United States District Court, E.D. New York
REPORT AND RECOMMENDATION
J. BULSARA, UNITED STATES MAGISTRATE JUDGE
Gustavia Home, LLC ("Gustavia") filed this
foreclosure action pursuant to the New York Real Property
Actions and Proceedings Law ("RPAPL") against
Defendants Dominic Nunu ("Nunu"), Danny J. Sumo
("Sumo"), Ved Parkash, Luis Amaya, the New York
State Department of Taxation and Finance, and John Does 1
through 12. The property that Nunu and Sumo own, and that is
the subject of the litigation, is 149-37 256th Street,
Rosedale, New York 11422 (the "Subject Property").
October 6, 2017, Gustavia filed motions for (1) summary
judgment pursuant to Fed.R.Civ.P. 56(a) against
"Defendants"; and (2) to strike the answer and
affirmative defenses raised by Nunu and Sumo. The motions
were referred by the Honorable Raymond J. Dearie to the
undersigned for report and recommendation on March 8, 2018.
Although the motion for summary judgment is titled as one
against "Defendants," the papers only seek relief
against Nunu and Sumo. For the reasons stated below, it is
respectfully recommended that the motion for summary judgment
be granted against Nunu and Sumo, and the motion to strike be
denied as moot.
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a); see generally Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). "A genuine
issue of material fact exists if 'the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.'" Nick's Garage, Inc. v.
Progressive Cas. Ins. Co., 875 F.3d 107, 113-14 (2d Cir.
2017) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
movant bears the burden of "demonstrating] the absence
of a genuine issue of material fact." Celotex,
477 U.S. at 323. "A party asserting that a fact cannot
be or is genuinely disputed must support the assertion"
in one of two ways. Fed.R.Civ.P. 56(c)(1). It may cite to
portions of the record "including depositions,
documents, electronically stored information, affidavits or
declarations," "admissions, interrogatory answers,
or other materials." Fed.R.Civ.P. 56(c)(1)(A).
Alternatively, it may show that "the materials cited do
not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence
to support the fact." Fed.R.Civ.P. 56(c)(1)(B); see
generally Farid v. Smith, 850 F.2d 917, 924 (2d Cir.
determining whether summary judgment is appropriate, [the
Court] must resolve all ambiguities and draw all reasonable
inferences against the moving party." Tolbert u.
Smith, 790 F.3d 427, 434 (2d Cir. 2015) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986)).
case, Nunu and Sumo are appearing pro se; although
Nunu stated several times that an attorney would make an
appearance on his behalf, none ever did. (See Order dated
December 20, 2017 ("No counsel has made an appearance;
as such, the deadlines previously set in the case remain in
place and Mr. Nunu is proceeding pro se[.]")). No
counsel has appeared on Sumo's behalf. Although the same
standards for summary judgment apply, a pro se litigant
"should be given special latitude in responding to [a
summary judgment] motion." Gonzalez v. Long,
889 F.Supp. 639, 642 (E.D.N.Y. 1995); see also Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988)
("[S]pecial solicitude should be afforded pro
se litigants generally, when confronted with motions for
summary judgment."). What that requires in practice is
that the non-moving pro se litigant must be given
notice of the consequences of a "failure to offer
evidence bearing on triable issues." Beacon Enters.,
Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983). In
this District, under Local Civil Rule 56.2, "[a]
represented party moving for summary judgment against a party
proceeding pro se shall serve and file ... the ...
'Notice To Pro Se Litigant Who Opposes a Motion For
Summary Judgment' with the texts of Fed.R.Civ.P. 56 and
Local Civil Rule 56.1 attached." Gustavia attached the
required Rule 56.2 notice, and corresponding attachments,
along with its motion for summary judgment on October 6,
2017. (See Notice To Pro Se Litigant Who Opposes a Motion For
Summary Judgment, Dkt. No. 30, Ex. 9). Those documents were
served on Nunu and Sumo. (See Certificate of Service, Diet.
No. 30, Ex. 10).
in moving for summary judgment or answering such a motion,
litigants are required by the Local Rules to provide a
statement (a Rule 56.1 Statement) setting forth purported
undisputed facts or if controverting any fact, responding to
each assertion. In both instances, the party must support its
position by citing to admissible evidence from the record.
See Local Civil Rule 56.1(b), (d); see also
Fed. R. Civ. P. 56(c) (requiring reliance on admissible
evidence in the record in supporting or controverting a
purported material fact). "The purpose of Local Rule
56.1 is to streamline the consideration of summary judgment
motions by freeing district courts from the need to hunt
through voluminous records without guidance from the
parties." Holtz v. Rockefeller & Co., 258
F.3d 62, 74 (2d Cir. 2001).
submitted a Rule 56.1 Statement containing its allegedly
uncontested material facts with citations to underlying
evidence. (Plaintiffs E.D.N.Y. Local Civil Rule 56.1
Statement of Undisputed Material Facts As To Which There Is
No Genuine Issue To Be Tried dated August 17, 2017, Dkt. No.
30, Ex. 7 ("Rule 56.1 Stmt.")). Under Local Civil
Rule 56.1(c), "[e]ach numbered paragraph in the
statement of material facts . .. will be deemed to be
admitted for purposes of the motion unless specifically
controverted by a correspondingly numbered paragraph" in
an opposing statement. Nunu and Sumo did not respond to
Gustavia's Rule 56.1 Statement, and the statements in
Gustavia's Rule 56.1 Statement are deemed admitted.
See Taylor & Fulton Packing, LLC v. Marco Int'l
Foods, LLC, No. OQ-CV-26i4, 2011 WL 6329194, at *4
(E.D.N.Y. Dec. 16, 2011) ('"A nonmoving party's
failure to respond to a Rule 56.1 statement permits the court
to conclude that the facts asserted in the statement are
uncontested and admissible."') (quoting T.Y. v.
N.Y. City Dep't of Educ, 584 F.3d 412, 417 (2d Cir.
2009)). Nunu or Sumo also did not respond to the motion
itself, but the Court has undertaken an independent review of
the record to determine if there is any material fact in
dispute. The Court has found none, and thus recommends the
granting of summary judgment against them.
following fads, unless otherwise indicated, are drawn from
Gustavia's Rule 56.1 Statement, all of which are deemed
admitted by virtue of Nunu and Sumo's failure to respond.
See Local Civil Rule 56.1(c); e.g., CIT Bank,
NA. v. Metcalfe, No. 15-CV-1829, 2017 WL 3841843, at *1
(E.D.N.Y. Aug. 17, 2017), report and recommendation
adopted, 2017 WL 3841852 (Sept. 1, 2017).
August 6, 2007, Nunu and Sumo executed a "Credit Line
Mortgage" with National City Bank ("National
City") for the Subject Property in the principal amount
of $90, 450. (Rule 56.1 Stmt. ¶ 3; Compl., Dkt. No. 1,
Ex. B ("Mortgage") at 3). Nunu and Sumo initialed
every requisite page and signed the Mortgage. (Mortgage at 3,
5-7). Paragraph nine of the Mortgage provided that if Nunu
and Sumo were in default on their obligations, National City
could foreclose. [Id. at 6). Above the signature
line, the Mortgage stated in capital and bold letters that
"default in the payment of this loan agreement may
result in the loss of the property securing the loan."
(Id. at 7 (emphasis removed)). The Note accompanying
the Mortgage was executed the same day, again by both Nunu
and Sumo. (Rule 56.1 Stmt. ¶ 3; Affidavit of
Jared Dotoli in Support of Plaintiffs Motion for Summary
Judgment, Dkt. No. 30, Ex. 1 ("Dotoli Aft") ¶
6; Compl., Ex. C ("Note") at 3).
Bank, N.A., which was the successor-via merger-to National
City, assigned the Mortgage to Trinity Financial Services,
LLC ("Trinity Financial") on September 3, 2010
(Dotoli Aff. ¶ 4; Compl., Ex. D at 1-2). Trinity
Financial, in turn, transferred the Mortgage to National Note
Equities, LLC ("National Note") on April 13, 2015.
(Dotoli Aff. ¶ 4; Compl., Ex. D at 3-4). On January 7,
2016, National Note then transferred the Mortgage to Crosby
Capital USA, which in turn transferred the Mortgage to
Gustavia on January 7, 2017. (Rule 56.1 Stmt. ¶ 4;
Dotoli Aff. ¶ 4; Compl., Ex. D at 5 & 8). The Note
was simultaneously transferred via allonges between the same
parties, again ending with Gustavia. (Rule 56.1 Stmt. ¶
4; Dotoli Aff. ¶ 4; Compl., Ex. C at 4-6).
with the payment due on August 1, 2009 and all subsequent
payments thereafter, Nunu and Sumo failed to make payments
due under the Note. (Dotoli Aff. ¶ 6). Each failure to
make a payment constituted an Event of Default under the
terms of the Note, and triggered a default under the
Mortgage. (Mortgage ¶¶ 8-9; Note at 3; Dotoli Aff.
¶ 6). On February 4, 2016, SN Servicing Corporation
(Gustavia's debt collection agent) sent "90 Day
Notices" to both Nunu and Sumo warning them they were at
risk of losing the Subject Property. (Compl., Ex. E ("90
Day Notices"); Rule 56.1 Stmt. ¶ 6; Dotoli Aff.
¶ 10). That same day, SN Servicing Corporation sent them
a "30 Day Notice" that informed Nunu and Sumo they
were in default under the Note and Mortgage; and if they
failed to do so, Gustavia could foreclose on the Subject
Property. The 30 Day ...