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Cit Group.consumer Fin., Inc. v Platt w

Cit Group.consumer Fin., Inc. v Platt w

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Published by: DinSFLA on Mar 06, 2012
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[*1] Decided on December 7, 2011
Supreme Court, Queens County
 11410/08Robert J. McDonald, J.The following papers numbered 1 to
read on this motion by plaintiff for summaryudgment against defendant Bruce W. Platt, s/h/a "Bruce W. Platt Sole Heir at Law of DorseyPlatt and Mary Platt" (defendant Platt), to strike the answer of defendant Platt, for leave to
Cit Group/Consumer Fin., Inc. v Platt
2011 NY Slip Op 52185(U) [33 Misc 3d 1231(A)]Decided on December 7, 2011Supreme Court, Queens CountyMcDonald, J.Published byNew York State Law Reporting Bureaupursuant to Judiciary Law §431.This opinion is uncorrected and will not be published in the printed OfficialReports. 
The Cit Group/Consumer Finance, Inc., Plaintiff,againstBruce W. Platt, SOLE HEIR AT LAW OF DORSEY PLATTAND MARY PLATT, and "JOHN DOE No.1" through "JOHNDOE #10," the last 10 names being fictitious and unknown tothe plaintiff, the persons or parties intended being the personsor parties, if any, having or claiming an interest in or lien uponthe mortgaged premises described in the verified complaint, ,Defendants.
Page 1 of 7Cit Group/Consumer Fin., Inc. v Platt (2011 NY Slip Op 52185(U))3/6/2012http://www.nycourts.gov/reporter/3dseries/2011/2011_52185.htm
appoint a referee to compute the amount due and owing plaintiff, and for leave tosubstitute Bank of New York Mellon f/k/a Bank of New York as trustee on behalf of CITMortgage Loan Trust 2007-1 (BoNY), as the party plaintiff, and for leave to amend thecaption to reflect that substitution and deleting the names "John Doe #1" through "John Doe#10" as party defendants.Papers
 Notice of Motion - Affidavit - Exhibits1-7[*2] Answering Affidavits - Exhibits8-10Upon the foregoing papers it is ordered that the motion is determined as follows:Plaintiff commenced this action on May 6, 2008, seeking to foreclose on a mortgagegiven by defendant Bruce W. Platt, "as sole heir at law of Dorsey Platt and Mary Platt," tosecure his indebtedness in the principal amount of $484,000.00 plus interest, pursuant to apromissory note, with respect to the real property known as 224-19 143rd Avenue, Laurelton,New York. The mortgage lists Mortgage Electronic Registration Systems, Inc. (MERS) asthe nominee of Wilmington Finance, Inc. (Wilmington) and its assignees, refers to MERS asthe mortgagee for the purpose of recording, and provides that the underlying promissory noteis in favor of Wilmington. Further, the mortgage provides that "MERS holds only legal titleto the rights granted by [defendant Platt] ..., but, if necessary to comply with law or custom,"MERS has the right to foreclose and "to take any action required of [Wilmington]." In itscomplaint, plaintiff alleged that it was the holder of the subject mortgage pursuant to anassignment dated April 1, 2008, and that defendant Platt defaulted under the terms of themortgage and note by failing to make the monthly installment payment of interest due onNovember 1, 2007 and thereafter, and as a consequence, it elected to accelerate the entiremortgage debt.Defendant Platt, appearing pro se, served a verified answer, asserting affirmativedefenses based upon lack of standing, failure by plaintiff to serve him with notices pursuantto RPAPL 1303 and 1304, and fraud. Defendant Platt claims that the mortgage is a subprimemortgage loan and that he did not receive the requisite statutory notices. He further claims
Page 2 of 7Cit Group/Consumer Fin., Inc. v Platt (2011 NY Slip Op 52185(U))3/6/2012http://www.nycourts.gov/reporter/3dseries/2011/2011_52185.htm
that the lender and mortgage broker conspired to obtain an inflated appraisal of thesubject premises and falsified his income, to induce him to enter into a mortgage loan beyondthat which he could afford.A residential foreclosure conference was held on March 8, 2011, but did not result in asettlement. By order of the same date, it was determined that the action could proceed bymotion.With respect to that branch of the motion by plaintiff for summary judgment as againstdefendant Platt, it is well established that the proponent of a summary judgment motion"must make a prima facie showing of entitlement to judgment as a matter of law, tenderingsufficient evidence to demonstrate the absence of any material issues of fact" (
 Alvarez vProspect Hosp.
, 68 NY2d 320, 324 [1986]). The failure to make such a prima facie showingrequires the denial of the motion regardless of the sufficiency of the opposing papers (
seeWinegrad v New York Univ. Med. Ctr.
, 64 NY2d 851 [1985]). In support of its motion,plaintiff offers a copy of the pleadings, affidavits of service, an affirmation by its counsel, acopy of the subject mortgage, underlying note and allonge, assignments, and an affidavit of Paul Laird, a vice president of Vericrest Financial, Inc., the attorney in fact for plaintiff,attesting to defendant Platt's default under the mortgage and note.Plaintiff has failed to establish its prima facie entitlement to judgment as a matter of law.[*3]"CPLR 3212 (b) provides that a summary judgment motion shall be supported byaffidavit' of a person having knowledge of the facts' as well as other admissible evidence (
seeGTF Mktg. v Colonial Aluminum Sales
, 66 NY2d 965, 967 [1985])" (
 JMD Holding Corp. vCongress Fin. Corp.
, 4 NY3d 373, 384 [2005]). The affidavit of Paul Laird is withoutevidentiary value insofar as the basis of his knowledge and representations regarding themortgage documents and defendant Platt's default in payment are not revealed or inferable(
see Zuckerman v City of New York 
, 49 NY2d 557, 562—563 [1980]). In addition, becausethe complaint is verified by counsel, who lacks personal knowledge of the facts, it also doesnot constitute competent evidence to stand in the place of a proper affidavit of merit (
see Alvarez v Prospect Hosp.
, 68 NY2d at 327 [1986]). That branch of the motion by plaintiff forsummary judgment against defendant Platt is denied.With respect to that branch of plaintiff's motion to strike the affirmative defense assertedby defendant Platt based upon lack of standing,
Page 3 of 7Cit Group/Consumer Fin., Inc. v Platt (2011 NY Slip Op 52185(U))3/6/2012http://www.nycourts.gov/reporter/3dseries/2011/2011_52185.htm

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