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Gustavia Home, LLC v. Nunu

United States District Court, E.D. New York

July 30, 2018

GUSTAVIA HOME, LLC, Plaintiff,
v.
DOMINIC NUNU, DANNY J. SUMO, VED PARKASH, LUIS AMAYA, NEW YORK STATE DEPARTMENT OF TAXATION AND FINANCE, JOHN DOE "1" THROUGH "12", Defendants.

          REPORT AND RECOMMENDATION

          SANKET J. BULSARA, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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").

         On 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.

         I. Legal Standards

         "The 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)).

         The 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. 1988).

         "In 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)).

         In this 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).

         Furthermore, 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).

         Gustavia 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.

         Facts

         The 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).

         On 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.[1] (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).

         PNC 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).[2]

         Beginning 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 ...


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