Opinion
No. 1027–09.
2012-10-15
DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee For Wamu Mortgage Pass–Through Certificates, Series 2005–AR18, Plaintiff, v. David E. BILLS a/k/a David Bills, Bonnie Morris a/k/a Bonnie L. Morris, Cach LLC, Countrywide Home Loans, Inc., First Horizon Home Loans, A Division of First Tennessee Bank National Association Successor by Merger to First Horizon Home Loan Corporation, Paul Evans, and Chris Shucuck, Defendants.
Phillips Lytle LLP, Albany, New York (Marc H. Goldberg, Esq. of counsel) and Wilson S. Mathias, Esq., Queensbury, New York, for plaintiffs.
RICHARD B. MEYER, J.
Motion for summary judgment by defendant Bonnie Morris a/k/a Bonnie L. Morris (Morris) dismissing the complaint to foreclose a residential mortgage on property located in the town of North Elba, Essex County, New York, or alternatively for leave to amend her answer to assert a new defense and counterclaim; and cross-motion by plaintiff Deutsche Bank National Trust Company (Deutsche Bank) for summary judgment to foreclose the mortgage based upon equitable subrogation
The following papers have been considered on the motion and cross-motion: Submitted by defendant Morris: notice of motion for summary judgment dated November 11, 2011; affirmation of William H. Bristol, Esq dated November 14, 2011 with exhibits A through C; affidavit of Bonnie L. Morris sworn to November 9, 2011; affidavit of John Rand sworn to October 17, 2011; affidavit of Terry Rand sworn to October 17, 2011; affidavit of Paul Williams sworn to October 18, 2011; memorandum of law dated November, 2011; reply affirmation of William H. Bristol, Esq. dated January 12, 2012 with exhibits A through H; reply affidavit of Bonnie L. Morris sworn to January 12, 2012; notice of motion dated January 12, 2012 to amend defendant Morris' answer; affirmation of William H. Bristol, Esq. dated January 12, 2012 with a copy of the proposed amended answer with counterclaim; supplemental memorandum of law filed January 23, 2012 and undated; supplemental affirmation of William H. Bristol, Esq. dated March 14, 2012; memorandum of law dated March 14, 2012.
Submitted by Deutsche Bank: notice of cross-motion dated December 9, 2011; affidavit of Marc H. Goldberg, Esq. sworn to December 9, 2011 with exhibits A through J; affidavit of Thomas E. Reardon sworn to December 8, 2011 with exhibits a through F; memorandum of law dated December 9, 2011; affidavit of Marc H. Goldberg, Esq. sworn to February 9, 2012 with exhibits A and B; affidavit of Wilson S. Mathias, Esq. sworn to February 9, 2012; affidavit of Marc H. Goldberg, Esq. sworn to February 9, 2012 with exhibits A and B; and letter from Marc H. Goldberg dated March 13, 2012.
Morris, along with the defendant David E. Bills a/k/a David Bills (Bills), are the owners of certain residential real property located on Riverside Drive in the town of North Elba, Essex County, New York on which there is now a mortgage lien held by plaintiff Deutsche Bank as Trustee for Washington Mutual Bank, F.A. (WAMU). Morris and Bills acquired the property in January 2004 pursuant to a joint venture agreement dated October 24, 2003
, providing in pertinent part as follows:
Attached to the Joint Venture Agreement is a document also dated October 24, 2003 signed by both Bills and Morris, stating: “The undersigned agree that the following property already purchased by David E. Bills and Bonnie L. Morris is subject to the Joint Venture Agreement' between David E. bills and Bonnie L. Morris dated October 24, 2003.—“Riverside”—Riverside Drive, Lake Placid, New York 12946.”
Also, to induce Countrywide Home Loans, Inc. to issue a mortgage to Bills and Morris in December 2004 secured by the subject property, Morris executed an affidavit sworn to December 29, 2004 in which she represented that the property was purchased pursuant to the Joint Venture Agreement ( Exhibit A to Mathias affidavit ).
“1. David E. Bills and Bonnie Morris (hereinafter referred to as the parties') intend to engage in certain joint venture projects in and around Lake Placid, New York, which will usually involve the purchase, improvement and resale of real property. Properties may be purchased in in the name of either or both parties. If a property is purchased in the name of one party only, and is intended to be governed by this agreement, the parties will sign a joint written statement to the effect that the purchase of the property in question shall be subject to this Joint Venture Agreement dated October 24, 2003.
2. The parties will contribute mutually-agreed amounts of capital to each such project, which amounts may not be equal, and shall borrow moneys in amounts and upon terms as may be mutually agreed, with either or both parties being borrowers.
* * *
4. Each property to be purchased by the parties shall be by mutual agreement of the parties. Each property sale or mortgage shall also be by mutual agreement of the parties (or their attorneys-in-fact), except as provided in Paragraph 6.”
Paragraph 6 of the joint venture agreement applies where either party dies and provides the surviving party to unilaterally make “property dale decisions”, and for the agreement to be binding upon and inure to the deceased party's heirs and executors, including a requirement that they execute documents “to effect said sale in the manner decided by the surviving party”.
On November 16, 2005, the defendant Bills, and purportedly Morris, executed and delivered a note in the principal amount of $975,000.00 to WAMU secured by a mortgage on the North Elba property titled in both Bills and Morris. The loan proceeds were used, in part, to satisfy a then-existing mortgage held by Countrywide Home Loans (Countrywide) in the unpaid principal amount of $760,895.21. Bills and Morris thereafter defaulted on the Deutsche Bank mortgage loan and this action ensued. As a result of discovery proceedings which disclosed that the original WAMU loan file of the mortgage transaction contained no documentary identification evidence (i.e., photo identification) establishing that Morris was present at the mortgage closing and signed the loan and mortgage documents, this Court previously granted Morris' motion to preclude Deutsche Bank from offering any documentary evidence at trial relative to the identification of Morris as being one of the individuals who executed those documents.
In her motion for summary judgment, Morris avers that she did not attend the mortgage loan closing in Rochester and did not sign the loan documents including the mortgage because she was in Lake Placid that day, more than two hundred seventy driving miles, and more than five hours driving time, away. Morris has detailed her whereabouts that date, provided the names of witnesses who can confirm those facts, and submitted affidavits from three such witnesses in support of her motion. Moreover, she claims that the signatures on the mortgage loan documents which purport to be hers are not her signature and were not affixed by her or by someone authorized by her to do so. Morris also challenges the validity of the mortgage assignment from WAMU to Deutsche Bank and, should her motion for summary judgment not be granted, seeks to amend her answer to assert a new defense that Deutsche Bank lacks standing plus two counterclaims for unspecified monetary damages for misrepresenta-tion and outrageous conduct causing emotional distress. Finally, she maintains that Deutsche Bank has “unclean hands” in that the person who conducted the mortgage closing from WAMU was, allegedly, a “robo-signer”.
Deutsche Bank opposes the award of summary judgment in favor of Morris, cross-moves for summary judgment against all defendants on the theory of equitable subrogation, and opposes Morris' motion to amend her complaint. Deutsche Bank submits affidavits from two assistant vice-presidents of JPMorgan Chase, N.A. (Chase), the loan servicer for Deutsche Bank, based upon their own personal reviews of the books and records maintained by Chase, including the original loan file containing the subject note and mortgage. Deutsche Bank also relies upon the presumption in CPLR R4538 that “[c]ertification of the acknowledgment or proof of a writing, except a will, in the manner prescribed by law for taking and certifying the acknowledgment or proof of a conveyance of real property within the state is prima facie evidence that it was executed by the person who purported to do so.”
A.
It is well-settled that summary judgment “is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op. v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18, 215 N.E.2d 341)” (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 133, 320 N.E.2d 853, 854). In order for a party to be entitled to summary judgment, “it must clearly appear that no material and triable issue of fact is presented (Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918)” (Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 505, 144 N.E.2d 387, 392). “[I]ssue-finding, rather than issue-determination, is the key to the procedure' (Esteve v. Abad, 271 AppDiv 725, 727, 68 N.Y.S.2d 322, 324)” ( id.; see also, Benizzi v. Bank of Hudson, 50 AD3d 1372, 1373, 855 N.Y.S.2d 764, 765;Gadani v. Dormitory Auth. of State of NY, 43 AD3d 1218, 1219, 841 N.Y.S.2d 709), and summary judgment “should not be granted where there is any doubt as to the existence of such issues, or where the issue is arguable'. (Barrett v. Jacobs, 255 N.Y. 520, 522, 175 NE 275)” (Glick & Dolleck, Inc. v.. Tri–Pac Export Corp., 22 N.Y.2d 439, 441, 293 N.Y.S.2d 93, 94, 239 N.E.2d 725, 726).
“To obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing judgment' in his favor ( CPLR 3212, subd. (b )), and he must do so by tender of evidentiary proof in admissible form” (Friends of Animals, Inc. v. Associated Fur Mfrs., Inc. 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 791–792, 390 N.E.2d 298, 299). “Accordingly, if the movant does not submit sufficient evidence on a particular issue or cause of action to justify judgment as a matter of law, the burden never shifts to the adversary to submit evidence sufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Even where there is no opposition to a motion for summary judgment, the court is not relieved of its obligation to ensure that the movant has demonstrated his or her entitlement to the relief requested.” (Zecca v. Riccardelli, 293 A.D.2d 31, 34, 742 N.Y.S.2d 76, 78). Thus, “if, on the record before the court, it cannot be determined that there are no issues of material fact, the motion must be denied ( see, Udoff v. Zipf, 44 N.Y.2d 117, 122, 404 N.Y.S.2d 332, 375 N.E.2d 392)” (Long Island College Hosp. v. Axelrod, 118 A.D.2d 177, 182, 504 N.Y.S.2d 275, 277 [1986] ).
Here, Morris has failed to meet her burden. Whether or not she attended the closing, executed the mortgage loan documents, agreed to the mortgage as provided in paragraph 4 of the Joint Venture Agreement, or authorized someone to sign the mortgage loan documents on her behalf, the joint venture relationship between her and Bills is fatal to her motions and defenses. “It is well settled that [a] joint venture ... is in a sense a partnership for a limited purpose, and it has long been recognized that the legal consequences of a joint venture are equivalent to those of a partnership,' and, as a result, it is proper to look to the Partnership Law to resolve disputes involving joint ventures (Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 565, 534 N.Y.S.2d 908, 531 N.E.2d 629 [1988];Sagus Marine Corp. v. Donald G. Rynne & Co., Inc., 207 A.D.2d 701, 702, 616 N.Y.S.2d 496 [1994] ).” (Eskenazi v. Schapiro, 27 AD3d 312, 314–315, 812 N.Y.S.2d 474, 476–477 [1st Dept., 2006] ). In partnerships, “each partner acts, as to himself, as a principal, having a joint interest in the partnership property, and, as to each other partner, as a general agent.' First National Bank of Ann Arbor, Mich., v. Farson, 226 N.Y. 218, 221, 123 N.E. 490, 491.” (Caplan v. Caplan, 268 N.Y. 445, 450–451, 198 N.E. 23, 26 [1935];see Partnership Law § 20[1]
). A partner may bind the partnership and all other partners by making, endorsing or accepting bills or notes for partnership purposes ( see Chemung Canal Bank v. Bradner, 44 N.Y. 680 [1871] ). “[A]ll partners are liable ... [j]ointly and severally for everything chargeable to the partnership” ( Partnership Law § 26[a] ) “[w]here, by any wrongful act or omission of any partner in the ordinary course of the business of the partnership, or with the authority of his copartners, loss or injury is caused to any person, not being a partner in the partnership ...” ( Partnership Law § 24 ) and also where one partner or the partnership receives money or property of a third person and either the partner or the partnership misapplies it ( Partnership Law § 25 ). As to all other partnership debts and obligations, all partners are jointly liable ( Partnership Law § 26[a] ).
“Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority.” ( Partnership Law § 20[1] ).
“Where the title to real property is in the name of ... all the partners ..., a conveyance executed by a partner in the partnership name, or in his own name, passes the equitable interest of the partnership, provided the act is one within the authority of the partner under the provisions of subdivision one of section twenty [of the Partnership Law].” ( Partnership Law § 21[4] ). Because “[a] mortgage is an interest in land created by a written instrument providing security for the performance of a duty or the payment of a debt' ( Black's Law Dictionary 1009 [6th ed.1990]; see77 N.Y. Jur.2d, Mortgages and Deeds of Trust §§ 1, 2, at 418–421; see also W.L. Dev. Corp. v. Trifort Realty, 44 N.Y.2d 489, 498, 406 N.Y.S.2d 437, 377 N.E.2d 969 [1978] )” (Moon v. Moon, 6 AD3d 796, 797, 776 N.Y.S.2d 324, 325 (3d Dept., 2004] ), a mortgage constitutes a “conveyance” ( see Real Property Law § 240[2] ).
For the mortgage here to be valid and enforceable against Morris, Deutsche Bank was only required to show that one of the joint venturers, either Morris or Bills, executed the mortgage loan documents. “Partners are vicariously liable with respect to each other and are therefore united in interest ( see, Partnership Law §§ 24, 26; Capital Dimensions v. Oberman Co., 104 A.D.2d 432, 478 N.Y.S.2d 950;Connell v. Hayden, 83 A.D.2d 30, 46, 443 N.Y.S.2d 383).” (Hayes v. Apples & Bells, Inc., 213 A.D.2d 1000, 1001, 624 N.Y.S.2d 490, 492 [4th Dept., 1995] ). “[I]t is well established in equity that the partnership assets must first be used in the payment of partnership liabilities” (In re Peck, 206 N.Y. 55, 60, 99 N.E. 258, 259 [1912] ). It is undisputed that the mortgaged property was subject to the Joint Venture Agreement. No evidence has been submitted nor any claim asserted that Bills did not execute the mortgage loan documents, or that even if he did sign them he did so for purposes other than to benefit the joint venture. There is no contention or proof that Morris did not agree to the subject mortgage as provided in paragraph 4 of the joint venture agreement, or that WAMU or Deutsche Bank had knowledge or notice of any limitations on Bills' authority to enter into the mortgage loan on behalf of the joint venture. Notably, the affidavits submitted by Morris contain no such allegations
. Indeed, Morris does not contest Deutsche Bank's right to obtain judgment against Bills foreclosing the mortgage or recovering on the note. Individual partners are jointly and severally liable for the debt in a promissory note signed by one partner on behalf of partnership ( see, Ellenville Nat. Bank v. Freund, 200 A.D.2d 827, 606 N.Y.S.2d 415 [3d Dept., 1994] ). Thus, WAMU could rely upon the joint venture agreement and the foregoing principles of law applicable to partnerships and partners in proceeding with the closing on the mortgage loan with Bills alone. To the extent that Bills acted wrongfully in obtaining and consummating the mortgage loan from WAMU, it is clear that he was acting “in the ordinary course of the business of the” joint venture such that Morris is jointly and severally liable for any loss or injury Deutsche Bank “to the same extent as the partner so acting or omitting to act.” ( Partnership Law §§ 24, 26 ). “As agents for each other, partners and joint venturers are jointly and severally liable to third parties for any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership'. ( Partnership Law §§ 24, 26[1]; see also, Royal Bank & Trust Co. v. Weintraub, Gold & Alper, 68 N.Y.2d 124, 506 N.Y.S.2d 151, 497 N.E.2d 289;Pedersen v. Manitowoc Co., supra.).” ( Gramercy Equities Corp. v. Dumont, 72 N.Y.2d 560, 565–566, 531 N.E.2d 629, 63, 534 N.Y.S.2d 908, 911 [1988] ). Morris' claims of lack of notice of the default must also fail since as partners with respect to the subject property any notice to and knowledge of Bills relative to the mortgage loan, including notice of default, is imputed to Morris ( Partnership Law § 23; see Mileasing Co. v. Hogan, 87 A.D.2d 961, 451 N.Y.S.2d 211 [3d Dept., 1982] ). For all of the foregoing reasons, Morris' motion for summary judgment must be, and hereby is, denied.
In her affidavit sworn to November 9, 2012 submitted in support of her motion for summary judgment, Morris avers only that she “did not sign the aforesaid mortgage; my signature does not appear on said mortgage”, does not know and never met the attorney in Rochester who executed the certificate of acknowledgment to her alleged signature on the loan documents, has never been to that attorney's law offices, did not receive or cash the payoff check for the Countrywide mortgage loan in the amount of $760,895.21 payable to “Bills, David E and Bonnie”, and that she has never been married to Bills. The remainder of her affidavit refers to her receipt of notice in August 2009 that the loan was “300 days in default” and her whereabouts in Lake Placid, New York on the date of the mortgage loan closing. In the only other affidavit from Morris before the Court, sworn to January 12, 2012, she states: I reiterate that I did not attend the closing of this mortgage loan; I did not even know of the closing; I did not sign the mortgage in question, I did not authorize anyone else to sign it for me.” The remainder of that affidavit relates to the August 2009 notice of default she received, her attempts to speak with someone at WAMU about it, and other post-closing matters.
B.
Also denied is the motion by Morris to amend her answer. “Motions for leave to amend pleadings should be liberally granted absent prejudice or surprise resulting from the delay ( see CPLR 3025[b]; Smith v. Peterson Trust, 254 A.D.2d 479, 480, 678 N.Y.S.2d 788). However, where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit, leave should be denied ( see Tarantini v. Russo Realty Corp., 273 A.D.2d 458, 459, 712 N.Y.S.2d 358;Alejandro v. Riportella, 250 A.D.2d 556, 557, 672 N.Y.S.2d 412).” (Hartford Cas. Ins. Co. v. Vengroff Williams & Associates, Inc., 306 A.D.2d 435, 436–437, 761 N .Y.S.2d 308, 309 [2d Dept., 2003] ). In the proposed answer, Morris alleges a defense of lack of standing and two counterclaims premised upon the mortgage assignment document, though executed on June 15, 2009, not having been recorded until December 16, 2009, five days after this foreclosure action was commenced. Specifically, Morris asserts that the late recording of the assignment deprives Deutsche Bank of standing to maintain this action and constitutes a knowing misrepresentation by Deutsche Bank of its ownership of the assignment of the mortgage in order “to induce [Morris] to submit to the jurisdiction of the Supreme Court of the State of New York in the instant foreclosure action.” She claims that because Deutsche Bank lacks standing, its prosecution of this foreclosure action against her constitutes “extreme and outrageous conduct intending to cause ... severe emotional distress”.
“[A] good assignment of a mortgage is made by delivery only.' Fryer v. Rockefeller, 63 N.Y. 268–276;Runyan v. Mersereau, 11 Johns. 534;Green v. Hart, 1 Johns. 586.” (Curtis v. Moore, 152 N.Y. 159, 162, 46 N.E. 168, 169 [1897] ). “[T]he only effect of recording an assignment of a mortgage is to protect the assignee against a subsequent sale of the same mortgage. If the assignment be not recorded, the assignor can assign to another person, a purchaser in good faith, and for value, who may record his assignment first, and will then hold the mortgage against the first assignee.” (Greene v. Warnick, 64 N.Y. 220 [1876] ). The proposed defense and counterclaims are thus without merit, and the motion by Morris to amend her answer to assert such claims is denied.
C.
Turning to Deutsche Bank's cross-motion for summary judgment, “[e]ntitlement to a judgment of foreclosure may be established, as a matter of law, where a mortgagee produces both the mortgage and unpaid note, together with evidence of the mortgagor's default, thereby shifting the burden to the mortgagor to demonstrate, through both competent and admissible evidence, any defense which could raise a question of fact” (HSBC Bank USA v. Merrill, 37 AD3d 899, 900, 830 N.Y.S.2d 598,leave to appeal dismissed8 NY3d 967, 836 N.Y.S.2d 540, 868 N.E.2d 221;see also, LaSalle Bank N.A. v. Kosarovich, 31 AD3d 904, 905, 820 N.Y.S.2d 144 [2006];Fleet Bank v. Pine Knoll Corp., 290 A.D.2d 792, 794, 736 N.Y.S.2d 737 [2002];United Cos. Lending Corp. v. Hingos, 283 A.D.2d 764, 765, 724 N.Y.S.2d 134 [2001];Trustco Bank, Natl. Assn. v. Labriola, 246 A.D.2d 735, 735, 667 N.Y.S.2d 450 [1998] ). Deutsche Bank's submission of the note and mortgage and the affidavits of the two vice-presidents of its loan servicer “established its prima facie entitlement to summary judgment” (Charter One Bank, FSB v. Leone, 45 AD3d 958, 958–959, 845 N.Y.S.2d 513, 515;Trustco Bank, Nat. Ass'n v. Labriola, 246 A.D.2d 735, 735, 667 N.Y.S.2d 450, 450 [3d Dept., 1998] ).
Counsel for Deutsche Bank also submitted an affirmation dated February 9, 2012 complying with his obligations under 22 NYCRR § 202 .12–a(f) ( Exhibit A to affidavit of Marc H. Goldberg, Esq. sworn to February 9, 2012 ).
Once the moving party establishes a right to summary judgment, “[t]he law is well settled that a party, in opposition to a motion for summary judgment, must assemble and lay bare affirmative proof to demonstrate that the matters alleged are real and capable of being established upon a trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718)” (Couch v. Schmidt, 204 A.D.2d 951, 952, 612 N.Y.S.2d 511, 512 [1994] ). “[O]ne opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281–282, 413 N.Y.S.2d 309, 385 N.E.2d 1238;Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258;Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876;Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96)” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 598, 404 N.E.2d 718, 720). “[A] shadowy semblance of an issue or bald, conclusory allegations, even if believable, are insufficient ( see, Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853;Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776;see also, Pizzi v. Bradlees Div. of Stop & Shop, 172 A.D.2d 504, 567 N.Y.S.2d 852;Assing v. United Rubber Supply Co., 126 A.D.2d 590, 511 N.Y.S.2d 31)” (Kazakias v. Bistricer, 180 A.D.2d 666, 667, 580 N.Y.S.2d 879 [1992] ). So too are “mere conclusions, expressions of hope or unsubstantiated allegations or assertions ... (Alvord and Swift v. Stewart M. Muller Constr. Co., 46 N.Y.2d 276, 281–282, 413 N.Y.S.2d 309, 385 N.E.2d 1238;Fried v. Bower & Gardner, 46 N.Y.2d 765, 767, 413 N.Y.S.2d 650, 386 N.E.2d 258;Platzman v. American Totalisator Co., 45 N.Y.2d 910, 912, 411 N.Y.S.2d 230, 383 N.E.2d 876;Mallad Constr. Corp. v. County Fed. Sav. & Loan Ass'n, 32 N.Y.2d 285, 290, 344 N.Y.S.2d 925, 298 N.E.2d 96)” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 598, 404 N.E.2d 718, 720 [1980] ).
“[A]n affidavit from one who has no personal knowledge of the operative facts is without probative value and consequently is insufficient to defeat the motion ( see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 342, 357 N.Y.S.2d 478, 313 N.E.2d 776;Sturtevant v. Home Town Bakery, 192 A.D.2d 904, 905, 597 N.Y.S.2d 176)” (Bronson v. Algonquin Lodge Ass'n Inc., 295 A.D.2d 681, 682, 744 N.Y.S.2d 220, 221 [2002] ). This includes an “affirmation by counsel, without personal knowledge of the facts” (Wisnieski v. Kraft, 242 A.D.2d 290, 291, 661 N.Y.S.2d 46, 47 [1997] ). “The mere averment of facts as upon personal knowledge, however, in a verified complaint or in an affidavit is not sufficient unless circumstances are stated from which the inference can be drawn that the affiant has personal knowledge of the facts which he avers. Hoormann v. Climax Cycle Co., 9 AppDiv 579, 41 NYS 710,cited with approval in Matter of Farley v. Wurz, 217 N.Y. 105, 108, 111 NE 479, 480, and in Zenith Bathing Pavilion v. Fair Oaks S.S. Corp., 240 N.Y. 307, 312, 148 NE 532, 533, 534;Einstein v. Climax Cycle Co., 13 AppDiv 624, 42 NYS 1124” (Reitmeister v. Reitmeister, 273 AD 652, 654, 79 N.Y.S.2d 22, 24 [1948] ).
“Viewing the evidence in a light most favorable to [Morris] as the party opposing summary judgment, and giving her the benefit of every favorable inference ( see, Sheryll v. L & J Hairstylists of Plainview, 272 A.D.2d 603, 709 N.Y.S.2d 429;Rockowitz v. City of New York, 255 A.D.2d 434, 680 N.Y.S.2d 864)” (Perez v. Exel Logistics, Inc., 278 A.D.2d 213, 214, 717 N.Y.S.2d 278, 279;see also Greco v. Boyce, 262 A.D.2d 734, 691 N.Y.S.2d 599), no material issues of fact exist requiring trial. The contentions of Morris' counsel that issues of fact exist because JPMorgan Chase knew or should have known that one of the people involved in the closing was a “robo-signer” and that it had suspended some 56,000 foreclosures in 2010 are speculative at best and not based upon personal knowledge. An award of summary judgment to Deutsche Bank does not deprive Morris of the plethora of alleged rights as claimed by her counsel
. Nothing attributable to Deutsche Bank prevented her from bringing claims against Bills, WAMU, Chase or any other third party; nor was she prevented from seeking disclosure or bills of particulars. To the extent she did not pursue any of those things, it was her own choice.
In his affirmation dated March 14, 2012, counsel for Morris contends that an award of summary judgment to plaintiff would, inter alia, deny Morris her right to cross-claim against Bills, counterclaim against the plaintiff, implead JPMorgan Chase, the attorneys who represented WAMU at the closing, and the mortgage broker who represented WAMU, and seek bills of particulars and discovery, including depositions of representatives and employees of JPMorgan Chase.
The remaining defendants have failed to appear or answer and are in default. Although Deutsche Bank failed “to take proceedings for the entry of judgment within one year after the default, ... sufficient cause is shown why the complaint should not be dismissed.” ( CPLR § 3215[c] ). When parties are in default in a mortgage foreclosure proceeding, the court is required to “ascertain and determine the amount due, or direct a referee to compute the amount due to the plaintiff and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged premises can be sold in parcels ...” (RPAPL § 1321 ). This could not have been done while Morris contested both the validity of the mortgage and the right of Deutsche Bank to foreclose against her undivided one-half interest in the real property. “Moreover, it is clear from this record that the plaintiff did not abandon the action ( see, e.g., Patterson v. Patterson, 220 A.D.2d 731, 633 N.Y.S.2d 75;Ingenito v. Grumman Corp., 192 A.D.2d 509, 596 N.Y.S.2d 83;Byk–Chemie GmbH v. Efka Chems., 161 A.D.2d 196, 554 N.Y.S.2d 582).” (Home Sav. of America, F.A. v. Gkanios, 230 A.D.2d 770, 771, 646 N.Y.S.2d 530, 531 [2d Dept., 1996] ). This action should not be dismissed as against all other defendants ( see, Iorizzo v. Mattikow, 25 AD3d 762, 807 N.Y.S.2d 663 [2006] ).
This Court has considered the remaining issues raised by the parties and the same are either without merit or need not be reached under “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more” (PDK Laboratories Inc. v. U.S. DEA, 362 F3d 786, 799 [ Roberts, J, concurring ]; see also People v. Carvajal, 6 NY3d 305, 316, 812 N.Y.S.2d 395, 402, 845 N.E.2d 1225, 1232 [“We are bound, of course, by principles of judicial restraint not to decide questions unnecessary to the disposition of the appeal”] ).
Deutsche Bank seeks only to foreclose upon the joint venture property. “[P]artnership assets must first be used in the payment of partnership liabilities” ( In re Peck, supra.). It is entitled to summary judgment against Morris, and to judgment by default against all other defendants, to foreclose the mortgage. An order of reference shall issue simultaneously herewith.
It is so ordered.