Gilbert & James Coffey
November 27, 2023
1
Electronically converted from original Index No. 2009-09436 (see NYSCEF Doc No.’s 1, 2, 4).
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TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT…………………………………………………..........................3
SUBMISSIONS BEFORE THE COURT…………………………………………………………4
COUNTERSTATEMENT OF RELEVANT FACTS……………………………………………..5
ARGUMENT…………………………………………………………………...............................9
I. CPLR 3212 (a) BARS THE COURT FROM EVEN CONSIDERING
PLAINTIFF’S FOURTH MSJ………………………………………………………...9
II. PLAINTIFF’S FOURTH MSJ FAILS TO QUALIFY UNDER ANY OF THE
NARROW EXCEPTIONS TO THE RULE AGAINST SUCCESSIVE
SUMMMARY JUDGMENT MOTIONS……………………………………………10
III. ENTRY OF JUDGMENT OF DISMISSAL IS REQUIRED ………………………..11
CONCLUSION…………………………………………………………………………………..12
CERTIFICATION OF COMPLIANCE………………………………………………………….13
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PRELIMINARY STATEMENT 2
In compliance with the Individual Part Rules of Justice Thomas R. Davis, Arlene Gilbert
(Gilbert) and James Coffey (Coffey) (collectively, Defendants), submit this memorandum of law
in opposition to the fourth motion for summary judgment made by non-party, Wells Fargo Bank,
N.A., allegedly doing business as America’s Servicing Co. (collectively, WFB), ostensibly on
behalf of HSBC Bank USA, National Association, as Trustee for Nomura Asset Acceptance
Corporation, Mortgage Pass Through Certificates Series 2006-ARI (HSBC or Plaintiff), ultimately
styled as one seeking renewal of its third motion for summary judgment (the Fourth MSJ).
Like the second and third motions for summary judgment, the filing and consideration of
this Fourth MSJ is premised upon a wholesome misunderstanding as to the function of a summary
judgment motion and the procedural consequences flowing from the denial thereof. It is
elementary that where a motion for summary judgment is denied due to either untimeliness or the
existence of one or more triable issues of fact, the natural consequence is for the case to then go to
trial (Schwartz v NY City Hous. Auth., 219 AD2d 47, 48 [2d Dept 1996]; see e.g., Walia v Nassau
County, 61 AD3d 853, 855 [2d Dept 2009]; citing Brill v City of NY, 2 NY3d 648, 653 [2004]
[“when a grant of summary judgment is reversed on appeal the case is returned to the trial
calendar”]; accord Thompson v NY City Bd. of Educ., 10 AD3d 650, 651 [2d Dept 2004]; see also
NY Unified Court System Help Webpage [“If the court finds it needs more information to decide
the facts, then the summary judgment motion will be denied and the case will go on to a trial”]).
At trial, either party, including the original summary judgment movant, may then again move for
judgment as a matter of law under CPLR 4401.
2
“Pursuant to CPLR 2214(c), a party in an e-filed action may rely on e-filed papers and need not include those papers
in its motion papers, but may make reference to them, giving the docket numbers on the e-filing system” (Reardon v
Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021] [internal quotation marks & citation omitted]).
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Only in rare circumstances may a litigant altogether avoid trial through either renewal under
CPLR 2221 (e) and/or successive motions for summary judgment (Wells Fargo Bank, N.A. v
Gittens, 217 AD3d 901, 902-903 [2d Dept 2023]; Wells Fargo Bank, N.A. v Osias, 205 AD3d 979,
980-982 [2d Dept 2022]; Nationstar Mtge., LLC v Jong Sim, 197 AD3d 1178, 1182 [2d Dept 2021];
Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020-1021 [2d Dept 2020]; but cf.
Deutsche Bank Natl. Trust Co. Ams. v Banu, 205 AD3d 887, 888-889 [2d Dept 2022]).
Thus, for the reasons more fully explained below, this Court may not even consider the
alleged merits of Plaintiff’s Fourth MSJ. Instead, this Court must: (a) deny the Fourth MSJ,
regardless of the sufficiency of Defendants’ opposition; and (b) enter a judgment of dismissal in
favor of Defendants, pursuant to CPLR 4401 and 5013, for Plaintiff’s failure to prove its alleged
standing to sue, upon admissible evidentiary material, at the CPLR 3212 (c) hearing held on April
5, 2017 (HSBC Bank USA, N.A. v Gilbert, 189 AD3d 1377, 1379-1381 [2d Dept 2020]; see
Emigrant Bank v Solimano, 209 AD3d 153, 162-164 [2d Dept 2022]; Deutsche Bank Natl. Trust
Co. v Kenny, 183 AD3d 865, 867 [2d Dept 2020]).
SUBMISSIONS BEFORE THE COURT
Plaintiff’s Fourth MSJ is supported by, inter alia, the “NOTICE OF RENEWED MOTION
FOR SUMMARY JUDGMENT & APPOINTMENT OF A REFEREE,” dated September 20, 2023
(NYSCEF Doc No. 9), affirmation of Yimell M. Suarez Abreu, sworn to September 20, 2023, with
Exhibits 1 through 22, inclusive (Suarez Abreu Aff. [NYSCEF Doc No.’s 10-32]), affidavit of Rick
Penno, sworn to August 18, 2023, with Exhibits A through K, inclusive (Penno Aff. [NYSCEF Doc
No.’s 33-44]), statement of material facts dated September 20, 2023 (NYSCEF Doc No. 46]) 3, and
the memorandum of law dated September 20, 2023 (Pl.’s Mem. [NYSCEF Doc No. 47]).
3
Pursuant to section IV.E of this Court’s Part Rules, “[s]ummary judgment motions must be made within sixty (60)
days of the filing of the Note of Issue,” and “Statements of Material Facts . . . are not required . . . .”
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Defendants’ opposition to Plaintiff’s Fourth MSJ is supported by the affirmation of Justin
F. Pane, sworn to November 27, 2023, with Exhibits A through B, inclusive (Pane Aff. [NYSCEF
Doc No.’s 55, 56, 57]), this memorandum of law dated November 27, 2023 (Def.s’ Mem.
[NYSCEF Doc No. 58]), and a proposed judgment (NYSCEF Doc No. 59).
COUNTERSTATEMENT OF RELEVANT FACTS
This action was commenced by notice of pendency, summons, and complaint filed
November 25, 2009 (collectively, the Complaint) (NYSCEF Doc No. 57—A98-112). The
Complaint did not include a copy of the underlying promissory note (see id.; accord NYSCEF Doc
No.’s 10, 11—Suarez Abreu Aff. ¶ 4, Ex. 1; but cf. NYSCEF Doc No. 47—Pl.’s Mem. at *4 [falsely
claiming the note was attached to the Complaint]). Issue was joined on or around December 22,
2009, via service of Defendants’ verified answers with counterclaims (collectively, the Answers
[NYSCEF Doc No. 57—A126-142]), to which Plaintiff responded, on or around February 5, 2010,
via a verified reply to counterclaims (see id. at A143-148). The Answers included, inter alia, lack
of standing and lack of capacity affirmative defenses (see id. at A128-129, 136-138).
After certifying completion of all known and necessary discovery by and between the
parties, Plaintiff filed a note of issue, accompanied by a certificate of readiness for trial, on August
7, 2012, wherein Plaintiff certified, inter alia, “[t]he case is ready for trial” (NYSCEF Doc No. 56).
Thereafter, Plaintiff filed its first motion for summary judgment (First MSJ), which
Defendants opposed, but was nonetheless granted by order of Justice Brands dated November 30,
2012 (2012 Order [NYSCEF Doc No. 57—A151-153]). The 2012 Order was reversed by decision
and order dated August 27, 2014 (2014 Order), wherein the Appellate Division, Second
Department, denied the First MSJ due to Plaintiff’s failure to eliminate triable issues of fact
concerning Defendants’ standing related defenses (see id. at A158-159; HSBC Bank USA, N.A. v
Gilbert, 120 AD3d 756, 756-758 [2d Dept 2014]; accord Gilbert, 189 AD3d at 1378).
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Accordingly, the case was remitted back to the Supreme Court for trial but, instead of
scheduling the matter for trial, Justice Brands issued a sua sponte order of dismissal for neglect on
December 2, 2015 (2015 Order [see id. at A160-161]). Justice Brands, noting among other things
the discovery exchanged between the parties and the note of issue filed in August 2012, vacated
the 2015 Order by subsequent order dated May 10, 2016 (May 2016 Order [see id. at A162-164]).
Notably, upon restoring the action, Justice Brands addressed, but did not grant, Defendants’
request to vacate or otherwise strike the note of issue (see id. at A163-164).
Then, in August 2016, plaintiff filed its second motion for summary judgment (Second
MSJ [see id. at A22-180]), which Defendants opposed (see id. at A181-206), Plaintiff replied (see
id. at A207-214), and Justice Brands denied the entirety of via order dated December 14, 2016,
based upon the existence of triable issues of fact (December 2016 Order [see id. at A7-9]). Yet, in
that same December 2016 Order, Justice Brands, nonetheless, directed a framed-issue hearing on
standing, pursuant to CPLR 3212 (c), to be held on April 4, 2017 (the Hearing [see id. at A8-9]).
“At the hearing, [P]laintiff offered the testimony of Beverly DeCaro, a loan verification consultant
with W[FB] . . . , the purported servicer and custodian of the loan, and entered into evidence certain
exhibits which included, inter alia, lost note and lost security instrument affidavits” (Gilbert, 189
AD3d at 1379; see NYSCEF Doc No. 57—A215-606.1).
Although Justice Brands determined that Plaintiff proved its standing to sue at the Hearing
(see id. at A3-5), and therefore granted Plaintiff’s subsequently filed third motion for summary
judgment (Third MSJ) by orders dated September 14, 2017 (September 2017 Orders) (see id. at
A11-20, 607-686), as well as well as granted Plaintiff a final judgment of foreclosure and sale,
dated April 3, 2018 (2018 Judgment) (see id. at SA2-11)—everything was reversed by the decision
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and order dated December 23, 2020 (2020 Order), wherein the Appellate Division, Second
Department, determined:
A hearing on the issue of the plaintiff's standing was held on April 4, 2017. At the
hearing, the plaintiff offered the testimony of Beverly DeCaro, a loan verification
consultant with Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the purported
servicer and custodian of the loan, and entered into evidence certain exhibits which
included, inter alia, lost note and lost security instrument affidavits. In an order
dated April 17, 2017, after the hearing, the Supreme Court found that the plaintiff
had standing to proceed with the action. Thereafter, by orders dated September 14,
2017, the court, inter alia, granted those branches of the plaintiff's motion which
were for summary judgment on the complaint insofar as asserted against the
appellants and for an order of reference, and appointed a referee to compute the
amount due the plaintiff. A judgment of foreclosure and sale, dated April 3, 2018,
inter alia, directed the sale of the subject property.
A plaintiff establishes its standing in a mortgage foreclosure action by
demonstrating that it was either the holder or assignee of the underlying note at the
time the action was commenced . . . . Here, the plaintiff failed to establish its status
as a holder or assignee of the note at the time the action was commenced.
The only evidence offered by the plaintiff which purported to show that it was the
holder of the note at the time the action was commenced was the testimony of
DeCaro and plaintiff's exhibit 7, a computer screen printout entered into evidence
over objection at the hearing. DeCaro testified that her knowledge of this case was
based upon her review of the books and records maintained by Wells Fargo, and
asserted that Wells Fargo, as custodian for the plaintiff, was in possession of the
note on the date of commencement of the action. However, DeCaro's assertions as
to the contents of the records were inadmissible hearsay to the extent that the
records she purported to describe were not properly admitted into evidence . . . .
Here, the only business record entered into evidence to support DeCaro's testimony
that the plaintiff was in possession of the note on the date of commencement was
plaintiff's exhibit 7, a computer screen printout of a database tracking system.
However, plaintiff's exhibit 7 failed to evince the facts for which it was relied upon.
More specifically, while DeCaro contended that the document demonstrated that
Wells Fargo, as custodian for the plaintiff, received the note July 16, 2005, and that
the note was in Wells Fargo's vault from July 2005 until December 2009, the
document, in itself, failed to establish those facts.
Further, pursuant to UCC 3-804, which is intended to provide a method for
recovering on instruments that are lost, destroyed, or stolen, a plaintiff is required
to submit due proof of the plaintiff's ownership of the note, the facts which prevent
the plaintiff from producing the note, and the note's terms . . . . Here, the lost note
affidavit, which failed to establish when the note was acquired and failed to provide
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sufficient facts as to when the search for the note occurred, who conducted the
search, or how or when the note was lost, failed to sufficiently establish the
plaintiff's ownership of the note . . . .
Since the plaintiff failed to demonstrate its ownership of the lost note or that it had
standing as the lawful holder or assignee of the subject note on the date it
commenced this action, the Supreme Court should not have determined, after the
hearing, that the plaintiff had standing to proceed in the action, and should have
denied those branches of the plaintiff's motion which were for summary judgment
on the complaint insofar as asserted against the appellants and for an order of
reference, regardless of the sufficiency of the appellants' opposition papers . . . .
(Gilbert, 189 AD3d at 1379-1381 [internal citations omitted]).
Notwithstanding the Appellate Division’s 2020 Order denying Plaintiff’s Third MSJ,
which requires this Court to enter a judgment of dismissal in Defendants’ favor for Plaintiff’s
failure to tender sufficient evidentiary material, in admissible form, to prove its standing by
preponderance of the evidence at the Hearing (Solimano, 209 AD3d at 162-164; Kenny, 183 AD3d
at 867), Plaintiff filed its Fourth MSJ on September 20, 2023, i.e., more than eleven (11) years
after note of issue was filed and nearly three (3) years after the 2020 Order.
Based on these facts, the Fourth MSJ must be denied 4 and the action dismissed.
**********
4
Notably absent from Plaintiff’s Fourth MSJ is the requisite “Mortgage Loan Schedule” to the Pooling and Servicing
Agreement (PSA [see NYSCEF Doc No. 35 at *32]). Without such Mortgage Loan Schedule listing Defendants’ loan
as being one of the those owned by HSBC under the PSA, which may not be submitted for the first time in reply,
Plaintiff has, yet again, failed to prove its standing to sue as owner of the lost note (HSBC Bank USA, N.A. v Sene,
219 AD3d 1499, 2023 NY Slip Op 04757, *2 [2d Dept 2023]; Deutsche Bank Natl. Trust Co. v Crosby, 201 AD3d
878, 882 [2d Dept 2022]; Bank of Am., N.A. v Sebrow, 180 AD3d 982, 984-985 [2d Dept 2020]; cf. Bank of NY Mellon
v Selig, 213 AD3d 894, 896 [2d Dept 2023]).
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ARGUMENT
I. CPLR 3212(a) BARS THE COURT FROM EVEN CONSIDERING PLAINTIFF’S
FOURTH MSJ.
Since Plaintiff’s Fourth MSJ was filed more than eleven (11) years after the note of issue
and certificate of readiness was filed, and because the Fourth MSJ is devoid of any demonstration
of “good cause” for delay, the court is barred from even considering the motion. See, e.g.,
Thompson, 10 AD3d at 651:
The Supreme Court improvidently exercised its discretion in considering the
defendant's untimely motion for summary judgment in view of the defendant's
failure to offer a satisfactory explanation for not serving the motion within 120 days
of the filing of the note of issue as required by CPLR 3212 (a) (see Brill v City of
New York, 2 NY3d 648 [2004]). In the absence of such a "good cause" showing,
the court has no discretion to entertain even a meritorious, nonprejudicial motion
for summary judgment (id.). Thus, the motion should have been denied, "and the
case returned to the trial calendar, where a motion to dismiss after plaintiff rests or
a request for a directed verdict may dispose of the case during trial" (id. at 653).
Furthermore, Plaintiff failed to tender any evidentiary material demonstrating the note of
issue was stuck or vacated at any point after issuance of the May 2016 Order (see NYSCEF Doc
No. 57— A163-164 [upon restoring the action, Justice Brands addressed, but did not grant,
Defendants’ request to vacate or otherwise strike the note of issue]; cf. Wells Fargo Bank, NA v
Madlen Apt, 179 AD3d 1145, 1146-1147 [2d Dept 2020] [successive summary judgment motion
made after the 120-day deadline could only be considered where, unlike here, the plaintiff proved
the note of issue had been vacated prior to its successive motion]).
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II. PLAINTIFF’S FOURTH MSJ FAILS TO QUALIFY UNDER ANY OF THE
NARROW EXCEPTIONS TO THE RULE AGAINST SUCCESSIVE SUMMARY
JUDGMENT MOTIONS.
While Plaintiff has clearly styled its Fourth MSJ as one to renew its Third MSJ, Plaintiff,
by relying on new evidence that could have been submitted in support of the Third MSJ, not only
failed to meet its burden under CPLR 2221 (e), but equally failed to satisfy the “good cause” and
“substantively valid motion” narrow exceptions to the rule against successive summary judgment
motions. To wit, as recently explained by the Appellate Division, Second Department:
Although certain branches of the second motion were denominated as ones for
summary judgment on the complaint . . . , those branches were, in actuality, one for
leave to renew the plaintiff's prior motion for summary judgment on the complaint
. . . . The new evidence supporting the second motion could have been submitted
by the plaintiff in support of its prior motion (see CPLR 2221; Wells Fargo Bank,
N.A. v Osias, 205 AD3d 979, 981).
"While a court has discretion to entertain renewal based on facts known to the
movant at the time of the original motion, the movant must set forth a reasonable
justification for the failure to submit the information in the first instance. When no
reasonable justification is given for failing to present new facts on the prior motion,
the Supreme Court lacks discretion to grant renewal" (Wells Fargo Bank, N.A. v
Osias, 205 AD3d at 981 [citations and internal quotation marks omitted]). Here, as
the defendants contend, the plaintiff failed to provide any justification for its failure
to present the new evidence supporting the second motion as part of its prior motion.
"Even considered as a successive motion for summary judgment, such a motion
'should not be entertained in the absence of good cause, such as a showing of newly
discovered evidence'" (id., quoting Deutsche Bank Natl. Trust Co. v Elshiekh, 179
AD3d 1017, 1020). Here, the plaintiff failed to present good cause.
The second motion also did not fit within the "narrow exception" to the successive
summary judgment rule (Kornblum v Blank Rome Tenzer Greenblatt, LLP, 39 AD3d
482, 483; see Wells Fargo Bank, N.A. v Osias, 205 AD3d at 981-982). This narrow
exception permits entertainment of a successive motion when it is "substantively
valid and the granting of the motion will further the ends of justice and eliminate an
unnecessary burden on the resources of the courts" (Aurora Loan Servs., LLC v
Yogev, 194 AD3d 996, 997 [internal quotation marks omitted]; see Wells Fargo
Bank, N.A. v Osias, 205 AD3d at 981-982). Here, entertaining a second summary
judgment motion involved review of multiple disputed issues, including whether the
plaintiff established the defendants' default, the plaintiff's compliance with the
contractual condition precedent, and the plaintiff's compliance with RPAPL 1304.
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Thus, rather than eliminating a burden on the Supreme Court, the court's
consideration of the second motion actually imposed an additional burden on the
court. "'Successive motions for the same relief burden the courts and contribute to
the delay and cost of litigation. A party seeking summary judgment should anticipate
having to lay bare its proof and should not expect that it will readily be granted a
second or third chance'" (Wells Fargo Bank, N.A. v Osias, 205 AD3d at 982, quoting
Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d at 1020; see Hillrich Holding
Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475; cf. US Bank N.A. v Weinman, 195
AD3d 976).
(Gittens, 217 AD3d at 902-903).
Here, Plaintiff’s inability to properly evince its alleged standing to sue has prompted it to
burden: (a) this Court with four successive motions for the same relief; and (b) the Appellate
Division with six (6) separate appeals—all resolved in Defendants’ favor. Moreover, no new or
further discovery has occurred since the Hearing in the 2017.
Under these facts having developed over the last fourteen (14) years, it is clear that Plaintiff
failed to establish entitlement to “summary” a/k/a “accelerated” judgment. Consequently, it would
be an abuse of discretion for this Court to even entertain Plaintiff’s Fourth MSJ, let alone grant it
(Amos Fin. LLC v Crapanzano, 73 Misc 3d 448, 455-458 [Sup Ct, Rockland County 2021]).
III. ENTRY OF JUDGMENT OF DISMISSAL IS REQUIRED.
Where, as here, a foreclosing plaintiff fails to meet its evidentiary burden on the issue of
standing by the close of its evidence at a framed-issue hearing, which is the equivalent of trial (see
CPLR 3212[c]), entry of a judgment of dismissal is required pursuant to CPLR 4401 and 5013
(Solimano, 209 AD3d at 162-164; Kenny, 183 AD3d at 867).
Here, since the Appellate Division declared in its 2020 Order that Plaintiff failed to meet
its evidentiary burden at the Hearing (Gilbert, 189 AD3d at 1379-1381), this Court must enter a
judgment of dismissal based upon Plaintiff’s evidentiary failure (Kenny, 183 AD3d at 867).
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CONCLUSION
WHEREFORE, Defendants respectfully submit this Court must (i) deny Plaintiff’s Fourth
MSJ, regardless of the sufficiency of Defendants’ opposition, and (ii) enter judgment of dismissal.
Dated: Bohemia, New York
November 27, 2023
JUSTIN F. PANE
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CERTIFICATE OF COMPLIANCE
Pursuant to 22 NYCRR 202.8-b (c), I hereby certify that the foregoing memorandum of
law was prepared on a computer using Microsoft Word.
Type. A proportionally spaced typeface was used, as follows:
Name of typeface: Times New Roman
Point Size: 12
Line Spacing: Double
Word Count. The total number of words in the memorandum of law, inclusive of point
headings and footnotes and exclusive of pages containing the table of contents, table of citations,
proof of service, certificate of compliance, or any authorized addendum containing statutes, rules,
regulations, etc., is 3,433.
Dated: Bohemia, New York
November 27, 2023
By:
Justin F. Pane
80 Orville Drive, Suite 100
Bohemia, New York 11716
(P) (631) 244-1433
(E) jpane@panelaw.com
Attorneys for Defendants,
Arlene Gilbert & James Coffey
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Preview
FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS HSBC Bank USA, National Association, as Trustee for Nomura Index No. 2021-80021 1 Asset Acceptance Corporation, Mortgage Pass Through Mot. Seq. No. 008 Certificates Series 2006-ARI, Plaintiff, MEMORANDUM OF LAW -against- Arlene Gilbert, James Coffey, Mortgage Electronic Registration Systems, Inc., as nominee for Homebridge Mortgage Bankers, Mega Guido, Sue Thompson, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S FOURTH MOTION FOR SUMMARY JUDGMENT By: Justin F. Pane 80 Orville Drive, Suite 100 Bohemia, New York 11715-2505 Ph: (631) 244-1433 Em: jpane@panelaw.com Attorneys for Defendants, Arlene Gilbert & James Coffey November 27, 2023 1 Electronically converted from original Index No. 2009-09436 (see NYSCEF Doc No.’s 1, 2, 4). 1 1 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 TABLE OF CONTENTS Page PRELIMINARY STATEMENT…………………………………………………..........................3 SUBMISSIONS BEFORE THE COURT…………………………………………………………4 COUNTERSTATEMENT OF RELEVANT FACTS……………………………………………..5 ARGUMENT…………………………………………………………………...............................9 I. CPLR 3212 (a) BARS THE COURT FROM EVEN CONSIDERING PLAINTIFF’S FOURTH MSJ………………………………………………………...9 II. PLAINTIFF’S FOURTH MSJ FAILS TO QUALIFY UNDER ANY OF THE NARROW EXCEPTIONS TO THE RULE AGAINST SUCCESSIVE SUMMMARY JUDGMENT MOTIONS……………………………………………10 III. ENTRY OF JUDGMENT OF DISMISSAL IS REQUIRED ………………………..11 CONCLUSION…………………………………………………………………………………..12 CERTIFICATION OF COMPLIANCE………………………………………………………….13 2 2 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 PRELIMINARY STATEMENT 2 In compliance with the Individual Part Rules of Justice Thomas R. Davis, Arlene Gilbert (Gilbert) and James Coffey (Coffey) (collectively, Defendants), submit this memorandum of law in opposition to the fourth motion for summary judgment made by non-party, Wells Fargo Bank, N.A., allegedly doing business as America’s Servicing Co. (collectively, WFB), ostensibly on behalf of HSBC Bank USA, National Association, as Trustee for Nomura Asset Acceptance Corporation, Mortgage Pass Through Certificates Series 2006-ARI (HSBC or Plaintiff), ultimately styled as one seeking renewal of its third motion for summary judgment (the Fourth MSJ). Like the second and third motions for summary judgment, the filing and consideration of this Fourth MSJ is premised upon a wholesome misunderstanding as to the function of a summary judgment motion and the procedural consequences flowing from the denial thereof. It is elementary that where a motion for summary judgment is denied due to either untimeliness or the existence of one or more triable issues of fact, the natural consequence is for the case to then go to trial (Schwartz v NY City Hous. Auth., 219 AD2d 47, 48 [2d Dept 1996]; see e.g., Walia v Nassau County, 61 AD3d 853, 855 [2d Dept 2009]; citing Brill v City of NY, 2 NY3d 648, 653 [2004] [“when a grant of summary judgment is reversed on appeal the case is returned to the trial calendar”]; accord Thompson v NY City Bd. of Educ., 10 AD3d 650, 651 [2d Dept 2004]; see also NY Unified Court System Help Webpage [“If the court finds it needs more information to decide the facts, then the summary judgment motion will be denied and the case will go on to a trial”]). At trial, either party, including the original summary judgment movant, may then again move for judgment as a matter of law under CPLR 4401. 2 “Pursuant to CPLR 2214(c), a party in an e-filed action may rely on e-filed papers and need not include those papers in its motion papers, but may make reference to them, giving the docket numbers on the e-filing system” (Reardon v Macy's, Inc., 191 AD3d 712, 714 [2d Dept 2021] [internal quotation marks & citation omitted]). 3 3 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 Only in rare circumstances may a litigant altogether avoid trial through either renewal under CPLR 2221 (e) and/or successive motions for summary judgment (Wells Fargo Bank, N.A. v Gittens, 217 AD3d 901, 902-903 [2d Dept 2023]; Wells Fargo Bank, N.A. v Osias, 205 AD3d 979, 980-982 [2d Dept 2022]; Nationstar Mtge., LLC v Jong Sim, 197 AD3d 1178, 1182 [2d Dept 2021]; Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020-1021 [2d Dept 2020]; but cf. Deutsche Bank Natl. Trust Co. Ams. v Banu, 205 AD3d 887, 888-889 [2d Dept 2022]). Thus, for the reasons more fully explained below, this Court may not even consider the alleged merits of Plaintiff’s Fourth MSJ. Instead, this Court must: (a) deny the Fourth MSJ, regardless of the sufficiency of Defendants’ opposition; and (b) enter a judgment of dismissal in favor of Defendants, pursuant to CPLR 4401 and 5013, for Plaintiff’s failure to prove its alleged standing to sue, upon admissible evidentiary material, at the CPLR 3212 (c) hearing held on April 5, 2017 (HSBC Bank USA, N.A. v Gilbert, 189 AD3d 1377, 1379-1381 [2d Dept 2020]; see Emigrant Bank v Solimano, 209 AD3d 153, 162-164 [2d Dept 2022]; Deutsche Bank Natl. Trust Co. v Kenny, 183 AD3d 865, 867 [2d Dept 2020]). SUBMISSIONS BEFORE THE COURT Plaintiff’s Fourth MSJ is supported by, inter alia, the “NOTICE OF RENEWED MOTION FOR SUMMARY JUDGMENT & APPOINTMENT OF A REFEREE,” dated September 20, 2023 (NYSCEF Doc No. 9), affirmation of Yimell M. Suarez Abreu, sworn to September 20, 2023, with Exhibits 1 through 22, inclusive (Suarez Abreu Aff. [NYSCEF Doc No.’s 10-32]), affidavit of Rick Penno, sworn to August 18, 2023, with Exhibits A through K, inclusive (Penno Aff. [NYSCEF Doc No.’s 33-44]), statement of material facts dated September 20, 2023 (NYSCEF Doc No. 46]) 3, and the memorandum of law dated September 20, 2023 (Pl.’s Mem. [NYSCEF Doc No. 47]). 3 Pursuant to section IV.E of this Court’s Part Rules, “[s]ummary judgment motions must be made within sixty (60) days of the filing of the Note of Issue,” and “Statements of Material Facts . . . are not required . . . .” 4 4 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 Defendants’ opposition to Plaintiff’s Fourth MSJ is supported by the affirmation of Justin F. Pane, sworn to November 27, 2023, with Exhibits A through B, inclusive (Pane Aff. [NYSCEF Doc No.’s 55, 56, 57]), this memorandum of law dated November 27, 2023 (Def.s’ Mem. [NYSCEF Doc No. 58]), and a proposed judgment (NYSCEF Doc No. 59). COUNTERSTATEMENT OF RELEVANT FACTS This action was commenced by notice of pendency, summons, and complaint filed November 25, 2009 (collectively, the Complaint) (NYSCEF Doc No. 57—A98-112). The Complaint did not include a copy of the underlying promissory note (see id.; accord NYSCEF Doc No.’s 10, 11—Suarez Abreu Aff. ¶ 4, Ex. 1; but cf. NYSCEF Doc No. 47—Pl.’s Mem. at *4 [falsely claiming the note was attached to the Complaint]). Issue was joined on or around December 22, 2009, via service of Defendants’ verified answers with counterclaims (collectively, the Answers [NYSCEF Doc No. 57—A126-142]), to which Plaintiff responded, on or around February 5, 2010, via a verified reply to counterclaims (see id. at A143-148). The Answers included, inter alia, lack of standing and lack of capacity affirmative defenses (see id. at A128-129, 136-138). After certifying completion of all known and necessary discovery by and between the parties, Plaintiff filed a note of issue, accompanied by a certificate of readiness for trial, on August 7, 2012, wherein Plaintiff certified, inter alia, “[t]he case is ready for trial” (NYSCEF Doc No. 56). Thereafter, Plaintiff filed its first motion for summary judgment (First MSJ), which Defendants opposed, but was nonetheless granted by order of Justice Brands dated November 30, 2012 (2012 Order [NYSCEF Doc No. 57—A151-153]). The 2012 Order was reversed by decision and order dated August 27, 2014 (2014 Order), wherein the Appellate Division, Second Department, denied the First MSJ due to Plaintiff’s failure to eliminate triable issues of fact concerning Defendants’ standing related defenses (see id. at A158-159; HSBC Bank USA, N.A. v Gilbert, 120 AD3d 756, 756-758 [2d Dept 2014]; accord Gilbert, 189 AD3d at 1378). 5 5 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 Accordingly, the case was remitted back to the Supreme Court for trial but, instead of scheduling the matter for trial, Justice Brands issued a sua sponte order of dismissal for neglect on December 2, 2015 (2015 Order [see id. at A160-161]). Justice Brands, noting among other things the discovery exchanged between the parties and the note of issue filed in August 2012, vacated the 2015 Order by subsequent order dated May 10, 2016 (May 2016 Order [see id. at A162-164]). Notably, upon restoring the action, Justice Brands addressed, but did not grant, Defendants’ request to vacate or otherwise strike the note of issue (see id. at A163-164). Then, in August 2016, plaintiff filed its second motion for summary judgment (Second MSJ [see id. at A22-180]), which Defendants opposed (see id. at A181-206), Plaintiff replied (see id. at A207-214), and Justice Brands denied the entirety of via order dated December 14, 2016, based upon the existence of triable issues of fact (December 2016 Order [see id. at A7-9]). Yet, in that same December 2016 Order, Justice Brands, nonetheless, directed a framed-issue hearing on standing, pursuant to CPLR 3212 (c), to be held on April 4, 2017 (the Hearing [see id. at A8-9]). “At the hearing, [P]laintiff offered the testimony of Beverly DeCaro, a loan verification consultant with W[FB] . . . , the purported servicer and custodian of the loan, and entered into evidence certain exhibits which included, inter alia, lost note and lost security instrument affidavits” (Gilbert, 189 AD3d at 1379; see NYSCEF Doc No. 57—A215-606.1). Although Justice Brands determined that Plaintiff proved its standing to sue at the Hearing (see id. at A3-5), and therefore granted Plaintiff’s subsequently filed third motion for summary judgment (Third MSJ) by orders dated September 14, 2017 (September 2017 Orders) (see id. at A11-20, 607-686), as well as well as granted Plaintiff a final judgment of foreclosure and sale, dated April 3, 2018 (2018 Judgment) (see id. at SA2-11)—everything was reversed by the decision 6 6 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 and order dated December 23, 2020 (2020 Order), wherein the Appellate Division, Second Department, determined: A hearing on the issue of the plaintiff's standing was held on April 4, 2017. At the hearing, the plaintiff offered the testimony of Beverly DeCaro, a loan verification consultant with Wells Fargo Bank, N.A. (hereinafter Wells Fargo), the purported servicer and custodian of the loan, and entered into evidence certain exhibits which included, inter alia, lost note and lost security instrument affidavits. In an order dated April 17, 2017, after the hearing, the Supreme Court found that the plaintiff had standing to proceed with the action. Thereafter, by orders dated September 14, 2017, the court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference, and appointed a referee to compute the amount due the plaintiff. A judgment of foreclosure and sale, dated April 3, 2018, inter alia, directed the sale of the subject property. A plaintiff establishes its standing in a mortgage foreclosure action by demonstrating that it was either the holder or assignee of the underlying note at the time the action was commenced . . . . Here, the plaintiff failed to establish its status as a holder or assignee of the note at the time the action was commenced. The only evidence offered by the plaintiff which purported to show that it was the holder of the note at the time the action was commenced was the testimony of DeCaro and plaintiff's exhibit 7, a computer screen printout entered into evidence over objection at the hearing. DeCaro testified that her knowledge of this case was based upon her review of the books and records maintained by Wells Fargo, and asserted that Wells Fargo, as custodian for the plaintiff, was in possession of the note on the date of commencement of the action. However, DeCaro's assertions as to the contents of the records were inadmissible hearsay to the extent that the records she purported to describe were not properly admitted into evidence . . . . Here, the only business record entered into evidence to support DeCaro's testimony that the plaintiff was in possession of the note on the date of commencement was plaintiff's exhibit 7, a computer screen printout of a database tracking system. However, plaintiff's exhibit 7 failed to evince the facts for which it was relied upon. More specifically, while DeCaro contended that the document demonstrated that Wells Fargo, as custodian for the plaintiff, received the note July 16, 2005, and that the note was in Wells Fargo's vault from July 2005 until December 2009, the document, in itself, failed to establish those facts. Further, pursuant to UCC 3-804, which is intended to provide a method for recovering on instruments that are lost, destroyed, or stolen, a plaintiff is required to submit due proof of the plaintiff's ownership of the note, the facts which prevent the plaintiff from producing the note, and the note's terms . . . . Here, the lost note affidavit, which failed to establish when the note was acquired and failed to provide 7 7 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 sufficient facts as to when the search for the note occurred, who conducted the search, or how or when the note was lost, failed to sufficiently establish the plaintiff's ownership of the note . . . . Since the plaintiff failed to demonstrate its ownership of the lost note or that it had standing as the lawful holder or assignee of the subject note on the date it commenced this action, the Supreme Court should not have determined, after the hearing, that the plaintiff had standing to proceed in the action, and should have denied those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against the appellants and for an order of reference, regardless of the sufficiency of the appellants' opposition papers . . . . (Gilbert, 189 AD3d at 1379-1381 [internal citations omitted]). Notwithstanding the Appellate Division’s 2020 Order denying Plaintiff’s Third MSJ, which requires this Court to enter a judgment of dismissal in Defendants’ favor for Plaintiff’s failure to tender sufficient evidentiary material, in admissible form, to prove its standing by preponderance of the evidence at the Hearing (Solimano, 209 AD3d at 162-164; Kenny, 183 AD3d at 867), Plaintiff filed its Fourth MSJ on September 20, 2023, i.e., more than eleven (11) years after note of issue was filed and nearly three (3) years after the 2020 Order. Based on these facts, the Fourth MSJ must be denied 4 and the action dismissed. ********** 4 Notably absent from Plaintiff’s Fourth MSJ is the requisite “Mortgage Loan Schedule” to the Pooling and Servicing Agreement (PSA [see NYSCEF Doc No. 35 at *32]). Without such Mortgage Loan Schedule listing Defendants’ loan as being one of the those owned by HSBC under the PSA, which may not be submitted for the first time in reply, Plaintiff has, yet again, failed to prove its standing to sue as owner of the lost note (HSBC Bank USA, N.A. v Sene, 219 AD3d 1499, 2023 NY Slip Op 04757, *2 [2d Dept 2023]; Deutsche Bank Natl. Trust Co. v Crosby, 201 AD3d 878, 882 [2d Dept 2022]; Bank of Am., N.A. v Sebrow, 180 AD3d 982, 984-985 [2d Dept 2020]; cf. Bank of NY Mellon v Selig, 213 AD3d 894, 896 [2d Dept 2023]). 8 8 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 ARGUMENT I. CPLR 3212(a) BARS THE COURT FROM EVEN CONSIDERING PLAINTIFF’S FOURTH MSJ. Since Plaintiff’s Fourth MSJ was filed more than eleven (11) years after the note of issue and certificate of readiness was filed, and because the Fourth MSJ is devoid of any demonstration of “good cause” for delay, the court is barred from even considering the motion. See, e.g., Thompson, 10 AD3d at 651: The Supreme Court improvidently exercised its discretion in considering the defendant's untimely motion for summary judgment in view of the defendant's failure to offer a satisfactory explanation for not serving the motion within 120 days of the filing of the note of issue as required by CPLR 3212 (a) (see Brill v City of New York, 2 NY3d 648 [2004]). In the absence of such a "good cause" showing, the court has no discretion to entertain even a meritorious, nonprejudicial motion for summary judgment (id.). Thus, the motion should have been denied, "and the case returned to the trial calendar, where a motion to dismiss after plaintiff rests or a request for a directed verdict may dispose of the case during trial" (id. at 653). Furthermore, Plaintiff failed to tender any evidentiary material demonstrating the note of issue was stuck or vacated at any point after issuance of the May 2016 Order (see NYSCEF Doc No. 57— A163-164 [upon restoring the action, Justice Brands addressed, but did not grant, Defendants’ request to vacate or otherwise strike the note of issue]; cf. Wells Fargo Bank, NA v Madlen Apt, 179 AD3d 1145, 1146-1147 [2d Dept 2020] [successive summary judgment motion made after the 120-day deadline could only be considered where, unlike here, the plaintiff proved the note of issue had been vacated prior to its successive motion]). 9 9 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 II. PLAINTIFF’S FOURTH MSJ FAILS TO QUALIFY UNDER ANY OF THE NARROW EXCEPTIONS TO THE RULE AGAINST SUCCESSIVE SUMMARY JUDGMENT MOTIONS. While Plaintiff has clearly styled its Fourth MSJ as one to renew its Third MSJ, Plaintiff, by relying on new evidence that could have been submitted in support of the Third MSJ, not only failed to meet its burden under CPLR 2221 (e), but equally failed to satisfy the “good cause” and “substantively valid motion” narrow exceptions to the rule against successive summary judgment motions. To wit, as recently explained by the Appellate Division, Second Department: Although certain branches of the second motion were denominated as ones for summary judgment on the complaint . . . , those branches were, in actuality, one for leave to renew the plaintiff's prior motion for summary judgment on the complaint . . . . The new evidence supporting the second motion could have been submitted by the plaintiff in support of its prior motion (see CPLR 2221; Wells Fargo Bank, N.A. v Osias, 205 AD3d 979, 981). "While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance. When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal" (Wells Fargo Bank, N.A. v Osias, 205 AD3d at 981 [citations and internal quotation marks omitted]). Here, as the defendants contend, the plaintiff failed to provide any justification for its failure to present the new evidence supporting the second motion as part of its prior motion. "Even considered as a successive motion for summary judgment, such a motion 'should not be entertained in the absence of good cause, such as a showing of newly discovered evidence'" (id., quoting Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020). Here, the plaintiff failed to present good cause. The second motion also did not fit within the "narrow exception" to the successive summary judgment rule (Kornblum v Blank Rome Tenzer Greenblatt, LLP, 39 AD3d 482, 483; see Wells Fargo Bank, N.A. v Osias, 205 AD3d at 981-982). This narrow exception permits entertainment of a successive motion when it is "substantively valid and the granting of the motion will further the ends of justice and eliminate an unnecessary burden on the resources of the courts" (Aurora Loan Servs., LLC v Yogev, 194 AD3d 996, 997 [internal quotation marks omitted]; see Wells Fargo Bank, N.A. v Osias, 205 AD3d at 981-982). Here, entertaining a second summary judgment motion involved review of multiple disputed issues, including whether the plaintiff established the defendants' default, the plaintiff's compliance with the contractual condition precedent, and the plaintiff's compliance with RPAPL 1304. 10 10 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 Thus, rather than eliminating a burden on the Supreme Court, the court's consideration of the second motion actually imposed an additional burden on the court. "'Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance'" (Wells Fargo Bank, N.A. v Osias, 205 AD3d at 982, quoting Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d at 1020; see Hillrich Holding Corp. v BMSL Mgt., LLC, 175 AD3d 474, 475; cf. US Bank N.A. v Weinman, 195 AD3d 976). (Gittens, 217 AD3d at 902-903). Here, Plaintiff’s inability to properly evince its alleged standing to sue has prompted it to burden: (a) this Court with four successive motions for the same relief; and (b) the Appellate Division with six (6) separate appeals—all resolved in Defendants’ favor. Moreover, no new or further discovery has occurred since the Hearing in the 2017. Under these facts having developed over the last fourteen (14) years, it is clear that Plaintiff failed to establish entitlement to “summary” a/k/a “accelerated” judgment. Consequently, it would be an abuse of discretion for this Court to even entertain Plaintiff’s Fourth MSJ, let alone grant it (Amos Fin. LLC v Crapanzano, 73 Misc 3d 448, 455-458 [Sup Ct, Rockland County 2021]). III. ENTRY OF JUDGMENT OF DISMISSAL IS REQUIRED. Where, as here, a foreclosing plaintiff fails to meet its evidentiary burden on the issue of standing by the close of its evidence at a framed-issue hearing, which is the equivalent of trial (see CPLR 3212[c]), entry of a judgment of dismissal is required pursuant to CPLR 4401 and 5013 (Solimano, 209 AD3d at 162-164; Kenny, 183 AD3d at 867). Here, since the Appellate Division declared in its 2020 Order that Plaintiff failed to meet its evidentiary burden at the Hearing (Gilbert, 189 AD3d at 1379-1381), this Court must enter a judgment of dismissal based upon Plaintiff’s evidentiary failure (Kenny, 183 AD3d at 867). 11 11 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 CONCLUSION WHEREFORE, Defendants respectfully submit this Court must (i) deny Plaintiff’s Fourth MSJ, regardless of the sufficiency of Defendants’ opposition, and (ii) enter judgment of dismissal. Dated: Bohemia, New York November 27, 2023 JUSTIN F. PANE 12 12 of 13 FILED: DUTCHESS COUNTY CLERK 11/27/2023 08:05 PM INDEX NO. 2021-80021 NYSCEF DOC. NO. 58 RECEIVED NYSCEF: 11/27/2023 CERTIFICATE OF COMPLIANCE Pursuant to 22 NYCRR 202.8-b (c), I hereby certify that the foregoing memorandum of law was prepared on a computer using Microsoft Word. Type. A proportionally spaced typeface was used, as follows: Name of typeface: Times New Roman Point Size: 12 Line Spacing: Double Word Count. The total number of words in the memorandum of law, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 3,433. Dated: Bohemia, New York November 27, 2023 By: Justin F. Pane 80 Orville Drive, Suite 100 Bohemia, New York 11716 (P) (631) 244-1433 (E) jpane@panelaw.com Attorneys for Defendants, Arlene Gilbert & James Coffey 13 13 of 13