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`FILED: SUFFOLK COUNTY CLERK 06/29/2018 03:56 PMFILED: SUFFOLK COUNTY CLERK 04/15/2022 05:36 PM
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`SHORT FORM ORDER
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`INDEX No. _0613492/15
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`-
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`SUPREME COURT - STATE OF NEW YORK
`LA.S. PART 29 - SUFFOLK COUNTY
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`PRESENT:
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`Hon.___LINDA J. KEVINS MOTION DATE: 9/23/16
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`ADJ. DATE: 1/250/17
`Justice of the Supreme Court
`Mot. Seq. #001 - MotD
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`
`
`
`monnennnnnnnnnnnnnnnnneneennnnnnnnnnenasemennnnennanateK
`Deutsche Bank National Trust Company, as
`Trustee for FFMLT Trust 2005-FF8, Mortgage
`Pass-ThroughCertificates, Series 2005-FF8,
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`Plaintiff,
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`- against -
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`|
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`Paul Lamontanaro a/k/a P. Lamontanaro a/k/a
`Paul T. Lamontanaro; MSNI Fund VI; Alonso
`Andalkar & Kahn PC; Sag HarborVillage Court;
`Proper PH, LLC; Discover Bank; New York State
`Department of Taxation and Finance; United
`States of America; Clerk of the Suffolk County
`Traffic and Parking Violations Agency and
`“JOHN DOE”, said namebeingfictitious, it
`being the intention of Plaintiff to designate any
`and all occupants of premises being foreclosed
`herein, and any parties, corporationsorentities, if
`any, having or claiming an interest or lien upon
`the mortgaged premises,
`
`‘Defendants.
`wecenecceennaene neeena}
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`SHAPIRO, DICARO & BARAK
`Attorneys for Plaintiff
`175 Mile Crossing Blvd.
`Rochester, NY 14624
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`ANNE ROSENBACH,ESQ.
`Attorney for Defendant
`Paul Lamontanaro
`3 Delta Road
`Massapequa, NY 11758
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`and
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`» PAUL LAMONTANARO
`Defendant Pro Se
`58 Wildwood Road
`Sag Harbor, NY 11968
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`|
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`Uponthe following papers read onthis e-filed motion _for summary judgment; Notice ofMotion/ Order to Show Cause
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`and supporting papers
`_by plaintiff, dated August 30, 2016 _; Notice of Cross Motion and supporting papers
`; Answering
`Affidavits and supporting papers
`_by defendant, dated October 17,2016:
`_; Replying Affidavits and supporting papers __by
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`defendant, dated November1, 2016 ; Other ___; (and-afterhearing-counseHin-suppertand-oppesed
`emotion) it is,
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`
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`ORDEREDthatthis motion (001) bythe plaintiff for, inter alia, an order: (1) pursuant to CPLR
`3212, awarding summary judgmentin its favor and against the answering defendant, Paul Lamontanaro
`a/k/a P. Lamontanaro a/k/a Paul T. Lamontanarostriking his answer and dismissing the affirmative
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`FILED: SUFFOLK COUNTY CLERK 06/29/2018 03:56 PMFILED: SUFFOLK COUNTY CLERK 04/15/2022 05:36 PM
`FILED: SUFFOLK COUNTY CLERK 06/29/2022 08:36 P
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`NYSCEF DOC. NO. 48
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`NYSCEF DOC. NO. 43NYSCEF DOC. NO. 34
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`INDEX NO. 613492/2015INDEX NO. 602611/2022
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`INDEX NO. 602692/2023
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`RECEIVED NYSCEF: 06/29/2028
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`RECEIVED NYSCEF: 06/29/2018RECEIVED NYSCEF: 04/15/2022
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`Deutsche Bank National Trust v Lamontanaro
`Index No. 613492/2015
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`defenses and counterclaimsset forth therein; (2) striking the name “JOHN DOE,”and to amend the
`caption accordingly; (3) pursuant to CPLR 3215,fixing the defaults of the non-answering defendants;
`and (4) pursuant to RPAPL §1321, appointing a referee to (a) compute amounts due underthe subject
`mortgage; and (b) examine and report whether the subject premises should be sold in one parcel or
`multiple parcels is granted in part and deniedin part; andit is further
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`ORDEREDthat so muchofthe plaintiff's motion that seeks an order striking the answering
`defendant’s affirmative defensesas to plaintiff's standing, numbered 2, 3, and 14, and those affirmative
`defenses deemed abandonedby the Court, numbered1, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16, 17, 18, 19,
`20, 21, and 22, respectively, is granted, and the motion for summary judgment and an orderof reference
`is otherwise denied, with leave to renew within 120 days of the date of this order, not to be extended
`without leave of Court; and it is further
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`ORDEREDthat so muchofthe plaintiff's motion that seeks an orderstriking the name “JOHN
`DOE,” and to amendthe caption accordingly, is granted; andit is further
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`ORDEREDthat so muchofthe plaintiff's motion that seeks an order fixing the defaults ofall
`non-answering defendants is granted; andit is further
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`ORDEREDthatthe plaintiff is directed to serve a copy of this order amendingthe caption upon
`the Calendar Clerk of this Court; and it is further
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`ORDEREDthatthe plaintiff is directed to serve a copy ofthis order, with notice of entry uponall
`parties who have appeased-heretteend not waived further notice pursuant to CPLR 2103(b)(1), (2) or (3)
`within thirty (30) days of the date herein, and to promptlyfile the affidavits of service with the Clerk of
`the Court.
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`This is an action to foreclose a mortgage onreal property situate in Suffolk County, New York,
`TE
`commenced on December29, 2015. On June 27, 2005, defendant Paul Lamontanaro a/k/a P.
`Lamontanaro a/k/a Paul T. Lamontanaro executed a note in favor ofFirst Franklin, a division of National
`City Bank ofIndiana(“First Franklin’) in the amount of $732,000.00. To secure said note, on the same
`date, defendant gave First Franklin a mortgage on the subject property. On December2, 2005,First
`Franklin executed an Assignment of Mortgage in favor of First Franklin Financial Corporation
`(“FFFC”). On December 18, 2008, FFFC executed an Assignment of Mortgage in favor of plaintiff.
`Effective October 1, 2009, plaintiff and defendant entered into a loan modification agreement, which
`increased the principal balance to $785,527.50. Effective April 1, 2013, defendant entered into a second
`loan modification agreement with Bank of America, N.A., plaintiff's former servicer, which further
`increased the principal balance to $850,000.00. The subject note is indorsed by First Franklin to FFFC,
`then by FFFC in blank, thoughthese indorsements are undated. By its complaint, plaintiff alleges that
`defendant defaulted on his payments onthe note, as modified by the second loan modification
`agreement. By his answer, defendant generally denies the material allegations as set forth in the
`complaint, and he asserts 22 affirmative defenses, including lack of standing, andfailure to comply with
`the notice requirements prescribed by the subject loan documents and by Real Property Actions and
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`NYSCEF DOC. NO. 48
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`NYSCEF DOC. NO. 43NYSCEF DOC. NO. 34
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`Proceedings Law (RPAPL) §1304. Defendants Discover Bank and United States of America have
`submitted Notices of Appearance, but no other defendants have answered the complaint or otherwise
`appearedin this action.
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`Plaintiff now moves for summary judgment. In support ofits motion,plaintiff submits, among
`other things, copies of the note and mortgage, a copy of a duly executed Limited Powerof Attorney,
`several duly executedaffidavits of service, and an affidavit of Cynthia Wallace, Second Vice President
`of Specialized Loan Servicing, LLC (“SLS”),plaintiffs current loan servicer. Defendant opposesthe
`motion,arguing,inter alia, that the subject property is his primary residence and,despite plaintiffs
`claimsto the contrary, he has not abandoned same. In opposition, defendant submits several documents,
`including his own affidavit.
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`Here, as defendant served an answerthat included the affirmative defense of standing,plaintiff
`must proveits standing so asto be entitledto relief (see Bank ofN.Y. Mellon v Visconti, 136 AD3d
`950, 25 NYS3d 630 [2d Dept 2016]; CitiMortgage, Inc. v Rosenthal, 88 AD3d 759, 931 NYS2d 638
`[2d Dept 2011]; Bank ofN.Y. v Silverberg, 86 AD3d 274, 926 NYS2d 532 [2d Dept 2011]). Plaintiff
`established its standing as the holder of the note by attaching the indorsed note to the summons and
`complaint, demonstrating that the note wasin its possession prior to the commencementofthe action,
`and that the subject mortgage passedto plaintiff with the note as an inseparable incident (see Aurora
`Loan Servs., LLC v Taylor, 25 NY3d 355, 362, 12 NYS3d 612, 614 [2015]; U.S. Bank, N.A. v
`Saravanan, 146 AD3d 1010, 45 NYS3d 547 [2d Dept 2017]; Nationstar Mtge., LLC v Catizone, 127
`AD3d 1151, 1152, 9 NYS3d 315 [2d Dept 2015]; U.S. Bank, N.A. v Collymore, 68 AD3d 752, 890
`NYS2d 578 [2d Dept 2009]). As plaintiff established standing via physical delivery of thenote, the
`validity of the subsequent assignments of the subject mortgage is irrelevant (see Aurora Loan Servs.,
`LLC v Taylor, supra; Wells Fargo Bank, N.A. v Charlaff, 134 AD3d 1099, 24 NYS3d 317 [2d Dept
`2015]; Deutsche Bank Natl. Trust Co. v Whalen, 107 AD3d 931, 969 NYS2d 82 [2d Dept 2013]).
`
`Plaintiff's submissions also establish its prima facie entitlement to summary judgmentonits
`mortgage foreclosure action by producingthe indorsednote, the mortgage, and evidence of nonpayment
`(see Pennymac Holdings, LLC v Tomanelli, 139 AD3d 688, 32 NYS3d 181 [2d Dept 2016]; Wachovia
`Bank, N.A. v Carcano, 106 AD3d 724, 965 NYS2d 516 [2d Dept 2013]; Capital One, N.A. v
`Knollwood Props. II, LLC, 98 AD3d 707, 950 NYS2d 482 [2d Dept 2012]). Byheraffidavit of merit,
`Ms. Wallaceattests that, based on her review of records kept during the regular course of SLS’s
`business, defendant failed to make a paymenton the note scheduled for May 1, 2014, and that he failed
`to make subsequent paymentsto bring the loan current (see CPLR 4518[a]; American Airlines Fed.
`Credit Union v Mohamed, 117 AD3d 974, 986 NYS2d 530 [2d Dept 2014]; Bank ofSmithtown v 219
`Sagg Main, LLC, 107 AD3d 654, 968 NYS2d 95 [2d Dept 2013]). In addition, plaintiff's submissions
`establish that a 30-day notice of default was sent to defendant on December 19, 2014, and that said
`notice substantially complied with the terms of the subject mortgage (see Pennymac Holdings, LLC v
`Tomanelli, supra; Wachovia Bank, N.A. v Carcano, supra; Indymac Bank, FSB v Kamen, 68 AD3d
`931, 890 NYS2d 649 [2d Dept 2009]). Moreover,plaintiff's submissions, namely duly executed
`affidavits of service showing defendant was served with the summonsand complaintat a different
`address, at which he wasresiding at the time this action was commenced,andits process server’s
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`FILED: SUFFOLK COUNTY CLERK 06/29/2018 03:56 PMFILED: SUFFOLK COUNTY CLERK 04/15/2022 05:36 PM
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`NYSCEF DOC. NO. 48
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`NYSCEF DOC. NO. 43NYSCEF DOC. NO. 34
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`attestation that the subject property was vacant whenhe attempted to effect service, demonstrate, prima
`facie, that the subject property is not the borrower’s primary residence, and thus the notice requirements
`of RPAPL §1304 are inapplicable to this action (see Bayview Loan Servicing, LLC v Akande, 154
`AD3d 694, 61 NYS3d 647 [2d Dept 2017]; Citimortgage, Inc. v Simon, 137 AD3d 1190, 28 NYS3d
`454 [2d Dept 2016]; Fairmont Capital, LLC v Laniado, 116 AD3d 998, 985 NYS2d 254 [2d Dept
`2014]; cf Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 105-106, 923 NYS2d 609, 615 [2d Dept
`2011)).
`
`Plaintiff having met its initial burden on the motion, the burden shifted to defendantto assert any
`defenses which could properly raise a triable issue of fact (see Bank ofSmithtown v 219 Sagg Main,
`LLC, supra; Valley Natl. Bank v Deutsch, 88 AD3d 691, 930 NYS2d 477 [2d Dept 2011]; Wells Fargo
`Bank v Cohen, 80 AD3d 753, 915 NYS2d 569 [2d Dept 2011]; Grogg v South Rd. Assoc., L.P., 74
`AD3d 1021, 907 NYS2d 22 [2d Dept 2010]). In opposition, defendant submits his own affidavit,
`averring that he and his wife are temporarily staying at his mother’s home,that they occupyat the
`subject property as their primary residence, and that they have not abandoned same. Thus, defendanthas
`raised a triable issue of fact as to whether the subject note is a “home loan” within the meaning of
`RPAPL §1304, and thus, as to whetherplaintiff was required to strictly comply with the notice
`requirements prescribed by the statute (see Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 106,
`923 NYS2d 609, 616 [2d Dept 2011]; see also Aurora Loan Services, LLC v Komarovsky, 151 AD3d
`924, 928, 58 NYS3d 96, 100 [2d Dept 2017]; Bank ofSmithtown v 219 Sagg Main, LLC, supra; Valley
`Natl. Bank v Deutsch, supra).
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`The Court notes that, in support of its motion,plaintiff alleges that it sent the required notices to
`defendant, although RPAPL §1304 is inapplicable to the instant action. As proof of same,plaintiff
`submits, among other things, Ms. Wallace’s affidavit and copies of the notices purportedly sent.
`However, these submissions are not adequate evidentiary proofof plaintiff's compliance with RPAPL
`§1304 (see Cenlar, FSB v Weisz, 136 AD3d 855, 25 NYS3d 308 [2d Dept 2016]; Bank ofN.Y. Mellon
`v Aquino, 131 AD3d 1186, 16 NYS3d 770 [2d Dept 2015]; Wells Fargo Bank, N.A. v Burke, 125
`AD3d 765, 5 NYS3d 107 [2d Dept 2015]; Hudson City Sav. Bank v DePasquale, 113 AD3d 595, 977
`NYS2d 895 [2d Dept 2014]). Although Ms. Wallace avers that the 90-day pre-foreclosure notices were
`sent to the borrowervia certified and first class mail on June 24, 2015, the statements set forth in this
`affidavit are conclusory, and they are insufficient to meet the requirements of the statute (see
`CitiMortgage, Inc. v Pappas, 147 AD3d 900, 47 NYS3d 415 [2d Dept 2017]; Cenlar, FSB v Weisz,
`supra; Hudson City Sav. Bank v DePasquale, supra). Although Ms. Wallace attached copies of the
`notices purportedly sent with tracking numbers stamped on them,this is insufficient to establish that
`same wasactually sent to defendant in the manner required by RPAPL §1304,as she failed to provide
`proof of a standard office mailing procedure or any independentproof of actual mailing (see Citibank,
`N.A. v Wood, 150 AD3d 813, 55 NYS3d 109 [2d Dept 2017]; CitiMortgage, Inc. v Pappas, supra;
`JPMorgan Chase Bank, N.A. v Kutch, 142 AD3d 536, 537, 36 NYS3d 235 [2d Dept 2016]; cf HSBC
`Bank USA, N.A. v Ozcan, 154 AD3d 822, 64 NYS3d 38 [2d Dept 2017]).
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`Moreover, as the failure to raise pleaded affirmative defenses in opposition to a motion for
`summary judgmentrenders those defenses abandoned and thus subject to dismissal (see New York
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` FILED: SUFFOLK COUNTY CLERK 06/29/2028 03:36 P
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`FILED: SUFFOLK COUNTY CLERK 06/29/2018 03:56 PMFILED: SUFFOLK COUNTY CLERK 04/15/2022 05:36 PM
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`NYSCI
`EF DOC. NO. 48
`RECEIVED NYSCEF: 06/29/2028
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`NYSCEF DOC. NO. 43NYSCEF DOC. NO. 34
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`Commercial Bank v J. Realty F Rockaway, Ltd., 108 AD3d 756, 969 NYS2d 796 [2d Dept 2013];
`StarkmanvyCity ofLong Beach, 106 AD3d 1076, 965 NYS2d 609 [2d Dept 2013]), the Court will
`strike defendant’s remaining affirmative defenses from his answer, as the sole defenseraised in
`opposition to plaintiff's motion wasthat the subject property is his primary residence, and thus,
`plaintiff's alleged failure to comply with RPAPL §1304.
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`In light of the foregoing, plaintiff's motion for summary judgmentis granted in part, and denied
`in part, with leave to renew within 120 days ofthe date ofthis order, andplaintiffs proposed order of
`reference has been marked“notsigned.”
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`Dated: b OG J.S.C.
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`FINAL DISPOSITION
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`X__
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`HON. LINDA KEVINS
`NON-FINAL DISPOSITION
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