| NYCTL 2004-A Trust v Alessandro |
| 2009 NY Slip Op 52204(U) [25 Misc 3d 1220(A)] |
| Decided on November 4, 2009 |
| Supreme Court, Kings County |
| Schack, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
NYCTL 2004-A Trust,
AND THE BANK OF NEW YORK AS COLLATERAL AGENT AND CUSTODIAN FOR
THE NYCTL 2004-A TRUST, Plaintiffs,
against Antonio Alessandro; MARY E. ALESSANDRO, et. al., Defendants. |
Plaintiffs' renewed motion, upon default of all defendants, for an order of
reference in the instant action to foreclosure on a tax lien for the premises located at 484 Harman
Street, Brooklyn, New York (Block 3292, Lot 21, County of Kings) is denied without prejudice.
In my June 5, 2008 decision and order in this matter, I denied an order of reference without
prejudice because the "affidavit of facts" in support of the motion for an order of reference was
not executed by an officer of plaintiffs, THE BANK OF NEW YORK and Plaintiffs' attempted to cure this defect in the instant renewed motion, with: a new [*2]affidavit from their servicing agent, Albert Fiorello of
PLYMOUTH PARK TAX SERVICES, LLC; a power of attorney attached to the moving papers
concerning the NYCTL-2005-A TRUST; and, selected portions of an uncertified copy of an
alleged Servicing Agreement between the 2005-A TRUST and other parties. This not only fails
to cure the defects of the original motion but it is not evidentiary. One of the instant plaintiffs is
the NYCTL 2004-A TRUST, not the NYCTL 2005-A TRUST. Further, plaintiffs' attached
documents do not meet the statutory requirements of CPLR § 3215 (f).Leave is granted to
plaintiffs to renew their motion for an order of reference upon presentation to the Court, within
ninety (90) days of this decision and order, of their compliance with the requirements of CPLR
§ 3215 (f), with "an affidavit of facts" executed by someone who is an officer of the BANK
OF NEW YORK or the 2004-A TRUST or someone who has a valid power of attorney from the
BANK OF NEW YORK or the 2004-A TRUST.
The 2004-A TRUST
purchased certain tax liens from the City of New York on July 29, 2004. These liens, including
the tax lien for the premises at 484 Harman Street, Brooklyn, New York ( Block 3292, Lot 21,
County of Kings) were recorded in the Office of the City Register, New York City Department
of Finance, on September 30, 2004, at City Register File Number (CRFN) 2004000613456.
shall file proof of service of the summons and the complaint, or
a summons and notice served pursuant to subdivision (b) of rule
305 or subdivision (a) of rule 316 of this chapter, and proof of
the facts constituting the claim, the default and the amount due
by affidavit made by the party . . . Where a verified complaint has
been served, it may be used as the affidavit of the facts constituting
the claim and the amount due; in such case, an affidavit as to the
default shall be made by the party or the party's attorney. [Emphasis
added].
In the instant renewed motion, plaintiffs have offered a new affidavit from Mr. Fiorello,
which fails to allege that he has a valid power of attorney to execute his affidavit on behalf of
plaintiff. Further, even if the power of attorney presented to the Court was for the proper
plaintiff, the NYCTL 2004-A TRUST, the Court cannot rely upon uncertified snippets of a
servicing agreement to determine if the servicing agreement between plaintiffs and Mr. Fiorello's
company authorize him to act on behalf of plaintiffs. Thus, the Court still needs an affidavit from
an officer of the 2004-A TRUST or an affidavit of facts from someone with a valid power of
attorney from the 2004-A TRUST to grant a judgment of foreclosure and sale. If the 2004-A
TRUST gives a valid power of attorney to someone to execute an affidavit of facts for a default
judgment and the power of attorney refers to a Servicing Agreement, the Court needs to see the
entire properly offered copy of the Servicing Agreement for the reasons stated above.
Also, if a Servicing Agreement is presented with a renewed motion for an order of reference,
it must be an original or a copy of the original certified by plaintiffs' attorney, pursuant to CPLR
§ 2105. CPLR § 2105 states that "an attorney admitted to practice in the court of the
[*4]state may certify that it has been compared by him with the
original and found to be a true and complete copy." (See Security Pacific Nat. Trust Co. v
Cuevas, 176 Misc 2d 846 [Civ Ct, Kings County 1998]).
Moreover, the instant renewed motion upon defendants' default must be denied
is in point here. Perhaps the verified complaint can do service as
an affidavit for various purposes within the litigation while the contest
is on . . . but it will not suffice to put an end to the contest with as
drastic a step as a default at the outset. It must be kept in mind
that
even an outright "affidavit" by the plaintiff's attorney on the merits
of the case— except in the relatively rare circumstances in which the
attorney happens to have first-hand knowledge of the facts—lacks
probative force and is usually deemed inadequate by the courts to
establish the merits. A fortiori, a verified pleading tendered as proof
of the merits would also lack probative force when the verification is
the attorney's. [Emphasis added]
the defendant upon her default in answering, the plaintiff failed to
proffer either an affidavit of the facts or a complaint verified by a
party with personal knowledge of the facts (see CPLR 3215 (f):
Goodman v New York City Health
& Hosps. Corp. 2 AD3d 581
[2d Dept 2003]; Drake v Drake, 296 AD2d 566 [2d Dept 2002];
Parratta v McAllister, 283 AD2d 625 [2d Dept 2001]). Accordingly,
the plaintiff's motion should have been denied, with leave to renew
on proper papers (see Henriquez v Purins, 245 AD2d 337, 338
[2d Dept 1997]).
Further, the attorney's verification to the complaint, dated September 28, 2005, by Caren
Bailey, Esq., is not signed.
[*5] Therefore, the instant renewed motion for an order to
appoint a referee to compute and to amend the caption is denied without prejudice. The Court
will grant plaintiffs an order to appoint a referee to compute and to amend the caption when
plaintiffs submit an affidavit by either an officer of the BANK OF NEW YORK or the 2004-A
TRUST, or someone with a valid power of attorney from the BANK OF NEW YORK or the
2004-A TRUST, possessing personal knowledge of the facts, within ninety (90) days of this
decision and order.
ORDERED, that the renewed motion of plaintiffs ORDERED, that leave is granted to plaintiffs, This constitutes the Decision and Order of the Court.
ENTER
___________________________
HON. ARTHUR M. SCHACK
J. S. C.
Just as in the
original motion, the plaintiffs have failed to meet the clear
requirements of CPLR § 3215 (f) for a default judgment:
On any application for judgment by default, the applicant
Plaintiffs failed to submit "proof of the facts" in "an affidavit made by the
party." The original motion had an affidavit submitted by Albert Fiorello, "the Vice President of
PLYMOUTH PARK TAX SERVICES, LLC, servicing agent for the
plaintiffs." I noted that Mr. Fiorello must have, as plaintiff's agent, a valid power of attorney for
that express purpose, and if a power of attorney was presented to this Court and it referred to
servicing agreements, the Court needs a properly offered copy of the servicing agreements, to
determine if the servicing agent may proceed on behalf of plaintiff. (EMC Mortg. Corp. v
Batista, 15 Misc 3d 1143 (A), [Sup Ct, Kings County 2007]; Deutsche Bank Nat. Trust
Co. v Lewis, 14 Misc 3d 1201 (A) [Sup Ct, Suffolk County 2006]).
because even though it contains a verified complaint, the attorney's verification is
insufficient to meet the requirements of CPLR § 3215 (f). The Court, in Mullins v Di
Lorenzo, 199 AD2d 218 [1st Dept 1993], instructed that "a complaint verified by counsel
amounts to no more than an attorney's affidavit and is therefore insufficient to support entry of
judgment pursuant to CPLR 3215." Citing Mullins v Di Lorenzo, the Court, in Feffer
v Malpeso, 210 AD2d 60, 61 [1st Dept 1994], held that a complaint with not more than an
attorney's affidavit, for purposes of entering a default judgment "was erroneous and must be
deemed a nullity." Professor David Siegel, in his Practice Commentaries (McKinney's Cons
Laws of NY, Book 7B, CPLR C3215: 16) explains that Mullins v Di Lorenzo
In Blam v
Netcher, 17 AD3d 495, 496 [2d Dept 2005], the Court reversed a default
judgment granted in Supreme Court, Nassau County, holding that:
In support of her motion for leave to enter judgment against
See Hazim v Winter, 234 AD2d 422 [2d Dept 1996]; Finnegan v
Sheahan, 269 AD2d 491 [2d Dept 2000]; De Vivo v Spargo, 287 AD2d 535 [2d
Dept 2001]; Peniston v Epstein, 10
AD3d 450 [2d Dept 2004]; Taebong Choi v JKS Dry Cleaning Eqip. Corp., 15 AD3d 566 [2d
Dept 2005]; Matone v Sycamore Realty
Corp., 31 AD3d 721 [2d Dept 2006]; Crimmins v Sagona Landscaping, Ltd., 33 AD3d 580 [2d Dept
2006].
Accordingly, it is