Preview
FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019
NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
HSBC BANK USA, NATIONAL ASSOCIATION, AS
TRUSTEE FOR DEUTSCHE ALT-A SECURITIES
MORTGAGE LOAN TRUST, SERIES 2007-1 REPLY AFFIRMATION
Plaintiff, Index No. 850029/2019
- against -
ELIZABETH LOWE;
E. L. 27 RELATY LLC A/K/A E.L. 27 REALTY LLC;
GAIL LOWE MAIDMAN LLC;
UNITED STATES OF AMERICA O/B/O INTERNAL
REVENUE SERVICE;
NEW YORK CITY TRANSIT ADJUDICATION
BUREAU;
NEW YORK CITY ENVIRONMENTAL CONTROL
BOARD;
NEW YORK CITY PARKING VIOLATIONS BUREAU;
Defendants.
Todd Marks, Esq., an attorney at law, duly admitted to practice before the Courts
of the State of New York, hereby affirms pursuant to CPLR § 2106 that:
1. I am an associate of Davidson Fink, LLP, the attorneys of record for
Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances
underlying this case.
2. Your deponent submits the instant reply affirmation to address the
opposition to Plaintiff’s pending Plaintiff's Motion to Confirm Referee Report and a
Judgment of Foreclosure and Sale, interposed by counsel on behalf of Elizabeth Lowe
and E. L. 27 Realty LLC a/k/a E.L. 27 Realty LLC (hereinafter “Defendants”).
3. Defendants oppose the motion by stating,
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a.. The Affidavit submitted by the Plaintiff lacks probative value as it is an
out of state Affidavit and lacks a Statement of Conformity
b. Recovery of Interest is Warranted in Equitable Nature Action Pursuant
to CPLR §5001;
c. Plaintiff's Failure to Serve Notice of Referee's Hearing;
d. Rejection of the Referee Report Pursuant to CPLR 4403 and request for
Hearing.
4. For the reasons set forth infra, Plaintiff’s motion should be granted in all
respects and in its entirety and Plaintiff should be permitted to proceed with the instant
action.
The Affidavit of Marcella Davis.
5. The Affidavit of Marcella Davis has probative value.
6. First, it contains a statement which “substantially” conforms to the
statutory template under Real Property Law §309-b. NYSCEF DOC. NO. 281
7. CPLR § 2309(c) requires that when a notary is the foreign acknowledging
officer, a certificate of conformity is required whenever an oath is acknowledged in
writing outside of New York by a non–New York notary, and the document is proffered
for use in New York litigation. Midfirst Bank v. Agho, 991 N.Y.S.2d 623 (Aug. 13,
2014).
8. In Agho, the Court held out-of-state affidavits need merely conform
“substantially” to the foregoing statutory template to be adequate (Real Property Law §
309–b[1], [2] ). Id.
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9. Specifically in that case it held that the MidFirst’s statement substantially
conformed to Real Property Law §309-b when, like here, it was signed in Oklahoma and
proffered for use in New York litigation. Id.
10. It explains that Real Property Law § 309–b provides template language for
a certificate of acknowledgment or proof of execution, made without this state, for real
property conveyances within the state, namely;
“On the ___ day of ____ in the year ____ before me, the
undersigned, personally appe,ared ________________,
personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s)
is (are) subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in
his/her/their capacity(ies), and that by his/her/their
signature(s) on the instrument, the individual(s), or the
person upon behalf of which the individual(s) acted,
executed the instrument”. Id.
11. This same language is that which is used in the affidavit of Marcella
Davis. See, NYSCEF DOC. NO. 281
12. As such, it more than adequately conforms to the statutory requirement.
13. Furthermore, no prior servicers were plead nor argued to have serviced
this loan, so the Affidavit cannot lack probative value for not incorporating any.
14. Finally, submission of every invoice, paid receipt, copies of the insurance
policy and premium notices are not required as proof, as there is no requirement that the
Plaintiff rely on a particular set of records. See, U.S. Bank Nat'l Ass'n v. Ramanababu,
202 A.D.3d 1139, 1141, 163 N.Y.S.3d 254, 256 (2022).
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Recovery of Interest is Warranted in Equitable Nature Action Pursuant to CPLR §5001
15. Defendant fails to show how CPLR §5001 requires a denial of the motion,
and furthermore, fails to move to for relief of interest payment or define those interest
payments obtained though wrongful conduct.
16. As such, it serves as no basis to deny the motion at bar.
Notice of Referee's Hearing
17. Pursuant to the decision and Order denying the previous Motion for
Judgment of Foreclosure and Sale, this court confirmed that Judge’s Bluth’s order
referring the matter to a referee precluded the referee from conducting a hearing, and that
Order itself appointed a new Referee Joseph Buono upon whose discretion a hearing may
be held,. NYSCEF DOC. NO. 289
18. As such, denial for Plaintiff’s failure to notice a hearing upon which was
not held at the referee’s discretion is inapposite.
CPLR § 4303
19. Defendant’s request for a referee hearing pursuant to CPLR § 4403
should be denied, as first, they failed to move for one, and second, as stated above, the
Order denying the previous Motion for Judgment of Foreclosure and Sale explicitly
appointed a new Referee Joseph Buono upon whose discretion a hearing may be held.
20. Furthermore, the Supreme Court remains the ultimate arbitrator of the
dispute, and can reject the referee’s report and “may make new findings with or without
taking additional testimony.” See CPLR § 4402.
21. Morevoer, Defendants have failed to offer any evidence to support this
claim or challenging the calculations made by the Referee, or provide any alternative
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calculation of the amount due. See, Wells Fargo Bank, N.A. v. Javier, 153 AD3d 1199
[1st Dept 2017].
WHEREFORE, it is respectfully requested that Plaintiff’s pending motion be
granted in all respects and in its entirety; and such other and further relief as to the Court
may deem just and proper.
Dated: September 27, 2022
________________________
Todd Marks, Esq.
DAVIDSON FINK
Attorney for Plaintiff
400 Meridian Centre Blvd
Suite 200
Rochester, NY 14618
TO:
Ronald D. Weiss, P.C.
Ronald D. Weiss, Esq.
Attorney for Defendants Elizabeth Lowe & E.L. 27 Realty LLC
734 Walt Whitman Road, Suite 203
Melville, NY 11747
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22 § NYCRR 202.8-b Compliance Certification
I, the undersigned, certify pursuant to 22 § NYCRR 202.8-b that the total number of words in
this document, exclusive of the caption, table of contents, table of authorities and signature
block, is 897, and that that this word count complies with the maximum limit of words
permitted, that being 7,000 for papers “in-chief” or 4,200 for papers in reply. This certification
was prepared in reliance on the word-count function of the word-processing system (Microsoft
Word) used to prepare the document.
Dated: September 27, 2022
____________________
Todd Z. Marks, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK HSBC BANK USA, NATIONAL ASSOCIATION, AS TRUSTEE FOR DEUTSCHE ALT-A SECURITIES MORTGAGE LOAN TRUST, SERIES 2007-1 REPLY AFFIRMATION Plaintiff, Index No. 850029/2019 - against - ELIZABETH LOWE; E. L. 27 RELATY LLC A/K/A E.L. 27 REALTY LLC; GAIL LOWE MAIDMAN LLC; UNITED STATES OF AMERICA O/B/O INTERNAL REVENUE SERVICE; NEW YORK CITY TRANSIT ADJUDICATION BUREAU; NEW YORK CITY ENVIRONMENTAL CONTROL BOARD; NEW YORK CITY PARKING VIOLATIONS BUREAU; Defendants. Todd Marks, Esq., an attorney at law, duly admitted to practice before the Courts of the State of New York, hereby affirms pursuant to CPLR § 2106 that: 1. I am an associate of Davidson Fink, LLP, the attorneys of record for Plaintiff in this action, and as such, I am fully familiar with the facts and circumstances underlying this case. 2. Your deponent submits the instant reply affirmation to address the opposition to Plaintiff’s pending Plaintiff's Motion to Confirm Referee Report and a Judgment of Foreclosure and Sale, interposed by counsel on behalf of Elizabeth Lowe and E. L. 27 Realty LLC a/k/a E.L. 27 Realty LLC (hereinafter “Defendants”). 3. Defendants oppose the motion by stating, 1 of 6 FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022 a.. The Affidavit submitted by the Plaintiff lacks probative value as it is an out of state Affidavit and lacks a Statement of Conformity b. Recovery of Interest is Warranted in Equitable Nature Action Pursuant to CPLR §5001; c. Plaintiff's Failure to Serve Notice of Referee's Hearing; d. Rejection of the Referee Report Pursuant to CPLR 4403 and request for Hearing. 4. For the reasons set forth infra, Plaintiff’s motion should be granted in all respects and in its entirety and Plaintiff should be permitted to proceed with the instant action. The Affidavit of Marcella Davis. 5. The Affidavit of Marcella Davis has probative value. 6. First, it contains a statement which “substantially” conforms to the statutory template under Real Property Law §309-b. NYSCEF DOC. NO. 281 7. CPLR § 2309(c) requires that when a notary is the foreign acknowledging officer, a certificate of conformity is required whenever an oath is acknowledged in writing outside of New York by a non–New York notary, and the document is proffered for use in New York litigation. Midfirst Bank v. Agho, 991 N.Y.S.2d 623 (Aug. 13, 2014). 8. In Agho, the Court held out-of-state affidavits need merely conform “substantially” to the foregoing statutory template to be adequate (Real Property Law § 309–b[1], [2] ). Id. 2 of 6 FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022 9. Specifically in that case it held that the MidFirst’s statement substantially conformed to Real Property Law §309-b when, like here, it was signed in Oklahoma and proffered for use in New York litigation. Id. 10. It explains that Real Property Law § 309–b provides template language for a certificate of acknowledgment or proof of execution, made without this state, for real property conveyances within the state, namely; “On the ___ day of ____ in the year ____ before me, the undersigned, personally appe,ared ________________, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument”. Id. 11. This same language is that which is used in the affidavit of Marcella Davis. See, NYSCEF DOC. NO. 281 12. As such, it more than adequately conforms to the statutory requirement. 13. Furthermore, no prior servicers were plead nor argued to have serviced this loan, so the Affidavit cannot lack probative value for not incorporating any. 14. Finally, submission of every invoice, paid receipt, copies of the insurance policy and premium notices are not required as proof, as there is no requirement that the Plaintiff rely on a particular set of records. See, U.S. Bank Nat'l Ass'n v. Ramanababu, 202 A.D.3d 1139, 1141, 163 N.Y.S.3d 254, 256 (2022). 3 of 6 FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022 Recovery of Interest is Warranted in Equitable Nature Action Pursuant to CPLR §5001 15. Defendant fails to show how CPLR §5001 requires a denial of the motion, and furthermore, fails to move to for relief of interest payment or define those interest payments obtained though wrongful conduct. 16. As such, it serves as no basis to deny the motion at bar. Notice of Referee's Hearing 17. Pursuant to the decision and Order denying the previous Motion for Judgment of Foreclosure and Sale, this court confirmed that Judge’s Bluth’s order referring the matter to a referee precluded the referee from conducting a hearing, and that Order itself appointed a new Referee Joseph Buono upon whose discretion a hearing may be held,. NYSCEF DOC. NO. 289 18. As such, denial for Plaintiff’s failure to notice a hearing upon which was not held at the referee’s discretion is inapposite. CPLR § 4303 19. Defendant’s request for a referee hearing pursuant to CPLR § 4403 should be denied, as first, they failed to move for one, and second, as stated above, the Order denying the previous Motion for Judgment of Foreclosure and Sale explicitly appointed a new Referee Joseph Buono upon whose discretion a hearing may be held. 20. Furthermore, the Supreme Court remains the ultimate arbitrator of the dispute, and can reject the referee’s report and “may make new findings with or without taking additional testimony.” See CPLR § 4402. 21. Morevoer, Defendants have failed to offer any evidence to support this claim or challenging the calculations made by the Referee, or provide any alternative 4 of 6 FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022 calculation of the amount due. See, Wells Fargo Bank, N.A. v. Javier, 153 AD3d 1199 [1st Dept 2017]. WHEREFORE, it is respectfully requested that Plaintiff’s pending motion be granted in all respects and in its entirety; and such other and further relief as to the Court may deem just and proper. Dated: September 27, 2022 ________________________ Todd Marks, Esq. DAVIDSON FINK Attorney for Plaintiff 400 Meridian Centre Blvd Suite 200 Rochester, NY 14618 TO: Ronald D. Weiss, P.C. Ronald D. Weiss, Esq. Attorney for Defendants Elizabeth Lowe & E.L. 27 Realty LLC 734 Walt Whitman Road, Suite 203 Melville, NY 11747 5 of 6 FILED: NEW YORK COUNTY CLERK 09/28/2022 12:45 PM INDEX NO. 850029/2019 NYSCEF DOC. NO. 300 RECEIVED NYSCEF: 09/28/2022 22 § NYCRR 202.8-b Compliance Certification I, the undersigned, certify pursuant to 22 § NYCRR 202.8-b that the total number of words in this document, exclusive of the caption, table of contents, table of authorities and signature block, is 897, and that that this word count complies with the maximum limit of words permitted, that being 7,000 for papers “in-chief” or 4,200 for papers in reply. This certification was prepared in reliance on the word-count function of the word-processing system (Microsoft Word) used to prepare the document. Dated: September 27, 2022 ____________________ Todd Z. Marks, Esq. 6 of 6