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Bank of N.Y. Mellon v Gordon

Supreme Court of New York, Appellate Division, Second Department

 March 27, 2019, Decided

2015-10709

Opinion

 [**289]   [*199]  Miller, J.

In the wake of the  [***2] financial crisis that began in 2008, the trial courts of this state have faced an unprecedented spike in judicial foreclosure actions. The challenges presented by this dramatic increase in litigation have been compounded by poor record-keeping practices, a changing regulatory environment, inordinate delays, and inadequate legal representation. The sheer number of foreclosure cases has also resulted in a renewed focus on the legal principles underlying such actions and presented circumstances under which those principles must be extended and applied to new factual scenarios.

From an appellate perspective, the recent flood of foreclosure appeals has revealed consistent and repeated confusion about [*200]  some of the most fundamental aspects of the procedural, substantive, and evidentiary law that must be routinely applied in a foreclosure context. In an effort to provide additional clarity in this important area of the law, we deem it appropriate to collect and reiterate some of these foundational principles in the hope that such clarity will eliminate many of the disputes that make up an ever-increasing proportion [***3]  of trial-level dockets. For the reasons that follow, we modify the order appealed from.

1. Factual and Procedural Background

The plaintiff commenced this action to foreclose a mortgage. The defendant Dushaun [**290]  Gordon interposed an answer which included 55 affirmative defenses, five counterclaims asserted against the plaintiff, and two cross claims asserted against the defendant Mortgage Electronic [****2]  Registration Systems, Inc. (hereinafter MERS).

The plaintiff thereafter moved for, among other relief, summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due. Gordon opposed the plaintiff's motion and cross-moved pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS.

In a decision dated July 23, 2015, the Supreme Court determined, among other things, that the plaintiff was entitled to summary judgment on the complaint. A subsequent order entered August 7, 2015, upon the decision, [***4]  inter alia, (1) granted those branches of the plaintiff's motion which were for summary judgment on the complaint insofar as asserted against Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due, and (2), in effect, denied Gordon's cross motion pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against MERS. Gordon appeals from those portions of the order entered August 7, 2015. We modify.

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171 A.D.3d 197 *; 97 N.Y.S.3d 286 **; 2019 N.Y. App. Div. LEXIS 2338 ***; 2019 NY Slip Op 02306 ****; 2019 WL 1372075

 [****1]  Bank of New York Mellon, Formerly Known as The Bank of New York, as Trustee for the Certificateholders CWALT, Inc., Alternative Loan Trust 2007-24, Mortgage Pass-Through Certificates, Series 2007-24, Respondent, v Dushaun Gordon, Appellant, et al., Defendants. (Index No. 15788/12)

Prior History: Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered on August 7, 2015, in an action to foreclose a mortgage. The order, insofar as appealed from, upon a decision of that court dated July 23, 2015, (1) granted those branches of plaintiff's motion which were for summary judgment on the complaint insofar as asserted against defendant Dushaun Gordon and dismissing the affirmative defenses and counterclaims asserted by that defendant, and to appoint a referee to compute the amount due, and (2), in effect, denied defendant Dushaun Gordon's cross motion pursuant to CPLR 3211 and 3212 to dismiss the complaint insofar as asserted against him or, in the alternative, to compel disclosure, in effect, pursuant to CPLR 3124, and for leave to enter a default judgment on his cross claims asserted against defendant Mortgage Electronic Registration Systems, Inc.

CORE TERMS

business record, records, default, summary judgment, affirmative defense, practices, cross motion, mortgage, personal knowledge, hearsay, compel disclosure, cross claim, see people, record-keeping, documents, contends, modified, summary judgment motion, issue of standing, proper foundation, original note, prima facie, circumstances, demonstrating, regular, routine, entity, triable issue of fact, foreclosure action, amount due

Civil Procedure, Judgments, Summary Judgment, Entitlement as Matter of Law, Burdens of Proof, Movant Persuasion & Proof, Supporting Materials, Nonmovant Persuasion & Proof, Evidentiary Considerations, Appeals, Summary Judgment Review, Appealability, Evidence, Hearsay, Rule Components, Truth of Matter Asserted, Responses, Defenses, Demurrers & Objections, Affirmative Defenses, Preliminary Considerations, Justiciability, Standing, Standing, Burdens of Proof, Real Property Law, Financing, Foreclosures, Judicial Foreclosures, Exceptions, Business Records, Normal Course of Business, Testimony, Lay Witnesses, Personal Knowledge, Types of Evidence, Judicial Admissions, Pleadings